C.  A.  A.  McGEE 


LIBRARY 

THE  UNIVERSITY 
OF  CALIFORNIA 

SANTA  BARBARA 


PRESENTED  BY 

Westwick  and    Collison 


C.  A.  A.  McGEE 


NOTES 


ON  THE 


UNITED  STATES  SUPREME  COURT  REP(»RTS 

SUPPLEMENTARY     TO 

ROSE'S  NOTES  OX  UNITED  STATES  REPORTS, 

SHOWING    THE    PRESENT     AUTHORITY    OF     EACH 
CASE    AS    DISCLOSED    BY    THE 


CITATIONS 

FOUND    IN     ALL    THE    REPORTS,    BOTH    FEDERAL    AND    STATE,     SINCE     JULY    1,    1904, 

WITH    PARALLEL    REFERENCES    TO    AMERICAN    STATE    REPORTS 

AND    THE    REPORTER     SYSTEM. 


BY 

CHAS.  L.  Tno:\rpsoN, 

OF  THE  SAN   FRANCISCO  BAR. 


SUPPLEMENT  FOUR. 


SAX  FRANCISCO: 

B  A  N  C  R  0  F  T  -  W  H  I  T  N  E  Y    C  0., 

Law  Publishers  and  Law  Booksellers. 
1909. 


Copyright  1909, 

BY 

BANCEOFT-WHITNEY  COMPANY. 


LIBRARY 

UiMVERSITY  OF  CALIFORNIA 

SAxMA  BARBARA 


PREFACE. 


These  two  volumes  of  citations  to  the  decisions  in  the  United 
States  Supreme  Court  Reports  have  accumulated  since  the 
publication  of  the  last  supplemental  volumes  to  Rose's  Notes 
on  United  States  Reports.  The  thirty-five  thousand  citations 
contained  herein  have  been  treated  under  the  same  plan  fol- 
lowed by  Mr.  Rose  in  the  original  work.  As  in  the  preceding 
supplemental  volumes,  the  syllabi  contained  in  the  original 
notes  have  been  condensed  to  one  line,  with  references  to  the 
exact  volume  and  page  in  the  original  notes  where  the  par- 
ticular point  is  to  be  found  in  Rose's  Notes. 

The  original  syllabus  is  referred  to  by  volume  and  page  of 
Rose's  Notes,  and  the  number  of  the  particular  syllabus  there- 
in which  is  annotated,  thus : 

On  page  853  of  Book  Three  of  Rose's  Notes  w411  be  found 
syllabus  8  of  the  case  of  Bagnell  v.  Broderick ;  therefore,  that 
syllabus  is  referred  to  as  follows : 

*'Syl.  8  (III,  853).     Patent  is  conclusive  of  legal  title." 

In  these  supplemental  volumes  only  cases  which  have  been 
cited  since  the  preparation  of  the  last  supplements  are  to  be 
found.  If  a  case  is  not  referred  to  here,  it  is  because  at  the 
time  of  the  preparation  of  this  work  it  had  not  been  cited. 
Those  eases  which  have  not  been  cited  have  been  omitted. 

As  volumes  172  et  seq.  of  the  United  States  Supreme  Court 
Reports  were  published  after  Rose's  Notes,  the  cited  points  in 
these  volumes  are  contained  in  a  one  line  index  reference  with 
the  page  in  the  Supreme  Court  Report  on  which  the  point  is 
discussed.' 

CHAS.  L.  THOMPSON. 

San  Francisco,  December,  1908. 

(iii) 


THE  CITATIONS  IN  THIS  BOOK 

include  all  from  the  followinfi:  Reports  and  all  jjreceding  tliem 
in  each  state  or  series  since  July  1,  1904: 

Mo.   App 118 

Mont 3:^ 

Xob 70 

Nev 28 

N.    II 73 

N.  J.    Kq C9 

N.  J.   L 72 

N.   M 11 

N.  Y 183 

N.  C 140 

N.    D 13 

Ohio     74 

Okl 16 

Or 47 

Pa 2ir, 

E.   T 27 

S.   C 74 

S.   D 18 

Tenn 115 

Tex 9s 

Tex.   Cr 46 

Tex.   Civ 36 

Utah     29 

Vt 78 

Va 105 

Wash 42 

W.   Va 58 

Wis 128 

Wyo 14 

Am.  St.  Eep 113 

with  duplicate  references  to  the  Reporter  System  and  to  L. 
R.  A. 

(V) 


u.   s 

202 

L    Ed 

50 

Fed 

150 

Ala 

144 

Alaska     

o 

Ariz 

7 

Ark 

78 

Cal 

148 

Cal    App 

2 

Colo      

34 

Colo.    App 

20 

Conn 

. . . .      78 

Del 

Fla     

...4    P( 

■nncwill 

.  . .  .      50 

Ga 

126 

Idaho   

11 

Ill 

224 

Ind 

165 

Ind.  App 

.    36 

Iowa     , 

130 

Kan      

72 

Kv 

119 

La     

116 

Me      

101 

Md 

103 

Mass 

Mich      

191 

144 

Minn 

97 

Miss 

87 

Mo , 

. ...   197 

II  DALLAS. 


2  Dall.   402-409,  1   L.  433,  GEORGIA  v.  BRAILSFOED. 

Sy].  3  (I,  10).  Requisites  of  bill  for  preliminary  injunction. 
Approved  in  Camors-McC'onnell  Co.  v.  McConncll,  140  Fed.  418, 
enjoining  dcfendrunt  from  violating  contract  not  to  engage  in  certain 
business;  Hoy  v.  Altoona  etc.  Oil  Co.,  136  Fed.  485,  granting  pre- 
Jiminary  injunction  where  recovery  of  shares  of  stock  alleged  to  have 
been  obtained  through  fraud;  Harriman  v.  Northern  Sec.  Co.,  132 
Fed.  478,  granting  preliminary  injunction  to  prevent  violation  of 
anti-trust  act  by   merger  of  corporations  in  new   corporation. 

Syl.  5   (I,  10).     State's  suit  through  governor. 

Approved  in  dissenting  opinion  in  Henry  v.  State,  87  Miss.  94,  39 
So.  884,  majority  holding  under  constitution  governor  cannot  sue  in 
name   of   state. 

2  Dall.  4 19-480,   1  L.   440,  CIIISHOLM  v.   GEORGIA. 
Syl.  1   (I,  13).     Suability  of  state. 
See  108  Am.  St.  Rep.  832,  note. 

Syl.   4    (I,   15).     Jurisdiction   of  federal   courts   limited. 
Approved  in  Clark  v.  AUaman,  71  Kan.  215,  80  Pac.  575,  determin- 
ing applicability  of  common-law  rules  relating  to  riparian  rights. 

Syl.   8   (I,   16).     Service   of  subpoena   in  state's   suit. 

Approved  in  dissenting  opinion  in  Henry  v.  State,  87  Miss.  94,  95, 
39  So.  884,  majority  holding  under  constitution  governor  cannot  sue 
in  name  of  state. 

A  £1] 


Ill  DALLAS. 


3  Dall.  6-16,  1  L.  485,  GLASS  v.  THE  SLOOP  BETSEY. 

Syl.  2   (I,  18).     District  court's  admiralty  jurisdiction. 

Approved  in  Arnold  v.  Eastin,  116  Ky.  699,  76  S.  W.  856,  recording 
of  mortgage  in  place  other  than  home  port  of  vessel  does  not  impart 
constructive   notice. 

3  Dall.  17,  18.  1  L.  490,  UNITED  STATES  v.  HAMILTON. 

Sjd.   1   (I,  20).     Habeas  corpus  to  admit  to  bail. 
Approved  in  Ex  parte  Moran,   144  Fed.   600,   circuit   courts   of  ap- 
peals may   issue   habeas  corpus  within  respective  jurisdictions. 

3  Dall.   19-42,  1  L.  491,  BINGHAM  v.  CABBOT. 

(I,  21.)  Miscellaneous.  Cited  in  Watkins  v.  Mooney,  114  Ky.  652, 
71  S.  W.  624,  where  mayor  was  absent  for  a  day  at  another  town 
twenty-five  miles  distant,  president  of  aldermanic  board  cannot  ap- 
point police  commissioner. 

3  Dall.  42-54,  1  L.  502,  UNITED  STATES  v.  LAWKENCE. 

Syl.   1    (I,   23).     Mandamus   to   compel   decision. 

Approved  in  Cattermole  v.  Ionia  Circuit  Judge,  136  Mich.  280.  99 
N.  W.  3,  mandamus  does  not  lie  to  review  action  of  circuit  judge 
in  quashing  writ  and  to  compel  setting  aside  of  order. 

3  Dall.  54-120,  1  L.  507,  PENHALLOW  v.  DOANE. 

Syl.  3  (I,  25).     Admiralty  proceedings  are  in  rem. 

Approved  in  Erie  etc.  Transp.  Co.  v.  Erie  E.  Co.,  142  Fed.  12,  after 
decree  determining  fault  for  collision  and  damages  and  apportioning 
same,  admiralty  cannot  entertain  independent  suit  by  one  vessel  to 
enforce  contribution  for  cargo  damage. 

3  Dall.  121-132,  1  L.  535,  UNITED  STATES  v.  PETERS. 
Syl.   1    (I,   28).     Prohibition   to   district   judge. 
See  111   Am.   St.  Eep.   944,  note. 

3  Dall.   171-184,  1  L.  556,  HYLTON  v.  UNITED  STATES. 
Syl.  1   (I,  30).     Tax  on  carriages  not  direct  tax. 

Approved  in  People  v.  Reardon,  184  N.  Y.  447,  112  Am.  St.  Eep. 
637,  77  N.  E.  975,  upholding  tax  on  stock  transfers. 

[2] 


3  Notes  on  U.  S.  Reports.  3  Dall.  199-369 

3  Dall.  199  285,  1  L.  5G8,  WARE  v.  HYLTON. 

Syl.   4    (I,   34).     Treaty    overrides   prior   statute. 

Approved  in  In  re  Wyman,  191  Mass.  279,  77  N.  E.  380,  under 
Russian  treaty,  Russian  vice-consul  entitled  to  letters  in  estate  of 
intestate   Russian   to    exclusion   of   public   administrator. 

3  Dall.  297-301,  1  L.  610,  UNITED  STATES  v.  LA  VENGEANCE. 

Syl.   1    (I,   36).     Forfeiture   of  vessel  is   civil   proceeding. 

Approved  in  Kirkland  v.  State,  72  Ark.  179,  105  Am.  St.  Rep.  25, 
78  S.  W.  773,  65  L.  R.  A.  76,  act  of  1899,  providing  for  condemnation 
and  summary  destruction  of  liquor  illegally  kept  for  sale  prescribes 
civil  proceeding  so  that  mere  preponderance  of  evidence  suffices. 

3  Dall.  306,  1  L.  613,  ARCAMBEL  v.  WISEMAN. 

Syl.  1   (I,  39).     Attorneys'  fees  as  damages. 

Approved  in  Frantz  v.  Saylor,  12  Okl.  42,  69  Pac.  795,  following 
rule;  Lindeberg  v.  Howard,  146  Fed.  470,  in  action  on  injunction 
bond  given  in  Alaska  territorial  court  attorneys'  fees  expended  in 
obtaining  dissolution  of  injunction  are  not  proper  element  of  damages. 

3  Dall.  320,  321,   1   L.   619,   GRAYSON  v.   VIRGINIA. 

Syl.  1   (I,  41).     Service  of  process  against  state. 

Approved  in  Henry  v.  State,  87  Miss.  34,  95,  39  So.  863,  884,  under 
constitution,  governor  cannot  sue  in  name  of  state. 

3   Dall.   321-330,   1   L.   619,   WISCART  v.   D'AUCHY. 

Syl.   4    (I,   42).     Effect   of   appeal. 

Approved  in  Chattanooga  v.  Keith,  115  Tenn.  589,  94  S.  W.  63, 
upholding  provision  of  Chattanooga  charter  denying  right  of  appeal 
from  city  court  where   fine   does   not  exceed  ten   dollars. 

3  Dall.  365-369,  1  L.  638,  BROWN  v.  BARRY. 

Syl.   1    (I,   50).     Construction   of   repealing   statutes. 

Approved  in  Pepin  Tp.  v.  Sage,  129  Fed.  662,  64  C.  C.  A.  160, 
applying  rule  under  Minnesota  act  of  1894  to  act  repealing  special 
act   creating   village. 

Syl.  2   (I,  50).     Strict   construction  of  statutes. 

Approved  in  Whitfield  v.  Aetna  Life  Ins.  Co.,  144  Fed.  360,  under 
Rev.  St.  Mo.  1899,  §  7896,  suicide  of  insured,  whether  sane  or  insane, 
does  not  avoid  policy  unless  act  contemplated  at  time  of  application 
for  policy;  White  etc.  Pub.  Co.  v.  Apollo  Co.,  139  Fed.  432,  construing 
copyright  act. 


3  Dall.  37a-401  Notes  on  U.  S.  Eeports.  4 

3  Dall.  378-382,  1  L.  644,  HOLLINGSWOKTII  v.  VIEGINIA. 

Syl.  1  (I,  53).  President  need  not  approve  constitutional  amend- 
ment. 

Approved  in  Warficld  v.  Vandiver,  101  Md.  117,  60  Atl.  542.  con- 
stitutional amendment  need  not  be  presented  to  governor  before  sub- 
mission to  people. 

Syl.  2  (I,  53).     Eleventh  amendment,  suits  against  state. 

Approved  in  Alabama  etc.  School  v.  Addler,  144  Ala.  557,  42  So. 
117,  judgment  against  Alabama  Girls'  Industrial  School  ia  void  for 
want  of  jurisdiction,  as  judgment  against  state. 

3  Dall.  382-384,  1  L.  646,  BINGHAM  v.  CABOT. 

(I,  54.)  Miscellaneoils.  Cited  in  Eobinson  v.  Peru  Plow  etc.  Co.,  1 
Okl.  149,  31  Pac.  990,  consent   cannot   give   jurisdiction. 

3  Dall.  386-401,  1  L.  648,  CALDER  v.  BULL. 

Syl.   1    (I,  57).     Ex  post   facto  laws  defined. 

Approved  in  Eooney  v.  North  Dakota,  196  U.  S.  325,  49  L.  497,  25 
Sup.  Ct.  264,  North  Dakota  act  of  1903,  changing  place  of  confinement 
to  penitentiary  before  execution  of  death  penalty,  is  not  ex  post  facto 
as  applied  to  conviction  before  its  passage;  Goode  v.  State,  50 
Fla.  47,  39  So.  462,  statute  changing  rules  as  to  sufficiency  of 
evidence  in  prosecutions  for  violations  of  liquor  laws  ex  post  facto 
us  to  offense  committed  prior  to  law;  State  v.  Tyree,  70  Kan.  205, 
78  Pac.  525,  where  one  convicted  prior  to  Indeterminate  Sentence 
Law  of  1903,  but  sentence  under  that  law,  such  law  ex  post  facto 
as  to  him;  State  v.  Eooney,  12  N.  D.  150,  95  N.  W.  515,  act  of  1903, 
substituting  penitentiary  for  county  jail  as  place  of  confinement 
pending  execution,  and  directing  executions  at  penitentiary,  is  not 
ex  post  facto  as  to  one  convicted  before  its  passage;  Ex  parte  Larkin, 
1  Okl.  58,  25  Pac.  747,  11  L.  R.  A.  418,  Act  1st  Assem.  Okl.  T.,  §  1, 
continuing  in  force  Neb.  Cr.  Code,  is  not  ex  post  facto  as  to  offense 
already   committed. 

Syl.   3    (I,   S3).     What   is   vested   right.. 

Approve'd  in  Lohrstrofer  v.  Lohrstrofer,  140  Mich.  560,  104  N.  W. 
146,  holding  void  Comp.  Laws  1897,  §  552,  amending  law  requiring 
payment  of  register's  fees  on  appeal,  so  as  to  provide  for  reinstate- 
ment of  appeals  dismissed  for  nonpayment,  in  so  far  as  applicable 
to  appeals  dismissed  prior  to  passage  of  act;  Graham  v.  Great  Falls 
etc.  Co.,  30  Mont.  400,  76  Pac.  810,  preferential  interest  given  success- 
ful contestant  under  21  Stat.  140,  not  vested  in  property  right. 

Syl.  5   (I,  85).     Statutes  against  social  compact. 

Approved  in  Castner  v.  City  of  Minneapolis,  92  Minn.  86,  99  N.  W. 
361,  holding  void  reimbursement  by  city  council  of  defeated  candidate 
for   office   for  expenses  of  contest;   State   v.   Barrett,   138   N.   C.   640, 


5  Notes  on  U.  S.  Eeports.  4  Dall.  8-11 

50  S.  E.  509,  upholding  Laws  1903,  p.  749,  c.  434,  making  possession  of 
more  than  quart  of  liquor  prima  facie  evidence  of  keeping  it  for  sale; 
Ex  parte  Anderson,  46  Tex.  Cr.  379,  380,  390,  392,  81  S.  W.  975,  976, 
982,  983,  city  court  has  no  jurisdiction  to  try  accused  for  violation 
of  state  penal  statute;  dissenting  opinion  in  Crane  v.  Waldron,  133 
Mich.  84,  94  N.  W.  597,  majority  upholding  act  99  of  1897,  relating 
to  proof  in  suits  in  aid  of  execution;  dissenting  opinion  in  Battery 
Park  Bank  v.  Madison  County  Commrs.,  135  N.  C.  244,  47  S.  E. 
1019,  majority  holding  Laws  1903,  p.  480,  c.  281,  relating  to  refunding 
bonds  of  Madison  county  is  not  mandatory. 

Syl.  6   (I,  87).     Exercise  of  judicial  functions  by  legislature. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987, 
city  court  has  no  jurisdiction  to  try  accused  for  violation  of  state 
statute. 

3  Dall.  411-415,  1  L.  658,  FOWLER  v.  LINDSEY. 

Syl.  3   (I,  92).     When  certiorari  lies. 

Approved  in  Whitney  v.  Dick,  202  U.  S.  138,  139,  50  L.  965,  966, 
26  Sup.  Ct.  584,  certiorari  cannot  be  issued  by  circuit  court  of  appeals 
to  review  conviction  in  lower  federal  court. 


IV  DALLAS. 


4  Dall.  8-11,  1  L.  718,  TURNER  v.  BANK  OF  NORTH  AMERICA. 

Syl.   1   (I,  98).     Assignee's  suit  in  federal  court. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup. 
Ct.  220,  applying  rule  in  suit  to  foreclose  trust  deed,  though  bill  also 
prays  for  cancellation  of  release  of  trust  deeds  to  grantor  as  in  fraud 
of  complainant's  rights,  who  held  deeds  as  collateral  security  for 
loan  to  trustee;  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  121,  122, 
66  C.  C.  A.  179,  federal  court  has  no  jurisdiction  of  suit  by  assignee 
of  oral  contract  to  recover  money  due  thereon,  where  assignor  could 
not  have  maintained  suit  in  such  court. 

Syl.  3  (I,  99).     Presumption  against  federal  jurisdiction. 

Approved  in  United  States  v.  Barrett,  135  Fed.  194,  federal  court 
has  no  jurisdiction  over  action  on  bond  of  government  contractor  for 
use  of  materialman  unless  requisite  citizenship  and  amount  are  affirm- 
atively shown;  Yocum  v.  Parker,  130  Fed.  771,  66  C.  C.  A.  80,  aver- 
ment of  residence  is  not  equivalent  to  one  of  citizenship  for  purpose 
of  federal  jurisdiction;  Robinson  v.  Peru  Plow  etc.  Co.,  1  Okl.  149, 
31  Pac.  990,  upholding  territorial  court's  jurisdiction  over  suit,  though 
petition  incorrectly  described  court  as  federal  court. 


1  Cr.  1-180  Notes  on  U.  S.  Eeports.  6 

Syl.  4   (I,   100).     Limitations  on  federal  jurisdiction. 

Approved  in  Stevenson  v.  Fain,  195  U.  S.  167,  49  L,  143,  25  Sup. 
Ct.  6,  circuit  court  of  appeal  decisions  in  controversy  between  citizens 
of  different  states  is  final,  though  parties  claimed  title  to  property  in 
controversy  under  grants  from  different   states. 

4  Dall.  22-27,  1  L.  724,  COUESE  v.  STEAD. 

Syl.  3   (I,  106).     Judicial  notice  of  state  laws. 
See  113  Am.  St.  Eep.  873,  note. 


I  CRANCH. 


1  Cr.  1-45,  2  L.  15,  TALBOT  v.  SEEMAN. 
Syl.    6    (I,    109).     Proof    of    foreign    laws. 
See  113  Am.  St.  Eep.  874,  884,  note. 

1   Cr.   45-103,   2  L.   29,  WILSON   v.   MASON". 

Syl.  5  (I,  112).     Trustee — Eequisition  of  title — Notice  of  equity. 

Approved  in  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  bona 
fide  purchaser  of  lands  which  had  been  previously  conveyed  by 
grantor  must  allege  and  prove  want  of  notice  and  actual  payment  of 
money  independently  of  recitals  in  deed. 

1  Cr.  103-110,  2  L.  49,  UNITED  STATES  v.  SCHOONEE  PEGGY. 

Syl.  5   (I,  113).     Effect  of  change  of  law  pending  appeal. 

Approved  in  dissenting  opinion  in  Chicago  etc.  E.  E.  Co.  v.  People, 
219  111.  413,  76  N.  E.  572,  3  L.  E.  A.  (N.  S.)  508,  majority  holding 
where  supreme  court  finally  adjudges  particular  tax  invalid,  legis- 
lature cannot  validate  levy  and  make  tax  collectible. 

1  Cr.  117-137,  2  L.  53,  TUENEE  v.  FEXDALL. 

Syl.  5   (I,  115).     Execution,  on  what  leviable. 

Approved  in  Commerce  Vault  Co.  v.  Barrett,  222  111.  176,  177,  78 
N.  E.  48,  49,  where  mortgaged  leasehold  was  sold  on  foreclosure  and 
holder  of  judgment  against  mortgagor,  obtained  after  foreclosure  re- 
deemed, had  leasehold  resold,  other  judgments  obtained  by  judg- 
ment creditor  after  resale  are  not  lien  on  excess. 

1  Cr.  137-180,  2  L.  60,  MAEBUEY  v.  MADISON. 

Syl.  1  (I,  118).  Supreme  court's  jurisdiction  limited  by  constitu- 
tion. 

Approved  in  Ex  parte  Cox,  44  Fla.  540.  33  So.  510,  61  L.  E.  A.  734, 
writ   of   error   does  not   lie   from   supreme   court   to   review  judgment 


7  Notes  on  U.  fcJ.  Keports,  1  Cr.  137-180 

in  habeas  corpus  rendered  by  justice  thereof  in  habeas  corpus;  San- 
ders V.  Commonwealth,  117  Ky.  7,  111  Am.  St.  Rep.  222,  77  S.  W. 
359,  1  L.  R.  A.  (N.  S.)  932,  upholding  act  of  1899,  prohibiting  sale 
of  milk  from  cows  fed  on  distillery  slop. 

Syl.  2   (I,  127).     What  is  appellate  jurisdiction. 

Approved  in  Ex  parte  Moran,  144  Fed.  596,  determining  power  of 
circuit  court  of  appeals  to  issue  habeas  corpus  to  inquire  into  power 
of  Oklahoma  court  in  capital  cases;  State  v.  Ausherman,  11  Wyo. 
425,  72  Pac.  202,  upholding  jurisdiction  of  supreme  court  to  issue 
prohibition  to  restrain  action  of  inferior  court  in  excess  of  its  juris- 
diction. 

Syl.   3    (I,   131).     Mandamus,  when   lies. 

Approved  in  Wadsworth  v.  Bo3-sen,  148  Fed.  780,  denying  juris- 
diction of  suit  to  enjoin  Indian  agent  from  obstructing  complainant 
from  prospecting  on  reservation  lands;  Barber  Asphalt  Pav.  Co.  v. 
Morris,  132  Fed.  955,  66  C.  C.  A.  55,  67  L.  R.  A.  761,  upholding  power 
of  circuit  court  of  appeals  to  issue  mandamus  where  lower  federal 
court  stayed  all  proceedings  until  determination  of  matter  by  state 
court;  State  ex  rel.  Higdon  v.  Jelks,  138  Ala.  121,  35  So.  61,  denying 
mandamus  to  compel  governor  to  reinstate  national  guard  officer; 
Traynor  v.  Beckham,  116  Ky.  24,  74  S.  W.  1107,  mandamus  lies  to 
governor  to  compel  issuance  of  commission  to  police  judge  legally 
appointed  by  city  council;  McDaid  v.  Territory,  1  Okl.  98,  30  Pac. 
440,  granting  mandamus-  to  compel  townsite  trustees  to  execute  deed 
to  contestant  they  have  decided  is  entitled  to  deed;  Clement  v. 
Graham,  78  Vt.  319,  63  Atl.  155,  granting  mandamus  on  petition  of 
taxpayer  to  compel  state  auditor  to  permit  inspection  of  vouchers  in 
his  office;  State  v.  Brooks,  14  Wyo.  412,  84  Pac.  490,  upholding  juris- 
diction to  issue  mandamus  to  compel  governor  to  issue  certificate  of 
election  as  state  treasurer. 

Syl.  4  (I,  144).     When  right  to  appointive  office  complete. 

Approved  in  Harrington  v.  Pardee,  1  Cal.  App.  280,  82  Pac.  84, 
under  St.  1887,  p.  67,  c.  57,  appointment  is  not  complete  until  com- 
mission is  issued. 

Syl.  7   (I,   153).     Review  of  executive  acts. 

Approved  in  Atkinson  v.  Woodmansee,  68  Kan.  81,  90,  74  Pac.  644, 
647,  64  L.  R.  A.  325,  holding  void  Gen.  St.  1901,  §  5125,  permitting 
recovery  of  attorneys'  fees  as  costs  in  mechanics'  liens  cases.  See 
98  Am.  St.  Rep.  874,  note. 

Syl.  8   (I,  156).     Duty  of  courts  to  declare  statutes  void. 

Approved  in  Hume  v.  Laurel  Hill  Cemetery,  142  Fed.  563,  holding 
void  San  Francisco  ordinance  prohibiting  burials  within  city  limits; 
Ex  parte  Anderson,  46  Tex.  Cr.  390,  391,  81  S.  W.  981,  982,  city 
court  has  no  jurisdiction  to  try  accused  for  violation  of  state  penal 
statute;  State  v.  Chittenden,  127  Wis.  519,  521,   107  N.  W.  517,  518, 


1  Cr.  252-343  Notes  on  U.  S.  Reports.  8 

construing  dental  act;  dissenting  opinion  in  State  v.  Moore,  76  Ark. 
206,  88  S.  W.  884,  majority  upholding  state  guard  appropriation  act 
of  1905. 

Distinguished  in  Higgins  v.  Tax  Assessors  of  Pawtueket,  27  R.  I. 
405,  63  Atl.  36,  upholding  Practice  Act  1905,  p.  4,  §  12,  giving  superior 
court  jurisdiction  in  cases  of  prerogative  writs. 

1  Cr.  252-259,  2  L.  98,  UNITED  STATES  v.  SIMMS. 

(I,  165.)     Instance  of  appellate  jurisdiction  in  criminal  case. 

Distinguished  in  New  v.  Oklahoma,  195  U.  S.  256,  49  L.  184,  25 
Sup.  Ct.  68,  supreme  court  cannot  review  judgment  of  Oklahoma 
supreme  court  in  capital  cases. 

1  Cr.  259-282,  2  L.  101,  FENWICK  v.  SEAES. 

Syl.  1    (I,  167).     Suit  by  foreign  administrator. 

Distinguished  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  306, 
executor  may  sue  in  state  other  than  that  of  appointment  to  recover 
from  his  agents  proceeds  of  sale  of  land  belonging  to  decedent's 
estate. 

1  Cr.  299-309,  2  L.   115,  STUART  v.  LAIRD. 

Syl.    3    (I,    168).     Contemporaneous    statutory    construction. 

Approved  in  State  v.  Bryan,  50  Fla.  390,  39  So.  960,  construing 
school  laws;  State  v.  New  Orleans  Ry.  &  Light  Co.,  116  La.  148,  40 
So.  598,  where  under  same  provisions  in  two  constitutions  exempting 
manufacturers  from  license  taxes,  legislature  has  for  more  than 
twenty  years  licensed  electric  light  companies,  construction  entitled 
to  weight;  State  v.  Northern  Pac.  Ry.  Co.,  95  Minn.  47,  103  N.  W. 
732,  foreign  railroad,  paying  taxes  under  gross  earnings  law,  not 
prevented  by  failure  to  list  credits  from  deducting  debts  from  such 
credits;  Henry  v.  State,  87  Miss.  57,  58,  39  So.  871,  Acts  1900,  p.  63, 
c.  56,  relating  to  occupancy  of  lands  by  convicts,  does  not  repeal 
Rev.  Code  1892,  §  3201,  providing  for  leasing  of  lands  acquired  by 
prison  board;  Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987, 
city  court  has  no  jurisdiction  to  try  accused  for  alleged  violation  of 
state  penal  statute;  State  v.  Stimpson,  78  Vt.  132,  62  Atl.  17,  1 
L.  R.  A.  (N.  S.)  1153,  upholding  statute  permitting  prosecution  by 
information  all  crimes  except  those  punishable  by  death  or  life 
imprisonment. 

1   Cr.  343,  2  L.   129,  ABERCROMBIE  v.  DUPUIS. 

Syl.   1   (I,  177).     Necessity  for  averment  of  citizenship. 

Approved  in  Kansas  City  etc.  Ry.  Co.  v.  Prunty,  133  Fed.  16,  66 
C.  C.  A.  163,  right  to  remove  to  federal  court  on  ground  of  diverse 
citizenship  not  shown  by  mere  averment  of  residence. 


II  CRANCH. 


2  Cr.  9,  2  L.  191,  WOOD  v.  WAGXO^r. 

(T,  182.)     Miscellaneous.     Cited  in  Robinson  v.  Peru  Plow  etc.  Co., 

1  Okl.  149,  31  Pac.  990,  consent  cannot  give  jurisJiction, 

2  Cr.  126,  2  L.  229,  CAPEON  v,  VAN  NOORDIN. 
Syl.   1   (I,  187).     Record  must  show  citizenship. 

Approved  in  Utah-Xevada  Co.  v.  De  Lamar,  133  Fed.  121.  G6  C. 
C.  A.  179,  federal  court  has  no  jurisdiction  of  suit  by  assignee  of 
oral  contract  to  recover  money  due  thereon  unless  record  shows 
assignor  could  sue  therein;  Myers  v.  Berry,  3  Okl.  618,  41  Pac.  582, 
denying  equity  jurisdiction  over  petition  to  annul  action  of  townsite 
trustees  in  disposing  of  lot  where  findings  on  which  action  bused 
and  allegations  of  fraud  are   not  set  out. 

Syl.  2   (I,  189).     Assignability  of  want  of  jurisdiction  by  plaintiff. 

Approved  in  International  etc.  R.  Co.  v.  Hoj'le,  149  Fed.  182, 
following  rule;  Alexander  v.  Crollott,  199  U.  S.  581,  50  L.  317,  26 
Sup.  Ct.  161,  New  Mexico  territorial  supreme  court  may  refuse  to 
restrain  justice  of  peace  from  taking  further  proceedings  in  unlawful 
detainer. 

2  Cr.  127-169,  2  L.  229,  HEAD  v.  PROVIDENCE  INS.  CO, 
Syl.  1  (I,  189).  Corporate  powers  derived  from  charter. 
Approved  in  Silver  v.  Indiana  State  Board,  35  Ind.  App.  459.  72 
N.  E.  836,  construing  statutes  relating  to  revision  of  school  books; 
St.  Louis  Police  etc.  Assn.  v.  Tierney,  116  Mo.  App.  460,  463,  91 
S.  W.  971,  972,  construing  mutual  police  association's  constitution 
relative  to  designation  of  beneficiary  on  third  day  after  admission; 
Paul  V.  Seattle,  40  Wash.  330,  82  Pac.  604,  under  Seattle  Charter, 
art.  4,  §§  27,  28,  fact  that  benefit  of  irregularly  executed  contract 
has  been  received  by  city  does  not  estop  it  from  denying  liability 
thereon. 

2  Cr.  170-179,  2  L.  243,  LITTLE  v.  BAEREME. 

Syl.  1   (I,  194),     Illegal  acts  by  order  of  superior. 

Approved  in  O'Reilly  De  Camara  v.  Brooke,  135  Fed.  387,  military 
governor  of  Cuba  appointed  pursuant  to  treaty  of  Paris  is  liable  for 
damag.es  caused  by  order  abolishing  franchise  to  slaughter  cattle  in 
Havana. 

£9] 


2  Cr.  180-405  Notes    on   U.    S.    Eeporta.  IC 

2  Cr.  180-185,  2  L.  246,  DUNLOP  v.  BALL. 

Syl.  1   (I,  195).     Payment  presumed  from  lapse  of  time. 

Approved  in  Cobb  v.  Houston,  117  Mo.  App.  655,  94  S.  W.  302, 
under  act  providing  that  judgment  presumed  paid  after  twenty  years, 
but  that  presumption  may  be  repelled  by  written  acknowledgment 
or  proof  of  part  payment,  absence  from  state  does  not  prevent 
running  of  time  in  favor  of  presumption. 

2  Cr.   187-239,  2  L.  249,  CHURCH  v.  HUBBAET. 
Syl.  4   (I,   196).     Proof  of  foreign  laws. 
See  113  Am.  St.  Rep.  881,  884,  note. 

2  Cr.  240-271,  2  L.  266.     MASON  v.  SHIP  BLAIREAU. 

Syl.   5    (I,  201).     Salvage   to   sailor  on   abandonment. 

Approved  in  The  Eliza  Lines,  199  U.  S.  127,  50  L.  119,  26  Sup. 
Ct.  8,  abandonment  of  vessel  entitles  cargo  owners  to  refuse  to  go  on 
with  voyage  where  master  has  not  obtained  vessel  from  salvors  before 
cargo  owners  have  announced  decision. 

Syl.  6   (I,  202).     Admiralty  jurisdiction  over  salvage. 

Approved  in  Disconto  Gesellschaft  v.  Umbreit,  127  Wis.  G60,  106 
N.  W.  823,  where  German  corporation  obtained  judgment  in  Wisconsin 
against  nonresident  alien,  on  cause  of  action  accruing  in  Germany, 
corporation  could  not  impound,  by  ancillary  remedies  in  Wisconsin, 
property  of  debtor  there,  as  against  Wisconsin  creditor  whose  cause 
of  action  subsequently  accrued. 

2  Cr.  336-342,  2  L.  297,  ADAMS  v.   WOODS. 

Syl.    1    (I,   205).     Limitations   against   penal   actions. 

Approved  in  Carter  v.  New  Orleans  etc.  R.  Co.,  143  Fed.  101, 
action  against  carrier  for  damages  for  unlawful  discrimination  is  gov- 
erned by  Rev.  St.,  §  1047,  and  is  barred  in  five  years. 

2  Cr.  358-405,  2  L.  304,  UNITED  STATES  v.  FISHER. 

Syl.  1   (I,  207).     Statutory  construction— Title. 

Approved  in  Farmers'  Loan  etc.  Co.  v.  Sioux  Falls,  131  Fed.  908, 
under  Const.  S.  D.,  art.  13,  §  4,  city  indebted  to  nearly  fifteen  pei 
cent  of  assessed  value  of  property  could  not  issue  bonds  so  as  to 
increase  debt  to  twenty-three  per  cent;  Choctaw  etc.  E.  E.  Co.  v. 
Alexander,  7  Okl.  583,  584,  595,  52  Pac.  945,  54  Pac.  422,  construing 
act  regulating  prairie  fires;  Osgood  v.  Central  Vermont  Ey.  Co.,  77 
Vt.  340,  60  Atl.  139,  70  L.  E.  A.  930,  under  statute  providing  for 
imprisonment  of  agent  of  railroad  whose  negligence  causes  injury, 
but  not  exempting  liability  for  dam.ages,  lessor  of  part  of  right  of 
way    for    coalsheds    under    agreement    for    indemnity    for    negligence 


11  Notes  on  U.   S.   Reports.  3  Cr.  97-174 

of  railroad's  servants,  cannot  recover  for  negligent  running  of  engine 
against  shed;  Anable  v.  Montgomery  County  Commrs.,  34  Ind.  App. 
78,  107  Am.  St.  Eep.  173,  71  N.  E.  274,  arguendo. 

2  Cr.  419-444,  2  L.  324,  GRAVES  v.  BOSTON  MARINE  INS.  CO. 

Syl.  3    (I,   216).     Equity — Adequate   legal   remedy. 

Approved  in  Allen  v.  Myers,  1  Alaska,  117,  applying  rule  in  suit 
to  quiet  title  to  mining  claim. 

2  Cr.  445-453,  2  L.  332,  HEPBURN  v.  ELLZEY. 
Syl.  1    (I,  216).     Citizens  of  state — Federal  suits. 

Approved  in  Ex  parte  Massachusetts,  197  U.  S.  487,  49  L.  848,  25 
Sup.  Ct.  512,  denying  prohibition  as  ancillary  to  suit  between  citi- 
zen of  District  of  Columbia  and  citizens  of  another  state;  lovra  etc. 
Min.  Co.  V.  Bliss,  144  Fed.  455,  where  alien  sued  nonresident  guaranty 
corporation  on  bond  in  which  principal  held  guaranty  company  harm- 
less from  liability  on  bond,  and  in  same  action  plaintiff  sought  to 
hold  principal  for  the  embezzlement  for  which  bond  sued  on,  con- 
troversy was  removable,  regardless  of  principal's  citizenship;  Laden 
V.  Meek,  130  Fed.  879,  65  C.  C.  A.  361,  allegation  in  removal  peti- 
tion that  certain  of  petitioners  are  residents  of  state  other  than  that 
of  plaintiff's  citizenship,  and  that  none  of  petitioners  are  residents 
and  citizens  of  state  whereof  plaintiff  is  citizen,  is  insufficient; 
Robinson  v.  Peru  Plow  etc.  Co.,  1  Okl.  149,  31  Pac.  991. 


Ill  CRANCH. 


3  Cr.  97-139,  2  L.  377,  LAMBERT  v.  PAINE. 

(X,  223.)  Miscellaneous.  Cited  in  Johnson  ▼.  Georgia  Loan  etc. 
Co.,  141  Fed.  597,  bona  fide  purchaser  of  lands  previously  conveyed 
by  grantor  must  allege  and  prove  want  of  notieo  and  payment  of  pur- 
chase money  independently  of  recitals  in  deed. 

3  Cr.  159-174,  2  L.  397,  UNITED  STATES  t.  MORE. 

Syl.  1   (I,  225).     Supreme  court's  appellato  jurisdiction. 

Approved  in  New  v.  Oklahoma,  195  U.  S,  256,  49  L.  184,  25  Sup. 
Ct.  68,  supreme  court  cannot  review  Oklahoma  judgment  in  capital 
case;  Bradford  v.  Southern  Ey.  Co.,  195  V.  S.  250,  49  L.  181,  25 
Sup.  Ct.  55,  writ  of  error  in  forma  pauperis  cannot  be  prosecuted 
from  circuit  court  of  appeals;  Ex  parte  Moran,  144  Fed.  598,  600, 
determining  jurisdiction  of  circuit  court  of  appeals  to  issue  habeas 
corpus  to  determine  power  of  Oklahoma  court  to  imprison  one  con- 
victed of  capital  crime. 


3  Cr.  220-324  Notes  on  U.  S.  Reports.  12 

Syl.  2  (I,  22G).     Supreme  court — Criminal  appeals. 

Approved  iu  Albright  v.  New  Mexico,  200  U.  S.  12,  50  L.  347, 
26  Sup.  Ct.  210,  supreme  court  cannot  review  judgment  of  terri- 
torial court  in  quo  warranto. 

3  Cr.  220-228,  2  L.  417,  MILLIGAN  v.  MILLEDGE. 

Syl.  2  (I,  232).     Equity— Sufficiency  of  plea. 

Approved  in  Glucose  etc.  Co.  v.  Douglass,  145  Fed.  950,  plea  of 
noninfringement  of  patent  is  not  good    in  suit  in  equity. 

3  Cr.  207,  268,  2  L.  435,  STRAWBRIDGE  v.  CURTISS. 

Syl.  1   (I,  235).     Courts — Diverse  citizenship. 

Approved  in  Sweeney  v.  Carter  Oil  Co.,  199  U.  S.  257,  50  L.  180. 
26  Sup.  Ct.  55,  two  citizens  of  different  states  may  sue  citizen  of 
third  state  in  federal  district  of  latter 's  residence;  Anderson  v. 
Barsman,  140  Fed.  11,  circuit  court  has  no  jurisdiction  of  suit  against 
several  defendants  to  enjoin  diversion  of  water,  where  one  of  de- 
fendants is  citizen  of  same  state  as  complainant. 

3  Cr.  270-282,  2  L.  436,  McFERRAN  v.  TAYLOR. 

Syl.  1  (I,  238).     Vendor  bound  by  description. 

Approved  in  Kell  v.  Trenchard,  142  Fed.  23,  where  option  for 
purchase  of  timber  land  stated  minimum  quantity,  and  agent  of 
vendor  by  fraudulent  representations  as  to  boundaries  induced  ven- 
dee  to   make   false  estimate,  vendee   entitled  to  abatement   of  price. 

3  Cr.  293-298,  2  L.  444,  BUDDICUM  v.  KIRK. 

Syl.   2    (I,   240).     Depositions — Notice — Adjournments. 

Distinguished  in  Mann  v.  County  Court,  58  W.  Va.  661,  52  S.  E. 
779,  determining  power  of  court  to  adjourn  to  distant  day. 

3  Cr.  300-311,  2  L.  446,  SIMMS  v.  SLACUM. 

Syl.  1   (I,  241).     Effect  of  fraudulent  judgment. 

Approved  in  dissenting  opinion  in  Haddock  v.  Haddock,  201  U.  S. 
627,  50  L.  893,  26  Sup.  Ct.  525,  majority  holding  mere  domicile  with- 
in state  of  one  party  to  marriage  does  not  give  courts  of  that  state 
jurisdiction  to  render  decree  of  divorce  enforceable  in  all  other 
states    against    nonresident    only    constructively    served. 

3  Cr.  319-324,  2  L.  453,  DIXON  v.  RAMSAY. 

Syl.  1  (I,  245).     Suit  by  foreign  administrator. 

Distinguished  in  Moore  v.  Petty,  135  Fed.  673,  68  CCA.  306,  ex- 
ecutor may  sue  in  foreign  state  to  recover  from  agent  proceeds  of 
sale  of  decedent's  realty. 


13  Notes  on  U.   S.   Reports.  ?.  Cr.  331-453 

Syl.  5   (I,  246).     Law  governing  will  contest. 

Approved  in  Clark  v.  Eltinge,  38  Wash.  383,  107  Am.  St.  Rep. 
858,  80  Pac.  559,  in  action  against  iiusband  and  wife  to  recover  bal- 
ance due  on  mortgage  debt  incurred  while  defendants  were  nonresi- 
dents, liability  of  wife  depends  on  law  of  state  of  residence  at  time 
debt   created. 

3  Cr.  331-337,  2  L.  457,  WISE  v.  WITHERS. 

Syl.  1  (I,  247).     Conclusiveness  of  court-martial 's  decree. 

Approved  in  Hamilton  v.  McClaug'nry,  136  Fed.  447,  where  on  re- 
turn to  habeas  corpus  respondent  justified  under  judgment  of  court- 
martial,  burden  is  on  him  to  show  judgment  based  on  positive  law. 

3  Cr.  337-35G,  2  L.  459,  UNITED  STATES  v.  GRUNDY, 
Syl.  1  (I,  250).  Vesting  of  title — Election  of  remedies. 
Approved  in  Chapman  v.  Mill  Creek  etc.  Coke  Co.,  54  W.  Va.  198, 

46  S.  E.   264,  where  deed  reserved  to  grantors  and  heirs  use   of  any 

of   coal   banks   that    they   may  select   and   there   were   six   coal   veins 

in  land,  there  was  reservation  of  title  in  coal. 

Distinguished  in  dissenting  opinion  in  Chapman  v.  Mill  Creek  etc. 
Coke  Co.,  54  W.  Va.  202,  46  S.  E.  266,  majority  holding  when  deed 
reserved  to  grantors  use  of  coal  banks  that  they  may  select,  and 
there  were  six  coal  veins  in  -land,  there  was  no  reservation  of  title 
in  coal. 

3  Cr.  ,399-414,  2  L.  479,  UNITED  STATES  v.  HETH. 

Syl.  1   (I,  252).     Retroactive  construction  of  statutes. 

Approved  in  Jones  v.  Stockgrowers'  Nat.  Bank,  17  Colo.  App.  83, 
67  Pac.  179,  Laws  1891,  p.  246,  providing  that  final  judgments  are  to 
be  considered  paid  in  full  after  ten  years  from  rendition  unless  re- 
vived, does  not  apply  to  judgments  existing  at  its  passage. 

3  Cr.  448-453,  2  L.  495,  EX  PARTE  BURFORD. 

Syl.  1   (I,  254).     Supreme  court's  jurisdiction  on  habeas  corpus. 

Approved  in  Ex  parte  Moran.  144  Fed.  600,  determining  power  of 
circuit  court  of  appeals  to  issue  habeas  corpus  where  one  was  im- 
prisoned on  conviction  of  capital  crime  in  Oklahoma. 

(I,  254.)  Miscellaneous.  Cited  in  Hyde  v.  Shine.  199  U.  S.  85,  50 
L.  98,  25  Sup.  Ct.  760,  as  to  power  of  circuit  court  to  issue  certiorari 
auxiliary  to  habeas  corpus. 


IV  CRANCH. 


4  Cr.  2-29,  2  L.  531,  JENNINGS  v.  CAESON. 

(I,  260.)  Miscellaneous.  Cited  in  Erie  etc.  Transp.  Co.  v.  Erie  K. 
Co.,  142  Fed.  12,  decree  in  suit  for  damages  by  collision  is  conclusive. 

4  Cr.  46,  47,  2  L.  545,  MONTALIT  v.  MURRAY. 

Syl.  3  (I,  263).     Federal  courts — Suit  by  indorsee. 

Approved  in  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  122,  66  C. 
C  A.  179,  assignee  of  oral  contract  to  recover  money  due  thereon 
cannot  sue  in  federal  court  unless  record  shows  assignor  could  sue 
therein. 

4  Cr.  75-137,  2  L.  554,  EX  PARTE  BOLLMAN  &  SWAETWOUT. 

Syl.  1  (I,  266).     Courts  of  limited  jurisdiction. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  24,  50  L.  644,  26  Sup. 
Ct.  387,  denial,  in  summoning  or  impaneling  jurors  of  any  civil 
rights  secured  by  federal  laws,  does  not,  unless  justified  by  state 
law,  give  right  to  remove   criminal   prosecution. 

Syl.  7  (I,  269).     Habeas  corpus — Necessity  for  commitment. 

Approved  in  Whitney  v.  Dick,  202  U.  S.  136,  50  L.  964,  25  Sup. 
Ct.  584,  circuit  courts  of  appeal  have  no  power  to  issue  original 
and  independent  writs  of  habeas  corpus;  Ex  parte  Moran,  144  Fed. 
599,  600,  601,  determining  jurisdiction  of  circuit  court  of  appeals  to 
issue  habeas  corpus  to  review  power  of  Oklahoma  court  to  imprison 
one  convicted  of  capital  crime. 

Syl.  12  (I,  271).     Venue  of  offenses  out  of  state. 

Approved  in  Kerr  v.  Shine,  136  Fed.  64,  69  C.  C.  A.  69,  where 
offense  committed  on  high  seas  and  offender  not  arrested  until 
found  in  California,  he  must  be  tried  there,  though  vessel  on  which 
ofl'ense  committed  had  touched  at  Hawaii,  where  warrant  issued 
though  unexecuted. 

Syl.  13   (I,  271).     Certiorari  as  ancillary  to  habeas  corpus. 

Approved  in  Hyde  v.  Shine,  199  U.  S.  85,  50  L.  98,  25  Sup.  Ct. 
760,  refusal  of  circuit  court  to  grant  certiorari  as  ancillary  to  habeas 
corpus,  being  discretionary,  is  not  assignable   as   error. 

4  Cr.  179,  180,  2  L.  287,  DIGGS  v.  WOLCOTT. 

Syl.   1   (I,  275).     Injunction  against  state  court. 

Approved  in  Security  Trust  Co.  v.  Union  Trust  Co.,  134  Fed.  302, 
refusing  to  enjoin  sale  under  state  decree,  where  court  of  competent 

[14] 


15  Notes  on  U.  S.  Reports.  4  Cr.  224-298 

jurisdiction   had  appointed   receiver   in   proceedings   to   foreclose   rail- 
road mortgage  and  directed  sale. 

Distinguished  in  Shaw  v.  Frey,  69  N.  J.  Eq.  324,  59  Atl.  812, 
state  court  may  compel  discovery  from  one  under  its  jurisdiction  of 
matters  necessary  to  trial  of  federal  action  and  may  for  that  pur- 
pose  restrain  prosecution  of  federal  action  pending  discovery. 

4  Cr.  224-236,  2  L.  603,  GRANT  v.  NAYLOR. 

Syl.  1   (I,  283).     Parol  evidence  to  explain  guaranty. 

Approved  in  Bank  of  Seneca  v.  First  Nat.  Bank,  105  Mo.  App. 
725,  78  S.  W.  1093,  where  bank  cashed  check  without  knowledge  of 
existence  of  letter  of  credit  addressed  -'To  Whom  It  May  Con- 
cern," it  cannot  have  amount  of  check  credited  against  amount 
named  in  letter. 

4  Cr.  237,  238,  2  L.  607,  WOODS  v.  YOUNG. 

Syl.  1  (I,  285).     Refusal  of  continuance  discretionary. 

Approved  in  Clement  v.  United  States,  149  Fed.  312,  upholding 
denial  of  continuance  because  of  age  and  physical  infirmity  of 
accused. 

4  Cr.  241-293,  2  L.  608,  ROSE  v.  HIMELY. 

Syl.  1  (I,  286).     Conclusiveness  of  foreign  judgment. 

Approved  in  National  Exchange  Bank  v.  Wiley,  195  U.  S.  263,  49 
L.  187,  25  Sup.  Ct.  70,  judgment  under  warrant  of  attorney  an- 
nexed to  note  authorizing  confession  of  judgment  in  favor  of  holder 
is  collaterally  attackable  on  ground  that  party  in  whose  behalf  it 
was  rendered  was  not  real  owner  of  note;  dissenting  opinion  in  United 
States  v.  Ju  Toy,  198  U.  S.  276,  49  L.  1049,  25  Sup.  Ct.  644,  majority 
upholding  conclusiveness  of  decision  of  immigration  officers  denying 
right  of  citizen  of  Chinese  descent  to  enter  United  States;  dissent- 
ing opinion  in  Jordan  v.  Chicago  etc.  Ry.  Co.,  125  Wis.  591,  110 
Am.  St.  Rep.  865,  1  L.  R.  A.  (N.  S.)  885,  104  N.  W.  807,  majority 
holding  determination  of  county  court  on  petition  for  letters  by  pub- 
lic administrator  where  deceased  left  no  kin,  that  deceased  left 
property  in  state,  is  conclusive  on  collateral  attack. 

4  Cr.  293-298,  2  L.  625,  HUDSON  v.  GUESTIER. 

Syl.  2  (I,  291).     Seizure — Jurisdiction  of  res  in  neutral  port. 

Approved  in  Orient  Ins.  Co.  v.  Rudolph,  69  N.  J.  Eq.  579,  61  A>J. 
31,  production  and  proof  in  New  Jersey  court  of  order  by  New 
York  court  appointing  receiver  in  supplementary  proceedings  and 
reciting  necessary  jurisdictional  facts  is  conclusive  of  validity  of 
order. 


4  Cr.  317-433  Notes  on  U.  S.  Reports.  16 

4  Cr.  317-321,  2  L.  633,  MAYOR  ETC.  OF  ALEXANDRIA  v,  PATTEN. 

Syl.  1   (I,  294).     Application  of  payments. 

Approved  in  City  of  Lincoln  v.  Lincoln  St.  E.  Co.,  67  Neb.  492, 
93  N.  W.  774,  applying  rule  to  payment  of  taxes;  People  v.  Grant, 
139  Mich.  28,  102  N.  W.  227,  in  absence  of  designation  by  debtor  to 
which  of  several  accounts  payment  shall  apply,  creditor  may  make 
application  at  any  time  before  suit. 

4  Cr.  347-366,  2  L.  643,  PEISCH  v.  WARE. 

Syl.  1   (I,  299).     Forfeitures — Duty  on  derelict  goods. 

Approved  in  United  States  v.  One  Black  Horse,  129  Fed.  168,  livery 
rig  used  wholly  in  United  States  to  transport  smuggled  goods  is  sub- 
ject to  forfeiture,  though  liveryman  had  no  knowledge  of  purpose  for 
which  team  used. 

Distinguished  in  Moody  v.  McKinney,  73  S.  C.  442,  53  S.  E.  545, 
where  plaintiffs  did  not  consent  to  or  know  of  property  being  used 
to  transport  liquor  in  night-time,  contrary  to  law,  it  is  not  subject 
to   seizure  and  confiscation. 

4  Cr.  403-414,  2  L.  660,  STEAD  v.  COURSE. 

Syl.  1  (I,  303).     Sufficiency  of  plea  in  bar. 

Approved  in  Barber  v.  National  Carbon  Co.,  129  Fed.  377,  64  C. 
C.  A.  40,  applying  rule  to  plea  to  bill  for  infringement  of  patent. 

(I,  303.)  Miscellaneous.  Cited  in  Ocala  etc.  Works  v.  Lester,  49 
Fla.  369,  38  So.  62,  when  replication  filed  to  plea,  defendant  must 
prove  facts  which  plea  suggests. 

4  Cr.  421-433,  2  L.  666,  POLLARD  v.  DWIGHT. 

Syl.   1   (I,  306).     Appearance  as  waiver  of  service. 

Approved  in  dissenting  opinion  in  Fisher  v.  Crowley,  57  W.  Va.  329, 
50  S.  E.  429,  majority  holding  defendant  appearing  in  court  of 
record  to  quash  defective  summons  need  not  recite  that  appearance 
is  for  that  purpose  only  to  avoid  waiver. 

Syl.  3  (I,  308).     Construction  of  state  statutes. 

Approved  in  Yocum  v.  Parker,  134  Fed.  211,  67  C.  0.  A.  227,  apply- 
ing rule  in  construing  will  under  Missouri  laws. 


V  CRANCH. 


5  Cr.  11-13,  3  L.  22,  HENDERSON  v.  MOORE. 

Syl.  1   (I,  312).     Effect  of  receipt  in  full. 

See  100  Am.  St.  Rep.  430,  note. 

Syl.  2   (I,  313).     Denial  of  new  trial  not  error. 

Approved  in  Hanaway.  v.  Guarantee  etc.  Invest.  Co.,  143  Fed.  962, 
where  application  for  new  trial  was  based  on  matters  of  fact  aliunde 
record  and  on  errors  not  incorporated  in  bill  of  exceptions,  ques- 
tion as  to  new  trial  not  reviewable. 

5  Cr.  13-15,  3  L.  22,  COOKE  v.  WOODROW. 

Syl.  3   (I,  315).     Appeal — Determination  of  value  in  dispute. 

Approved  in  Phoenix  Wholesale  Meat  Co.  v.  Moss,  7  Ariz.  276,  64 
Pac.  443,  applying  rule  to  appeal  in  suit  for  compensation  for  meat 
inspection. 

5  Cr.  22-34,  3  L.  25,  McKEEN  v.  DELANCY. 

Syl.  2  (I,  319).     Following  state  statutory  construction. 

Approved  in  Reed  v.  Munn,  14S  Fed.   749,  under  Colorado  statutes 

and    decisions,    equitable    interest    of    beneficial    owners    under    trust 

conveyance   of   conflicting   interests   in   mining   locations  was   subject 

to  execution. 

5  Cr.  34-45,  3  L.  29,  TUCKER  v.  OXLEY. 

Syl.  1  (I,  320).     Bankruptcy— Setoff  of  joint  debt. 

Distinguished  in  In  re  Shults,  132  Fed.  575,  solvent  partnership 
which  is  indebted  to  bankrupt  cannot  set  off  against  such  indebted- 
ness a  claim  due  from  bankrupt  estate  to  one  of  partners. 

5  Cr.  57-61,  3  L.  36,  HOPE  INS.  CO.  v.  BOARDMAN. 

Syl.  2   (I,  324).     Courts — Citizenship  of  corporation. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  5S6,  49  L.  609,  25 
Sup.  Ct.  355,  presumption  that  stockholders  are  citizens  of  state  of 
creation  of  corporation  does  not  preclude  them  from  asserting  actual 
citizenship  to  sustain  federal  jurisdiction  when  sued  as  Stockholm 
ers;  United  States  v.  Milwaukee  etc.  Transit  Co.,  142  Fed.  253,  where 
corporation  organized  and  owned  by  officers  and  stockholders  of  an- 
other, and  was  used  merely  as  dummy  to  get  rebates  from  carriers, 
they  are  treated  as  identical. 

2  [17] 


5  Cr.  61-280  Notes  on  U.   S.  Keports.  18 

5  Cr.  61-92,  3  L.  38,  UNITED  STATES  BANK  v.  DEVEAUX. 

Syl.  2  (I,  325).     Eight  to  sue  in  federal  court. 

Approved  in  Stevenson  v.  Fain,  195  U.  S.  168,  49  L.  143,  25  Sup. 
Ct.  6,  circuit  court  of  appeals  decree  is  final  in  controversy  between 
diverse  citizens  claiming  under  grants  from  different  states. 

Syl.  4  (I,  326).     Corporation  not  citizen. 

Approved  in  Davis  v.  Chesapeake  etc.  Ey.  Co.,  116  Ky.  151,  75 
S.  W.  277,  compliance  by  foreign  railroad  with  Kentucky  laws  re- 
quiring them  to  become  corporations  in  accordance  with  local  laws 
before  doing  business  therein  does  not  make  it  citizen  thereof  so 
as  to  prevent  removal  to  federal  court. 

Syl.  5  (I,  328).     Averment  of  citizenship  of  stockholders. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  586,  49  L.  609,  25 
Sup.  Ct.  355,  presumption  that  stockholders  are  citizens  of  state  of 
creation  of  corporation  does  not  preclude  them  from  asserting  actual 
citizenship  to  sustain  federal  jurisdiction  when  sued  as  stockholders. 

5  Cr.  115-141,  3  L.  53,  UNITED  STATES  v.  PETEES. 

Syl.  1  (I,  330).     Federal  jurisdiction  over  state's  suits. 

Approved  in  Board  of  Education  v.  Volk,  72  Ohio  St.  486,  74  N. 
E.  650,  arguendo. 

5  Cr.  142-154,  3  L.  61,  VIOLETT  v.  PATTON. 

Syl.  2   (I,  333).     Consideration  defined. 

Approved  in  White  etc.  Mach.  Co.  v.  Fowler,  28  Nev.  110,  78  Pac. 
1035,  bond  showing  that  it  is  to  enable  principal  to  obtain  exten- 
sion of  credit  is  on  sufficient  consideration  to  bind  sureties. 

5   Cr.   173-187,  3  L.   70,  KEMPE  v.  KENNEDY. 

Syl.  3   (I,  337).     Judgments — Eecord  showing  jurisdiction. 

Approved  in  Edelstein  v.  United  States,  149  Fed.  638,  judgment 
of  bankruptcy  courts  are  not  collaterally  attackable. 

Syl.  4   (I,  338).     Judgment  valid  till  reversed. 

Approved  in  Alexander  v.  Crollott,  199  U.  S.  581,  50  L.  317,  26 
Sup.  Ct.  161,  New  Mexico  territorial  supreme  court  is  justified  in 
refusing  to  restrain  justice  of  peace  from  further  proceedings  in 
unlawful  detainer,  where  right  of  appeal  exists;  Taylor  v.  Hunting- 
ton, 34  Wash.  458,  459,  75  Pac.  1105,  judgment  of  court  of  gen- 
eral jurisdiction  foreclosing  tax  lien  not  vacated  in  motion  because 
affidavit  of  publication  of  notice  defective, 

5  Cr.  262-280,  3  L.  96,  HEPBUEN  v.  AULD. 

Syl.  3  (I,  346).     Specific  performance — Time  not  of  essence. 

Approved  in  Ilosmer  v.  W'yoming  Ey.  &  I.  Co.,  129  Fed.  892,  65 
L.   B.  A.   81,  applying   rule   to   sale   of   mining  property;    Gibson   v. 


19  Notes  on  U.  S.  Reports.  5  Cr.  280-302 

Brown,    214   III.    330,    73    N.    E.    580,    applying    rule    to    exchange    of 
realty  for  stock  of  merchandise. 

Distinguished  in  Day  v.  Mountin,  137  Fed.  762,  763,  70  C.  C.  A. 
190,  contract  for  sale  of  land  made  in  good  faith  may  be  specifically 
(enforced  by  vendor,  though  he  did  not  have  title  at  time  it  was 
made,  where  such  fact  known,  and  he  acquired  title  before  time 
for  performance. 

5  Cr.  280,  281,  3  L.  101,  UNITED  STATES  v.  EVANS. 

Syl.  1   (I,  348).     Voluntary  nonsuit — Refusal  to  reinstate. 

Approved  in  Francisco  v.  Chicago  etc.  R.  Co.,  149  Fed.  355,  356, 
where,  at  close  of  trial,  defendant  moved  for  instructed  verdict  and 
motion  granted,  but  before  instruction  given  plaintiff  took  involun- 
tary nonsuit,  he  cannot  take  error. 

5  Cr.  281-284,  3  L.  101,  YEATON  v.  UNITED  STATES. 

Syl.  2   (I,  349).     Repeal  of  penal  statute. 

Approved  in  Pensacola  etc.  R.  R.  Co.  v.  State,  45  Fla.  89,  110 
Am.  St.  Rep.  69,  33  So.  980,  following  rule;  Ex  parte  Larkin,  1  Okl. 
55,  58,  25  Pac.  746,  11  L.  R.  A.  418,  arguendo. 

Syl.  3  (I,  349).     Effect  of  repeal  of  penal  law. 

Approved  in  Atwood  v.  Buckingham,  78  Conn.  425,  62  Atl.  617, 
repeal  of  Gen.  St.  1902,  §  324,  relating  to  recovery  of  penalty  from 
administrator  for  failure  to  file  inventory  within  one  year  before 
suit  to  recover  penalty,  did  not  affect  pending  actions;  Terry  v.  Mc- 
Clung,  104  Va.  601,  52  S.  E.  356,  passage  of  act  of  1888  depriving 
county  court  of  jurisdiction  in  void  cases  caused  pending  cases  to 
lapse. 

Syl.  4  (I,  351).     Admiralty  appeal  tried  de  novo. 

Approved  in  The  San  Rafael,  141  Fed.  275,  fact  that  claimants  did 
not  appeal   docs  not  alter  rule. 

5  Cr.  288,  289,  3  L.  103,  LOGAN  v.  PATRICK. 

Syl.  1  (I,  353).     Enjoining  action  at  law. 

Approved  in'  Campbell  v.  Golden  Cycle  Min.  Co.,  141  Fed.  613, 
upholding  federal  jurisdiction  of  dependent  suit  in  equity  where  no 
federal  question  or  diverse  citizenship  shown. 

5  Cr.  2S9-302,  3  L.  104,  HARRISON  v.  STERRY. 

Syl.  1   (I,  355).     Contracts — Law  governing. 

Approved  in  In  re  Brannock,  131  Fed.  820,  record  of  mortgage  in 
state  of  mortgagor's  residence  is  not  notice  to  creditors  of  mort- 
gagor where  property  located  in  another  state;  Holshouser  v.  Gold 
Hill  Copper  Co.,  138  N.  C.  255,  50  S.  E.  653,  70  L.  R.  A.  183,  New 
Jersey    statute    declaring    that    annual    corporation    license    fee    shall 


5  Cr.  303-372  Notes  on  U.  S.  Reports.  20 

be  preferred  debt  in  case  of  insolvency  is  not  binding  in  another 
state;  Greenville  Nat.  Bank  v.  Evans-Snyder-Buel  Co.,  9  Okl.  364,  60 
Pae.  253,  mortgage  executor  in  another  state  on  property  located 
therein  and  duly  filed  according  to  laws  of  such  state  is  valid  after 
property  brought  into  Oklahoma  without  being  filed  with  register 
of  county  to  which  property  brought;  Snyder  v.  Yates,  112  Tenn. 
313,  105  Am.  St.  Eep.  941,  79  S.  W.  796,  64  L.  R.  A.  353,  chattel 
mortgage  executed  and  recorded  in  Illinois  on  property  afterward 
transferred  to  Tennessee  does  not  give  priority  over  liens  of  local 
attaching  creditors. 

5  Cr.  303,  3  L.  108,  BROWN  v.  STRODE. 

Syl.   1    (I,  360).     Federal   courts — Citizenship — Nominal   parties. 

Cited  in  Burrell  v.  United  States,  147  Fed.  46,  suit  by  material- 
man, in  name  of  United  States,  under  28  Stat.  278,  relating  to  con- 
tractor's bonds,  cannot  be  brought  in  federal  courts  where  real 
party  has  not  requisite  citizenship;  United  States  v.  Churchyard, 
132  Fed.  83,  suit  by  materialmen,  in  name  of  United  States,  under 
28  Stat.  278,  relating  to  contractors'  bonds,  may  be  brought  in  fed- 
eral court  regardless  of  citizenship  of  parties  or  amount  in  con- 
troversy. 

5  Cr.  351-358,  3  L.  123,  MOSS  v.  RIDDLE. 

Syl.  2  (I,  374).     Fraud — Averment  of  intention. 

Approved  in  Cella  v.  Brown,  144  Fed.  754,  mere  allegation  that 
plan  of  reorganization  between  two  railroads  was  fraudulently  de- 
signed, without  specifically  charging  that  said  companies  partici- 
pated therein  or  specifying  in  what  fraud  consisted,  is  insufficient; 
Williamson  v.  Beardsley,  137  Fed.  469,  69  C.  C.  A.  615,  in  suit  to 
set  aside  conveyances  of  realty  by  executor,  mere  allegations  that 
sales  were  fraudulent,  and  that  proceedings  were  fraudulently  con- 
ducted, without  averment  of  substantive  facts  constituting  fraud,  are 
insufficient. 

5  Cr.  3CS-372,  3  L.  128,  UNITED  STATES  v.  VOWELL. 
Syl.   1   (I,  377).     AVhen  duties  on  imports  accrue. 

Approved  in  United  States  v.  Hartwell  Lumber  Co.,  142  Fed.  436, 
where  merchandise  was  imported  shortly  before  act  of  1897  went 
into  effect,  and  importers  tendered  entry  before  importation  com- 
plete, which  tender  was  rejected,  and  not  renewed  till  after  act 
was  effective,  provisions  of  section  33  of  said  act  governed;  Ellison 
v.  United  States,  136  Fed.  972,  imported  merchandise  entered  at 
one  port  for  immediate  transportation  to  another  cannot  be  entered 
for  consumption  at  latter  port  before  its  arrival  within  limits  of 
that  port. 


VI  CRANCH. 


6  Cr.  8-29,  3  L.  136,  FIELD  v.  HOLLAND. 

Syl.  6  (I,  382).     A^jplication  of  payments  by  court. 
Approved  in  Wardlaw  v.  Troy  Oil  Mill,  74  S.  C.  371,  54  S.  E.  659, 
where  manufacturer  sells  brick  to  be  used  on  building,  and  without 
notice    to    him,    part    of    brick    sold,    he    may    apply    payments    made 
on  account  by  purchaser  to  unsecured  part  of  purchase  price. 

6  Cr.  82-86,  3  L.  160,  LEWIS  v.  HARWOOD, 

Sj'l.  1   (I,  387).     Assignability  of  bond. 

Cited  in  Crist  v.  McDaniel,  15  Okl.  471,  82  Pac.  992,  arguendo. 
6  Cr.  87-148,  3  L.  162,  FLETCHER  v.  PECK. 

Syl.  4   (I,  389).     Pleadings   amendable  in  sujtreme   court. 

Approved  in  Kansas  City  etc.  Ey.  Co.  v,  Prunty,  133  Fed.  17,  60 
C.  C.  A.  163,  circuit  court  of  appeals  may  permit  amendment  in  that 
court  of  removal  petition  by  supplying  requisite  averment  of  citi- 
zenship inadvertently  omitted,  where  parties   consent. 

Distinguished  in  Fred  Macey  Co.  v.  Macey,  135  Fed.  729,  68  C.  C. 
A.  363,  amendment  showing  citizenship  of  parties  cannot  be  made 
in  circuit  court  after  removal,  though  parties  consent, 

Syl.  6  (I,  390).     Statutes  upheld  in  case  of  doubt. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  767,  uphold- 
ing Laws  N.  C.  1885,  p.  439,  c.  233,  incorporating  railroad  and  au- 
thorizing issuance  of  county  aid  bonds;  United  States  v.  Union 
Bridge  Co.,  143  Fed.  389,  unholding  30  Stat.  1153,  relating  to  altera- 
tion of  bridges;  Srate  v.  Jack,  69  Kan.  402,  76  Pac.  916,  1  L.  R.  A. 
(N.  S.)  167,  witness  cannot  refuse  to  testify  as  to  his  knowledge  of 
violations  of  anti-trust  act  on  ground  that  §  10  does  not  grant  him 
immunity  from  prosecutions  under  federal  anti-trust  law;  Ex  parte 
Kair,  28  Nev.  146,  80  Pac.  466,  upholding  Stat.  1903,  p.  33,  c.  10,  im- 
posing penalty  on  person  working  more  than  eight  hours  per  day 
in  any  mine  or  ore-mill;  Kadderly  v.  Portland,  44  Or.  143,  74  Pac. 
719,  upholding  initiation  and  referendum  amendment  to  constitution; 
Highland  Boy  etc.  Min.  Co.  v.  Strickley,  28  Utah,  231,  107  Am.  St. 
Kep.  711,  78  Pac.  297,  upholding  Sess.  Laws  1901,  p.  19,  c.  25,  relat- 
ing to  condemnation  for  tramways  for  operation  of  mines;  Whitlock 
V.  Hawkins,  105  Va.  249,  53  S.  E.  403,  upholding  act  of  1906,  validat- 

[21] 


6  Cr.  148-170  Notes  on  U,  S.  Eeports.  22 

ing  acts  done  under  amending  Code,  c.  23,  relating  to  assessments 
of  lands;  National  Council  etc.  v.  State  Council,  104  Va.  202,  51  S.  E. 
168,  upholding  Feb.  17,  1900,  creating  corporation  with  exclusive  au- 
thority to  grant  charters  to  subordinate  councils,  thereby  annulling 
prior  right  of  foreign  corporation  to  transact  business  of  order  in 
state;  dissenting  opinion  in  Allen  v.  Eeed,  10  Okl.  160,  63  Pac.  878, 
majority  holding  void  act  of  1893,  relating  to  change  of  county  seats. 

Syl.  12   (I,  399).     Vested  rights  not  divestable. 

Approved  in  Condon  v.  City  of  Eureka  Springs,  135  Fed.  568,  re- 
I^eal  of  act  of  Arkansas  187,5,  authorizing  cities  to  call  in  outstand- 
ing warrants  and  reissue  them,  was  effective  with  respect  to  out- 
standing warrants;  Wasserman  v.  Metzger,  105  Va.  765,  54  S.  E.  899, 
determining  whether  purchaser  was  bona  fide  purchaser  entitled  to 
priority. 

Syl.  14  (I,  407).     Legislature  prescribes  laws. 

Approved  in  Minnesota  Canal  etc.  Co.  v.  Koochiching  Co.,  97  Minn. 
437,  107  N.  W.  408,  property  devoted  to  generation  of  water  power 
for  distribution  and  sale  to  general  public  is  devoted  to  public  use. 

Syl.  18  (I,  410).     Impairment  of  state's  contracts. 

Approved  in  Shepherd's  Point  Land  Co.  v.  Hotel,  134  N.  C.  398, 
46  S.  E.  749,  applying  rule  to  grant  by  state  to  persons  as  owners 
nnd  riparian  proprietors  of  lot  in  harbor  in  navigable  arm  of  sea  in 
Iront  of  their  lands. 

Syl.  21   (I,  415).     Ex  post  facto  law  defined. 

Approved  in  State  v.  Kooney,  12  N.  D.  151,  95  N.  W.  515,  act  of 
1903,  substituting  penitentiary  for  county  jail  as  place  of  confine- 
ment pending  execution  and  directing  executions  there,  not  ex  post 
facto  as  to  one  convicted  prior  to  its  passage;  Ex  parte  Larkin,  1 
Okl.  58,  25  Pac.  747,  11  L.  R.  A.  418,  act  of  territorial  assembly  con- 
tinuing in  force  Neb.  Cr.  Code  is  not  ex  post  facto  as  offenses  al- 
ready committed  but  not  prosecuted. 

Syl.  23  (I,  419).     Effect  of  reservation  of  Indian  lands. 

Approved  in  Labadie  v.  United  States,  6  Okl.  414,  51  Pac.  670, 
Indian  sustaining  tribal  relations  and  cutting  timber  on  Osage  res- 
ervation for  speculative  purposes  is  subject  to  fine. 

6  Cr.  148-170,  3  L.  181,  MASSIE  v.  WATTS. 

Syl.   1   (I,  420).     Equity  jurisdiction  wherever  person   found. 

Approved  in  Wilhite  v.  Skelton,  149  Fed.  72,  upholding  jurisdic- 
tion over  suit  for  specific  performance  of  contract  to  convey  interest 
in  mine  situated  out  of  jurisdiction  and  to  recover  share  of  profits; 
Western  Un.  Tel.  Co.  v.  Pittsburg  etc.  Ry.  Co.,  137  Fed.  437,  in  suit 
in  equity  in  federal  courts  for  specific  performance  of  telegraph 
right  of  way  contracts,  necessary  parties  being  before  court,  it  is 
immaterial  that  part  of  property  affected  was  beyond   court's   tcrri- 


23  Notes  on  U.  S.  Keports.  6  Cr.  171-202 

torial  jurisdiction;  White  Star  Mining  Co.  v.  Hultberg,  220  111.  600, 
77  N.  E.  335,  applying  rule  in  suit  to  set  aside  award  of  arbitrators; 
State  V.  District  Court  of  Pine  Co.,  94  Minn.  372,  102  N,  W.  870, 
action  to  cancel  contract  for  sale  of  land  for  fraud  and  for  recovery 
of  price  paid  before  discovery  of  fraud  is  transitory;  Silver  Camp 
Mining  Co.  v.  Dickort,  31  Mont.  493,  78  Pac.  968,  action  for  specific 
performance  of  contract  to  convey  realty  is  in  personam;  Wyman  v. 
Hcrard,  9  Old.  63,  59  Pac.  1017,  upholding  jurisdiction  over  counter- 
claim; Dickson  v.  Loehr,  126  Wis.  645,  106  N.  W.  794,  4  L.  R.  A.  (N. 
S.)  986,  where  vendee  agreed  to  convey  land  in  another  state  as 
security  for  installment  of  price,  vendor  in  action  to  foreclose  en- 
titled to  judgment  that  vendee  pay  amount  due  or  convey  land; 
O'Dell  V.  Boydon,  150  Fed.  736,  arguendo. 

Distinguished  in  Jones  v.  Byrne,  149  Fed.  470,  federal  court  can- 
not decree  foreclosure  of  lien  on  and  order  sale  of  land  in  another 
state. 

Syl.  4  (I,  425).     Agent  taking  patent  in  own  name. 

Approved  in  Copper  Eiver  Min.  Co.  v.  McClellan,  2  Alaska,  144, 
applying  rule  to  location  of  mining  claims;  Thompson  v.  Burk,  2 
Alaska,  252,  where  defendant  located  placer  claim,  but  made  no  dis- 
covery, and  thereafter  plaintiff  relocated  and  without  notifying  de- 
fendant of  it,  contracted  with  him  to  dig  discovery  shaft,  in  which 
he  found  gold,  discovery  inured  to  perfect  defendants'  location; 
Brandon  v.  West,  28  Nev.  507,  83  Pac.  328,  where  owner  of  land 
granted  to  complainant  by  executed  oral  sale  all  sand  on  land,  legal 
title  to  land  having  passed  to  such  owner's  descendants  by  operation 
of  law.  it  was  incumbent  on  them  to  convey  to  complainant  right 
purchased. 

6  Cr.  171-176,  3  L.  180,  UNITED  STATES  v.  HALL. 

(I.  425.)  Miscellaneous.  Cited  in  State  v.  Eooney,  12  N.  D.  150, 
95  N.  W.  515,  as  to  ex  post  facto  laws. 

6  Cr.  176-183,  CAMPBELL  v.  GORDON. 

Syl.  1   (I,  426).     Naturalization — Presumptions  from  certificate. 

Approved  in  Dolan  v.  United  States,  133  Fed.  448,  certified  copy 
of  record  of  court  showing  admission  of  alien  to  citizenship  con- 
stitutes "certificate  of  citizenship"  within  meaning  of  Rev.  St.,  §§ 
5425,  5427,  making  it  criminal  to  aid  another  in  using  false  certifi- 
cate for  certain  purposes;  State  v.  Weber,  96  Minn.  428,  105  N.  W. 
492,  record  of  court  of  common  pleas  of  Meigs  county,  Ohio,  con- 
stitutes judgment  admitting  to  citizenship  person  therein  named. 

6  Cr.  192-202,  3  L.  195,  KORN  v.  MUTUAL  ASSURANCE  SOCIETY. 

(I,  428.)  Miscellaneous.  Cited  in  Huber  v.  Martin,  127  Wis.  432. 
105  N.  W.  1037,  determining  rights  of  members  of  mutual  insurance 
eompany  in  net  assets  when  it  ceases  to  do  business. 


6  Cr.  221-324  Notes  on  U.  S.  Reports.  24 

6  Cr.  221-225,  3  L.  205,  SLACUM  v.  POMERY. 

Syl.  2  (I,  433).     Defects  in  declaration  raised  on  appeal. 

Approved  in  Phoenix  Assur.  Co.  v.  Maryland  etc.  Co.,  146  Fed.  502, 
where  judgment,  sought  to  be  reviewed  on  error,  had  for  sole  support 
verdict  which  was  outside  issues  but  in  direct  conflict  with  complaint, 
court  could  not  remit  excess  and  affirm  same;  Nichols  v.  Commis- 
sioners of  Weston  County,  13  Wyo.  7,  76  Pac.  682,  where  final  judg- 
ment is  not  supported  by  pleading  or  findings,  it  may  be  vacated  ou 
error,  on  record  without  bill  of  exceptions,  though  no  exception  taken. 

6  Cr.  253-267,  3  L.  215,  SHEEHY  v.  MANDEVILLE  &  JAMESON. 

Syl.  1  (I,  438).     Other's  note  as  payment. 

Approved  in  San  Juan  v.  St.  John's  Gas  Co.,  195  U.  S.  521,  49  L. 
304,  25  Sup.  Ct.  108,  agreement  that  payment  in  United  States  cur- 
rency should  extinguish  larger  amount  due  under  street  lighting  con- 
tract estimated  in  Porto  Rican  currency,  is  binding  where  there  was 
dispute  as  to  medium  of  payment. 

6  Cr.  267,  268,  3  L.  220,  SKILLERN  v.  MAY. 

Syl.  1  (I,  443).     Objection  to  jurisdiction  after  reversal. 

Approved  in  Eiverdale  Cotton  Mills  v.  Alabama  etc.  Mfg.  Co.,  198 
U.  S,  197,  49  L.  1016,  25  Sup.  Ct.  629,  federal  court  which  has  de- 
creed foreclosure  in  suit  in  which  diverse  citizenship  admitted,  and 
property  described  as  lying  partly  in  state,  may  restrain  attack  on 
title  of  purchaser  under  decree  by  state  suit  brought  by  party  to 
original  suit  on  theory  that  federal  court  assumed  jurisdiction  by 
his  untruthful  admission  of  citizenship. 

6  Cr.  307-324,  3  L.  232,  DUROUSSEAU  v.  UNITED  STATES. 

Syl.  1   (I,  451).     Scope  of  supreme  court's  jurisdiction. 

Approved  in  Ex  parte  Moran,  144  Fed.  589,  determining  jurisdic- 
tion of  circuit  court  of  appeals  to  issue  habeas  corpus  where  one  is 
imprisoned  for  capital  crime  on  conviction  by  Oklahoma  court;  State 
V.  Crenshaw,  138  Ala.  509,  35  So.  456,  state  cannot  appeal  from  judg- 
ment in  proceedings  to  determine  right  to  register  as  elector;  Jung  v. 
Myer,  11  N.  M.  388,  68  Pac.  936,  Laws  1901,  c.  82,  authorizing  ap- 
peals to  supreme  court  from  interlocutory  orders  affecting  substantial 
rights    is  void. 

Syl.  2  (I,  453).     Statutes  construed  according  to  intention. 

Approved  in  United  States  v.  American  Surety  Co.,  200  U.  S.  203, 
50  L.  440,  26  Sup.  Ct.  168,  labor  and  materials  used  in  prosecution  of 
public  work,  whether  furnished  under  contract  directly  to  contractor 
or  to  subcontractor,  are  within  obligation  of  bond  given  pursuant  to 
28  Stat.  278,  c.  280. 


25  Notes  on  U.  S.  Keports.  7  Cr.  32-34 

6  Cr.  329-330,  3  L.  239,  THE    SCHOONER    EACHEL    v.    UNITED 
STATES. 

Syl.  1   (I,  455).     Expiration  of  penal  law. 

Approved  in  Pensacola  etc.  R.  R.  Co.  v.  State,  45  Fla.  89,  1*10  Am. 
St,  Rep.  69,  33  So.  986,  applying  principle  where  pending  appeal  stat- 
ute prescribing  penalty  for  violation  of  railroad  rate  regulations  re- 
pealed; Ex  parte  Larkin,  1  Okl.  55,  25  Pac.  746,  11  L.  E.  A.  418, 
arguendo. 

6  Cr.  332-338,  3  L.  240,  SERE  v.  PITOT. 

Syl.  1  (I,  456).     Federal  suit  by  assignee. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  82,  50  L.  380,  26  Sup.  Ct. 
220,  applying  rule  to  suit  to  foreclose  trust  deed;  Gorman  Wright 
Co.  v.  Wright,  134  Fed.  365,  67  C.  C.  A.  345,  pledgee  of  stock  cannot, 
on  ground  of  diverse  citizenship  between  himself  and  corporation,  sue 
latter  in  federal  court  for  appointment  of  receiver,  where  pledgor  is 
resident  of  state  of  which  corporation  is  citizen;  Utah-Nevada  Co.  v. 
De  Lamar,  133  Fed.  120,  121,  66  C.  C.  A.  179,  suit  by  assignee  of 
oral  contract  to  recover  money  due  thereon  cannot  be  maintained  in 
federal  court  unless  assignor  could  sue  therein. 

Syl.  2  (I,  458).     Acquisition  includes  governmental  power. 
Approved  in  Dorr  v.  United   States,  195  U.   S.   140,  49  L.   129.   24 
Sup.  Ct.  808,  right  of  trial  by  jury  was  not  extended  to  Philippines. 


VII  CRANCH. 


7   Cr.   32-34,  3  L.   259,  UNITED  STATES  v.   HUDSON. 

Syl.   2    (I,  462).     Federal  courts'  jurisdiction   limited. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  24,  50  L.  644.  26  Sup. 
Ct.  387,  circuit  court  has  no  jurisdiction  on  removal  of  criminal  pros- 
ecution wherein  equal  civil  rights  secured  by  federal  laws,  but  not 
authorized  by  state  law,  were  denied  accused  in  summoning  and  im- 
paneling jury;  Stevenson  v.  Fain,  195  U.  S.  167,  49  L.  143,  25  Sup. 
Ct.  6,  decision  of  circuit  court  of  appeals  is  final  in  action  in  circuit 
court  between  diverse  citizens  claiming  under  grants  from  different 
states;  United  States  v.  Barrett,  135  Fed.  192,  federal  court  has  no 
jurisdiction  over  suit  in  name  of  United  States  on  bond  of  contractor 
under  28  Stat.  278,  unless  requisite  citizenship  and  amount  in  con- 
troversy shown;  Taylor  v.  State,  49  Fla.  80,  38  So.  384,  upholding 
power  of  court  to  appoint  another  member  of  bar  to  act  as  adviser 
of  grand  jury  where  state  attorney  refuses  to  discharge  duties;  Bar- 
clay V.  United  States,  11  Okl.  509,  69  Pac.  800,  stealing  of  property 


7  Cr.  34-99  Notes  on  U,  S.  Reports.  26 

in  Indian  Territory  and  bringing  it  into  Oklahoma  not  being  crime 
under  federal  law,  it  is  crime  against  Oklahoma  law. 

7  Cr.  34-52,  3  L.  260,  SHIRRAS  v.  CAIG  &  MITCHELL. 
Syl.  1  (I,  465).     Title  of  purchaser  of  equitable  interest. 

Approved  in  Davis  v.  Carlisle,  142  Fed.  108,  where  under  chattel 
mortgage  providing  for  future  advances,  but  leaving  it  optional  with 
mortgagee  whether  he  shall  make  them,  they  are  made  after  notice 
of  subsequent  mortgage,  his  lien  for  advances  is  subsequent  to  sec- 
ond mortgage;  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  one 
claiming  as  bona  fide  purchaser  of  land  previously  conveyed  by 
grantor  must  allege  and  prove  payment  of  purchase  money  inde- 
pendently of  recitals  in  deed;  Wasserman  v.  Metzger,  105  Va.  752, 
54  S.  E.  895,  determining  that  purchaser  only  bought  equity  and 
was  not  bona  fide  purchaser  for  value. 

Syl.  5  (I,  468).     Mortgage  to  secure  future  advances. 

Approved  in  HoUey  v.  Curry,  58  W.  Va.  75,  112  Am.  St.  Rep.  948. 
51  S.  E.  137,  holding  description  of  debt  secured  insufficient  to  con- 
stitute new  promise  removing  bar  of  limitations. 

7  Cr.  52-68,  3  L.  266,  SCHOONER  PAULINA'S  CARGO  v.  UNITED 

STATES. 

Syl.  2   (I,  470).     Statutory  construction — Legislative  intent. 

Approved  in  dissenting  opinion  in  Irwin  v.  Irwin,  2  Okl.  218,  37 
Pac.  560,  majority  holding  repeal  of  law  giving  probate  courts  juris- 
diction in  divorce,  such  courts  have  no  jurisdiction  in  such  cases. 

7  Cr.  69-99,  3  L.  271,  RUSSELL  v.  CLARKE. 

Syl.  2  (I,  471).     Remedy  for  fraud  at  law. 

Approved  in  American  Alkali  Co.  v.  Salom,  131  Fed.  50,  65  C.  C. 
A.  284,  subscriber  to  corporate  stock  may  plead  rescission  of  sale  for 
fraud  as  defense  to  action  at  law  to  recover  assessments  on  sub- 
scription contract. 

Syl.  3   (I,  472).     Discovery — Equitable  relief. 

Approved  in  Larkey  v.  Gardner,  105  Va.  720,  54  S.  E.  887,  holding 
bill  for  discovery  and  relief  on  two  bonds  executed  by  defendant  to 
plaintiff  and  still  owned  by  latter,  but  in  possession  of  former,  in- 
sufficient as  not  averring  discovery  indispensable  to  recovery. 

Syl.  4  (I,  473).     Equity — Claim  satisfiable  out  of  fund. 

Approved  in  Brockett  v.  Lewis,  144  Mich.  562,  108  N.  W.  429,  up- 
holding equity  jurisdiction  of  suit  for  accounting  and  application  of 
amount  due  where  corporation  transferred  property  to  assignee  on 
his  promise  to  corporation  and  creditors  to  run  business  and  pay 
debts  from  proceeds. 


27  Notes  on  U.  S.  Reports.  7  Cr,  99-147 

S7I.  5  (I,  475).     Doubts  construed  against  guaranty. 

Approved  in  Kenneweg  Co.  v.  Finney,  98  Md.  117,  56  Atl.  484, 
broker's  reply  to  inquiries  as  to  seller's  responsibility  that  contract 
is  good  and  that  he  will  look  out  for  buyer's  interests  is  not  guar- 
anty that  contract  will  be  carried  out. 

Syl.  15  (I,  480).     Essential  parties  necessary  for  decree. 
Approved   in   Lynch   v.   United   States,   13   Okl.   158,   73   Pac.   1100, 
applying  rule  in  suit  to  cancel  townsite  patent. 

(I,  471.)  Miscellaneous.  Cited  in  Fowler  v.  Osgood,  141  Fed.  24, 
and  Indian  Land  &  T.  Co.  v.  Shoenfelt,  135  Fed.  487,  68  C.  C.  A.  196, 
both  holding  where  equity  has  no  jurisdiction,  decree  of  dismissal 
must  expressly  adjudge  that  it  is  rendered  on  that  ground  or  be  made 
without  prejudice. 

7  Cr.  99,  3  L.  281,  BINGHAM  v.  MORRIS. 

Syl.  1  (I,  482).     Dismissal  for  not  filing  transcript  on  appeal. 

Approved  in  Equitable  Life  Assur.  Soc.  v.  Tolbert,  145  Fed.  339, 
applying  rule  where  record  on  error,  though  lodged  with  clerk  in  due 
time,  was  not  filed  till  five  days  after  return  day  owing  to  delay  in 
payment  of  docket  fee;  Oilman  v.  Fernald,  141  Fed.  940,  where  tran- 
script is  filed  in  court  of  appeals  within  sixty  days  from  signing  of 
citation  and  within  time  specified,  but  after  return  day  of  writ  of 
error,  and  failure  to  file  before  return  day  has  not  continued  hearing 
over  any  term,  and  no  motion  to  dismiss  made  till  transcript  printed, 
writ  not  dismissed. 

7  Cr.  115,  116,  3  L.  287,  UNITED  STATES  v.  CROSBY, 

Syl.  1   (I,  486).     Law  governing  land  titles. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry.  Co.,  144  Fed. 
179,  applying  rule  to  question  as  to  whether  grant  by  Oakland  of  its 
waterfront  had  been  confirmed  by  authority  of  law;  Kane  v. 
Lucknian,  131  Fed.  617,  applying  rule  in  specific  performance  of  oral 
contract  for  purchase  of  cows  in  exchange  for  farm;  Succession  of 
Hasling,  114  La.  296,  38  So.  174,  validity  of  will  made  in  Louisiana 
by  citizen  thereof  devising  land  in  Mississippi  is  tested  by  law  of 
latter. 

7  Cr.  116-147,  3  L.  287,  SCHOONER  EXCHANGE  v.  McFADDON. 

Syl.  2  (I,  488).     Foreign  jurisdiction  over  warships. 

Approved  in  United  States  y.  Cornp}l  Steamboat  Co.,  202  U.  S. 
190,  50  L.  990,  26  Sup..  Ct.  648,  federal  government  is  liable  for 
salvage  upon  the  duties  collected  by  it  on  cargo  afterward  saved 
from  loss  by  fire  while  on  board  lighter  in  harbor  and  in  control  of 
customs  officers. 


7  Cr.  147-241  Notes  on  U.  S.  Reports.  28 

Syl.  1  (I,  489).     Jurisdiction  over  passing  foreign  troops. 

Approved  in  Hamilton  v.  McClaughry,  136  Fed.  448,  449,  upholding 
jurisdiction  of  court-martial  during  "Boxer  Uprising." 

7  Cr.  147-152,  3  L.  297,  FEEELAND  v.  HEEON. 

Syl.  1  (I,  489).     Stated  account — Effect  of  silence. 

Approved  in  Patillo  v.  Allen-West  Com.  Co.,  131  Fed.  688,  65  C. 
C.  A.  508,  where  complaint  stated  facts  from  which  presumption  of 
promise  to  pay  balance  of  account  stated  arose,  amendment  adding 
averment  of  promise  to  pay  balance  of  stated  account  presented  no 
new  cause  of  action. 

7  Cr.  164-167,  3  L.  303,  STATE  OF  NEW  JEESEY  v.  WILSON. 

Syl.  2  (I,  494).     Repeal  of  state  tax  exemption. 

Distinguished  in  Lake  Drummond  Canal  Co.  v.  Commonwealth,  103 
Va.  340,  344,  49  S.  E.  507,  508,  corporation  purchasing  property  and 
franchise  of  another  corporation  on  foreclosure  of  trust  deed  cannot 
claim  tax  immunity  granted  to   original  corporation. 

7  Cr.  171-176,  3  L.  305,  DAVY  v.  FAW. 

Syl.  3   (I,  501).     Necessity  for  award  by  deed. 
See  102  Am.  St.  Eep.  247,  note. 

7  Cr.  176-194,  3  L.  307,  HUGHES  v.  MOOEE. 

Syl.  4  (I,  501).     Statute  of  frauds — Sale  of  equitable  title. 

Approved  in  Pickens  v.  Wood,  57  W.  Va.  483,  50  S.  E.  819,  where 
husband  buys  land  in  own  name,  in  suit  to  subject  land  to  his  debts, 
his  uncorroborated  evidence  is  insufficient  to  show  express  trust  in 
favor  of  wife  by  parol  agreement. 

7  Cr.  206-208,  3  L.  317,  RIDDLE  v.  MOSS. 

Syl.  1  (I,  504).     Principal  obligor  not  competent  witness. 

Approved  in  Oexner  v.  Loehr,  117  Mo.  App.  710,  93  S.  W.  336, 
where  one  of  makers  of  note  was  originally  codefendant,  but  de- 
faulted, his  wife  cannot  testify  for  accommodation  indorser  defend- 
ant. 

7  Cr.  218-241,  3  L.  321,  CONWAY  v.  ALEXANDER. 

Syl.  2  (I,  506).     Doubtful  conditional  sales  decided  as  mortgage. 

Approved  in  Day  v.  Davis,  101  Md.  269,  61  Atl.  580,  holding  deed 
was  accompanied  by  grantee's  option  to  reconvey  on  payment  of  con- 
sideration and  grantor  could  redeem;  Liskey  v.  Snyder,  56  W.  Va. 
636,  49  S.  E.  52G,  setting  aside  release  of  equity  of  redemption  given 
for  new  consideration;  Hursey,  v.  Hursey,  56  W.  Va.  160,  49  S.  E. 
371,  deed  absolute  coupled  with  retention  of  possession  and  payment 
of  taxes  by  grantor  is  mortgage. 


29  Notes  on  U.  S.  Reports.  7  Cr.  288-348 

Syl.  8  (I,  510).     Deed  is  mortgage  where  consideration  inadequate. 

Approved  in  Hursey  v.  Hursey,  56  W.  Va.  157,  49  S.  E.  370,  deed 
absolute,  coupled  with  retention  of  possession  and  payment  of  taxes 
by  grantor,  is  mortgage. 

Syl.  4  (I,  508),     Mortgages — Remedy  against  person. 
Approved  in  Reed  y.  Parker,  33  Wash.  117,  74  Pac.  64,  construing 
transaction  as  sale  with  option  to  repurchase  and  not  mortgage. 

7  Cr.  288-290,  3  L.  347,  BARTON  v.  PETIT. 

Syl.  2  (I,  519).     Certiorari  in  aid  of  writ  of  error. 

Cited  in  Whitney  v.  Dick,  202  U.  S.  139,  50  L.  966,  26  Sup.  Ct.  584, 
certiorari  in  original  proceeding  to  review  conviction  in  inferior  fed- 
eral court  is  not  authorized  to  be  issued  by  circuit  court  of  appeals. 

7  Cr.  332-338,  3  L.  302,  MARINE  INS.   CO.   OF    ALEXANDRIA    v. 

HODGSON. 

Syl.  1  (I,  530).     Equitable  relief  against  judgment. 

Approved  in  Farmers'  etc.  W.  H.  Co.  v.  Pridemore,  55  W.  Va.  463, 
47  S.  E.  263,  reaffirming  rule;  Miller  v,  Margerie,  149  Fed.  698, 
denying  equity  jurisdiction  to  set  aside  townsite  deed  for  fraud  where 
facts  and  circumstances  preventing  complainants  from  having  notice 
of  hearing  and  opportunity  to  protect  rights  before  trustee  not  al- 
leged; Williams  v.  Neely,  134  Fed.  14,  69  L.  R,  A.  232,  67  C.  C.  A. 
171,  it  is  not  laches  for  one  who  has  equitable  defense  of  reduction 
to  note  which  is  subject  of  pending  litigation  in  another  court  to 
wait  till  affirmative  action  at  law  on  defense  is  barred,  before  in- 
voking equitable  aid  to  enjoin  prosecution  of  action;  Nelson  v. 
Meehan,  2  Alaska,  493,  setting  aside  judgment  for  fraud  and  perjury 
in  procurement,  after  term  at  which  entered  and  after  its  affirmance 
by  appellate  court;  Schwaman  v.  Traux,  179  N.  Y.  44,  103  Am.  St. 
Rep.  832,  71  N.  E.  467,  setting  aside  judgment  and  sale  in  partition, 
where  plaintiff  had  by  fraud  been  deprived  of  power  to  bid  at  sale 
and  defendant  bid  in  property  at  less  than  value;  Hockaday  v.  Jones, 

8  Okl.  163,  56  Pac.  1056,  denj-ing  jurisdiction  to  enjoin  execution  of 
and  annul  default  judgment  obtained  without  service;  McMahen  v. 
Whelan,  44  Or.  406,  75  Pac.  716,  judgment  for  plaintiff  in  justice 
court  in  unlawful  detainer,  nor  its  affirmance  on  appeal,  does  not 
estop  defendant  suing  for  specific  performance  of  verbal  lease  and  to 
enjoin  judgment;  Hearn  v.  Canning,  27  R.  I.  220,  61  Atl.  604,  denying 
injunction  against  execution  on  ground  that  judgment  by  confession 
was  entered  by  mistake,  where  it  would  not  have  been  entered  but 
for  negligence  of  attorney. 

7  Cr.  339-348,  3  L.  364,  LOCKE  v.  UNITED  STATES. 

Syl.  2  (I,  537).     Probable  cause  to  justify  seizure. 

Approved  in  United  States  v.  83  Sacks  of  Wool,  147  Fed.  749,  on 
judgment  for  claimant  of  property  seized  by  customs  officers  because 


7  Cr.  358-382  Notes  on  U.  S.  Reports.  30 

of  fraudulent  importation,  certificate  of  reasonable  cause  should  be 
entered,  though  verdict  was  correct,  where  it  is  shown  officers  acted 
in  good  faith;  Agnew  v.  Haymes,  141  Fed.  636,  in  action  against 
internal  revenue  ofiicer  for  wrongful  seizure  of  property  returned  to 
claimant  intact,  proof  that  defendant  made  seizure  by  direction  of 
revenue  commissioner  upon  information  received  from  agents  show- 
ing suspicion  of  violation  of  law  shows  probable  cause. 

7  Cr.  358-363,  3  L.  370,  CAZE  v.  BALTIMOEE  INS.  CO. 

Syl.  2  (I,  540).     Freight  where  vessel  abandoned. 

Approved  in  The  Eliza  Lines,  199  U.  S.  128,  50  L.  149,  26  Sup.  Ct. 
8,  justifiable  abandonment  of  vessel  in  consequence  of  dangers  of 
seas  entitles  cargo  owners  to  refuse  to  go  on  with  voyage  where 
master  has  not  rejoined  ship  before  anyone  else  has  taken  possession. 

7  Cr.  366-370,  3  L.  373,  LEE  v.  MUNROE. 

Syl.  2   (I,  541).     Government's  liability  for  oflicers'  torts. 

Approved  in  United  States  v.  Kauhoe,  147  Fed.  187,  where  defend- 
ants, who  were  liable  on  postmaster's  bond  for  embezzlement,  re- 
quested inspector  to  extend  time,  and  he  consented  in  consideration 
of  their  executing  note,  note  was  unauthorized  and  void;  Hudson  v. 
Miles,  185  Mass.  585,  71  N.  E.  65,  in  action  on  tax  collector's  bond, 
if  it  is  known  to  obligee  of  bond  that  principal  in  past  had  been  guilty 
of  irregularities  in  duties,  obligee's  failure  to  disclose  fact  is  de- 
fense against  surety 's  liability. 

7  Cr.  370-382,  3  L.  374,  HERBERT  v.  WREN. 

Syl.  1  (I,  543).     Dower — Law  and  equity  jurisdiction. 

Approved  in  Beeman  v.  Ketzman,  124  Iowa,  94,  99  N.  W.  174,  it 
is  immaterial  that  widow  styles  action  as  one  in  partition  if  petition 
states  facts  on  which  dower  may  be  assigned. 

Sj'l.  2  (I,  543).     Election  between  devise  and  dower. 

Approved  in  Stone  v.  Cook,  179  Mo.  541,  78  S.  W.  802,  64  L.  R.  A. 
287,  legatee  accepting  legacy  under  protest  that  will  invalid  cannot 
contest  will  by  allegation  of  readiness  to  pay  amount  into  court  or 
to  have  it  deducted  from  share  if  will  set  aside. 

Syl.  3  (I,  544).     Dower — Wife's  right  on  lease. 

Approved  in  Swayne  v.  Lone  Acre  Oil  Co.,  98  Tex.  608,  86  S.  W. 
743,  69  L.  R.  A.  986,  where  grantees  of  remainderman  occupying  in 
severalty  by  virtue  of  fee  title  of  grantors  to  two-thirds,  but  to  en- 
tire exclusion  of  life  tenant,  discovered  cil,  J'"''''^  tenant  only  entitled 
to  interest  on  one-third  of  proceeds  of  sale  of  oil. 


31  Notes  on  U.  S.  Reports.  7  Cr.  382-480 

7  Cr.   382-389,  3  L.  378,  CAEGO   OF  BRIGG  AURORA  v.   UNITED 
STATES. 

Syl.  1   (I,  545).     Legislative  conditions  for  operation  of  statute. 

Approved  in  State  v.  Rogers,  97  Minn.  325,  106  N.  W.  346,  up- 
holding Laws  1903,  c.  333,  p.  577,  regulating  collection  and  disposi- 
tion of  fees  of  district  court  clerks  in  counties  of  over  200,000  in- 
habitants; State  V.  Bryan,  50  Fla.  371,  39  So.  954,  arguendo. 

7  Cr.  408-415,  3  L.  386,  FERGUSON  v.  HARWOOD. 

Syl.  1  (I,  548).     Conclusiveness  of  authentication  of  record. 

Approved  in  Seymour  v.  Du  Bois,  145  Fed.  1007,  upholding  suffi- 
ciency of  authentication  of  record  of  judgment  within  provisions  of 
Rev.  St.,  §  905. 

7  Cr.  420-423,  3  L.  391,  STARK  v.  CHESAPEAKE  INS.  CO. 

Syl.  1  (I,  552).     Requisites  of  record  of  naturalization. 

Approved  in  Dolan  v.  United  States,  133  Fed.  449,  certified  copy 
of  record  of  court  showing  admission  of  alien  to  citizenship  consti- 
tutes "certificate  of  citizenship"  within  Rev.  St.,  §§  5425,  5427; 
Tinn  v.  United  States  Dist.  Atty.,  148  Cal.  775,  84  Pac.  152,  oraer 
vacating  order  admitting  alien  to  citizenship  for  fraud  in  its  procure- 
ment, made  after  lapse  of  six  months  from  naturalization  is  void. 

7  Cr.  434,  435,  3  L.  396,  SMITH  v.  DELAWARE  INS.  CO. 

Syl.  1  (I,  555).     Judgment  on  verdict  when  reserved. 

Approved  in  Barge  v.  Haslam,  65  Neb.  659,  91  N.  W.  529,  follow- 
ing rule. 

7  Cr.  436-455,  3  L.  396,  HOLKER  v.  PARKER. 

Syl.  2  (I,  555).     Attorney's  right  to  compromise. 

Approved  in  Miocene  Ditch  Co.  v.  Moore,  150  Fed.  500,  upholding 
order  striking  from  files  amendment  to  complaint  in  suit  to  determine 
water  rights  made  pursuant  to  compromise  by  attorney  for  defendant, 
without  defendant's  knowledge,  whereby  defendant's  rights  in  other 
streams  adjudicated;  Fleishman  v.  Meyer,  46  Or.  275,  80  Pac.  213, 
attorney  at  law,  in  absence  of  express  authority,  cannot  compromise 
claim  for  client. 

7  Cr.  471-480,  3  L.  408,  BLACKWELL  v.  PATTON. 

Syl.  3  (I,  559).     Amendment  of  ejectment  declaration. 

Approved  in  King  v.  Davis,  137  Fed.  211,  under  Code  Va.  1S87,  § 
3253,  where  in  ejectment  original  declaration  contained  description 
of  land  and  allegation  that  defendants  were  unlawfully  withholding 
possession  from  plaintiff,  he  could  amend  description  before  defend- 
ants' appearance. 


7  Cr.  481-565  Notes  on  U.  S.  Keports.  32 

7  Cr.  481-487,  3  L.  411,  MILLS  v.  DURYEE. 

Syl.  1   (I,  559).     Effect  of  sister  state  judgment. 

Approved  in  Alaska  Commercial  Co.  v.  Debney,  2  Alaska,  314,  where 
plaintiff  asked  leave  to  amend  complaint  on  two  causes  of  action, 
first  on  original  debt  and  second  on  Canadian  judgment  against  de- 
fendant on  original  debt,  leave  denied;  dissenting  opinion  in  Had- 
dock V.  Haddock,  201  U.  S.  626,  632,  50  L.  893,  896,  26  Sup.  Ct.  525, 
majority  holding  mere  domicile  within  state  of  one  party  to  marriage 
does  not  give  courts  of  that  state  jurisdiction  to  render  divorce  de- 
cree enforceable  in  other  states  against  defendant  constructively 
served;  dissenting  opinion  in  Smith  v.  Willung,  123  Wis.  386,  101  N. 
W.  695,  arguendo.     See  103  Am.  St.  Eep.  305,  307,  note. 

Syl.  2  (I,  567).     Nihil  debet  as  plea  to  foreign  judgment. 
See  103  Am.  St.  Eep.  323,  note. 

7  Cr.  496-500,  4  L.  417,  BRIG  CAROLINE  v.  UNITED  STATES. 

Syl.  2  (I,  570).     Amendment  of  libel  for  forfeiture. 

Approved  in  Graham  v.  Oregon  E.  etc.  Co.,  134  Fed.  693,  where 
exceptions  to  libel  in  admiralty  for  want  of  jurisdiction  are  sustained, 
amendment  may  be  allowed. 

7  Cr.  504-506,  3  L.  420,  McINTIRE  v.  WOOD. 

Syl.  1  (I,  571).     Mandamus  by  circuit  court. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  955,  67 
L.  R.  A.  761,  66  C.  C.  A.  55,  upholding  jurisdiction  of,  court  of  ap- 
peals to  issue  mandamus  to  compel  circuit  court  to  vacate  order  stay- 
ing proceedings  in  state  court;  dissenting  opinion  in  Tampa  Water- 
works Co.  V.  Tampa,  199  U.  S.  247,  50  L.  175,  26  Sup.  Ct.  23,  majority 
upholding  power   of   municipality   of   Florida   to   reduce  water   rates. 

Distinguished  in  McDaid  v.  Territory,  1  Okl.  97,  30  Pac.  440,  terri- 
torial court  may  issue  mandamus  to  compel  townsite  trustees  to  issue 
deed  to  contestant  they  have  decided  is  entitled  to  it. 

Syl.  2  (I,  573).     Circuit  court's  jurisdiction  limited. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  24,  50  L.  644,  26  Sup. 
Ct.  387,  denial,  in  summoning  or  impaneling  jurors,  of  any  civil  right 
secured  by  federal  law,  does  not,  unless  authorized  by  state  laws, 
give  right  to  remove  criminal  prosecution  to  federal  court;  Stevenson 
V.  Fain,  195  U.  S.  167,  49  L.  143,  25  Sup.  Ct.  6,  circuit  court  of  ap- 
peals has  no  jurisdiction  over  controversy  between  claimants  under 
grants  from  different  states  where  diverse  citizenship  did  not  exist. 

7  Cr.  550-565,  3  L.  436,  PALMER  v.  ALLEN. 

Syl.  2   (I,  576).     Effect  of  state  law  on  federal  officers. 

Approved  in  King  v.  Davis,  137  Fed.  241,  Va.  Code  1887,  §  3566, 
relating  to  lis  pendens,  has  no  application  to  federal  courts. 


33  Notes  on  U.  S.  Eeports.  7  Cr.  565-632 

7  Cr.  565-570,  3  L.  440,  YOUNG  v.  BLACK. 

Syl.  1  (I,  577).     Assumpsit — Res  adjudicata  as  defense. 

Approved  in  Holford  v.  James,  136  Fed.  555,  69  C,  C.  A.  263,  up- 
holding sufficiency  of  docket  entries  to  support  plea  of  res  adjudicata. 

7  Cr.  570-572,  3  L.  442,  SCHOONER  ANNE  v.  UNITED  STATES. 

Syl.  2   (I,  581).     Sufficiency  of  libel  for  forfeiture. 

Approved  in  J.  W.  Bishop  Co.  v.  Shelhorse,  141  Fed.  647,  upholding 
action  of  trial  judge  in  suggesting  to  plaintiff  addition  of  another 
count  to  declaration  setting  forth  more  clearly  matters  covered  by 
general  averment. 

Syl.  3  (I,  581).     Amendment  of  libel  in  admiralty. 
Approved  in  Graham  v.  Oregon  R.  etc.  Co.,  134  Fed.  693,   where  ex- 
ceptions to  libel  in  admiralty  for  want  of  jurisdiction  are  sustained 
amendment   may  be   allowed. 

7  Cr.  572-575,  3  L.  443,  UNITED  STATES  v.  JANUARY. 

Syl.  3   (I,  582).     Officers — Liability  of  second  bondsmen. 

Approved  in  First  Nat.  Bank  v.  National  Surety  Co.,  130  Fed.  406, 
407,  409,  66  L.  E.  A.  777,  applying  principle  to  indemnity  bond  of 
bank  official. 

7  Cr.  577-589,  3  L.  444,  LIVINGSTON  v.  DOEGENOIS. 

Syl.  2   (I,  584).     Mandamus  by  supreme  court. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  954,  956, 
67  L.  R.  A.  761,  66  C.  C.  A.  55,  circuit  court  of  appeals  has  juris- 
diction to  issue  mandamus  to  compel  circuit  judge  to  vacate  order 
staying  proceedings  in  state  court;  In  re  Dowd,  133  Fed.  751,  argu- 
endo. 

7  Cr.  596-601,  3  L.  451,  THORNTON  v.  CARSON. 

Syl.  1  (I,  585).     Award  in  alternative. 

Approved  in  Brock  v.  Lawton,  210  Pa.  202,  59  Atl.  999,  apply- 
ing rule  where  bill  filed  to  compel  delivery  of  stock  ur  payment  of 
its  value. 

Syl.  3  (I,  585).     Setting  aside  award. 

Approved  in  Burrill  v.  United  States,  147  Fed.  49,  where,  in  action 
in  federal  court,  parties  agreed  to  trial  before  arbitrators,  court  may 
enter  judgment  on  award. 

7  Cr.  603-632,  3  L.  453,  FAIRFAX  v.  HUNTER. 

Syl.  3   (I,  586).     Alien's  right  to  hold  land. 

Approved  in  Pembroke  v.  Huston,  180  Mo.  638,  79  S.  W.  471,  alien 
cannot  abandon  property  and  rescind  contract  for  eichauge  of  lauds; 

3 


8  Cr.  9-50  Notes  on  U.  S.  Eeports,  34 

Louisville  Property  Co.  v.  Mayor  &  City  Council  of  Nashville,  114 
Tenn.  221,  84  S.  W.  812,  purchase  of  land  by  foreign  corporation  with- 
out first  complying  with  laws  relating  to  foreign  corporations  is  no 
bar  to  suit  for  damage  to  land  from  change  of  street  grade. 

Syl.  6  (I,  588).     Forfeiture  of  alien's  lands. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed. 
527,  67  C.  C.  A,  393,  where  testator  devised  residuary  estate  in  trust 
for  term  and  then  to  be  transferred  to  corporation  to  be  organized, 
to  be  used  for  hospital,  fact  that  at  testator's  death  charitable  cor- 
poration could  not  hold  property  to  amount  of  devise  did  not  invali- 
date gift  as  to  excess  where  special  act  passed  permitting  corpora- 
tion to  take;  Shea  v.  Nilima,  133  Fed.  215,  66  C.  C.  A.  263,  upholding 
agreement  between  two  aliens  to  locate  mining  claims. 


VIII  CRANCH. 


8  Cr.  9-30,  3  L.  471,  GEIFFITH  v.  FEAZIER. 

Syl.  2  (I,  592).     Executors — Effect  of  want  of  jurisdiction. 

Approved  in  Cunnius  v.  Reading  School  Dist.,  198  U.  S.  473,  49 
L.  1131,  25  Sup.  Ct.  721,  upholding  Pa.  Laws  1885,  p.  155,  for  admin- 
istration of  estates  of  absentees;  Savings  Bank  of  Baltimore  v.  Weeks, 
103  Md.  606,  64  Atl.  296,  holding  void  act  of  1896,  giving  orphans' 
court  jurisdiction  to  appoint  administrator  for  estate  of  person 
unheard  of  for  seven  years;  Jordan  v.  Chicago  etc.  Ry.  Co.,  125 
Wis.  588,  592,  110  Am.  St.  Rep.  865,  104  N.  W.  805,  807,  1  L. 
R.  A.  (N.  S.)  885,  under  Rev.  St.  1898,  §  3819,  county  court  on  hear- 
ing petition  for  administration  may  determine  whether  or  not  de- 
ceased leaves  property  in  state,  and  its  determination  is  not  col- 
laterally attackable;  Rice  v.  Tilton,  14  Wyo.  113,  82  Pac.  579,  ad- 
ministrator appointed  under  voidable  order  reciting  proof  of  notico 
made,  but  where  in  fact  statutory  notice  to  executor  named  in  will 
not  mailed,  is  entitled  to  commissions  and  disbursements. 

Syl.  4  (I,  593).     Executor  absent  from  »tate. 
See  108  Am.  St.  Rep.  414,  note. 

(I,  590.)  Miscellaneous.  Cited  in  Leahy  v.  Haworth,  141  Fed. 
852,  arguendo. 

8  Cr.  39-50,  3  L.  481,  MARCARDIN  v.  CHESAPEAKE  INS.  CO. 

Syl.  1  (I,  594).     Charter  for  cargo  as  affreightment. 

Approved  in  Grimberg  v.  Columbia  Packers'  Assn.,  47  Or.  264,  266, 
83  Pac.  197,  construing  charter  of  vessel  as  contract  of  affreight- 
ment and  not  demise. 


35  Notes  on  U.  S.  Reports.  8  Cr.  72-470 

8  Cr.  72-74,  3  L.  491,  CLEMENTSON  v.  WILLIAMS. 
Syl.  1   (I,  598).     Limitations — Acknowledgment  of  debt. 
See  102  Am.  St.  Ecp.  753,  note. 

8  Cr.  84-93,  3  L.  496,  RICHARDS  v.  MARYLAND  INS.  CO. 

Syl.  1  (I,  601).     Limitations^-Failure  of  executor  to  prosecute  suit. 

Distinguished  in  Patterson  v.  Safe  Deposit  &  Trust  Co.,  148  Fed. 
790,  arguendo. 

8  Cr.  98-108,  3  L.  500,  BEATTY  v.  BURNS. 

Syl.  2    (I,   602).     Statute  of  limitations  one  of   repose. 

Approved  in  Lynchburg  etc.  Mill  Co.  v.  Travelers'  Ins.  Co.,  140 
Fed.  724,  when  insurance  policy  provides  that  action  thereon  is  barred 
unless  commenced  within  thirty  days  after  right  of  action  accrues, 
conduct  of  company  inducing  delay  merely  suspends  operation  of 
clause. 

8  Cr.  229-251,  3  L.  545,  GREEN  v.  LITER. 

Syl.  4   (I,  611).     Jurisdiction — Amount  in  controversy. 

Approved  in  Way  v.  Clay,  140  Fed.  355,  in  ejectment  in  federal 
court  to  recover  land  alleged  to  be  valued  at  over  $2,000,  jurisdiction 
not  ousted  by  disclaimer  of  all  except  tract  of  less  value. 

Syl.  5   (I,  612).     Costs — Recovery  less  than  jurisdictional  amount. 

Overruled  in  McCarthy  v.  American  Thread  Co.,  143  Fed.  680,  cir- 
cuit court  cannot  compel  payment  of  costs  by  plaintiff  recovering  lesr. 
than  $500,  unless  damages  laid  in  declaration  in  excess  of  $2,000 
merely  to  give  colorable  jurisdiction. 

8  Cr.  398-416,  3  L.  602,  UNITED  STATES  v.  1960  BAGS  OF  COFFEE. 

Syl.  1   (I,  618).     Effect  of  forfeiture  under  nonintercourse  acts. 

Approved  in  McConathy  v.  Deck,  34  Colo.  471,  83  Pac.  138,  under 
statute  providing  for  forfeiture  of  concealed  weapons  taken  from 
parties  violating  statute,  conviction  of  carrying  concealed  weapon 
not  necessary  to  forfeiture;  Daniels  v.  Homer,  139  N.  C.  232,  51 
S.  E.  997,  3  L.  R.  A.  (N.  S.)  997,  upholding  Acts  Gen.  Assem.  1905, 
c.  292,  §  9,  relating  to  seizure  and  sale  of  appliances  used  in  illegal 
fishing. 

8  Cr.  462-470,  3  L.  624,  ALEXANDER  v.  PENDLETON. 

Syl.   3    (I,   624).     Bona  fide   purchaser   without   notice   of   trust. 

Approved  in  Slaughter  v.  Coke  County,  34  Tex.  Civ.  602,  79  S. 
W.  865,  conveyance  reciting  grantor  has  sold  all  right,  title  and  in- 
terest in  certain  land  transferred  to  grantor  by  order  of  court  and 
contract  for  deed  gives  only  grantor's  title. 


9  Cr.  11-102  Notes  on  U.  S.  Eeports.  36 

Syl.  4   (I,  624).     Abatement  takes  no  time  out  of  limitations. 

Approved  in  Patterson  v.  Safe  Deposit  &  Tr.  Co.,  148  Fed.  791, 
denying  equitable  relief  where  seven  years  after  commencement  of 
action  without  trial  defendant  died  in  another  state,  and  two  years 
thereafter  new  action  barred  by  limitation  commenced  against  ad- 
ministrator in  other  state. 

8  Cr.  471-478,  3  L.  627,  PKATT  v.  CARROLL. 

Syl.  1  (I,  625).     Specific  performance  refused  for  laches. 

Approved  in  Marks  v.  Gates,  2  Alaska,  526,  refusing  specific  per- 
formance of  grubstake  contract. 


IX  CRANCH. 


9  Cr.  11-18,  3  L.  639,  MEIGS  v.  MeCLUNG'S  LESSEE. 

Syl.  1  (I,  626).     Indian  treaty — Contract  not  controllable  by  agent. 

Approved  in  Wadsworth  v.  Boysen,  148  Fed.  780,  enjoining  In- 
(lian  agent  obstructing  complainant  from  prospecting  on  reserva- 
tion. 

9  Cr.  43-55,  3  L.  650,  TERRETT  v.  TAYLOR. 

(I,  631.)  Miscellaneous.  Cited  in  Ex  parte  Anderson,  46  Tex. 
Cr.  392,  81  S.  W.  983,  city  court  has  no  jurisdiction  to  try  accused 
for  alleged  violation  of  state  penal  statute. 

9  Cr.  71-76,  3  L.  660,  BRIG  STRUGGLE  v.  UNITED  STATES. 
Syl.  1  (I,  639).     Weight  of  circumstanial  evidence. 
See  97   Am.  St.   Rep.   774,  note. 

9  Cr.  76-86,  3  L.  662,  RANDOLPH  v.  DONALDSON. 

Syl.   1    (I,   639).     Marshal — Escape  from   state   jail. 

Approved  in  Avery  v.  Pima  County,  7  Ariz.  33,  60  Pac.  704,  sheriff 
not  entitled  to  extra  pay  for  care  of  federal  prisoners. 

9  Cr.  87-102,  3  L.  665,  POLK'S  LESSEE  v.  WENDAL. 

Syl.  1   (I,  639).     Following  state  statutory  construction. 

Approved  in  Lockard  v.  Asher  Lumber  Co.,  131  Fed.  690,  65  C.  C. 
A.  517,  under  St.  Ky.,  c.  102,  §  3,  survey  of  several  tracts  of  two 
hundred  acres  each  by  same  person  is  not  purchase,  and  patent 
for  lands  so  surveyed  is  not  void  on  face. 


37  Notes  on  U.   S.  Reports.  9  Cr.  104-179 

Syl.  3   (T,  641).     Presumptions  from  patent. 

Approved  in  Lockard  v.  Aslier  Lumber  Co.,  131  Fed.  691,  695, 
65  C.  C.  A.  517,  under  Rev.  St.  Ky.,  c.  102,  §  3,  where  same  person 
obtained  survey  of  several  tracts  of  two  hundred  acres  each,  patent 
for  lands  so  surveyed  is  not  void  on  face. 

Syl.  5  (I,  642).     Patent  where  state's  title  void. 

Approved  in  Reeve  v.  North  Carolina  Land  etc.  Co.,  141  Fed.  823, 
following  rule;  Davis  v.  Moylcs,  76  Vt.  32,  56  Atl.  176,  grant  of 
land  from  state  conveys  only  state's  title. 

Syl.  6  (I,  644).     Equity — Conflicting  claims  under  patent. 

Approved  in  Reeve  v.  North  Carolina  Land  etc.  Co.,  141  Fed.  825, 
following   rule. 

9  Cr.  104-120,  3  L.  671,  ARNOLD  v.  UNITED  STATES. 

Syl.  2   (I,  647).     Duties  accrue  on  arrival. 

Approved  in  United  States  v.  Hartwell  Lumber  Co.,  142  Fed.  436, 
where  merchandise  imported  shortly  before  tariff  act  of  1897  went 
into  effect  and  collector  rejected  tender  of  duty  as  being  made 
before  entry  complete,  and  tender  not  renewed  till  act  operative, 
act  of  1897  governed;  Ellison  v.  United  States,  136  Fed.  972,  im- 
ported merchandise  entered  at  one  port  for  immediate  transporta- 
tion to  another  cannot  be  entered  for  consumption  at  latter  port 
before  its  arrival  at  that  port. 

9  Cr.  126-151,  3  L.  678,  THE  MARY. 

Syl.  2  (I,  649).     Notice  necessary  to  binding  judgment. 

Approved  in  Reynolds  v.  Whittemore,  99  Me.  110,  58  Atl.  416, 
discharge  in  voluntary  bankruptcy  where  debt  not  scheduled  and 
creditor  had  no  notice  until  after  discharge  obtained,  does  not  bar 
debt. 

9   Cr.    151-153,   3   L.   687,   LEWIS   v.   McFARLAND. 

Syl.  1  (I,  651).     Executor's  suit  in  foreign  state. 

Approved  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  306,  execu- 
tor may  sue  in  another  state  to  recover  from  agent  proceeds  of  sale 
of   decedent's  realty. 

9  Cr.  173-179,  3  L.  694,  McIVER'S  LESSEE  v.  WALKER. 

Syl.  2  (I,  656).     Monuments  control  courses. 

Distinguished  in  Security  Land  etc.  Co.  v.  Burns,  193  U.  S.  179, 
48  L.  671,  24  Sup.  Ct.  425,  courses  and  distances  set  forth  in  plat 
of  official  survey  and  referred  to  in  patent,  which  shows  alleged 
meander  line  of  lake  as  one  boundary,  control  as  against  actual 
boundary  of  lake,  where  survey  fraudulent  and  lake  never  within 
half  mile  of  point  indicated  on  plat. 


1  Wheat.  9-95  Notes  on  U.  S.  Reports.  38 

9  Cr.  244-289,  3  L.  719,  THE  ADELINE. 

Syl.  1  (I,  6G1).     Admiralty — Amendment  of  libel. 

Approved  in  Graham  v.  Oregon  etc.  Nav.  Co.,  134  Fed.  693,  where 
exceptions  to  libel  in  admiralty  for  want  of  jurisdiction  are  sus- 
tained, leave  to  amend  may  be  granted. 

9  Cr.  292-338,  3  L.  735,  PAWLET  v.  CLARK. 

Syl.  1  (I,  663).     Courts — Conflicting  grants  by  states. 

Distinguished  in  Stevenson  v.  Fain,  195  U.  S.  169,  49  L.  144,  25 
Sup.  Ct.  6,  denying  jurisdiction  of  circuit  court  over  controversy 
between  parties  not  having  requisite  diversity  of  citizenship  but 
claiming  under  grants  from   different  states. 


I  WHEATON. 


1  Wheat.  9-19,  4  L.  23,  THE  SAMUEL. 

Syl.  1  (I,  674).     Depositions — Witness  must  be  absent. 

Approved  in  Boise  v.  Atchison  etc.  Ry.  Co.,  6  Okl.  247,  51  Pac. 
663,  fact  that  wife  is  in  attendance  upon  sick  husband  does  not 
make  deposition  admissible  where  not  shown  she  was  out  of  county. 

1  Wheat.  75-84,  4  L.  40,  THOMPSON  v.  GRAY. 

Syl.  1  (I,  677).     Title  passes  when  article  selected. 

Approved  in  Buskirk  Bros.  v.  Peck,  57  W.  Va.  369,  50  S.  E.  435, 
under  contract  for  sale  of  timber  to  be  cut  and  removed  by  vendor 
in  specified  time  and  paid  for  each  month  before  removal,  title  vests 
as  timber  is  cut. 

1  Wheat.  91-95,  4  L.  44,  NEW  ORLEANS  v.  WINTER. 

Syl.  1   (I,  677).     Suit  between  citizens  of  territory  and  state. 

Approved  in  Alabama  etc.  Ry.  Co.  v.  Thompson,  200  U.  S.  219,  50 
L.  448,  26  Sup.  Ct.  161,  where  plaintiff,  in  good  faith,  elects  to  sue 
jointly,  in  tort,  foreign  corporation  and  servants,  presents  separable 
controversy,  which  may  be  removed  to  federal  court. 

Syl.  2  (I,  678).     Jurisdictional  capacity  of  all  parties. 

Approved  in  Sweeney  v.  Carter  Oil  Co.,  199  U.  S.  257,  50  L.  180, 
26  Sup.  Ct.  55,  two  citizens  of  different  states  may  sue  citizen  of 
their  state  in  circuit  court  of  latter 's  district;  Laden  v.  Meek,  130 
Fed.  879,  65  C.  C.  A.  361,  allegation  in  removal  petition  that  cer- 
tain of  petitioners  are  "residents"  of  state  other  than  that  of  which 
plaintiff  is  citizen,  and  that  none  of  petitioners  are  "residents  ana 
citizens"  of  state  of  plaintiff's  citizenship,  is  insufficient. 


3<J  Notes  on   U.   S.   Reports.  1  Wheat.  96-382 

(T,  G77.)  Miscellaneous.  Cited  in  Robinson  v.  Peru  Plow  etc.  Co., 
1  Okl.  1-19,  31  Pac.  991. 

1  Wheat.  9C-]11,  4  L.  45,  THE  AURORA. 

Syl.  1   (I,  679).     Shipping — Advances. 

Approved  in  The  Wyandotte,  136  Fed.  473,  where  purchaser  of 
draft  drawn  by  master  of  vessel  in  foreign  port  for  advances  to 
pay  proper  charges  had  no  knowledge  that  at  time  draft  drawn  mas- 
ter held  drafts  for  freight  which  he  could  have  used  to  pay  such 
charges,  fact  that  charter-party  provided  ordinary  disbursements 
should  be  payable  from  freight  only  was  no  defense  to  draft. 

1  Wheat.  179-207,  4  L.  65,  HEPBURN  v.  DUNLOP. 

Syl.  1   (I,  684).     Specific  performance — Title  before  decree. 

Approved  in  Kentucky  Distilleries  etc.  Co.  v.  Blanton,  149  Fed. 
41,  and  Gibson  v.  Brown,  214  111.  336,  73  N.  E.  580,  both  following 
rule;  Hosmer  v.  Wyoming  Ry.  etc.  Co.,  129  Fed.  892,  65  L.  R.  A,  81, 
where  contract  evidences  actual  sale  and  purchase  of  realty,  and 
time  is  not  of  essence,  bill  for  specific  perforni;iuce  not  dismissed  for 
failure  to  tender  payment. 

Syl.  4  (I,  686).     Dismissal  as  bar  to  second  suit. 

Approved  in  Lockhart  v.  Leeds,  12  N.  M.  164,  76  Pac.  314,  judg- 
ment against  plaintiff  on  bill  to  have  mine  location  declared  void  for 
fraud  and  violation  of  agreement  to  locate  for  plaiutitt'  bars  suit  to 
declare   defendant  holds  mine  in  trust. 

1  Wheat.  261-278,  4  L.  86,  THE  EDWARD. 

Syl.   1    (I,  691).     Admiralty — Amendment   of  libel   on    appeal. 

Approved  in  Graham  v.  Oregon  etc.  Nav.  Co.,  134  Fed.  693,  follow- 
ing rule. 

1  Wheat.  304-382,  4  L.  97,  MARTIN  v.  HUNTER. 

Syl.  1   (I,  694).     United  States'  powers  limited. 

Approved  in  Burton  v.  United  States,  202  U.  S.  366,  50  L.  1065, 
26  Sup.  Ct.  688,  upholding  Rev.  St.,  §  1782,  making  it  misdemeanor 
for  senator  to  receive  or  agree  to  receive  compensation  for  ser- 
vices rendered  before  any  department  in  relation  to  proceedings  in 
which  United  States  is  interested;  Southern  Ry.  Co.  v.  Greensboro 
Ice  &  Coal  Co.,  134  Fed.  92,  order  of  state  corporation  commission 
to  place  carloads  of  coal  shipped  from  one  state  to  another  on  cer- 
tain track  for  unloading,  as  requested  by  consignee,  is  void. 

Syl.  7   (I,  696).     Exclusiveness  of  federal  jurisdiction. 

Approved  in  Jackman  v.  Eau  Claire  Nat.  Bank,  125  Wis.  481,  104 
N.  W.  103,  upholding  jurisdiction  of  state  courts  over  action  by 
bankruptcy  trustee  to  recover  value  of  property  as  preference. 


1  Wheat.  440-487  Notes  on  U.  S.  Ecports.  40 

Syl.  11  (I,  699).  Statutes — Contemporaneous  construction. 
Approved  in  State  v.  New  Orleans  Ey.  &  L.  Co.,  116  La.  148,  40 
So.  598,  applying  rule  where  under  two  similar  constitutions  ex- 
empting manufacturers  from  license  taxes,  legislature  for  twenty 
years  imposed  license  taxes  on  electric  companies;  State  v.  North- 
ern Pac.  Ey.  Co.,  95  Minn.  47,  10.3  N.  W.  732,  foreign  railroad  pay- 
ing taxes  under  gross  earnings  law  is  not  prevented  by  failure  to  list 
credits  from  deducting  debts  from  such  credits;  Henry  v.  State, 
S7  Miss.  57,  39  So.  871,  upholding  Eev.  Code  1892,  §  3201,  providing 
for  working  convicts  on  farm  leased  for  that  purpose;  Ex  parte  An- 
derson, 46  Tex.  Cr.  399,  81  S.  W.  987,  city  court  has  no  jurisdiction 
to  try  accused  for  alleged  violation  of  state  penal  statute. 

1   Wheat.  440-447,  4  L.   131,  THE  HIEAM. 

Sj'l.  1  (I,  707).     Setting  aside  agreement  made  by  mistake. 

Approved  in  Carrell  v.  McMurray,  136  Fed.  670,  applying  rule  to 
reformation  of  deed  made  under  contract  for  exchange  of  farm  for 
stock  of  merchandise. 

1  Wheat.  447-462,  4  L.  132,  AMMIDON  v.  SMITH. 

Syl.  1  (I,  707).     Surety — Discharge  of  prisoner  by  fraud. 

Approved  in  dissenting  opinion  in  Haddock  v.  Haddock,  201  TJ.  S. 
627.  50  L.  S93,  26  Sup.  Ct.  525,  majority  holding  mere  domicile  with- 
in state  of  one  party  to  marriage  does  not  give  courts  of  that  state 
jurisdiction  to  render  decree  of  divorce  enforceable  in  other  states 
against  nonresident  only  constructively  served. 

1  Wheat.  482-487,  4  L.  141,  EOSS  v.  EEED. 

Syl.  1  (I,  709).     Public  officer's  acts  presumed  correct. 

Approved  in  Griffin  v.  American  Gold  Min.  Co.,  136  Fed.  73,  68 
C.  C.  A.  637,  applying  principle  to  marshal's  return  on  attachment 
of  realty. 


II  WHEATON. 


2  Wheat.  25  31,  4  L.  175,  McIVEE  v.  EAGAN. 

Syl.  1  (I,  714).     Purpose  of  statute  of  limitations. 

Approved  in  dissenting  opinion  in  Ayres  v.  Cone,  138  Fed.  786,  ma- 
jority holding  where  validity  of  claim  of  petitioning  creditor  in  in- 
voluntary bankruptcy  proceedings  is  put  in  issue  by  bankrupt's  an- 
swer and  issue  determined  in  favor  of  creditor,  adjudication  is  con- 
clusive. 

Distinguished  in  French  v.  White,  78  Vt.  96,  62  Atl.  36,  2  L.  K.  A. 
(N.  S.)  804,  property  vesting  in  bankrupt's  trustee  under  bankruptcy 
law  is  not  attachable  in  state   court. 

Syl.  2  (I,  715).     Court  makes  no  exceptions  to  limitation  statute. 
Approved  in  Atchison  etc.  Ey.  Co.  v.  Grain  Co.,  68   Kan.  588,  75 
Pac.  1052,  following  rule. 

(I,  714.)  Miscellaneous.  Cited  in  Fry  v.  Fry,  125  Iowa,  430,  101 
N.  W.  146,  construing  Code,  §  3276,  relating  to  revocation  of  wills  by 
subsequent  birth  of  legitimate  child. 

2  Wheat.  66-76,  4  L.  185,  COOLIDGE  v.  PAYSON. 

Syl.  1   (I,  721).     Drafts — Pre-existing  debt  as  consideration. 

Approved  in  Barnsdall  v.  Waltemeyer,  142  Fed.  419,  promise  to  ac- 
cept bill  not  in  existence  but  subsequently  drawn  in  favor  of  prom- 
isee, who  takes  it  for  pre-existing  debt,  is  good  acceptance. 

,Syl.  2  (I,  721).     Drafts — Letter  promising  to  accept. 

Approved  in  Bank  of  Havelock  v.  Western  Union  Tel.  Co.,  141  Fed. 
525,  applying  rule  to  action  by  mortgagees  against  telegraph  com- 
pany for  loss  of  lien  caused  by  receipt  of  false  telegram  over  tele- 
phone; Bank  of  Seneca  v.  First  Nat.  Bank,  105  Mo.  App.  726,  78 
S.  W.  1093,  where  bank  issues  letter  of  credit  obligating  itself  to 
pay  bearer's  checks  to  certain  amount,  checks  drawn  by  bearer  and 
cashed  by  bank  which  had  no  notice  of  letter  cannot  be  applied  in 
extinguishment  of  amount  named  in  letter. 

2  Wheat.  111-llS,  4  L.  197,  McCOUL  v.  LE  KAMP. 

(I,  723.)  Miscellaneous.  Cited  in  Brown  v.  Fletcher,  140  Fed.  642, 
where  personal  representative  of  deceased  complainant  in  federal  suit 
took  no  steps  to  review,  but  brought  suit  in  another  jurisdiction  for 
some  relief,  defendant  is  entitled  to  dismissal  for  abandonment. 

[41] 


2  Wheat.  119-248  Notes  on  U.  S.  Reports.  42 

2  Wheat.  119-122,  4  L.  199,  UNITED  STATES  v.  SHELDON. 

Syl.  1   (I,  723).     Penal  statutes  strictly  construed. 

Approved  in  Dooley  v.  Jackson,  104  Mo.  App.  32,  78  S.  W.  334, 
statutes  making  election  bets  gaming  and  authorizing  suit  against 
stakeholder  to  recover  money  bet,  do  not  apply  to  primary  elections. 

2  Wheat.  148-160,  4  L.  206,  THE  WILLIAM  KING. 

Syl.  1   (I,  726).     Acts  in  fraud  of  law. 

Approved  in  Curley  v.  United  States,  130  Fed.  11,  64  C.  C.  A.  369, 
one  who  falsely  impersonates  another  at  civil  service  examination  is 
guilty  of  conspiracy  to  defraud  within  Eev.  St.,  §  5440. 

2  Wheat.  190-206,  4  L.  218,  RUTIIERFOKD  v.  GREENE, 

Syl.  1   (I,  728).     Grant  of  land  subsequently  surveyed. 

Distinguished  in  Conway  v.  United  States,  149  Fed.  266,  where 
Ponco  squaw's  allotment  in  Sioux  reservation  as  well  as  other  In- 
dian's whom  she  married  were  approved  and  patent  for  lieu  lands 
separately  applied  for  was  made  to  husband  as  head  of  family,  she 
was  entitled  to  half;  Wallace  v,  Adams,  143  Fed.  722,  claimants 
of  Indian  citizenship  who  secured  judgments  in  their  favor,  which 
were  final  under  statutes  when  rendered,  and  took  possession  of,  and 
demanded  lands  as  their  allotments,  before  judgments  were  made 
reviewable,  acquired  no  vested  rights  therein  against  subsequent 
legislation. 

2  Wheat.  221-226,  4  L.  224,  PATTERSON  v.  UNITED  STATES. 

Syl.  1  (I,  732).     Variance  from  issues  vitiates  verdict. 

Approved  in  Hamilton  v.  Murray,  29  Mont.  84,  74  Pac.  76,  where 
in  ejectment  plaintiff's  allegations  as  to  ownership,  possession  and 
ouster  denied  and  on  trial  controversy  was  as  to  location  of  bound- 
ary, verdict  for  plaintiff  for  possession  is  bad. 

Syl.  3  (I,  734).     Certiorari  for  removal  of  cause. 

Approved  in  Wliitney  v.  Dick,  202  U.  S.  139,  50  L.  966,  26  Sup.  Ct. 
584,  circuit  court  of  appeals  has  no  jurisdiction  to  issue  certiorari 
to  review  conviction  in  inferior  federal  court. 

2  Wheat.  227-248,  4  L.  226,  THE  PIZARRO. 

Syl.  1   (I,  734).     Condemnation — Spoliation  of  papers. 

Approved  in  Yarborough  v,  Hughes,  139  N.  C.  211,  51  S.  E.  908, 
where  in  suit  to  set  aside  sale  under  power,  evidence  showed  that 
attorney  and  purchaser  were  jointly  interested,  and  defendant  failed 
to  produce  writings  relating  to  transaction,  failure  raised  presump- 
tion against  him. 


43  Note3  oa  U.  S.  Reports.  2  Wheat.  259-345 

2  Wheat.  259-278,  4  L.  234,  CHIRAC  v.  CHIRAC. 

Syl.  3   (I,  737).     Aliens'  property  rights  under  treaty. 

Approved  in  Doe  v.  Roe,  4  Penne.  (Del.)  400,  55  Atl.  341,  applying 

rule    to    devolution    of    property    under    treaty    of    1900    with    Great 

Britain. 

2  Wheat.  290-305,  4  L.  242,  MORGAN  v.  MORGAN. 

Syl.  1  (I,  738).     Divestiture  of  federal  jurisdiction. 

Approved  in  Lebensbcrgcr  v.  ScoCeld,  139  Fed.  384,  following 
rule;  Kirby  v.  American  Soda  etc.  Co.,  194  U.  S.  146,  48  L.  913, 
24  Sup.  Ct.  619,  upholding  circuit  court's  jurisdiction  over  cross-bill 
seeking  to  recover  balance  of  $1,700,  due  on  contract  of  exchange, 
where  original  bill  dismissed  on  complainant's  own  motion  asked  for 
cancellation  of  agreement  to  pay  $2,025,  in  consideration  of  exchange. 

Syl.  2  (I,  740).     Specific  performance — Parties. 

Approved  in  Brandon  v.  West,  28  Nev.  507,  83  Pac.  328,  where 
owner  of  land  granted  to  complainant  by  executed  oral  sale  all 
sand  on  land,  legal  title  to  land  having  passed  to  such  owner's  de- 
scendants by  operation  of  law,  it  was  incumbent  on  them  to  con- 
vey to  complainant  right  purchased. 

Syl.  3   (I,  740).     Specific  performance — Ability  to   perform. 

Approved  in  Day  v.  Mountin,  137  Fed.  765,  70  C.  C,  A.  190,  where 
contract  for  sale  of  lands  requires  vendor  to  furnish  abstract  show- 
ing clear  title,  it  cannot  be  specifically  enforced  by  vendor  where 
only  title  shown  is  government  entry  without  final  proofs. 

2  Wheat.  327-335,  4  L.  252,  THE  ANNA  MARIA. 

Syl.  2   (I,  742).     Damages — Anticipated  profits. 

Approved  in  Choctaw  etc.  R.  R.  Co.  v.  Jacobs,  15  Okl.  500,  82  Pac. 
504,  applying  rule  in  action  against  railroad  for  delay  in  delivering 
freight;  Tootle  v.  Kent,  12  Okl.  691,  73  Pac.  315,  allowing  probable 
loss  of  profits  to  merchant  by  attachment  brought  on  by  reason  of 
fraudulent  chattel  mortgage;  Chisholm  etc.  Mfg.  Co.  v.  Y.  S.  Canopy 
Co.,  Ill  Tenn.  210,  77  S.  W.  1063,  allowing  lost  profits  as  damages 
for  breach  of   contract  to  manufacture  of  patent  brackets. 

2  Wheat.  336-345,  4  L.  253,  COLSON  v.  THOMPSON. 

Syl.  1  (I,  743).     Specific  performance  of  vague  contract. 

Approved  in  Sharp  v.  West,  150  Fed.  461,  three  years'  unexplained 
delay  in  bringing  suit  for  specific  performance  of  contract  for  sale  of 
land  bars  right;  Jones  v.  Byrne,  149  Fed.  461,  denying  specific  per- 
formance of  contract  for  sale  of  land  obtained  by  attorney  by  breach 
of  trust;  Hildreth  v.  Duff,  143  Fed.  140,  applying  rule  to  contract 
whereby  one  party  was  to  work  for  another  to  perfect  for  him  a 
candy-making  machine;   Couch  v.  McCoy,  138  Fed.  701,  offer  to  give 


2  Wheat.  377-394  Notes  on  U.  S.  Reports.  44 

option  to  purchase  realty,  where  written  contract  embodying  terms 
of  option  is  clearly  contemplated  by  both  parties,  does  not  con- 
stitute binding  contract  until  writing  executed;  Kane  v.  Luckman, 
131  Fed.  612,  applying  rule  to  contract  for  exchange  of  lands  for 
cows;  Marks  v.  Gates,  2  Alaska,  527,  refusing  to  specifically  perform 
contract  to  convey  all  property  which  defendant  may  acquire  in 
Alaska;  Kirkpatrick  v.  Pettis,  127  Iowa,  612,  103  N.  W.  957,  where, 
in  suit  for  specific  performance  of  oral  contract  to  convey  land, 
neither  receipt  for  earnest-money  nor  any  evidence  described  land 
particularly,  specific  performance  not  decreed;  Rosenwald  v.  Middle- 
brook,  188  Mo.  99,  86  S.  W.  212,  denying  specific  performance  of 
parol  contract  to  will  plaintiff  all  of  decedent's  property  in  con- 
sideration of  services  rendered  as  decedent's  partner  in  practice  of 
medicine;  Meyer  Land  Co.  v.  Pecor,  18  S.  D.  469,  101  N.  W.  40, 
instrument  reciting  that  person  named  has  paid  $50  for  tract  of 
land  described  "for  $9,000,  $6,000  cash  and  balance  at  six  per 
cent,  500  payment  per  year,"  signed  by  owner,  is  too  incomplete. 

2  Wheat.  377-379,  4  L.  266,  COLSON  v.  LEWIS. 

Syl.  1  (I,  750).     Courts — Conflicting  state  grants. 

Distinguished  in  Stevenson  v.  Fain,  195  U.  S.  169,  49  L.  144,  25 
Sup.  Ct.  6,  decision  of  circuit  court  of  appeals  is  final  in  contro- 
versy between  citizens  of  different  states  claiming  under  grants 
from   different  states  depending  entirely  upon  diverse   citizenship. 

2  Wheat.  380-384,  4  L.  266,  LEEDS  v.  MARINE  INS.  CO.  OF  ALEX- 
ANDRIA. 

Syl.  1   (I,  750).     Equity — Answer  as  evidence. 

Approved  i,n  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  bona 
fide  purchaser  must  allege  and  prove  want  of  notice  and  actual 
payment  of  purchase  price. 

2  Wheat    385-389,  4  L.  268,  EABORG  v.  PEYTON, 

Syl.  2  (I,  752).     Debt  against  payee  of  draft. 

Approved  in  United  States  v.  Alcorn,  145  Fed.  1000,  in  action  on 
proposal  bond  of  mail  contractor,  fact  that  government  recovered 
from  surety  actual  damages  sustained  by  breach  of  contract  is  no 
defense;  Eagsdale  v.  Gresham,  141  Ala.  314,  37  So.  369,  acceptance 
of  order,  as  between  acceptor  and  payee,  is  not  collateral  promise 
to  pay  debt  of  another;  Hudson  v,  McNear,  99  Me.  407,  59  Atl.  546, 
arguendo. 

2  Wheat.   390-394,  4  L.   269,  UNION  BANK  OF  GEORGETOWN   v. 
LAIRD. 

Syl.  2  (I,  754).     Corporation's  lien  on  shares  for  debt. 
Approved  in  Dempster  Mfg.  Co.  v.  Downs,   126  Iowa,   83,   106   Am. 
St.  Rep.  340,   101  N.  W.  736,   lien  in   favor  of   corporation   on   stock 


45  Notes  on  U.  S.  Reports.  3  Wheat.  172-230 

of  members  on  account  of  debts  due  corporation  from  them  may  be 
created  by  articles  of  incorporation;  Herman  Goepper  &  Co.  v. 
Phoenix  B.  Co.,  115  Ky.  716,  74  S.  W.  728,  where  bonds  were  de- 
posited as  collateral  for  notes  in  which  no  provision  was  made  re- 
quiring pro  tanto  release  of  collateral  or  partial  payment,  creditor 
could  hold  entire  collateral  as  security  for  balance  of  debt. 

2  Wheat.  395,  4  L.  271,  UNITED  STATES  v.  BARKER. 

Syl.  2  (I,  755).     United  States  not  liable  for  costs. 

Approved  in  State  v.  Williams,  101  Md.  534,  109  Am.  St.  Rep. 
583,  Gl  Atl.  299,  1  L.  R.  A.  (N.  S.)  254,  costs  cannot  be  awarded 
against  state. 


Ill    WHEATON. 


3  Wheat.  172  183,  4  L.  362,  DUGAN  v.  UNITED  STATES. 

Syl.  1   (I,  762).     Possession  of  note  by  indorsee. 

Approved  in  New  Haven  Mfg.  Co.  v.  New  Haven  etc.  Co.,  76 
Conn.  132,  55  Atl.  606,  mere  possession  of  holder  of  negotiable  note 
by  indorsee  is  suflScient  evidence  of  ownership  to  support  suit  there- 
on by  him;  Dunlap  v.  Kelly,  105  Mo.  App.  4,  78  S.  W.  665,  where 
plaintiff  in  action  on  note  alleges  she  was  original  payee  thereof, 
but  that  it  had  been  indorsed  by  her  to  third  person  and  by  latter 
back  to  her,  indorsements  themselves  are  insufficient  to  prove  al- 
legations. 

3   Wheat.  204-212,  4  L.  371,  PATTON  v.  NICHOLSON. 

Syl.  1  (I,  768).     Sale  of  license  from  enemy. 

Approved  in  Sawyer  v.  Sanderson,  113  Mo.  App.  245,  88  S.  W. 
154,  inclusion  of  seller's  license  in  sale  of  saloon  renders  note  given 
therefor  void  under  Rev.  St.  1899,  §  2992;  Monahan  v.  Monahan,  77 
Vt.  143,  59  Atl.  172,  70  L.  R.  A.  935,  where  complainant  seeking  to 
impress  securities  with  trust,  and  issues  omit  fraud,  he  cannot  be 
denied  relief  because  of  fraudulent  purpose  to  avoid  taxation  by 
placing  securities  in  defendant's  name. 

3  Wheat.  212-230,  4  L.  372,  ROBINSON  v.  CAMPBELL. 

Syl.  6  (I,  770).     Equitable  remedies  in  federal  courts. 

Approved  in  Carlson  v.  Sullivan,  146  Fed.  479,  seventh  amendment 
guarantees  jury  trial  in  judicial  proceedings  in  territories;  In  re 
E.  T.  Kenney  Co.,  136  Fed.  454,  where  creditors  of  bankrupt  before 
bankruptcy  assigned  claims  to  committee  in  trust  to  purchase  bank- 
rupt's  property  and  sell  same  for   benefit   of   assignors,   latter   could 


3  Wheat,  234-391  Notes  on  U.  S.  Reports.  46 

not  prove  equitable  interest  as  against  claims  against  bankrupt 
estate,  though  state  statutes  abolished  distinction  between  legal  and 
equitable  proceedings. 

3  Wheat.  234-236,  4  L.  378,  HAMPTON  v.  McCONNEL. 

Syl.  1  (I,  773).     Judgments — Full  faith  and  credit. 

Approved  in  Succession  of  Caldwell,  114  La.  195,  108  Am.  St.  Eep. 
347,  38  So.  142,  applying  rule  to  decree  of  adoption;  dissenting  opin- 
ion in  Haddock  v.  Haddock,  201  U.  S.  632,  50  L.  896,  26  Sup.  Ct. 
525,  majority  holding  mere  domicile  of  one  party  to  marriage  does 
not  give  state  court  jurisdiction  to  render  divorce  decree  enforce- 
able elsewhere  against  nonresident  constructively  served;  dissenting 
opinion  in  Smith  v.  Willing,  123  Wis.  386,  101  N.  W.  695,  constru- 
ing judgment  note  with  name  of  payee  in  blank. 

3  Wheat.  246-336,  4  L.  381,  GELSTON  v.  HOYT. 

Syl.  1  (I,  779).     Direction  of  writ  of  error. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  489,  491,  right  of  re- 
moval under  Rev.  St.,  §  641,  is  not  affected  by  fact  that  rights 
thereunder  may  be  enforced  ultimately  by  proceedings  in  error  in 
United  States  supreme  court. 

Syl.  7   (I,  781).     Acquittal  as  res  adjudicata. 

Approved  in  United  States  v.  Donaldson-Shulz  Co.,  142  Fed.  301,  ac- 
quittal of  obstructing  stream  in  prosecution  under  30  Stat.  1151, 
b^irs  suit  in  equity  to  compel  removal  of  same  structure. 

Syl.  9  (I,  781).     Acquittal  on  seizure — Probable  cause. 

Approved  in  United  States  v.  83  Sacks  of  Wool,  147  Fed.  749,  on 
judgment  for  claimant  of  property  seized  by  customs  officers  for 
fraudulent  importation,  certificate  of  probable  cause  should  be  en- 
tered though  verdict  clearly  right,  where  it  is  shown  officers  acted 
in  good  faith;  Agnew  v.  Haymes,  141  Fed.  637,  Rev.  St.,  §§  970, 
989,  do  not  authorize  recovery  against  revenue  officer  for  wrong- 
ful seizure  when  made  upon  probable  cause  and  goods  returned  in- 
tact; State  v.  Cobb,  123  Iowa,  629,  99  N.  W.  300,  acquittal  in  prosecu- 
tion for  illegally  keeping  liquor  for  sale  is  bar  to  condemnation  pro- 
ceedings. 

3  Wheat.  336-391,  4  L.  404,  UNITED  STATES  v.  BEVANS. 

Syl.  3  (I,  787).     Statutes — Construction  of  particular  words. 

Approved  in  United  States  v.  Atchison  etc,  Ey.  Co.,  142  Fed.  191, 
construing  bill  for  injunction  against  railroad  for  granting  rebates 
and  order  made  thereon. 

Syl.  4  (I,  787).     Admiralty — Crime  committed  out  of  states. 
Approved  in  State  v.  Eldredge,  27  Utah.  487,  76  Pac.  340.  legisla- 
ture   may   authorize    state    board   of    equalization    to    assess    property 
situated  partly  in  one  county  and  partly  in  another. 


47  Notes  on  U.  S.  Reports.  3  Wheat.  449-591 

3  Wheat.  449-453,  4  L.  432,  BROWN  v.  JACKSON. 
Syl.  3   (I,  789).     Deed  conveying  title  and  interest. 
See  105  Am.  St.  Eep.  862,  note. 

3  Wheat.  454-519,  4  L.  433,  EVANS  v.  EATON. 

Syl.  8  (I,  792).     Patents— Effect  of  special  acts. 

Approved  in  Walker  v.  Globe  Newspaper  Co.,  140  Fed.  312,  right  to 
maintain  action  at  law  for  damages  for  infringement  of  copyright  is 
not  impliedly  tak?n  away  by  Rev.  St.,  §§  49G5,  4970. 

3  Wheat.  520-528,  4  L.  449,  LENOX  v.  PKOUT. 

Syl.  4   (I,  794).     Equity — Answer  as  proof. 

Approved  in  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  bona 
fide  purchaser  must  allege  and  prove  want  of  notice  and  actual  pay- 
ment of  purchase  price. 

3  Wheat.  541-545,  4  L.  454,  MURRAY  v.  BAKER. 

Syl.  1  (I,  795).     Limitations — "Beyond  the  seas"  defined. 

Cited  in  Osgood  v.  Central  Vermont  Ey.  Co.,  77  Vt.  339,  CO  Atl. 
138,  70  L.  R.  A.  930,  arguendo. 

3  Wheat.  546-5G3,  4  L.  456,  THE  AMIABLE  NANCY. 

Syl.  2  (I,  796).     Marine  trespass — Exemplary  damages. 

Approved  in  Pacific  Packing  etc.  Co.  v.  Fielding,  136  Fed.  579,  580, 
69  C.  C.  A.  325,  corporation  owner  of  vessel  is  not  liable  in  punitive 
damages  because  of  malicious  action  of  master  in  imprisoning  sailor 
while  at  sea,  which  was  not  authorized  nor  ratified  by  corporation. 
See  101  Am.  St.  Rep.  735,  note. 

Syl.  5  (I,  798).     Prospective  profits  as  damages. 

Approved  in  Choctaw  etc.  R.  R.  Co.  v.  Jacobs,  15  Okl.  500,  82  Pac. 
504,  applying  rule  in  action  against  railroad  for  delay  in  delivery  of 
freight;  Tootle  v.  Kent,  12  Okl.  391,  73  Pac.  315,  applying  rule  to 
probable  loss  of  profits  to  merchant  whose  store  closed  by  reason  of 
fraudulent  chattel  mortgage. 

3  Wheat.  563-591,  4  L.  460,  CRAIG  v.  LESLIE. 

Syl.  1  (I,  799).     Devise  to  trustee  to  sell. 

Approved  in  Bank  of  Ukiah  v.  Rice,  143  Cal.  272,  101  Am.  St. 
Rep.  118,  76  Pac.  1022,  arguendo.  , 

Syl.  2   (I,  802).     Equitable  conversion — Election  to  take  land. 

Approved  in  Whitfield  v.  Thompson,  85  Miss.  758,  38  So.  115,  fol- 
lowing rule;  Nelson  v.  Nelson,  36  Ind.  App.  336,  75  N.  E.  681,  under 
will  giving  property  to  wife  and  providing  for  its  sale  on  her  death, 
and  division  of  proceeds  among  children,  then  equitable  conversion 
is  of  date  of  his  death,  and  children  take  vested  interest  as  of  that 


4  Wheat.  1-51  Notes  on  U.  S.  Eeporta.  48 

date;  Atlee  v.  Bullard,  123  Iowa,  279,  98  N.  W.  890,  where  testator 
devised  land  to  wife  till  youngest  child  attained  majority,  when  it 
was  to  be  sold  and  proceeds  divided  between  wife  and  children,  in 
suit  for  partition  wife's  share  subject  to  judgment  lien. 

3  Wheat.  591-594,  4  L.  4G7,  CAMEEON  v.  McEOBERTS. 

Syl.  1  (I,  804).     Setting  aside  decree  after  term. 

Approved  in  King  v.  Davis,  137  Fed.  227,  court  may  after  term 
control  execution  of  final  process  issued  on  judgment  to  prevent  in- 
justice; United  States  v.  Four  Lorgnette  Holders,  132  Fed.  565,  judg- 
ment of  forfeiture  against  imported  merchandise  for  attempt  to  de- 
fraud customs  laws  cannot  be  vacated  after  term  on  account  of 
irregularities  in  proceedings. 

3  Wlieat.  594-600,  4  L.  467,  CEAIG  v.  BEDFORD. 

Syl.  2  (I,  807).     Alien  taking  freehold. 

Approved  in  Shea  v.  Nilima,  133  Fed.  215,  66  C.  C.  A.  263,  agree- 
ment between  two  aliens  to  locate  or  acquire  mining  claims  ior  joint 
benefit  is  enforceable  by  either. 

3  Wheat.  610-C44,  4  L.  471,  UNITED  STATES  v.  PALMEE. 

(I,  808.)  Miscellaneous.  Cited  in  State  v.  Foster,  187  Mo.  605,  86 
S.  W.  249,  under  Rev.  St.  1899,  §  2041,  relating  to  bribery  offense  is 
misdemeanor,  though  punishable  by  imprisonment  in  penitentiary. 


IV  WHEATON. 


4  Wheat.  1-51,  4  L.  499,  TRUSTEES  OF  PHILADELPHIA  BAPTIST 
ASSOCIATION  V.  HART. 

Syl.  1  (I,  812).     Charitable  bequest — Unincorporated  society. 

Approved  in  Miller  v.  Ahrens,  150  Fed.  657,  following  rule;  Weaver 
v.  Spurr,  56  W.  Va.  105,  48  S.  E.  856,  trust  created  by  deed  to  trustees 
to  be  held  in  trust  for  Trinity  Parish  in  certain  town  is  void  for  un- 
certainty of  purpose  and  as  to  beneficiaries. 

Distinguished  in  Penny  v.  Central  Coal  &  Coke  Co.,  138  Fed.  774, 
where  unincorporated  religious  society  had  had  uninterrupted  posses- 
sion of  land  in  controversy  for  over  thirty  years  and  had  used  it  as  its 
own  under  lost  deed,  it  is  presumed  that  legal  title  conveyed  to  trus- 
tees for  its  benefit. 

Syl.  3   (I,  813).     Charitable  trusts — Vagueness. 

Approved  in  Miller  v.  Ahrens,  150  Fed.  653,  holding  trust  created 
by  will  for  benefit  of  foreign  religious  corporation,  involving  devise 


49  Notes  on  U.  S.  Eeports.  4  Wheat.  52-208 

of  three  hundred  and  fifty-one  acres  of  land  in  West  Virginia,  is 
contrary  to  public  policy  of  that  state,  dissenting  opinion  in  Dan- 
forth  V.  Oshkosh,  119  Wis.  290,  97  N,  W.  268,  majority  holding  where 
land  devised  to  trustees  to  be  conveyed  to  city  for  library,  city  took 
fee  and  did  not  hold  land  in  trust. 

4  Wheat.  52-73,  4  L.  512,  THE  DIVINA  PASTORA. 

Syl.  4  (I,  816).     Admiralty — Remand  to  amend  pleadings. 

Approved  in  Graham  v.  Oregon  etc.  Co.,  134  Fed.  693,  court  may 
permit  libel  in  admiralty  to  be  amended  to  show  jurisdiction. 

4  Wheat.  73-74,  4  L.  516,  EVANS  v.  PHILLIPS. 

Syl.  1  (I,  817).     Error  to  nonsuit. 

Approved  in  Francisco  v.  Chicago  etc.  E.  Co.,  149  Fed.  355,  356, 
where  at  close  of  trial  defendant's  motion  for  instructed  verdict 
granted,  but  before  instruction  given  plaintiff  took  involuntary  non- 
suit, latter  could  not  appeal;  Parks  v.  Southern  Ry.  Co.,  143  Fed.  278, 
and  Huntt  v.  McNamee,  141  Fed.  295,  both  holding  where  voluntary 
nonsuit  was  permitted  by  state  practice,  federal  court  has  discretion 
to  refuse  nonsuit  after  plaintiff  had  concluded  evidence  and  motion 
of  defendant  for  direction  of  verdict  had  been  sustained. 

4  Wheat.  77-83,  4  L.  518,  WILLIAMS  v.  PEYTON'S  LESSEE. 

Syl.  3  (I,  821).     Deed  depending  on  matter  in  pais. 

Approved  in  dissenting  opinion  in  Delta  Co.  Land  etc.  Co.  v.  Tall- 
cott,  17  Colo.  App.  340,  68  Pac.  993,  majority  holding  when  trustees' 
release,  executed  after  maturity  of  note  secured,  recited  payment  and 
execution  at  payee's  instance,  an  assignee  of  note,  which  had  not  in 
fact  been  paid,  cannot  cancel  release  against  subsequent  mortgagee 
of  land. 

4  Wheat.  108-121,  4  L.  526,  UNITED  STATES  v.  HOWLAND. 

Syl.  3  (I,  823).     Federal  equity  not  controlled  by  states. 

Approved  in  First  Nat.  Bank  of  Plattsmouth  v.  Gibson,  69  Neb. 
26,  94  N.  W.  967,  in  equity  suit  to  reach  property  fraudulently  trans- 
ferred, debtor  being  necessary  party,  suit  may  be  commenced  in 
county  of  his  residence. 

4  Wheat.  122-208,  4  L.  529,  STURGES  v.  CROWNINSHIELD. 

Syl.  3  (I,  832).     Suspension  of  state  bankruptcy  laws. 

Approved  in  In  re  J.  H.  Alison  Lumber  Co.,  137  Fed.  643,  following 
rule;  Boston  etc.  Co.  v.  Ould-Carter  Co.,  123  Ga.  463,  51  S.  E.  468,  in 
absence  of  proceedings  in  federal  courts,  state  court  has  jurisdiction 
of  cases  within  insolvent  trader's  act;  Grunsfeld  Bros.  v.  Brownell, 
12  N.  M.  198,  200,  76  Pac.  311,  312,  Sess.  Laws  1889,  c.  67,  pro- 
hibiting debtors  from  preferring  creditors  is  not  bankruptcy  law  and 
4 


4  Wheat.  209-230  Notes  on  U.  S.  Keports.  50 

is  not  suspended  by  federal  bankruptcy  law;  Allen  v.  Eeed,  10  Okl. 
125,  GO  Pac.  788,  holding  void  act  of  1893,  relating  to  change  of 
county  seats  as  inconsistent  with  act  of  Congress  of  1893,  for  open- 
ing of  Cherokee  Outlet. 

Syl.  4  (I,  834).  Insolvent  laws — Impairment  of  contracts. 
Approved  in  In  re  Salmon,  143  Fed.  405,  Eev.  St.  Mo.,  §§  1305, 
1306,  relating  to  insolvent  state  banks,  was  suspended  by  bankruptcy 
act,  and  participation  by  creditors  in  proceedings  thereunder  did  not 
estop  creditors  from  thereafter  prosecuting  bankruptcy  proceedings 
against  debtors. 

Syl.  6   (I,  838).      Contract   defined. 

Approved  in  Myers  v.  Knickerbocker  Trust  Co.,  139  Fed.  115,  hokl- 
ing  void  Acts  Gen.  Assem.,  Mo.,  1904,  p.  179,  c.  101,  repealing  remedy 
of  creditor  to  bring  action  at  law  to  enforce  stockholder's  statutory 
liability;  McCormick  v.  Bonfils,  9  Okl.  616,  60  Pac.  299,  construing 
correspondence  with  reference  to  sale  of  realty. 

Syl.  8   (I,  839),     Impairment  of  obligation  of  contracts. 
Approved  in  Lamb  v.  Powder  Eiv.  etc.  Co.,  132  Fed.  440,  67  L.  E. 
A.  558,  65  C.  C.  A.  570,  law  of  state  unreasonably  restricting  time 
for   commencing  suit  on  foreign   judgments  on  existing   contracts  ia 
void. 

Syl.  11  (I,  847).     Construction — Intent  of  instrument. 

Approved  in  Jacobson  v.  Massachusetts,  197  U,  S.  22,  49  L.  648,  25 
Sup.  Ct.  358,  upholding  Massachusetts  compulsory  vaccination  act;  Ex 
parte  Anderson,  46  Tex.  Cr.  379,  81  S.  W.  975,  city  court  has  no  juris- 
diction to  try  an  accused  for  alleged  violation  of  state  penal  statute; 
dissenting  opinion  in  Blair  v.  Chicago,  201  U.  S.  502,  50  L.  843,  26 
Sup.  Ct.  427,  majority  holding  right  to  operate  street  railways  under 
acts  of  1859  and  1865  is  confined  to  streets  designated  in  original 
ordinance.     See  103  Am.  St.  Eep.  866,  note, 

4  Wheat.  209-213,  4  L.  552,  McMILLAN  v.  McNEILL. 

Syl.  2   (I,  850).     Insolvency  laws — Debts  prior  to. 

Approved  in  In  re  Salmon,  143  Fed.  405,  Eev.  St.  Mo.,  §§  1305, 
1306,  relating  to  insolvent  state  banks,  was  suspended  by  bankruptcy 
act,  and  participation  by  creditors  in  proceedings  thereunder  did  not 
estop  creditors  from  thereafter  prosecuting  bankruptcy  proceeding 
against  debtors. 

4  "Wheat.  225-230,  4  L.  556,  ELIASON  v,  HENSHAW. 

Syl.  1  (I,  856).     Contracts — Acceptance  of  offer. 

Approved  in  Couch  v.  McCoy,  138  Fed.  703,  offer  to  give  option  to 
purchase  realty  where  written  contract  embodying  terms  of  option 
is  clearly  contemplated  does  not  constitute  binding  contract  till 
•writing   duly   executed;    Metropolitan    Coal   Co.   v.   Boutell,   185   Mass. 


51  Notes  ou   U.  S.  Reports.  4  Wheat.  235-437 

395,  70  N.  E.  422,  applying  rule  to  offer  to  charter  vessels;  Ilenry  v. 
Black,  213  Pa.  627,  63  Atl  253,  applying  principle  to  offer  to 
purchase  land  by  holder  of  option. 

4  Wheat.  235-246,  4  L.  559,  BANK  OF  COLUMBIA  v.  OKLEY. 

Syl.  3  (I,  860).     Law  of  land  defined. 

Approved  in  McKinster  v.  Sager,  163  Ind.  676,  106  Am.  St.  Eep. 
268,  72  N.  E.  856,  68  L.  R.  A.  273,  holding  void  acts  1903,  p.  270,  c. 
153,  making  sales  by  merchant  of  stock,  save  in  due  course  of  trade, 
void  as  to  creditors  whose  claims  arise  from  sale  of  some  of  stock 
except  under  certain  conditions;  State  v.  Missouri  Tie  etc.  Co.,  181 
Mo.  559,  103  Am.  St.  Rep.  614,  80  S.  W.  941,  65  L.  R.  A.  588,  holding 
void  Missouri  statute  making  it  crime  to  pay  wages  with  orders  or 
other  evidence  of  investment  unless  same  is  negotiable;  Aldredge  v.. 
School  District  No.  16,  10  Okl.  697,  65  Pac.  96,  holding  condemnation 
of  private  property  for  school  uses  void  where  no  notice  of  condem- 
nation given  owner;  State  v.  Stimpson,  78  Vt.  134,  62  Atl.  17,  1  L. 
R.  A.  (N.  S.)  1153,  upholding  act  providing  for  prosecution  by  informa- 
tion of  all  crimes  except  those  punishable  by  death  or  life  imprison- 
ment; dissenting  opinion  in  Crane  v.  Waldron,  133  Mich.  8S,  94  N. 
W.  598,  majority  upholding  Act  99  of  1897,  relating  to  evidence  in 
suits  in  aid  of  execution. 

4  Wheat.  246-255,  4  L.  5C2,  UNITED  STATES  v.  RICE, 
Syl.  1  (I,  863).     Revenue  laws  over  conquered  lands. 
Approved  in  Lincoln  v.  United  States,   197   U.   S.  428,  49  L.   818, 

25   Sup.   Ct.  455,  duties  on  imports   from   United   States  into   Manilii 

not  justified  because  of  insurrection  after  Spanish  treaty  under  order 

of  President  issued  during  war. 

(I,  863.)  Miscellaneous.  Cited  in  Cullins  v.  Overton,  7  Okl.  482,  54 
Pac.  705,  as  to  validity  of  acts  of  de  facto  government. 

4  Wheat.  316-437,  4  L,  579,  McCULLOCH  v.  STATE  OF  MARYLAND. 
Syl.  2   (I,  870).     Construction  of  constitution. 

Approved  in  In  re  Strauss,  197  U.  S.  330,  49  L.  778,  25  Sup.  Ct.  535, 
one  against  whom  complaint  for  felony  is  filed  before  magistrate  is 
"charged"  with  crime  within  provisions  of  federal  law  as  to  extra- 
dition; Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987,  city  court 
has  no  jurisdiction  to  try  accused  for  violation  of  state  penal  statute. 

Syl.  3  (I,  871).     Federal  government — Enumerated  powers. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  380,  81  S.  W.  976,  city 
court  has  no  jurisdiction  to  try  an  accused  for  alleged  violatiou  of 
state  penal  statute. 

Distinguished  in  Northern  Securities  Co.  v.  United  States,  193  U. 
S.  336,  48  L.  700,  24  Sup.  Ct.  436,  upholding  anti-trust  act  of  July  2, 
1890. 


4  Wheat.  316-437  Notes  on  U.  S.  Reports.  52 

Syl.  4  (I,  871).     Power  of  Congress  over  banks. 

Approved  in  Christopher  v.  Norvell,  201  U.  S.  226,  50  L.  736,  26 
Sup.  Ct.  502,  coverture  of  legatee  of  shares  in  national  bank  when 
name  placed  on  books  as  stockholder  is  no  bar  to  judgment  due  on 
assessment  by  comptroller  of  currency. 

Syl.  5  (I,  872).     Congress — Means  employable  to  execute  powers. 

Approved  in  McCray  v.  United  States,  195  U.  S.  56,  59,  49  L.  96,  97, 
24  Sup.  Ct.  769,  upholding  24  Stat.  209,  840,  as  amended  in  1902,  im- 
Dosing  tax  on  artificially  colored  oleomargarine;  Missouri  etc.  Ry. 
Co.  v.  May,  194  U.  S.  269,  48  L.  972,  24  Sup.  Ct.  638,  upholding  Tex. 
Stat.  1901,  c.  117,  imposing  penalty  on  railroads  for  allowing  Johnson 
grass  or  thistle  to  mature  and  go  to  seed;  Brooks  v.  Southern  Pac. 
Co.,  148  Fed.  990,  holding  void  federal  employer's  liability  act  of  1906; 
United  States  v.  Scott,  148  Fed.  432,  holding  void  act  of  1898,  mak- 
ing it  penal  for  interstate  carrier  to  discriminate  against  labor  unions. 

Syl.  7  (I,  879).     State  tax  on  national  agencies. 

Approved  in  Hibernia  Savings  etc.  Soc.  v.  San  Francisco,  200  U. 
S.  313,  50  L.  496,  26  Sup.  Ct.  265,  United  States  Treasury  checks  for 
interest  on  government  bonds,  where  intended  for  immediate  payment, 
are  taxable  by  state  in  hands  of  owner;  South  Carolina  v.  United 
States,  199  U.  S.  452,  455,  466,  50  L.  266,  267,  271,  26  Sup.  Ct.  110, 
United  States  may  exact  revenue  license  from  dispensing  agent  of 
state  which  has  taken  charge  of  liquor  business;  United  States  v. 
Thurston  Co.,  143  Fed.  289,  lands  allotted  to  Indians  under  22  Stat. 
342,  are  exempt  from  state  taxation  during  period  of  trust;  People's 
Sav.  Bank  v.  Layman,  134  Fed.  638,  assessing  property  of  saving  bank 
under  Code  Iowa,  §  1322,  providing  that  assessment  be  made  on  its 
shares  of  stock,  fact  that  part  of  assets  consist  of  government  bonds 
does  not  entitle  bank  to  deduction  of  such  amount;  United  States  v. 
Moore,  129  Fed.  634,  denying  federal  jurisdiction  to  punish  con- 
spiracy to  oppress  and  intimidate  citizen  to  prevent  him  from  estab- 
lishing miners'  union  in  a  state,  in  furtherance  of  which  defendants 
shot  citizen;  Western  Union  Tel.  Co.  v.  Wakefield,  69  Neb.  277,  95 
N.  W.  601,  holding  void  village  ordinance  imposing  occupation  tax 
on  telegraph  companies  doing  business  in  village  in  so  far  as  it  taxes 
business  of  company  transacted  for  government;  Old  Nat.  Bank  v. 
State,  58  W.  Va.  560,  52  S.  E.  494,  United  States  bonds  held  by  na- 
tional bank  as  part  of  its  capital  cannot  be  taxed  under  state  author- 
ity. 

Syl.  8  (I,  883).     Limits  of  taxing  power. 

Approved  in  Michigan  etc.  R.  R.  Co.  v.  Powers,  201  U.  S.  295,  50 
L.  762,  26  Sup.  Ct.  466,  upholding  Mich.  Pub.  Acts  1901,  No.  173,  for 
taxation  of  railroads;  Michigan  R.  R.  Tax  Cases,  138  Fed.  234,  up- 
holding Pub.  Acts  Mich.  1901,  p.  236,  relating  to  assessment  of  rail- 
roads by  state  board  of  assessors;  Parsons  v.  People,  32  Colo.  235,  76 
Pac.  670,  upholding  Sess.  Laws   1902,  pp.  47,  48,   c.   3,   §   18,   taxing 


53  Notes  on  U.  S.  EeportB.  4  Wheat.  438-444 

liquor  sellers;  Eddy  v.  People,  218  111.  616,  75  N.  E.  1072,  under 
Laws  1879,  p.  72,  §§  2,  3,  board  of  trustees  in  passing  on  right  of 
applicant  to  pension  exercises  quasi-judicial  power,  and  its  finding, 
when  made,  cannot  be  reviewed,  except  for  want  of  autliority  to  act 
or  fraud;  Kersey  v.  Terre  Haute,  161  Ind.  474,  68  N.  E.  1029,  uphold- 
ing ordinance  imposing  tax  on  vehicles  using  streets,  though  street- 
cars, automobiles  and  vehicles  of  nonresidents  are  exempt;  Hedge  v. 
Muscatine  County,  121  Iowa,  489,  104  Am.  St.  Eep.  304,^96  N.  W.  971, 
67  L.  R.  A.  624,  upholding  Code,  §  5007,  imposing  tax  on  vendor  of 
cigarettes  and  on  buildings  used  in  their  manufacture  or  sale;  People 
V.  Ronner,  185  N.  Y.  291,  77  N.  E.  1063,  upholding  Laws  1905,  p.  2059, 
c.  729,  providing  for  taxation  of  real  estate  mortgages;  Pryor  v. 
Bryan,  11  Okl.  363,  66  Pac.  350,  upholding  act  exempting  for  taxa- 
tion all  property  on  Indian  reservation  attached  to  county  for  tax 
purposes,  except  for  territorial  and  court  funds;  dissenting  opinion 
in  State  v.  Chicago  etc.  Ry.  Cos.,  128  Wis.  519,  108  N.  W,  615,  ma- 
jority holding  exactions  by  state  from  railroads  during  years  pre- 
ceding ad  valorem  tax  law  not  taxes  within  uniform  tax  clause  of 
constitution. 

Syl.  9  (I,  885).     Taxation  incident  to  sovereignty. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  205,  50 
L.  154,  26  Sup.  Ct.  36,  tax  of  domestic  corporation  under  Ky.  St.,  § 
4020,  on  rolling  stock  located  in  other  states,  is  void;  Davis  v.  Cleve- 
land etc.  Ry.  Co.,  146  Fed.  409,  cars  owned  by  railroad  and  delivered 
by  it  to  other  company,  loaded  with  freight  to  be  used  to  transport 
such  freight  to  other  states  and  then  returned  to  owner,  are  not 
subject  to  attachment  under  laws  of  state  into  which  they  are  car- 
ried; Buck  v.  Beach,  164  Ind.  41,  108  Am.  St.  Rep.  272,  71  N.  E. 
964,  where  notes  owned  by  nonresident  were  kept  in  state,  they  are 
taxable  there,  though  they  are  temporarily  removed  each  year  prior  to 
assessment  day;  State  v.  Fidelity  etc.  Co.,  35  Tex.  Civ.  217,  80  S.  W. 
546,  municipal  securities  deposited  with  state  treasurer  by  foreign 
corporation  in  accordance  with  laws  relating  to  foreign  surety  com- 
panies are  taxable  in  state;  Noble  v.  Amorette,  11  Wyo.  251,  71  Pac. 
881,  state  tax  on  stock  of  goods  of  licensed  Indian  trader,  located  on 
reservation,  is  not  tax  on  agency  of  government. 

(I,  870.)  Miscellaneous.  Cited  in  dissenting  opinion  in  Lochner 
V.  New  York,  198  U.  S.  68,  49  L.  946,  25  Sup.  Ct.  539,  majority  hold- 
ing void  N.  Y.  Laws  1897,  c.  415,  art.  8,  §  110,  limiting  hours  of  labor 
in  bakeries. 

4  Wheat.   438-444,   4   L.   609,   THE    GENERAL    SMITH. 

Syl.  1  (I,  893).     Admiralty  repairs  in  foreign  port. 

Approved  in  The  Wyandotte,  136  Fed.  473,  where  purchaser  of 
draft  drawn  by  master  in  foreign  port  for  advances  to  pay  charges 
had  no  knowledge  of  master's  possession  of  freight  drafts,  fact  that 


4  Wheat.  453-715  Notes  on  U.  S.  Reports.  54 

charter  provided  that  advancements  were  payable  out  of  freight  only 
is  no  defense  to  draft. 

Syl.  3  (I,  895).    Admiralty — Eepairs  in  home  port. 

Approved  in  Fredericks  v.  Jas.  Rees  &  Sons  Co.,  135  Fed.  731,  68 
C,  C.  A.  368,  and  The  Sue,  137  Fed.  135,  both  following  rule;  Com- 
monwealth V.  Ayer  etc.  Tie  Co.,  117  Ky.  169,  77  S.  W.  688,  home 
port  of  vessel  engaged  in  interstate  commerce  is  its  situs  for  taxa- 
tion though   owner  resides  in  diiferent  state. 

Syl.  4   (I,    899).      Admiralty — Lien — Eepairs    in    home    port. 

Approved    in    The    Sue,    137    Fed.    135,    following    rule;    Downey    v.  . 
Lozier  Motor  Co.,  138  Fed.   176,  where  libelants,  who   equipped  boat 
with    engine,    surrendered    boat   without   payment,   right    to    lien    not 
revived  by  subsequent  delivery  of  vessel  to  them  for  repairs. 

4  Wheat.     453-465,  4  L.  613,  ORE  v.  HODGSON. 

Sj'l.  3   (I,  901).     Aliens  are  not  heirs. 

Approved  in  Ehrlich  v.  Weber,  114  Tenn.  719,  88  S.  W.  189,  apply- 
ing rule  under  Acts  1875,  p.  4,  c.  2,  and  Acts  1883,  p.  330,  c.  250, 
§§  1,  2. 

Distinguished  in  Cooke  v.  Doron,  215  Pa.  395,  64  Atl.  595,  under 
act  Feb.  23,  1791,  alien  husband  is  entitled  as  tenant  by  curtesy  to 
realty  of   which  wife   died  seised. 

4  Wheat.     466-488,  4  L.  616,  ASTOR  v.  WELLS. 

Syl.  2   (I,  902).     Eecordation  of  deed  where  county  divided. 

Approved  in  Eichardson  v.  Shelby,  3  Okl.  80,  41  Pac.  382,  to  have 
effect  of  notice  to  creditors  chattel  mortgage  and  its  registry  must 
comply  with  law. 

4  Wheat.     513-518,  4  L.  908,  BOYD  v.  GEAVES. 

Syl.  1   (I,  908).     Parol  agreement  to  fix  boundary. 

Approved  in  Kitchen  v.  Chantland,  130  Iowa,  624,  105  N.  W.  368, 
parol  agreement  fixing  location  of  disputed  boundary  line  followed 
by  possession  is  not  invalid  within  statute  of  frauds.  See  110  Am. 
St.  Eep.  680,  note. 

4  Wheat.     518-715,   4  L.   629,   TEUSTEES   OF   DAETMOUTH   COL- 
LEGE V.  WOODWARD. 

•     Syl.  1   (I,   914).     Charter  is   contract. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  471,  50  L.  831,  26  Sup.  Ct. 
427,  construing  street  railway  franchise  granted  under  Illinois  acts 
of  1859  and  1865;  Allen  v.  Ajax  Min.  Co.,  30  Mont.  502,  77  Pac.  48, 
as  to  corporation  organized  in  1889,  act  of  1899,  conferring  on  cor- 
poration right  to  sell  its  property  on  vote  of  two-thirds  of  stockholders, 
was   not  void;    Northwestern   Tel.   Ex.   Co.  v.   Anderson,   12   N.  D.   590, 


55  Notes  on  U.  S.   Keports.  4  Wheat.  518-715 

102  Am.  St.  Rep.  589,  98  N.  W.  708,  65  L.  E.  A.  771,  determining  rel- 
ative rights  of  telephone  company  and  house-movers;  State  v. 
Irvine,  14  Wyo.  374,  84  Pac.  101,  Wyoming  Agricultural  College 
created  by  act  of  1891  was  public  corporation,  and  state  could  re- 
peal act  incorporating  it;  dissenting  opinion  in  Metcalfe  v.  Union 
Trust  Co.,  181  N.  Y.  60,  73  N.  E.  505,  majority  holding  trust  fund 
created  by  will  to  provide  income  for  wife  until  she  should  remarry, 
release  of  remainder  to  her  by  children  did  not  terminate  trust  under 
dct  of  1897,  where  will  made  in  1892,  in  which  year  testator  died. 

Syl.  2   (I,  944).     Law  of  the  land  defined. 

Approved  in  In  re  Francis,  136  Fed.  913,  appointment  of  receiver 
under  bankruptcy  act,  30  Stat.  545,  before  adjudication  without 
notice  to  incarcerated  defendant  is  valid;  St.  Louis  v.  Gait,  179  Mo. 
17,  77  S.  W.  879,  63  L.  R.  A.  778,  upholding  ordinance  making  it  a 
misdemeanor  to  permit  growth  of  weeds  on  his  premises;  Clapp  v. 
Houg,  12  N.  D.  608,  102  Am.  St.  Rep.  589,  98  N.  W.  713,  65  L.  R.  A. 
757,  holding  void  statute  providing  for  special  administration  of  es- 
tate of  one  whose  death  not  satisfactorily  proven,  but  who  disap- 
peared under  circumstances  giving  ground  for  belief  he  is  dead  or 
unlawfully  secreted;  dissenting  opinion  in  Crane  v.  Waldron,  lo'.i 
Mich.  88,  94  N.  W.  598,  majority  upholding  Comp.  Laws,  §  10,203. 
relating  to  evidence  in  suits  in  aid  of  execution;  dissenting  opinion 
in  Daniels  v.  Homer,  139  N.  C.  238,  51  S.  E.  999,  3  L.  R.  A.  (N.  S.) 
997,  majority  upholding  acts  Gen.  Assem.  1905,  c.  292,  regulating 
fishing  and  providing  for  seizure  of  appliances  used  in  illegal  fishing. 

Syl.  3   (I,  947).     Law  declared  void,  when. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  766,  uphold- 
ing Laws  N.  C.  1885,  p.  439,  e.  233,  incorporating  railroad  and  au- 
thorizing issuance  of  county  aid  bonds;  Ex  parte  Kair,  28  Nev.  146, 
80  Pac.  466,  upholding  Stat.  1903,  p.  33,  c.  10,  imposing  penalty  on  any- 
one working  more  than  eight  hours  a  day  in  mine  or  smelter. 

Syl.  5  (I,  948).  Constitutional  restraint  on  regulation  of  institu- 
tions. 

Approved  in  State  v.  Sowell,  143  Ala.  499,  39  So.  248,  holding  void, 
appropriation  for  Alabama  Medical  College,  as  it  was  not  under  ab- 
solute control  of  state. 

Syl.  6   (I,  949).     Charters  of  public   corporations   not   contracts. 

Approved  in  Saginaw  County  Suprs.  v.  Hubinger,  137  Mich.  76, 
100  N.  W.  263,  upholding  Loc.  Acts  1899,  p.  221,  Xo.  419,  as  amended 
in  1901,  providing  for  county  road  system  in  certain  county,  and 
impliedly  repealing  prior  act;  Mial  v.  Ellington,  134  X.  C.  140,  46 
S.  E.  964,  65  L.  R.  A.  69,  officer  appointed  for  definite  time  to  pub- 
lic office  has  no  vested  property  interest  therein,  or  contract  right 
thereto,  of  which  legislature  cannot  deprive  him;  dissenting  opinion 
in  Ex  parte  Lewis,  45  Tex.  Cr.  37.  108  Am.  St.  Rep.  929.  7:1  S.  W. 
823,   majority    holding   Galveston     special    charter     of     1901      violates 


5  Wheat.  1-76  Notes   on   U.   S.   Eeports.  56 

principle   of  local   self-government;   State   v.  Bryan,   50  Fla.   359,   39 
So.   950,   arguendo. 

Syl.  8  (I,  951).      Corporate  powers  limited  by  charter. 

Approved  in  United  States  v.  MacAndrews  &  Forbes  Co.,  149  Fed. 
835,  corporation  may  be  indicted  for  conspiracy  to  violate  anti-trust 
law. 

Syl.  14  (I,  955).     Legislative  grant  is  contract. 

Approved  in  dissenting  opinion  in  Eochester  v.  Eochester  Ey  Co., 
182  N.  Y.  124,  70  L.  E.  A.  773,  74  N.  E.  961,  majority  holding  where 
railroad  purchased  at  foreclosure  sale  franchise  of  prior  company, 
immunity  from  contribution  for  new  pavements  conferred  by  statute 
on  such  company  was  not  contract,  right  of  which  company  could 
not  be  deprived  by  subsequent  statute. 

Distinguished  in  Spencer  v.  Seaboard  etc.  Ey.  Co.,  137  N.  C.  121, 
49  S.  E.  1017,  permitting  consolidation  of  railroads  under  act  of 
1901,  authorizing  payment  of  value  of  dissenting  stock,  though  stock 
purchased  prior  to  constitution  reserving  right  to  state  to  amend 
charters. 

Syl.  17   (I,   957).     Visitorial   powers   over   charitable    corporations. 

Approved  in  Guthrie  v.  Ilarkness,  199  U.  S.  157,  158,  50  L.  133, 
134,  26  Sup.  Ct.  4,  common-law  right  of  stockholder  to  inspect  books 
of  corporation  is  not  restricted  as  to  national  banks  by  Ecv.  St., 
§  5241.       See  107  Am.  St.  Eep.  672,  note. 

Syl.  19  (I,  958).     Public   and  private   corporations. 

Approved  in  Ismon  v.  Loder,  135  Mich.  351,  97  N.  W,  771,  mort- 
gage of  agricultural  society  signed  by  president  and  secretary  thereof 
with  character  "[Seal]"  opposite  their  signatures,  is  mortgage  of 
society. 


V  WHEATON. 


5  TVhcat.      1-76,   5  L.   19,   HOUSTON   v.   MOOEE. 

Syl.  5   (II,  6).     Concurrent   state  jurisdiction. 

Approved  in  Jackman  v.  Eau  Claire  Nat.  Bank,  125  Wis.  481,  104 
N.  W.  103,  state  court  has  jurisdiction  of  action  by  trustee  to  le- 
cover  value  of  property   transferred  as   preference. 

Syl.  7  (II,  6).     Concurrent  state  and  federal  powers. 

Distinguished  in  dissenting  opinion  in  Allen  v.  Eeed,  10  Okl.  157, 
63  Pac.  877,  majority  holding  void  act  relating  to  changes  in  county 
seats. 


C7  Notes  on  U.  S.   Eeports.  5  Wheat.  76-] 27 

5  Wheat.     76-116,  5   L.   37,  UNITED  STATES  v.   WILTBERGER. 

Syl.  1  (II,   11).      Penal    laws   strictly   construed. 

Approved  in  Burton  v.  United  States,  202  U.  S.  378,  391,  50  L. 
1070,  1075,  26  Sup.  Ct.  688,  agreement  to  receive  and  receipt  of  for- 
bidden compensation  are  separate  ofifenses  under  Rev.  St.,  §  1782; 
Hackfeld  v.  United  States,  197  U.  S.  450,  49  L.  830,  25  Sup.  Ct.  456, 
ship  owners  who  have  wrongfully  brought  in  aliens  into  United  States 
and  have  received  them  for  deportation,  are  not  insurers  of  return 
of  immigrants  under  26  Stat.  1084;  Northern  Securities  Co.  v.  United 
States,  193  U.  S.  358,  359,  48  L.  709,  24  Sup.  Ct.  436,  construing  and 
upholding  anti-trust  act  of  .July  2,  1890  (26  Stat.  209);  United 
States  V.  Ninety-nine  Diamonds,  139  Fed.  964,  2  L.  R.  A.  (N.  S.) 
185,  under  26  Stat.  135,  use  of  statement  by  one  having  lien  on  im- 
ported goods  that  he  was  owner  thereof,  to  make  entry,  is  no 
offense;  Field  v.  United  States,  137  Fed.  8,  69  C.  C.  A.  568,  officer  of 
bankrupt  corporation,  who  is  not  and  has  not  been  bankrupt,  is  not 
punishable  under  30  Stat.  554,  for  fraudulently  concealing  property  of 
bankrupt  corporation  from  trustee;  United  States  v.  York,  131  Fed. 
328,  construing  Rev.  St.,  §§  5424-542G,  relating  to  aiding  or  abetting 
false  citizenship;  Kuhn  v.  Kuhn,  125  Iowa,  452,  101  N.  W.  152, 
under  Codes,  §  3386,  widow  who  murdered  husband  not  deprived  of 
distributive  share  of  his  estate  under  Code,  §  3366,  as  matter  of 
contract;  Commonwealth  v.  Trent,  117  Ky.  45,  77  S.  W.  393,  con- 
struing Ky.  St.,  §§  3910-3914,  regulating  waste  of  gas  and  enjoining 
plugging  of  wells  not  in  use;  State  v.  Foutenot,  112  La.  642,  36  So. 
635,  indictment  for  burning  mcrry-gb-round  does  not  allege  crime 
under  Rev.  St.,  §  847,  unless  it  alleges  outfit  formed  part  of  stock  of 
goods  or  was  being  held  as  article  of  trade;  State  v.  Woodward,  1S2 
Mo.  407,  103  Am.  St.  Rep.  646,  81  S.  W.  862,  under  Rev.  St.  1S99, 
§  2043,  relating  to  jury-bribing  evidence  showing  proposal  of  will- 
ingness to  give  bribe  to  bias  juror's  verdict  is  sufficient;  Gates  etc. 
Co.  V.  Richmond,  103  Va.  704,  49  S.  E.  965,  one  occasionally  placing 
skid  to  move  goods  from  store  to  delivery  wagon  does  not  violate 
ordinance   against   projections  into   street. 

Syl.  2  (II,  15).     Construction  of  unambiguous  statute. 

Approved  ih  The  Ben  R.,  134  Fed.  786,  67  C.  C.  A.  290,  under  Comp. 
St.  1901,  p.  3029,  and  Comp.  St.  1901,  p.  3060,  vessels  are  not  subject 
to  seizure  and  forfeiture  for  violations  of  first  act;  Choctaw  etc.  R. 
R.  Co.  V.  Alexander,  7  Okl.  595,  54  Pac.  422,  construing  act  regulating 
prairie  fires. 

5  Wheat.  116-127,  5  L.  465,   McCLUNG  v.   ROSS. 

Syl.  1  (II,  17).     Requisites  of  tax  deed. 

Distinguished  in  Taylor  v.  Huntington,  34  Wash.  458,  459,  75  Pac. 
1105,  judgment  of  court  of  general  jurisdiction  foreclosing  tax  lien 
not  vacatable  on  ground  that  publicntiou  of  notice  was  defective  and 


5  Wheat.  277-338  Notes  on  U.  S.  Reports.  58 

because  it  did  not  appear  that  holder  of  certificate  of  delinquency 
had  paid  accrued  taxes. 

Syl.  3  (11,  17).     Ouster  by  tenant  in^common. 

Approved  in  Rich  v.  Victoria  etc.  Min.  Co.,  147  Fed.  386,  in  eject- 
ment by  one  tenant  in  common  against  another,  instruction  that  it 
is  suflScient  to  create  adverse  possession,  that  possession  was  such 
that  neighbors  appreciated  that  defendant  had  possession  and  claimed 
exclusive  right  to  whole  property,  is  proper.  See  109  Am.  St.  Rep. 
620,  note. 

5  Wheat.  277-290,  5  L.  87,  MANDEVILLE  v.  WELCH. 

Syl.  4  (II,  26).     Order  for  part  of  fund  not  assignment. 

Approved  in  Reviere  v.  Chambliss,  120  Ga.  716,  48  S.  E.  123,  un- 
accepted check  is  not  assignment  of  money  to  credit  of  drawer. 

Syl.  5   (II,  28).     Equitable  assignment  of  fund. 

"Approved  in  Barnsdall  v.  Waltemeyer,  142  Fed.  419,  following 
rule;  In  re  Oliver,  132  Fed.  589,  where  bankrupt  drew  two  drafts 
on  agent  collecting  his  rents,  each  reciting  "value  received  and 
charge  to  rents  for  1903,"  and  were  discovered  by  bank  after  payee's 
acceptance,  and  bankruptcy  occurred  before  maturity,  drafts  were 
lien  on  funds  in  hands  of  trustee. 

Syl.  6  (II,  29).     Credit  cannot  split  cause  of  action. 

Approved  in  Firemen's  Fund  Ins.  Co.  v.  Oregon  R.  Co.,  45  Or.  59, 
76  Pac.  1076,  67  L.  R.  A.  161,  where  insurer  pays  loss  under  policy  in 
sum  loss  than  insured's  loss  and  takes  subrogation  assignment  for 
sum  paid,  insurer  and  insured  may  maintain  joint  action  against 
wrongdoer  causing  loss. 

5  Wheat.  293-312,  5  L.  92,  POLK'S  LESSEE  v.  WEXDELL. 

Syl.  2  (II,  31).     Grant  when  state  lacks  title. 

Approved  in  Reeve  v.  North  Carolina  Land  etc.  Co.,  141  Fed.  822, 
823,  824,  825,  under  Tennessee  statute  governing  grants  of  state 
lands,  older  of  two  conflicting  grants,  each  based  on  void  entry, 
passes  state's  title. 

5  Wheat.  317-325,  5  L.  98,  LOUGHBOROUGH  v.  BLAKE. 

Syl.  4  (II,  33).     Direct  congressional  taxes. 

Approved  in  Binns  v.  United  States,  194  U.  S.  492,  48  L.  1089, 
24  Sup.  Ct.  816,  license  fees  imposed  on  certain  business  by  Alaska 
Penal  Code,  §  460,  are  not  excises  levied  to  pay  debts  and  provide 
for  common  defense  and  general  welfare,  but  are  local  taxes. 

5    Wheat.    326-338,   5    L.    100,    MECHANICS'    BANK    v.    BANK    OF 
COLU:\IBIA. 

Syl.  1  (II,  34).     Parol  to  explain  contract. 

Approved  in  Laclede  Construction  Co.  v.  Moss  Tie  Co.,  185  Mo. 
68,   84   S.   W.   89,   admitting   parol    evidence   to    explain   contract   for 


59  Notes  on  U.  S.  Reports.  5  Wheat.  359-393 

sale  of  railroad  ties  as  may  be  needed  during  certain  year;  Janes 
V.  Citizens'  Bank,  9  Okl.  557,  60  Pac.  293,  admitting  parol  to 
show  note  signed  by  defendant  in  official  capacity  as  secretary  of 
corporation. 

5  Wheat.  359-374,  5  L.  109,  BLAKE  v.  DOHERTY. 

Syl.  1  (II,  39).     Sufficiency  of  description  in  deed. 

Approved  in  Holleyv.  Curry,  58  W.  Va.  73,  112  Am.  St.  Rep.  946, 
51  S.  E.  136,  uphoMing  sufficiency  of  description  of  land  as  "72 
acres  of  land  situate  near  Hamlin,  the  same  bought  of  the  land  com- 
pany." 

Syl.  2  (II,  40).     Effect  of  private  survey. 

Approved  in  United  States  v.  Montana  Lumber  etc.  Co.,  196  U.  S. 
578,  49  L.  605,  25  Sup.  Ct.  367,  private  survey  is  inadmissible  in  ac- 
tion by  government  for  value  of  timber  cut  from  unsurvej'cd  lands, 
to  show  that  lands  when  surveyed  will  be  included  in  railroad  grant. 

5  Wheat.  374-385,  5  L.  113,  HANDLEY  v.  ANTHONY. 

Syl.  1  (II,  41).     Boundaries — Middle  of  stream. 

Approved  in  Moore  v.  McGuire,  142  Fed.  790,  construing  act  of 
1817,  admitting  Mississippi  into  Union  as  fixing  western  boundary 
in  middle  of  main  channel  of  Mississippi  river. 

Syl.  2   (II,  41).     Boundaries — State  grant  bordering  on  river. 

Approved  in  Peoria  v.  Central  Nat.  Bank,  224  111.  57,  79  N.  E.  300, 
water's  edge  and  not  surveyed  meander  line  is  shore  line  from  which 
lines  should  be  drawn  to  show  water  and  accretion  rights  of  ad- 
jacent riparian  proprietors;  State  v.  Faudre,  54  W".  Va.  124,  136,  102 
Am.  St.  Rep.  927,  46  S.  E.  270,  274,  63  L.  R.  A.  877,  West  Virginia 
cannot  punish  one  acting  under  Ohio  ferry  franchise  for  charging 
one  coming  from  Ohio  more  than  is  allowed  by  West  Virginia  law 
for  ferriage  over  Ohio  river.  , 

5  Wheat.  385-393,  5  L.  115,  LA  AMISTAD  v.  DE  RUES. 

Syl.  1   (II,  44).     Probable  profits  as  damages. 

Approved  in  Choctaw  etc.  R.  R.  Co.  v.  Jacobs,  15  Okl.  500,  82  Pac. 
504,  determining  damages  for  delay  in  delivery  of  freight;  Tootle 
v.  Kent,  12  Okl.  691,  73  Pac.  315,  allowing  recovery  of  probable 
profits  to  merchant  whose  store  closed  as  result  of  fraudulent  chat- 
tel mortgage. 

Distinguished  in  Chisholm  etc.  Mfg.  Co.  v,  U.  S.  Canopy  Co.,  Ill 
Tenu.  210,  77  S.  W.  10G4,  allowing  lost  profits  as  damages  for 
breach  of  contract  to  manufacture  and  deliver  patented  article. 


6  Wheat.  104-118  Notes  on  U.  S.  Eeports.  60 

5  Wheat.  420-424,  5  L.  124,  OWINGS  v.  SPEED. 

Syl.  4  (II,  46).     Corporation's  books    as  evidence. 

Approved  in  Chesapeake  etc.  Ey.  Co.  v.  Deepwater  Ey.  Co.,  57 
W.  Va.  686,  687,  50  S.  E.  909,  determining  extent  of  admissibility 
of  books  and  records  of  private  corporation  in  its  favor  in  con- 
troversy between  it  and  stranger. 

5  Wheat.  424-428,  5  L.  125,  CONNECTICUT  v.  PENNSYLVANIA. 

Syl.  1   (II,  48).     Eecord  should  show  parol  testimony  in  equity. 

Distinguished  in  New  England  Phon.  Co.  v.  National  Phon.  Co., 
148  Fed.  324,  witness  whose  testimony  is  being  taken  orally  be- 
fore examiner  under  equity  rule  67  cannot  refuse  to  answer  ques- 
tion because  it  is  immaterial. 

Syl.  3  (II,  48).     All  necessary  parties  must  be  before  court. 
Approved   in   Lynch   v.   United   States,   13   Okl,    158,   73   Pac.   110(?, 
applying  rule  in  suit  to  cancel  townsite  patent. 


VI  WHEATON. 


6  Wheat.  104-106,  5  L.  216,  LINDENBERGER  v.  BEALL. 

Syl.  2   (II,  52).     Evidence  of  notice  to  indorser. 

Approved  in  Nelson  v.  Grondahl,  13  N.  D.  368,  100  N.  W.  1095, 
notary's  testimony  that  he  invariably  presented  notes  for  payment 
at  place  where  they  were  made  payable  is  admissible  to  establish 
place  of  presentment,  where  certificate  of  protest  fails  to  show  place 
and  notary  has  no  specific  recollection  of  presentment. 

6  Wheat.  106-109,  5  L.  217,  MECHANICS'  BANK  OF  ALEXANDRIA 
V.  WITHERS. 

Syl.  1  (II,  53).     Adjournment  to  distant  day. 

Approved  in  In  re  Dossett,  2  Okl.  381,  382,  37  Pac.  1070,  1071, 
district  court  may  hold  adjourned  sessions  after  commencement  of 
regular  term  at  time  not  designated  in  order  of  supreme  court 
fixing  time  when  terms  of  said  court  shall  begin;  Mann  v.  County 
Court,  58  W.  Va.  658,  52  S.  E.  778,  construing  Code  1899,  c.  144, 
§  2,  authorizing  circuit  and  county  courts  to  adjourn  from  day  to 
day  till  business  concluded  or  until  end  of  term. 

6  Wheat.  109-118,  5  L.  218,  HOPKINS  v.  LEE. 

Syl.  1   (II,  54).     Conclusiveness  of  judgments. 

Approved  in  Kittel  v.  Trustees  etc.  of  Improvement  Fund,  139 
Fed.   956,   holding  trustees   of   internal    improvement    fund    of   Florida 


61  Notes  on  U.  S.  Eeports.  6  Wheat.  131-203 

estopped  by  appearance  in  prior  suit  involving  certificate  as  to 
swamp  lands  which  they  relied  on  as  defense;  Georgia  etc.  Co. 
V.  Wright,  132  Fed.  917,  decree  in  suit  by  Georgia  against  cor- 
poration that  charter  created  contract  which  precluded  greater  tax 
than  half  of  one  per  cent  of  net  earnings  is  res  adjudicata  in  suit 
involving  taxes  for  other  years;  Territory  v.  Hopkins,  9  Okl.  150, 
59  Pac.  981,  determining  conclusiveness  of  decree  in  statutory  pro- 
ceedings to  determine  validity  of  bonds. 

Syl.  2  (II,  57).     Danjages  on  nondelivery. 

Approved  in  Eoberts  v.  McFaddcn,  32  Tex.  Civ.  55.  74  S.  W.  110, 
where  title  offered  by  vendor  is  not  marketable,  vendee  may  have 
rescission  but  cannot  recover  damages  for  loss  of  bargain.  See  106 
Am.  St.  Rep.  971,  note. 

6  Wheat.  131-135,  5  L.  224,  FARMEES'  AND  MECHANICS'  BANK 
v.  SMITH. 

Syl.  1    (II,  65).     Insolvency  law  discharging  contracts. 

Approved  in  In  re  Salmon,  143  Fed.  405,  Missouri  Eev.  St.  1S99, 
§§  1305,  1306,  relating  to  liquidation  of  banks,  was  suspended  by 
bankruptcy  act  and  participation  of  creditors  in  proceedings  there- 
under did  not  estop  thom  from  proceeding  in  bankruptcy  against 
debtors;  Boviard  etc.  Co.  v.  Ferguson,  215  Pa.  239,  64  Atl.  514, 
arguendo. 

6  Wheat.  135-146,  5  L.  225,  UNITED  STATES  v.  WILKINS. 

Syl.   1    (II,  67).     Setoff  against  government. 

Approved  in  United  States  v.  Gillies,  144  Fed.  991,  in  action  by 
United  States  to  recover  alleged  debt,  defendant  cannot  recover 
affirmative  judgment  against  government  on  counterclaim,  although 
it  may  be  determined  that  there  is  balance  due  him. 

6  Wheat.  146-152,  5  L.  228,  YOUNG  v.  BRYAN. 

Syl.    1    (II,   68).     Jurisdiction — Suit   by   indorsee — Citizenship. 

.\pproved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup. 
Ct.  220,  suit  by  assignee  to  foreclose  trust  deed  is  not  maintainable 
in  federal  court  unless  assignor  could  sue  there,  though  bill  prays 
cancellation  of  release  of  trust  deeds  to  grantor  as  in  fraud  of 
complainant's  rights. 

6  Wheat.   187-192,  5  L.  238,  THE  ROBERT  EDWARDS. 
Syl.  1   (II,  71).     Weight  of  circumstantial  evidence. 
See  97  Am.  St.  Rep.  774,  note. 

6  Wheat.  194-203,  5  L.  239,  THE  COLLECTOR. 

Syl.  1  (H,  71).     Effect  of  appeals  in  rem. 

Approved  in  First  Nat.  Bank  v.  State  Nat.  Bank.  131  Fed.  431, 
65  C.  C.  A.  414,  where  appeal  has  been  perfected  under  bankruptcy 


6  "Wheat.  204-448  Notes  on  U.  S.  Eeports.  62 

act   from   judgment    allowing   or   rejecting    debt,    district    court    can- 
not entertain  motion  for  rehearing  while  appeal  is  pending. 

6  Wheat.  204-235,  5  L.  242,  ANDEKSON  v.  DUNN. 

Syl.  3   (II,  73).     Congress  may  punish  contempts. 

Approved  in  Ex  parte  Parker,  74  S.  C.  473,  55  S.  E.  125,  as  to 
powers  of  legislative  committees  to  punish  for  contempt. 

6  Wheat.  264-448,  5  L.  257,  COHEN  v.  VIEGINIA. 

Syl.  4   (11,  77),     Federal  jurisdiction — Federal  questions. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  38,  50  L.  650,  26  Sup. 
Ct.  387,  denial  in  summoning  or  impaneling  jurors  of  any  civil 
rights  secured  to  accused  by  federal  law  does  not,  unless  authorized 
by  state  law,  give  right  to  remove  prosecution  to  federal  court; 
Anthony  v.  Burrow,  129  Fed.  787,  question  whether  county  is  law- 
fully included  in  congressional  district  where  it  was  placed  by  act 
of  legislature  is  not  federal  question. 

Syl.  5   (II,  SO).     Constitutional  construction — Affirmative  words. 

Approved  in  Higgins  v.  Tax  Assessors  of  Pawtueket,  27  R.  I.  405, 
63  Atl.  36,  upholding  Practice  Act  1905,  §  12,  giving  superior  court 
jurisdiction  over  extraordinary  writs. 

Syl.  7  (n,  81).     Dicta  not  controlling. 

Approved  in  Harriman  v.  Northern  Securities  Co.,  197  U.  S.  291, 
49  L-.  761,  25  Sup.  Ct.  493,  Linstroth  Wagon  Co.  v.  Ballew,  149  Fed. 
965,  In  re  Sullivan,  148  Fed.  816,  Traer  v.  Fowler,  144  Fed.  817, 
Wabash  R.  Co.  v.  De  Tar,  141  Fed.  938,  Kentucky  v.  Powers,  139 
Fed.  482,  Ex  parte  Eiggins,  134  Fed.  423,  St.  Louis  etc.  Ry.  Co.  v. 
Davis,  132  Fed.  635,  Southern  Ry.  Co.  v.  Simpson,  131  Fed.  709,  65 
C.  C.  A.  563,  Clancy  v.  Barker,  131  Fed.  168,  69  L.  R.  A.  653,  66 
C.  C.  A.  4G9,  and  Rodwell  v.  Rowland,  137  N.  C.  638,  50  S.  E.  327, 
all  following  rule;  Macon  City  etc.  R.  Co.  v.  Wolf,  148  Fed.  968, 
applying  rule  in  determining  damages  in  eminent  domain. 

Syl.  10   (II,  83),     Suit  defined. 

Approved  in  Dorr  Cattle  Co.  v.  Des  Moines  Nat.  Bank,  127  Iowa, 
162,  98  N.  W.  922,  where  remedy  for  tort  is  created  by  statute, 
remedy,  including  items  of  damage  recoverable,  is  governed  by  law 
of  place  of  suit. 

Syl.   11    (II,   83).     Writ   of   error  brings   record. 

Approved  in  Bradford  v.  Southern  Ry.  Co.,  195  U.  S.  248,  49  L. 
181,  25  Sup.  Ct.  55,  under  27  Stat.  252,  relating  to  suits  in  forma 
pauperis,  writ  of  error  from  circuit  court  of  appeals  cannot  be  pros- 
ecuted without  giving  security  for  costs. 


63  Not^s  on  U.  S.  Eeports.  6  Wheat.  453-514 

Syl.  12  (II,  85).     Writ  of  error  is  not  suit. 

Approved  in  State  v.  Chittenden,  127  Wis.  494,  107  N.  W.  508, 
independent  proceeding  commenced  by  an  original  writ  is  an  action 
under  Kev.  St.  1898,  §  2595. 

Syl.  14  (II,  85).     United  States  is  nation. 

Approved  in  Northern  Securities  Co.  v.  United  "States,  193  U.  S. 
333,  336,  48  L.  698,  24  Sup.  Ct.  436,  upholding  anti-trust  act  of  July 
2,  1890. 

Syl.   15    (II,   86).     Contemporaneous   exposition   of   constitution. 

Approved  in  State  v.  New  Orleans  Ey.  &  L.  Co.,  116  La.  148,  40 
So.  598,  applying  rule  where  under  two  constitutions  exempting  man- 
ufacturers from  taxation,  legislature  for  twenty  years  imposed  license 
tax  on  electric  companies;  State  v.  Northern  Pac.  Ky.  Co.,  95  Minn. 
47,  "103  N.  W.  732,  foreign  railroad  paying  taxes  under  gross  earnings 
law  may  deduct  debts  from  credits,  though  it  has  failed  to  list 
credits;  Henry  v.  State,  87  Miss.  57,  39  So.  871,  upholding  Kev.  Code 
1892,  §  3201,  providing  for  working  of  convicts  on  farm  leased  for 
that  purpose;  Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987, 
city  court  has  no  jurisdiction  to  try  accused  for  violation  of  state 
penal  statute;  Manner  v.  County  Court,  58  W.  Va.  660,  52  S.  E.  779, 
construing  Code  1899,  c.  114,  §  2,  authorizing  circuit  and  county  courts 
to  adjourn  from  day  to  day  till  business  concluded,  or  till  end  of  term. 

6  Wheat.  453-475,  5  L.  303,  HUGHES  v.  BLAKE. 

Syl.  1   (II,  90).     Equity — Evidence  to  overcome   denial. 

Approved  in  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597.  bona 
fide  purchaser  must  allege  and  prove  want  of  notice  and  actual  pay- 
ment of  purchase  price  independently  of  recitals  in  deed. 

Syl.   2    (II,   91).     Replication   admits   sufficiency   of   plea. 

Approved  in  Glucose  etc.  Co.  v.  Douglass  &  Co.,  145  Fed.  951,  in 
suit  for  infringement  of  patent,  plea  setting  up  single  defense  of 
noninfringement  is  not  good  plea;  Mutual  Life  Ins.  Co.  v.  Blair, 
130  Fed.  973,  where  insured  died  after  commencement  of  suit  to  cancel 
policy  for  fraud,  but  before  answer,  whereupon  action  on  policy 
was  brought,  plea  in  bar  alleging  insured's  death,  and  bringing  and 
pendency  of  such  action  at  law  was  not  available  as  objection  to  want 
of  equity;  Barber  v.  National  Carbon  Co.,  129  Fed.  377,  64  C.  C.  A. 
40,  applying  jirinciple  in  suit  for  infringement  of  patent. 

6  Wheat.  481-514,  5  L.  311,  PEEVOST  v.  GEATZ. 

Syl.  1   (II,  92).     Burden  to  prove   trust. 

Approved  in  In  re  Foss,  147  Fed.  792,  where  husband  free  from 
debt  paid  consideration  for  real  estate  which  was  conveyed  to  wife, 
burden  is  on  one  seeking  to  establish  resulting  trust  in  husband  to 
overcome    presumption    that    voluntary    settlement    on    wife    was    in- 


6  Wheat.  528-583  Notes  on  U.  S.  Eeports.  64 

tended;-  Windmuller  v.  Clarkson,  2  Alaska,  300,  applying  rule  to 
grubstake  contract;  Copper  Eiver  Min,  Co.  v.  McClellan,  2  Alaska, 
144,  145,  applying  rule  in  suit  to  establish  trust  in  mining  claim; 
Cascaden  v.  Dunbar,  2  Alaska,  413,  arguendo. 

Syl.  3   (II,  92).     Lapse  of  time — Trusts — Concealed  fraud. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  42,  66  Pac.  565,  55 
L.  R.  A.  658,  applying  rule  to  verbal  trust;  Sunter  v.  Sunter,  190 
Mass.  456,  77  N.  E.  498,  suit  by  wards  to  avoid  sale  of  lands  by 
guardian  indirectly  to  himself  not  barred  as  stale  claim  though  not 
brought  within  limitation  fixed  by  Rev.  Laws,  c.  202,  §  24,  they 
having  brought  it  soon  after  ascertaining  fraud. 

6  Wheat.  528-541,  5  L.  322,  BRASHIER  v.  GRATZ. 

Syl.  3   (n,  97).     Specific  performance — Laches. 

Approved  in  Boldt  v.  Early,  33  Ind.  App.  442,  104  Am.  St.  Rep. 
255,  70   N.  E.  274,  following  rule. 

6   Wheat.  550-565,   5  L.  328,   KERR  v.   WATTS. 

(II,  98.)  Miscellaneous.  Cited  in  Thompson  v.  Burk,  2  Alaska,  252, 
where  defendant  located  placer  claim,  but  made  no  discovery,  and 
plaintiff  made  subsequent  relocation,  and  thereafter,  without  notify- 
ing defendant  of  that  fact,  contracted  with  him  to  dig  discovery 
shaft,  in  which  he  discovered  gold,  discovery  inured  to  perfect  de- 
fendant's claim;  Copper  River  Min.  Co.  v.  McClellan,  2  Alaska,  144, 
where  agent  locates  mines  for  himself  which  he  ought  to  locate  for 
his  principal,  he  is  trustee  for  latter. 

G  Wheat.  565-572,  5  L.  332,  LEEDS  v.  MARINE  INS.  CO. 

Syl.  1  (II,  99).     Equity  compels  deduction  of  amount  of  setoff. 

Approved  in  Brown  v.  Pegram,  149  Fed.  520,  judgment  debtor  may 
enjoin  its  collection  on  allegation  of  setoff  against  beneficial  owners, 
though  setoffs  are  legal  demands  or  unliquidated,  and  defendants  are 
nonresidents  or  insolvent. 

6  Wheat.  577-580,  5  L.  334,  CLARK  v.  GRAHAM. 

Syl.   1   (II,   100).     Law  governing  realty   titles. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry.  Co.,  144  Fed. 
179,  applying  principle  in  determining  title  to  Oakland  waterfront. 

6  Wheat.  580-583,  5  L.  336,  PRESTON'S  HEIRS  v.  BOWMAR. 

Syl.    1    (II,   102).     Boundaries — Courses    and    distances   yield. 

Approved  in  Davis  v.  Commonwealth  Land  etc.  Co.,  141  Fed.  762, 
763,  764,  765,  766,  772,  774,  determining  boundaries  where  certain 
corners  lost;  Davis  v.  Commonwealth  Laud  etc.  Co.,  141  Fed.  729, 
construing   state    patent. 


G3  Notes  on  U.  S.  Reports.  7  Wheat.  7-13 

Syl.  2   (II,  103).     Following  state  statutory  construction. 

Approved  in  Davis  v.  Commonwealth  Land  etc.  Co.,  141  Fed.  743, 
determining  location  of  boundaries;  Davis  v.  Commonwealth  Land 
etc.  Co.,  141  Fed.  71G,  applying  rule  in  action  to  quiet  title  to  land 
under  state  patent;  Bramblet  v.  Davis,  141  Fed.  784,  arguendo. 

6  Wheat.  593-598,  5  L.  339,  GOSZLER  v.  GEORGETOWN. 

Syl.  2   (II,  103).     Power  to  change  street  grade. 

Approved  in  Mead  v.  Portland,  200  U.  S.  164,  50  L.  420,  26  Sup. 
Ct.  171,  applying  rule  to  right  of  successor  to  bridge  company  to 
change  street  grade;  State  v.  Wilson,  121  Wis.  525,  99  N.  W.  336, 
applying  rule  where  city  charter  imposed  on  board  of  education  duty 
to  establish  text-books. 

G  Wheat.  598-605,  5  L.  840,  McCLUNG  v.  SILLIMAN. 

Syl.  1  (II,  106).     No  state  mandamus  to  federal  officer. 

Distinguished  in  McDaid  v.  Territory,  1  Okl.  97,  98,  30  Pac.  440, 
upholding  jurisdiction  to  mandamus  townsite  trustees  to  issue  deed 
to  contestant  they  have  decided  is  entitled  to  it. 

Syl.  3   (II,  108).     Federal  court's  jurisdiction  is   statutory. 

Approved  in  Ex  parte  Massachusetts,  197  U.  S.  488,  49  L.  848, 
supreme  court  cannot  grant  extraordinary  writs  in  cases  in  which  it 
has  neither  original  nor  appellate  jurisdiction;  Mystic  Milling  Co.  v. 
Chicago  etc.  Ry.  Co.,  132  Fed.  292,  denying  mandamus'  in  circuit  court 
over  action  which  is  not  removable;  Barber  Asphalt  etc.  Co.  v.  Morris, 
132  Fed.  953,  67  L.  R.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to 
circuit  judge  to  vacate  order  staying  proceedings  in  circuit  court  till 
determination   of  proceedings  in   state   court. 


VII   WHEATON. 


7  Wheat.  7-13,  5  L.  382,  NEWSOM  v.  PRYOR. 

Syl.  1   (II,  110).     Boundaries — Controlling  calls. 

Approved   in   Kleven   v.    Gunderson,   95   Minn.    254,    104   N.   W.    7, 
following  rule. 

Distinguished  in  Security  Land  etc.  Co.  v.  Burns,  193  U.  S.  179, 
48  L.  671,  24  Sup.  Ct.  425,  courses  and  distances  as  set  forth  in 
plat  of  official  survey  and  referred  to  in  patent,  which  shows  alleged 
meander  line  of  lake  as  one  boundary,  control  as  against  actual 
boundary  of  lake,  where  survey  was  fraudulent  and  lake  never  within 
half  mile  of  point  indicated  on  plat. 
5 


7  Wheat.  13-45  Notes   on    U.    S.    Kcports.  66 

7  Wheat.  13-22,  5  L.  384,  TAYLOR  v.  SANDIFORD. 

Syl.  1   (II,  111).     Penalty  and  liquidated  damages  distinguished. 

Approved  in  Dieckerhoff  v.  United  States,  136  Fed.  547,  69  C.  C. 
A.  255,  penalty  of  bond  given  under  Rev.  St.  2899,  is  not  liquidated 
damages;  State  v.  AVarner,  197  Mo.  659,  94  S.  W.  964,  game  law  of 
1905,  requiring  fines  to  go  to  game  protection  fund  violates  constitu- 
tional provision  that  fines  and  penalties  shall  go  to  county  school 
fund;  Disosway  v.  Edwards,  134  N.  C.  256,  46  S.  E.  502,  in  action  on 
bond  conditioned  for  performance  of  agreement  not  to  engage  in 
certain  business  it  is  error  to  enter  judgment  for  full  amount  of 
bond,  on  overruling  demurrer,  where  there  were  no  allegations  as  to 
amount  of  actual  damage;  Kelley  v.  Seay,  3  Okl.  533,  41  Pac.  618, 
applying  rule  in  action  on  bond  containing  penalty  clause. 

Syl.   2   (II,   113).     Application  of  payments. 

Approved  in  City  of  Lincoln  v.  Lincoln  St.  R.  Co.,  67  Neb.  492, 
93   N.   W.   774,  following  rule. 

7  Wheat  38-45,  5  L.  391,  EX  PARTE  KEARNEY. 

Syl.   1    (II,   115).     Habeas   corpus   by   supreme   court. 

Approved  in  Ex  parte  Moran,  144  Fed.  600,  denying  jurisdiction  of 
circuit  court  of  appeals  to  review  conviction  of  capital  crime  in 
Oklahoma  court. 

Syl.  2   (II,  116).     Supreme  court — Criminal  appeals. 

Approved  in  Heinze  v.  Butte  etc.  Min.  Co.,  129  Fed.  278,  280,  63 
C.  C.  A.  388,  order  of  contempt  for  disobeying  injunction  is  not  re- 
viewable by  writ  of  error;  Bullock  etc.  Co.  v.  Westinghouse  etc.  Co., 
129  Fed.  106,  63  C.  C.  A.  607,  writ  of  error  and  not  appeal  is  proper 
remedy  to  review  order  of  contempt  for  violation  of  injunction; 
Christensen  etc.  Co.  v.  Westinghouse  etc.  Co.,  129  Fed.  96,  63  C.  C.  A. 
598,  circuit  court  of  appeals  cannot  review  order  in  equity  suit 
adjudging  party  in  contempt  for  disobeying  injunction  except  on 
appeal  from  final  decree  in  that  suit. 

Syl.  6  (II,  118).     Review  in  contempt. 

Approved  in  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S.  331,  333,  48 
L.  1003,  1004,  24  Sup.  Ct.  665,  circuit  court  of  appeals  may  review 
order  of  circuit  court  finding  person  not  party  to  suit  guilty  of 
contempt  in  violating  restraining  order  of  that  court. 

Syl.  7   (II,  120).     Habeas  corpus  in  contempt. 

Approved  in  In  re  Burkell,  2  Alaska,  110,  where  justice  of  peace 
added  "hard  labor"  to  penalty  of  confinement  in  jail,  habeas  corpus 
will  not  lie  to  cure  error  where  hard  labor  is  not  in  fact  being  im- 
posed as  part  of  penalty. 


67  Notes  on  U.   S.   Kcports.  7  Wheat.  46-157 

7  Wheat.  46-58,  5  L.  393,  BAYLEY  v.   GREENLEAP. 

Syl.  1   (II,  120).     Vendor's  lien— Loss  by  sale. 

Approved  in  Lindbloom  v.  Kidston,  2  Alaska,  297,  vendor  of  realty 
who  reserves  no  lien  of  record  after  delivery  of  absolute  deed  to 
vendee  has  no  equitable  lien  for  deferred  payments  of  purchase  money 
due  him,  which  he  can  enforce  against  property  in  hands  of  subse- 
quent mortgagor  for  value;  Baker  v.  Fleming,  6  Ariz.  421,  59  Pac. 
102,  where  land  is  granted  by  absolute  conveyance,  grantor  has  no 
implied  equitable  lien  thereon  for  unpaid  purchase  money. 

Syl.  5   (II,   124).     Priority  of  vendor's  lien. 

Approved  in  United  States  v.  Detroit  etc.  Co.,  131  Fed.  678,  pur- 
chasers in  good  faith  of  equitable  title  evidenced  by  receiver's  final 
receipts,  upon  which  patents  subsequently  issued,  have  complete  de- 
fense as  against  governiueut  suit  to  set  aside  patents  for  fraud  in 
procurement. 

7  Wheat.  58,  59,  5  L.  397,  BROWDER  v.  McARTIIUR. 

Syl.   1   (II,  124).     No  rehearing  after  remittitur. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  etc.  Co.,  147  Fed.  903, 
where  court  of  appeals  affirmed  judgment,  but  subsequently  on  cross- 
error  reversed  it  on  different  point,  and  ordered  new  trial,  questions 
therein  considered  will  not  be  reconsidered '  on  error  from  secupd 
judgment. 

7  Wheat.  59-122,  5  L.  398,  RICARD  v.   WILLIAMS. 

Syl.  6  (II,  127).     Presumption  of  grant  where  claim  negatives  it. 

Approved  in  Logan  v.  Ward,  58  W.  Va.  375,  52  S.  E.  401,  grant  of 
undivided  share  from  one  joint  tenant  to  another  not  presumed  from 
mere  silent  possession  for  long  time. 

Syl.   11   (II,  129).     Time  for  administrator  to   sell. 

Approved  in  In  re  Tuohy's  Estate,  33  Mont.  247,  83  Pac.  491,  up- 
holding order  for  executor's  sale   of  lands   to  pay  debts. 

Syl.  12   (II,  130).     Entry  by  one  heir — Adverse  possession. 
See   109  Am.   St.   Rep.   610,   note. 

7  Wheat.  122-157,  5  L.  414,  BOULDIN  v.  MASSIE 'S  HEIRS. 

Syl.   4   (II,   132),     Proof  of   lost   instrument. 

Approved  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  301,  de- 
termining insufficiency  of  proof  of  record  for  lost  record-book  to 
justify  oral  evidence  of  its  contents  in  suit  to  recover  revenue  taxes 
illegally  imposed. 


7  Wheat.  15S-551  Notes  on  U.  S.  Eeports.  68 

7  Wheat.  15S-163,  5  L.  423,  WATTS  v.  LINDSEY'S  HEIRS. 

Syl.  1   (II,  132).     Ejectment — Recovery  on  own  title. 

Approved  in  McGuire  v.  Blount,  199  U.  S.  144,  50  L.  128,  26  Sup. 
Ct.  1,  reaffirming  rule. 

7  Wheat.  283-355,  5  L.  454,  THE  SANTISSIMA  TRINIDAD. 

Syl.  5  (II,  138).     Neutrality — Contraband  to  belligerents. 

Approved  in  Northern  Pac.  Ry.  Co.  v.  American  Trading  Co.,  195 
U.  S.  465,  49  L.  281,  25  Sup.  Ct.  84,  nonperformance  of  agreement  by 
carrier  to  forward  through  shipment  by  steamer  of  connecting  carrier 
sailing  on  certain  day  not  excused  by  refusal  of  port  collector  to 
grant  clearance  because  freight  was  contraband  of  war. 

7  Wheat.  356-452,  5  L.  472,  EVANS  v.  EATON. 

Syl.   1    (II,  139).     Competency  of  interested  witness. 

Approved  in  dissenting  opinion  in  Burton  v.  United  States,  202 
U.  S.  393,  50  L.  1076,  26  Sup.  Ct.  688,  majority  holding  fraud  order 
inquiry  pending  before  postal  department  is  proceeding  in  whieli 
United  States  is  directly  or  indirectly  interested,  within  Rev.  St., 
§  1782. 

7  Wheat.  522-529,  5  L.  513,  CROCKET  v.  LEE. 

(II,  142.)  Miscellaneous.  Cited  in  Ratliff  v.  Sommers,  55  W.  Va. 
37,  46  S.  E.  715,  as  to  right  to  amend  pleadings. 

7  Wheat.  530-533,  5  L.  515,  MACKER  v.  THOMAS. 

Syl.  3  (II,  144).     Reversal  where  heirs  default. 

Approved  in  Shute  v.  Patterson,  147  Fed.  512,  where  alleged  invol- 
untary bankrupt  died  after  filing  of  petition,  but  before  service  of 
process,  heirs  and  personal  representatives  should  be  brought  in  and 
made   parties   to   proceeding  before   adjudication. 

7  Wheat.  535-551,  5  L.  516,  BLIGHT'S  LESSEE  v.  ROCHESTER, 
Syl.  5  (II,  145).  Lessee  cannot  deny  landlord's  title. 
Approved  in  Wallace  v.  Ocean  Grove  etc.  Assn.,  148  Fed.  673,  tenant 
who  paid  rent  under  lease  up  to  notice  terminating  lease  cannot 
deny  landlord's  title  in  ejectment,  though  he  was  in  possession  prior 
to  lease;  Hagar  v.  Wikoff,  2  Okl.  584,  588,  39  Pac.  282,  283,  one  going 
into  possession  of  town  lot  on  public  lands  as  tenant  of  one  who  has 
erected  building  cannot  assert  adverse  claim  until  possession  surren- 
dered, 


VIII   WHEATON. 


8  Wheat.  1-108,  5  L.  547,  GKEEN  v.  BIDDLE. 

Syl.  3  (II,  153).     Estoppel  of  equitable  owner  by  silence. 

Approved  in  Hunter  v.  Coe,  12  N.  D.  515,  97  N.  W.  872,  one  pur- 
chasing realty  with  notice  of  outstanding  contract  of  sale  may  be 
compelled  to  convey,  but  purchaser  will  be  required  to  pay  to  vendee 
from  unpaid  purchase  price  payments  he  has  made  to  vendor. 

Syl.  8   (II,  156).     Statute  impairing  contracts. 

Approved  in  Harrison  v.  Kemington  Paper  Co.,  140  Fed.  391,  392, 
holding  void,  as  to  existing  contracts,  Kansas  act  of  1898  substituting 
equity  suit  for  existing  remedy  to  enforce  stockholder's  liability; 
Knickerbocker  Trust  Co.  v.  Myers,  133  Fed.  768,  holding  void  Acts 
Md.  1904,  p.  579,  c.  337,  which  takes  away  remedy  given  by  Acts  Md. 
1892,  p.  153,  c.  109,  §  851,  relating  to  liability  of  stockholders;  Welsh 
V.  Cross,  146  Cal.  624,  625,  106  Am.  St.  Kep.  63,  81  Pac.  230,  time  for 
redemption  of  realty  from  execution  sale  on  judgment  is  not  affected 
by  subsequent  changing  of  statute  extending  time  for  redemption, 
before  levy  and  sale  under  execution;  Smith  v.  Jennings,  67  S.  C. 
336,  45  S.  E.  826,  joint  resolution  requiring  state  treasurer  to  write 
off  the  books,  as  state  obligations,  certain  past  due  bonds,  is  not 
law  impairing  obligation  of  contracts;  Investment  Co.  v.  Hambach, 
37  Wash.  633,  80  Pac.  192,  upholding  Sess.  Laws  1903,  p.  262,  c.  137, 
allowing  value  of  improvements  made  in  good  faith  in  actions  for 
recovery  of  realty, 

Syl.  17   (II,  161).     Occupying  claimant's  act  void. 
Distinguished  in  Uhl  v.  Grissom,  12  Okl.  325,  72  Pac.  373,  upholding 
occupying  claimant's  act  of  1893. 

8  Wheat.  174-217,  5  L.  589,  HUNT  v.  ROUSMAXIER. 

Syl.  1    (II,  162).     Eevocation  of  power  of  attorney. 

Approved  in  Divine  v.  Miller,  70  S.  C.  228,  106  Am.  St.  Rep.  743, 
49  S.  E.  480,  where  creditor  collects  proceeds  of  collateral  after  death 
of  debtor,  payment  of  same  on  note  of  debtor  does  not  arrest  limita- 
tions.    See  110  Am.  St.  Eep.  858,  note. 

Syl.  2  (II,  163).     When  power  of  attorney  irrevocable. 
See  110  Am.  St.  Eep.  857,  note. 

Syl.  4   (n,   164).     Power   coupled  with  interest   survives. 
Approved  in  In  re  E.  T.  Kenney  Co.,  136  Fed.  453,  where  several 
creditors    of    insolvent    corporations    before    bankruptcy    proceedings 

[69] 


8  Wheat.  174-217  Notes  on  U.  S.  Ecporta.  70 

were  instituted  assigned  claims  to  committee,  latter  entitled  to  prove 
all  claims  against  estate  of  one  of  corporations  in  bankruptcy  as  one 
claim;  Fisher  v.  Southern  Home  &  Trust  Co.,  138  N.  C.  99,  50  S.  E. 
595,  in  order  that  power  of  attorney  survive  death  of  donor,  it  is  not 
enough  that  interest  be  in  proceeds  of  thing  or  that  it  be  irrevocable 
during  life  of  donor;  Warren  v.  Pine,  65  N.  J.  Eq.  53,  55  Atl.  73, 
holding  stockholder  could  revoke  voting  trust  created  in  committee 
for  reorganization  of  insolvent  corporation.  See  110  Am.  St.  Rep. 
859,  860,  note. 

Syl.  5  (II,  164).     Requisites  of  power  coupled  with  interest. 

Approved  in  Scott  v.  Travellers'  Ins.  Co.,  103  Md.  78,  63  Atl.  380, 
construing  insurance  agent's  contract  for  commissions  on  renewals; 
Weaver  v.  Richards,  144  Mich.  413,  108  N.  W.  389,  power  appointing 
attorney  to  sell,  providing  that  it  should  be  irrevocable  and  survive 
death  of  signers,  is  not  power  coupled  with  interest;  State  v.  District 
Court,  30  Mont.  12,  75  Pac.  518,  guardian  may  substitute  attorney 
for  one  who  represented  ward  prior  to  guardian's  appointment,  though 
fees  due  former  attorney  not  paid;  Hunter  v.  Mutual  Reserve  etc. 
Ins.  Co.,  184  N.  Y.  145,  76  N.  E.  1074,  provisions  in  statute  authoriz- 
ing foreign  insurance  company  to  do  business  on  execution  of  power 
to  insurance  commissioner,  irrevocable  while  liabilities  remain  out- 
standing, does  not  prevent  revocation  as  to  nonresident  policy-holders; 
Brown  v.  Skotland,  12  N.  D.  450,  97  N.  W.  545,  where  one  made  ap- 
plication for  loan  and  in  application  appointed  agent  to  execute  note, 
but  died  before  application  accepted,  power  of  attorney  terminated 
on  death.     See   110  Am.  St.  Rep.   855,   857,  860,  note. 

Distinguished  in  Frank  v.  Colonial  etc.  Mtg.  Co.,  86  Miss.  116,  117, 
118,  38  So.  342,  70  L.  R.  A.  135,  power  of  sale  vested  in  trustee  and 
power  of  substitution  of  new  trustee  granted  to  beneficiary  in  trust 
are  coupled  with  interest;  dissenting  opinion  in  Weaver  v.  Richards, 
144  Mich.  408,  411,  108  N.  W.  387,  388,  majority  holding  power  ap- 
pointing attorney  to  sell,  providing  that  it  shall  be  irrevocable  and 
survive  death,  is  not  power  coupled  with  interest. 

Syl.  6   (II,  1G7).     Parol  to  vary  writing. 

Distinguished  in  North  American  etc.  Co.  v.  Samuels,  146  Fed.  56, 
admitting  parol  evidence  to  show  particular  kinds  and  quality  of 
goods  sold  and  manner  of  sale  where  written  contract  silent  with 
respect  thereto. 

Syl.   8    (II,   168).     Equitable   relief  for  mistake. 

Approved  in  Carrel!  v.  McMurray,  136  Fed.  669,  670,  reforming  deed 
to  embody  actual  agreement  made  on  exchange  of  farm  for  stock  of 
merchandise. 

Syl.  9   (II,  168).     Relief  against  mistake  of  law. 
Approved   in  Burk  v.  Johnson,  146  Fed.   214,  where  bill   to  rescind 
contract  for  promotion  of  burial  associations  under  copyrighted  by- 


71  Notes  on  U.  S.   Reports,  8  Wheat.  229-337 

laws  was  based  on  allfgcd  fraudulent  representations,  bill  could  not 
be  sustained  by  proof  of  mutual  mistake.  * 

8  Wheat.  229-252,  5  L.  603,  SEXTON  v.  WHEATON. 

Syl.  4   (II,   174).     Fraudulent   conveyance   set   aside. 

Approved  in  McDonald  v.  Dewey,  202  U.  S.  529,  50  L.  1136,  26 
Sup.  Ct.  731,  one  who  with  knowledge  of  insolvency  of  national  bank 
transfers  stock  to  irresponsible  vendee  with  intent  to  evade  liability 
for  debts  of  bank  is  liable  only  for  unsatisfied  debts  existing  when 
fraudulent  transfer  made. 

Syl.  5   (II,  176).     Voluntary  settlement  on  wife — Impeachment. 
Approved  in  Savage  v.  Savage,  141  Fed.  350,  following  rule. 

8  Wheat.  268-293,  5  L.  614,  SPRING  v.  SOUTH  CAROLINA  INS.  CO. 

Syl.  5   (II,  180).     Lien  on  policy  of  premiums. 

Approved  in  Wilder  v.  Watts,  138  Fed.  432,  where  alleged  bank- 
rui)t  before  insolvency  arranged  to  borrow  money  to  purchase  goods 
under  agreement  that  he  would  have  goods  insured  and  assign  policies 
to  lenders  as  collateral  security,  and  loans  were  made  to  him,  agree- 
ment was  valid  equitable  assignment,  though  policies  not  delivered 
when  issued;  Beasley  v.  Coggins,  48  Fla.  222,  37  So.  215,  upholding 
bill  by  trustee  to  set  aside  voluntary  fraudulent  conveyance  by  bank- 
rupt to  wife  while  insolvent,  with  intent  to  delay  and  defraud  prior 
and   subsequent   creditors,   though   recorded   day   following   execution. 

(II.  179.)  Miscellaneous.  Cited  in  Union  Trust  Co.  v.  Bulkeley, 
150  Fed.  514,  assignment  of  accounts  good  in  equity,  though  manual 
possession  not   given. 

8  Wheat.  326-337,  5  L.  628,  NICHOLLS  v.  WEBB. 

Syl.   2   (II,  183).     Notes — Notarial  protest  as  evidence. 

Approved  in  Schofield  v.  Palmer,  134  Fed.  755,  arguendo. 

Syl.  3   (II,  183).     Rules  of  evidence  expand. 

Approved  in  Brown  v.  United  States,  142  Fed.  6,  on  -issue  as  to 
insolvency  of  debtor  of  bank,  books  of  bank  are  admissible  as  prima 
facie  evidence  of  amount  of  corporation's  indebtedness  to  it. 

Syl.   7    (II,   184).     Decedent's   memoranda  as   evidence. 

Approved  in  Rosenthal  v.  McGraw,  138  Fed.  725,  testimony  of  wit- 
ness as  to  indebtedness  based  upon  examination  of  charges  made  in 
books  of  account  which  were  not  made  by  him  and  are  in  no  manner 
authenticated,  is  hearsay;  Denver  v.  Cochran,  17  Colo.  App.  74,  67 
Pac.  24,  in  action  against  city  for  injury  resulting  from  defective 
sidewalk,  letter  written  by  chief  inspector  of  public  works  in  line  of 
his  duty  showing  actual  knowledge  of  defects  is  admissible  after 
his  death  to  show  knowledge  on  part  of  city;  Haas  v.  Chubb,  67  Kan. 
79y,  74  Pac.  230,  press  copies  of  waybills  issued  by  railroad,  originals 


8  Wheat.  338-463  Notes  on  U.  S.  Eeporta.  72 

of  which  are  not  shown  to  be  incapable  of  production,  are  inadmis- 
sible where  person  issuing  bills  and  making  copies  not  shown  to  be 
dead;  Collins  v.  German  American  etc.  Assn.,  112  Mo.  App.  219,  86 
S.  "W.  894,  admitting  baptismal  church  records  kept  by  clergymen  of 
parish  from  time  immemorial,  without  proof  of  handwriting  of  entries. 

8  Wheat.  338-365,  5  L.  631,  FLECKNEE  v.  BANK  OF  THE  UNITED 
STATES. 

Syl.  1  (II,  185).     Usurious  note  void  in  all  hands. 

Distinguished  in  Weed  v.  Gainesville  etc.  E.  E.  Co.,  119  Ga.  590, 
46  S.  E.  893,  defense  of  usury  is  not  good  as  against  bona  fide  pur- 
chaser of  corporate  bonds  for  value  without  notice  and  before  matur- 
ity. 

Syl.  2  (II,  185).     Banks  may  discount  notes. 

Approved  in  Morris  v.  Third  Nat.  Bank,  142  Fed.  31,  national  banks 
may  purchase  notes  at  less  than  face  value;  dissenting  opinion  in 
First  Nat.  Bank  v.  Converse,  200  U.  S.  442,  50  L.  544,  26  Sup.  Ct. 
306,  majority  holding  national  bank  cannot  take  stock  in  corporation 
formed  to  engage  in  business  of  buying  and  selling  stocks. 

Syl.  6  (II,  187).     Collateral  attack  on  ultra  vires  acts. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed. 
527,  67  C.  C.  A.  393,  where  state,  by  special  act,  has  authorized 
creation  of  particular  corporation  with  enlarged  capacity  to  enable 
it  to  accept  certain  gift,  power  of  corporation  cannot  be  questioned. 

(II,  185.)  Miscellaneous.  Cited  in  Eoblee  v.  Union  Stock  Yards 
Nat.  Bank,  69  Neb.  186,  95  N.  W.  63,  note  otherwise  negotiable  is  not 
rendered  non-negotiable  by  provision  for  collateral  security. 

8  Wheat.  421-463,  5  L.   651,  WOEMLEY  v.   WOEMLEY. 

Syl.  4  (II,  195).     Effect  of  notice  to  purchaser  of  trust  property. 

Approved  in  Safe  Deposit  etc.  Co.  v.  Cahn,  102  Md.  550,  62  Atl. 
827,  purchaser  at  private  sale  of  corporate  stock  belonging  to  trust 
estate  with  knowledge  of  order  of  court  directing  sale  of  stock  at 
highest  market  price  obtainable  on  stock  board,  holds  it  subject  to 
same  trust  to  which  it  was  subject  in  hands  of  original  trustee. 

Syl.  5    (II,   196).     Ecquisites   of  bona   fide   purchaser. 

Approved  in  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  bon& 
fide  purchaser  must  allege  and  prove  want  of  notice  and  actual 
payment  of  purchase  money,  independently  of  recitals  in  deed. 

Syl.  7   (II,  197).     Supreme  court — Formal  parties. 

Approved  in  Cella  v.  Brown,  136  Fed.  442,  where,  in  suit  to  avoid 
contract  to  reorganize  certain  railroads  and  for  specific  performance  of 
contract  to  convey  share  of  pledged  securities  of  roads,  it  was  not 
alleged   that   railroads   had   done    anything   in    violation    of    contract, 


73  Notes  on  U.  S.   Eeports.  8  Wheat.  543-700 

railroads  not  indispensable  parties;  Boatmen's  Bank  v.  Fritzlcn,  135 
Fed.  658,  68  C.  C.  A.  288,  holder  of  prior  mortgage  is  not  necessary 
party  to  foreclosure  of  junior  mortgage;  Groel  v.  United  Elec.  Co., 
132  Fed.  254,  in  suit  by  stockholder  on  right  of  action  in  corporation, 
corporation  is  indispensable  party,  and,  for  purposes  of  federal  juris- 
diction, will  be  aligned  with  defendants  when  officers  are  opposed  to 
complainant's  action. 

(II, '194.)  Miscel'aneous.  Cited  in  Swiger  v.  Swiger,  58  W.  Va. 
130,  52  S.  E.  28,  where  husband  conveys  land  directly  to  wife  he 
cannot  convey  to  another  legal  title  which  remains  in  him  in  trust, 
or  encumber  same. 

8  Wheat.  543  605,  5  L.  681,  JOHNSON  v.  McINTOSH. 

Syl.  2   (II,  209).     Indian  occupancy  of  lands. 

Approved  in  Morris  v.  Bean,  146  Fed.  432,  determining  riparian 
rights  in  Crow  Indian  Eeservation;  Labadie  v.  United  States,  6  Okl. 
414,  51  Pac.  670,  act  of  1888,  punishing  cutting  timber  on  Indian 
reservation  applies  to  Indian  who  cuts  timber  for  speculative  pur- 
poses. 

8  Wheat.   697,  698,  HUGH  v.   HIGGS. 

Syl.   1   (II,  211).     Decretal  order  not  actionable. 

Approved  in  Israel  v.  Israel,  148  Fed.  578,  decree  for  alimony  and 
costs  supports  action  in  another  state  for  sum  due  at  time  of  rendition 
and  which  is  absolutely  awarded,  but  not  for  future  payments. 

8  Wheat.  699,  700,  5  L.  719,  GRAIN  v.  PALMEE. 

Syl.  2   (II,  211).     Appearance  waives  objection  to  venue. 

Approved  in  Iowa  etc.  Min.  Co.  v.  Bliss,  144  Fed.  449,  following 
rule;  dissenting  opinion  in  Fisher  v.  Crowley,  57  W.  Va.  329,  50  S.  E. 
429,  majority  holding  defendant  appearing  in  court  of  record  to 
quash  summons  does  not  waive  defective  jurisdiction  by  failing  to 
recite  that  appearance  is  only  to  object  to  jurisdiction. 


IX    WHEATON. 


9   Wheat.  1-240,  6  L.  23,  GIBBONS  v.  OGDEN.  ^ 

Syl.  1  (II,  213).  Congressional  power  over  commerce. 
.\pproved  in  McCray  v.  United  States,  195  U.  S.  55,  56,  49  L. 
95,  96,  24  Sup.  Ct.  769,  upholding  oleomargarine  act  of  1902;  Howard 
V.  Illinois  C.  E.  Co.,  148  Ted.  999,  holding  void  federal  employers' 
liability  act  of  1906;  J.  Eosenbaum  Grain  Co.  v.  Chicago  etc.  Ky.  Co., 
130  Fed.  48,  state  railroad  commission  cannot  require  railroad  to 
abolish  proportional  tariffs  which  apply  only  to  interstate  shipments 
and  were  adopted  with  approval  of  Interstate  Commerce  Commission. 

Syl.  2   (II,  216).     Commerce  defined. 

Approved  in  Brooks  v.  Southern  Pac.  Co.,  148  Fed.  991,  holding 
void  federal  employers'  liability  act  of  1906;  United  States  v.  Scott, 
148  Fed.  434,  holding  void  federal  act  of  1898,  prohibiting  interstate 
cariiers  from  discriminating  against  union  labor;  dissenting  opinion 
in  Western  Union  Tel.  Co.  v.  Hughes,  104  Va.  244,  51  S.  E.  226,  v/here 
points  of  transmission  and  destination  of  telegram  sent  over  lines 
of  single  company  were  within  same  state,  fact  that  part  of  transmis- 
sion was  made  in  another  state  does  not  make  it  interstate  business. 

Syl.  4   (II,   220).     What   commerce   comprehends. 

Approved  in  United  States  v.  Wishkah  Boom  Co.,  136  Fed.  47,  48, 
68  C.  C.  A.  592,  construing  26  Stat.  454,  prohibiting  maintenance  of 
obstructions  in  navigable  streams;  Gulf  etc.  Ey.  Co.  v.  State,  32  Tex. 
Civ.  5,  73  S.  W.  432,  determining  that  shipment  from  Dakota  to 
Texarkana,  where  it  was  transshipped  to  new  purchaser  within  state, 
was  intrastate;  dissenting  opinion  in  Northern  Securities  Co.  v.  United 
States,  193  U.  S.  379,  48  L.  717,  24  Sup.  Ct.  436,  majority  upholding 
enforcement  of  anti-trust  act  by  federal  decree  enjoining  corporation 
organized  in  pursuance  of  combination  of  stockholders  in  competing 
interstate  railroads  from  exercising  power  acquired  by  corporation 
through  acquisition  of  stock. 

Syl.  6   (II,  223).     No  limitations  on  commerce  regulation. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
335,  341,  368,  369,  376,  48  L.  699,  702,  713,  716,  24  Sup.  Ct.  436. 
upholding  enforcement  of  anti-trust  act  by  federal  decree  enjoining 
corporation  organized  in  pursuance  of  combination  of  stockholders  in 
competing  interstate  railroad  from  exercising  power  acquired  by  cor- 
poration through  acquisition  of  stock. 

[74] 


75  Notes  on  U.  S.   Reports.  9  Wheat.  1-240 

Syl.  7   (IT,  224).     Commerce  regulation  includes  navigation. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  386,  391, 
upholding  30  Stat.  1153,  requiring  alteration  of  bridges  over  naviga- 
ble wiiters  on  determination  of  Secretary  of  War. 

Syl.   8    (II,   225).     Commerce — State   inspection   laws. 

Approved  in  Ames  v.  Kirby,  71  N.  J.  L.  44.'j,  59  Atl.  559,  anti- 
poolselling  act  of  1898  is  violated  by  making  wagers  by  telegraph 
with  persons  outside  state,  though  latter  be  not  violating  own  local 
laws  in  accepting  bets;  Territory  v.  Denver  etc.  B.  R.  Co.,  12  N.  M. 
433,  78  Pac.  76,  upholding  hide  inspection  act  of  1901;  Hagan  v. 
City  of  Richmond,  104  Va.  732,  3  L.  R.  A.  (N.  S.)  1120,  52  S.  E. 
389,  construing  30  Stat.  1154,  §  19,  relating  to  removal  of  obstruc- 
tions in  navigable  waters  by  Secretary  of  War. 

^yl.   19    (II,  230).     Constitutional   construction. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  449,  50  L. 
265,  26  Sup.  Ct.  110,  United  States  may  exact  internal  revenue  tax 
from  <lispensing  agents  of  state  which  has  taken  charge  of  liquor 
business;  Gemmer  v.  State,  163  Ind.  160,  71  N.  E.  482,  66  L.  R.  A. 
82,  holding  void,  under  Const.,  art.  6,  §  2,  Acts  of  1903,  p.  24,  c. '13, 
postponing  election  of  successors  to  enumerated  officers;  Ex  parte 
Anderson,  46  Tex.  Cr.  380,  81  S.  W.  976,  city  court  has  no  jurisdic- 
tion to  try  accused  for  alleged  violation  of  state  penal  statute. 

Syl.    21    (II,   233).     Limit   of   state    powers. 

Approved  in  Chicago  etc.  Ry.  Co.  v.  Illinois,  200  U.  S.  584,  50  L. 
606,  26  Sup.  Ct.  341,  upholding  Illinois  farm  drainage  act  of  1885; 
Jacobson  v.  Massachusetts,  197  U.  S.  25,  49  L.  649,  25  Sup.  Ct.  358, 
upholding  Massachusetts  compulsory  vaccination  act;  Crescent  Liquor 
Co.  V.  Piatt,  148  Fed.  898,  holding  void,  as  to  interstate  shipments, 
W.  Va.  Act  1903,  p.  130,  regulating  shipment  and  sale  of  liquor 
and  providing  that  agent  of  carrier  delivering  liquor  to  one  not 
having  license  or  who  has  not  ordered  it  for  own  use,  deemed  to  be 
seller  contrary  to  law;  State  v.  Durein,  70  Kan.  24,  80  Pac.  990, 
upholding  statutes  regulating  liquor  traffic;  dissenting  opinion  in 
Lochner  v.  New  York,  198  U.  S.  73,  49  L.  948,  25  Sup.  Ct.  539,  ma- 
jority holding  void  N.  Y.  Laws  1897,  c.  415,  art.  8,  §  110,  limiting 
hours  of  employment  in  bakeries.     See  103  Am.  St.  Rep.  868,  note. 

Syl.  22   (II,  239).     Exercise  of  reserved  congressional  powers. 

Approved  in  Jacobson  v.  Massachusetts,  197  U.  S.  25,  49  L.  649, 
25  Sup.  Ct.  358,  upholding  Massachusetts  compulsory  vaccination  act; 
Dobbins  v.  Los  Angeles,  195  U.  S.  237,  49  L.  175,  25  Sup.  Ct.  18, 
holding  void  municipal  ordinance  narrowing  limits  within  which 
gasworks  may  be  maintained,  so  as  to  include  property  purchased  for 
that  purpose;  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
348,  48  L.  704,  24  Sup.  Ct.  436,  upholding  enforcement  of  anti-trust 
act  by  federal  decree  enjoining  corporation  organized  in  pursuance  of 


9  Wheat.  241-501  Notes  on  U.  S.   Reports.  76 

combination  of  stockholders  in  competing  interstate  railroads  from 
exercising  power  acquired  by  corporation  through  acquisition  of  stock; 
Allen  V.  Keed,  10  Okl.  123,  60  Pac.  788,  holding  void  act  of  1893, 
relating  to  change  of  county  seats  as  conflicting  with  act  of  Congress; 
dissenting  opinion  in  Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S. 
39,  49  L.  934,  25  Sup.  Ct.  552,  majority  upholding  state  statute  impos- 
ing inspection  fee  on  malt  liquors  imported  into  state,  as  being 
enacted  within  powers  granted  by  26  Stat.  313.  See  103  Am.  St. 
Eep.  869,  note. 

9  Wheat.  241-325,  6  L.  81,  KIRK  v.  SMITH. 

Syl.  2  (II,  245).     Title  by  permissive  possession. 

Distinguished  in  Fountain  v.  Lewiston  Nat.  Bank,  11  Idaho,  467,  S3 
Pac.  509,  where  person  owing  bank  principal  and  interest  on  overdue 
mortgage  gave  deed  of  premises  to  bank  and  took  option  contract  to 
repurchase,  possession  of  bank  was  adverse. 

9  Wheat.  325-353,  6  L.  101,  TAYLOR  v.  MASON. 

(II,  246.)  Miscellaneous.  Cited  in  Virginia  etc.  Wheel  Co.  v. 
Harris,  103  Va.  714,  49  S.  E.  993,  construing  averment  that  master 
promised  to  repair  machinery  but  failed  and  "refused"  to  do  so. 

9  Wheat.  409-420,  6  L.  122,  THE  ST.  JAGO  DE  CUBA. 

Syl.  2  (II,  254).     Maritime  liens — Priority  to  creditors. 

Approved  in  The  Alcalde,  132  Fed.  578,  refusing  lien  to  bank  which 
cashed  master's  drafts  to  pay  crew,  where  master  drew  drafts  after 
receiver  appointed  for  vessel,  though  bank  ignorant  of  receivership. 

Syl.  9  (II,  258).     Hypothecation  of  vessel  at  home. 

Approved  in  The  Surprise,  129  Fed.  875,  876,  64  C.  C.  A.  309, 
where  food  supplies  ordered  by  master  while  in  foreign  port,  owner 
need  not  be  consulted;  The  New  Brunswick,  129  Fed.  896,  64  C.  C.  A. 
325,  lien  for  supplies  furnished  sea-going  vessel  owned  in  another 
state  cannot  be  maintained,  though  enrolled  at  port  where  supplies 
furnished,  where  person  furnishing  supplies  not  misled  into  believing 
she  was  domestic  vessel. 

9  Wheat.  483-488,  6  L.  140,  RIGGS  v.  TAYLOE. 

Syl.  1  (II,  262).     Secondary  evidence  of  lost  instrument. 

Approved  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  301,  in 
action  by  distiller  to  recover  revenue  taxes  illegally  imposed,  evidence 
of  loss  of  record-book  held  insufficient  to  justify  admission  of  oral 
evidence  of  contents. 

9  Wheat.  489-501,  6  L.  142,  HUGHES  v.  EDWARDS. 

Syl.  4  (II,  265).     Deed  absolute  as  mortgage. 

Approved  in  Weiseham  v.  Hocker,  7  Okl.  253,  54  fac.  465,  where 
deed  absolute  given  in  security  for  debt,  and  grantee   at  same  time 


77  Notes  on  U.  S.   Reports.  9  Wheat.  502  540 

executed   agreement   to   rcconvey   on   payment   of   debt   secured,   it   is 
mortgage. 

Syl.  7   (II,  268).     Presumption  of  discharge  of  mortgage. 

Approved  in  Woodlief  v.  Wester,  136  N.  C.  166,  48  S.  E.  579,  mort- 
gagee may  foreclose  by  action  brought  within  four  months  after  death 
of  life  tenant,  though  last  payment  on  mortgage  debt  made  more  than 
ten  years  prior  to  date  of  suit. 

Syl.  8  (II,  269).     Mortgages — Recordation  as  notice. 

Approved  in  Lefmann  v.  Brill,  142  Fed.  48,  wife  who  recovered 
decree  against  husband  in  maintenance  suit  which  awarded  her  spe- 
cific property,  including  realty  which  husband  had  previously  mort- 
gaged, cannot  avoid  mortgage  as  fraudulent  conveyance. 

9  Wheat,  502-515,  6  L.  145,  STEPHENS  v.  McCARGO. 

Syl.  1  (II,  272).     Pleading — Assertion  of  several  titles. 

Approved  in  Westinghouse  Air  Brake  Co.  v.  Kansas  City  S.  Ry. 
Co.,  137  Fed.  32,  union  of  cause  of  action  upon  mechanic's  lien  and 
cause  of  action  upon  equitable  preference  in  bill  to  enforce  same 
demand  against  same  property  does  not  render  pleading  multifarious. 

9  Wheat.  515-525,  6  L.  149,  LOVE  v.  SIMMS. 

Syl.   1   (II,  272).     Ejectment — Possession  in  plaintiff. 

Approved  in  MeGuire  v.  Blount,  199  U.  S.  144,  50  L.  128,  26  Sup. 
Ct.  1,  arguendo. 

9  Wheat.  527,  528,  6  L.  151,  PEYTON  v.  ROBERTSON. 

Syl.  1   (II,  272).     Replevin — Amount  in  controversy. 

Approved  in  Graves  v.  Thompson,  35  Wash.  285,  77  Pac.  385,  in 
action  for  recovery  of  personal  property,  alleged  damages  for  deten- 
tion thereof  cannot  be  added  to  value  of  property  for  purpose  of 
determining  appellate  jurisdiction. 

9  Wheat.  532-537,  6  L.  152,  SMITH  v.  McIVER. 

Syl.  1  (II,  275).     Fraud  tried  at  law  bars  equity. 

Approved  in  Levin  v.  Northwestern  Nat.  Ins.  Co.,  146  Fed.  77, 
in  action  at  law  in  federal  court  on  insurance  policy,  award  of  ar- 
bitrators, fixing  amount  of  plaintiff's  loss  made  in  accordance  with 
provisions  of  policy  and  pleaded  by  defendant,  cannot  be  impeached 
for  fraud. 

9  Wheat.  537-540,  6  L.  154,  MOLLANv.  TORRANCE. 

Syl.  1  (n,  279).     Federal  jurisdiction  not  devestable. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Blair,  130  Fed.  975,  where 
equity  obtained  jurisdiction  of  persons  and  subject  matter  of  suit 
to   cancel  insurance   policy   for   fraud   prior   to   insurer's   death,   fact 


9  Wheat.  553-598  Notes  on   U.  S.   Eeports.  78 

that  insured  died  before  answer  and  that  action  at  law  immediately 
brought  on  policy  does  not  deprive  equity  court  of  jurisdiction. 

.  Syl.  3  (11,  281).     Federal  courts — Action  by  indorsee. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup. 
Ct.  220,  applying  rule  to  suit  to  foreclose  trust  deed,  where  bill  also 
prayed  cancellation  of  release  to  grantor  for  fraud;  Utah-Nevada 
Co.  V.  De  Lamar,  133  Fed,  121,  122,  66  C.  C.  A.  179,  applying  rule 
to  suit  by  assignee  of  oral  contract  to  recover  money  due  thereon. 

9  Wheat.  553-555,  6  L.  158,  CATLETT  v.  BEODIE. 

Syl.  1  (II,  283).     Bond  intended  as  supersedeas. 

Distinguished  in  Cook  v.  Smith,  67  Kan.  55,  72  Pac.  525,  in  action 
on  bond  conditioned  for  payment  of  damages  occasioned  by  stay  of 
money  judgment  allegation  that  debtor  insolvent  when  judgment 
rendered  no  basis  for  substantial  damages. 

9  Wheat.  565-573,  6  L.  161,  KERR  v.  MOON. 

Syl.  1   (II,  2S7).     Law  governing  land  transfers. 

Approved  in  Kane  v.  Luckman,  131  Fed.  617,  applying  rule  to 
contract  for  sale  of  cows  in  exchange  for  farm;  Succession  of  Has- 
ling,  114  La.  295,  38  So.  174,  validity  of  will  made  in  Louisiana  by 
citizen  thereof  devising  realty  in  Mississippi  is  governed  by  laws 
of  latter. 

Syl.  2   (II,  288).     Suit  by  foreign  administrator. 

Approved  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  306.  ex- 
ecutor may  sue  in  another  state  to  recover  from  his  agents  pro- 
ceeds of  sale  of  realty  belonging  to  decedent's  estate.  See  113  Am. 
St.  Rep.  213,  note. 

9  Wheat.  579-581,  6  L.  165,  UNITED  STATES  v.  PEREZ. 

Syl.  1   (II,  291).     Discretion  to  discharge  jury. 

Approved  in  State  v.  Keerl,  33  Mont.  511,  513,  517,  85  Pac.  863, 
864,  866,  discharge  of  jury  for  failure  to  agree  is  not  once  in  jeo- 
pardy; dissenting  opinion  in  Kepner  v.  United  States,  195  U.  S.  135, 
49  L.  126,  24  Sup.  Ct.  797,  majority  cannot  appeal  from  acquittal 
in  court  of  first  instance  in  Philippines. 

9  Wheat.  581-598,  6  L.  166,  RENNER  v.  BANK  OF  COLUMBIA. 

Syl.  7  (II,  296).     Parol  to  vary  writing. 

Approved  in  Cudahy  etc.  Co.  v.  State  Nat.  Bank,  134  Fed.  545,  67 
C.  C.  A.  662,  provision  for  payment  of  attorney' 's  fees  in  case  note 
is  not  paid  at  maturity  does  not  destroy  negotiability  of  note  other- 
wise negotiable;  Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  174, 
67  C.  C.  A.  74,  where  contract  was  to  deliver  distillery  slop  at  cat- 
tle feeding  lot  supplied  by  distiller,  evidence   of  custom   that  lot  be 


79  Notes  on  U.  S.  Keports.  9  Wheat.  616-719 

Bupplied  by  distillery  with  suitable  pens  equipped  with  pipes  and 
trouglis   is  admissible. 

Syl.  13   (II,   301).     Secondary  evidence   of  lost   document. 

Approved  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  301,  re- 
fusing secondary  evidence  of  contents  of  record-book  in  action  by 
distiller  to  recover  revenue  tax  wrongfully  imposed. 

9  Wheat.  616-649,  6  L.  174,  THE  MONTE  ALLEGRE. 

Syl.  4   (II,  307).     No  warranty  in  judicial  sales. 

Af)])roved  in  English  v.  Otis,  125  Iowa,  560,  101  N.  W.  295,  pur- 
chasers of  property  at  execution  sale  are  not  purchasers  in  good 
faith  within  Code,  §  3797, 

9  Wheat.  651-658,  6  L.  182,  WALtON  v.  UNITED  STATES. 

Syl.  7  (II,  309).    Mode  of  taking  and  noting  exceptions. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  etc.  Co.,  147  Fed.  908, 
where  judge,  after  instructing  jury  but  before  sending  them  out,  re- 
tired to  chambers  with  counsel  and  there  heard  and  allowed  ex- 
ceptions, he  need  not  afterward  allow  further  exceptions;  Longelseu 
V.  McGregor,  162  Ind.  268,  70  N.  E.  249,  bill  of  exceptions  not  signed 
until  after  term  nor  within  time  fixed  by  court,  not  considered  on 
appeal,  though  failure  to  sign  in  time  due  to  judge's  absence. 

Distinguished  in  Tracy  v.  Carver  Coal  Co.,  57  W.  Va.  593,  50  S. 
E.  827,  where  skeleton  bill  of  exceptions  does  not  refer  to  evidence 
as  transcribed,  such  evidence  cannot  be  certified  and  identified  thirty 
days  after  adjournment. 

9  Wheat.  680-719,  6  L.  189,  MILLER  v.  STEWART. 

Syl.   1    (II,    314).      Surety's    liability — Extension    by    implication. 

Approved  in  Zeigler  v.  Hallahan,  131  Fed.  209,  60'  C.  C.  A.  1,  where 
defendant  guaranteed  lease  and  before  tenant  took  possession  con- 
tract modified  without  surety's  knowledge  by  insertion  of  provision 
that  in  event  of  destruction  of  premises  lease  should  be  void,  there 
was  material  alteration;  National  Surety  Co.  v.  United  States,  129 
Fed.  72,  63  C.  C.  A.  512,  bond  of  letter-carrier  for  discharge  of  duties 
imposed  by  postal  laws  or  rules  of  postofiice  department  makes  surety 
liable  for  theft  of  registered  package  by  carrier  where  duty  of  regis- 
tering was  imposed  after  execution  of  bond;  Orleans  etc.  Ry.  Co.  v. 
International  Const.  Co.,  113  La.  413,  37  So.  11,  surety  on  railroad 
construction  contract  released  by  change  in  principal  contract  with 
his  consent;  City  of  Butte  v.  Cook,  29  Mont.  94,  74  Pac.  69,  where 
names  of  two  sureties  appear  in  body  of  bond,  which  is  signed  by 
one  only,  there  is  notice  to  obligee  sufiicient  to  permit  defense  by 
surety  signing  that  liability  conditioned  on  both  signing;  Lowe  v. 
City  of  Guthrie,  4  Okl.  300,  44  Pac.  202,  sureties  on  city  clerk's  bond 
not  liable  for  payment  of  liquor  licenses  to  him,  where  law  requires 


9  Wheat.  720-738  Notes  on  U.  S.  Keports.  80 

payment  to  city  treasurer;  Griffith  v.  Newell,  69  S,  C.  304,  48  S.  E. 
260,  surety  not  bound  by  action  of  principal  in  waiving  condition  in 
contract;  Stern  v.  Sawyer,  78  Vt.  11,  12,  112  Am.  St.  Eep.  894,  61 
Atl.  38,  where,  pending  term  of  lease,  lessor  sold  portion  of  property 
with  lessee's  consent  but  without  consent  of  lessee's  sureties,  sureties 
discharged. 

Distinguished  in  Scgari  v.  Mazzei,  116  La.  1030,  41  So.  247,  mere 
change  in  site  of  dwelling  to  be  constructed  from  one  place  to 
another  in  same  square  does  not  discharge  surety  of  contractor. 

Syl.  2   (II,  322).     Surety's  contract  strictly  construed. 

Approved  in  United  States  v.  Kauhoe,  147  Fed.  186,  where  defend- 
ants liable  on  postmaster's  bond  requested  and  received  extension  of 
time  from  inspector,  who  granted  it  on  condition  that  they  execute 
note  for  amount  to  United  States,  note  was  unauthorized  and  void; 
Manatee  County  etc.  Bank  v.  Weatherly,  144  Ala.  658,  39  So.  988, 
where  guaranty  for  payment  of  oranges  was  conditioned  that  bill 
of  lading  be  certified  that  oranges  sound  when  loaded  and  shipped, 
guarantor  not  liable  on  certificate  that  oranges  sound  when  loaded; 
Ida  County  Sav.  Bank  v.  Seidensticker,  128  Iowa,  58,  102  N.  W.  822, 
bond  given  by  bank  cashier  during  first  year  of  election  not  binding 
on  sureties  for  defalcations  subsequent  to  first  year,  where  he  was 
elected  annually. 

9  ^Yheat.  720-738,  6  L.   199,  UNITED  STATES  v.   KIEKPATEICK. 

Syl.  4   (II,  327).     Laches  not  imputed  to  government. 

Approved  in  American  Bonding  Co.  v.  Spokane  Building  etc.  Co., 
130  Fed.  740,  65  C.  C.  A.  121,  where  application  for  fidelity  insurance 
by  building  and  loan  society  stated  that  secretary  derived  authority 
from  board  of  trustees,  knowledge  on  part  of  president  that  secretary 
was  indebted  to  society  at  time  policy  issued  is  not  imputable  to 
society  without  proof  of  knowledge  by  board,  so  as  to  constitute 
breach  of  warranty  that  secretary  was  not  indebted;  Christie  Street 
Com.  Co.  V.  United  States,  129  Fed.  509,  statements  made  by  depart- 
mental officers  to  claimant  for  tax  alleged  to  have  been  paid  under 
duress,  to  effect  that  claim  had  been  certified  favorably,  do  not  estop 
government,  so  as  to  avoid  operation  of  limitations;  Smith  v.  United 
States,  5  Ariz.  64,  65,  45  Pac.  343,  344,  applying  rule  in  action  on 
bond  of  receiver  of  land  district;  Silver  v.  Indiana  State  Board,  35 
Ind.  App.  462,  72  N.  E.  838,  applying  rule  in  action  against  school 
board  on  contract  for  school  books;  Lake  Co.  v.  Neilon,  44  Or.  20, 
74  Pac.  214,  failure  of  tax  collector  to  turn  over  collections  to 
treasurer  every  thirty  days  as  required  by  law,  not  presumptive  of 
conversion.     See  101  Am.  St.  Eep.  149,  152,  note. 

Syl.  5   (II,  333).     Application  of  payments   by  debtor. 
Distinguished  in  First  Nat.  Bank  v.  National  Surety  Co.,  130  Fed. 
40.";,  66  L.  E.  A.   777,  64  C.  C.  A.  601,   where   surety   company  gave 


81  Notes  on  U.  S.  Keports.  9  Wheat.  738-903 

bank  bond  against  loss  by  dishonest  employees  for  one  year,  and  book- 
keeper falsely  increased  depositor's  balance,  so  that  he  overdrew, 
where  before  bookkeeper's  employment  deposits  exceeded  checks, 
surety  not  liable. 

9  Wheat.  738-903,    6    L.    204,    OSBOEN   v.    THE    UNITED    STATES 
BANK. 

Syl.  5  (II,  340).     Federal  jurisdiction — Case  defined. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co., 
196  U.  S.  246,  49  L.  465,  25  Sup.  Ct.  251,  proceeding  for  taking  land 
by  eminent  domain  authorized  by  Ky.  St.,  §§  835-839,  is,  when  re- 
quisite diversity  of  citizenship  exists,  removable  to  federal  court; 
Low  Foon  Yin  v.  United  States  etc.  Commr.,  145  Fed.  796,  proceed- 
ing for  deportation  of  Chinese  laborer  not  having  certificate  is  not 
criminal  proceeding,  and  government  may  swear  such  Chinese  as  wit- 
ness  against   himself. 

Syl.  7   (II,  342).     Federal  question. 

Approved  in  Carroll  v.  Greenwich  Ins.  Co.,  199  U.  S.  409,  50  L. 
249,  26  Sup.  Ct.  66,  upholding  Iowa  Code  1897,  §  1754,  prohibiting 
combinations  among  insurance  companies  as  to  rates,  commissions  or 
manner  of  doing  business. 

Syl.  9   (II,  344).     Suit  against  state. 

.A-pproved  in  Miocene  Ditch  Co.  v.  Moore,  150  Fed.  493,  upholding 
right  to  vacate  decree  during  term;  Burke  v.  Snivel}',  208  111.  337,  70 
N.  E.  329,  upholding  suit  to  restrain  canal  commissioners  from  ap- 
plying sum  appropriated  to  maintenance  of  canal,  as  not  suit  against 
state;  Sanders  v.  Saxton,  182  N.  Y.  479,  481,  108  Am.  St.  Kep.  826, 
75  N.  E.  529,  530,  in  action  against  land  commissioner  and  comp- 
troller to  set  aside  tax  deed  to  state,  state  is  necessary  party,  and 
action  cannot  be  maintained;  Cincinnati  Board  of  Education  v.  Volk, 
72  Ohio  St.  486,  74  N.  E.  650,  board  of  education  not  liable  in  tort 
in  its  corporate  capacity.  See  notes,  108  Am.  St.  Eep.  834;  101 
Am.  St.  Eep.  164. 

Syl.  10  (II,  348).     Judicial  power  affects  will  of  legislature. 

Approved  in  Johnson  v.  Trustees  of  Hampton  Inst.,  105  Va.  323, 
54  S.  E.  32,  bill  does  not  lie  to  enjoin  county  treasurer  and  commis- 
sioner to  enjoin  collection  of  taxes  assessed. 

Syl.  12   (II,  350).     Suit  against  foreign  sovereign. 
See  108  Am.  St.  Eep.  832,  note. 

Syl.  13  (II,  351).     Injunction  against  transfers. 

Approved  in  Currie  v.  Jones,  138  N.  C.  190,  50  S.  E.  561,  uphold- 
ing restraining  order  to  prevent  disposal  of  corporate  shares  in  ac- 
tion to  recover  them;  In  re  Seim,  111  La.  559,  35  So.  74G,  arguendo. 


9  Wheat.  904-914  Notes  on  U.  S.   Reports.  82 

Syl.  14  (ir,  352).     Decree  against  state  officer. 

See  108  Am.  St.  Eep.  831,  note. 

Syl.  15  (II,  352).     Void  statute  no  protection. 

Approved  in  Board  of  Education  etc.  v.  Territory  Okl.,  12  Old.  207, 
70  Pac.  796,  enjoining  commissioners  for  location  of  normal  school 
from  misappropriating  public   moneys. 

S3'l.  16  (II,  353).     Injunction  against  state  officer. 

Approved  in  Southern  Ry.  Co.  v.  Greensboro  Ice  &  Coal  Co.,  134 
Fed.  93,  upholding  federal  jurisdiction  over  suit  to  enjoin  state  cor- 
poration commission  from  enforcing  order  alleged  to  interfere  with 
interstate  commerce.     See  108  Am.  St.  Rep.  838,  note. 

Syl.  21   (II,  359).     State  tax  on  federal  agencies. 

Approved  in  dissenting  opinion  in  South  Carolina  v.  United  States, 
199  U.  S.  452,  466,  50  L.  266,  271,  26  Sup.  Ct.  110,  United  States  may 
exact  revenue  license  from  dispensing  agent  of  state  which  has  taken 
charge  of  liquor  business. 

Syl.  23  (II,  363).     Plaintiffs'  right  to  sue. 

Approved  in  Filhiol  v.  Torney,  194  U.  S.  360,  48  L.  1017,  24  Sup. 
Ct.  698,  averments  in  complaint  in  ejectment  that  defendant's  pos- 
session rests  upon  infraction  by  United  States  of  treaty,  and  upon 
a  taking  of  private  property  without  compensation,  do  not  give  cir- 
cuit court  jurisdiction  where  averments  respecting  plaintiff's  title  do 
not  show  case  within  federal  jurisdiction. 

Syl.  25  (II,  364).     Attorney's  appearance  presumes  authority. 

Approved  in  Hatfield  v.  King,  131  Fed.  794,  applying  rule  in  con- 
tempt proceeding  against  attorneys  who  colluded  in  representing 
parties  in  feigned  suit. 

9  Wheat.  904-914,  6  L.  244,  BANK  OF  UjSTETED  STATES  v.  PLANT- 
ERS' BANK, 

Syl.  4   (II,  368).     Government  becoming  partner. 

See  notes,  101  Am.  St.  Eep.  183;  101  Am.  St.  Eep.  164. 


X  WHEATON. 


10  Wheat.  1-50,  6  L.  253,  WAYMAN  v.  SOUTHARD. 

Syl.  3  (II,  372).     Jurisdiction  continues  till  satisfaction. 

Approved  in  Security  Trust  Co.  v.  Union  Trust  Co.,  134  Fed.  302, 
Ecv.  St.,  §  720,  prohibiting  restraining  of  state  court  proctediugs, 
prohibits  restraint  of  execution  sale. 

Syl.  4  (II,  373).     Following  state  practice. 

Approved  in  Holden  v.  Stratton,  198  U.  S.  214,  49  L.  1022,  25  Sup. 
Ct.  656,  exemption  of  life  insurance  policies  under  bankrupt  act  of 
1898,  §  6,  where  they  are  exempted  by  state  law,  is  not  qualified  by 
§  70a. 

Syl.  5  (II,  377).     State  laws  rules  of  decisions. 

Approved  in  Importers'  etc.  Bank  v.  Lyons,  134  Fed.  512,  under  rule 
of  circuit  court  for  eastern  district  of  Pennsylvania  on  rule  to  show 
cause,  testimony  may  be  taken  by  deposition. 

Syl.  9  (II,  379).     State  mitimus  law  in  civil  cases. 

Approved  in  King  v.  Davis,  137  Fed.  239,  241,  Va.  Code.  1887,  § 
35G6,  providing  that  no  lis  pendens  binds  bona  fide  purcliaser,  unless 
memorandum  filed  in  office  of  clerk  of  court  where  land  lies,  does  not 
apply  to  federal  courts. 

Syl.  10  (II,  380).     Delegation  of  powers. 

Approved  in  United  States  v.  Matthews,  146  Fed.  307,  holding  void 
30  Stat.  34,  making  it  criminal  to  violate  rules  thereafter  made  by 
Secretary  of  Interior  for  protection  of  forest  reservations;  King  v. 
Concordia  Fire  Ins.  Co.,  140  Mich.  268,  103  K  W.  620,  holding  void 
Comp.  Laws  1897,  §§  5170-5179,  empowering  commission  to  draft 
standard  form  of  policy,  with  power  to  alter  it,  and  to  fix  time  when 
use  of  policy  should  become  obligatory. 

Syl.  11   (II,  382).     Law  governing  contracts. 

Approved  in  Home  Land  etc.  Co.  v.  McXamara,  145  Fed.  19,  con- 
tract made  in  Illinois  for  purchase  of  cattle  then  in  Montana,  to  be 
there  delivered,  is  governed,  as  to  damages  for  its  breach,  by  law  of 
Montana;  Midland  etc.  Co.  v.  Solomon,  71  Kan.  187,  79  Pae.  1078, 
bond  and  mortgage  on  land  here,  governed  by  its  terms  by  Colorado 
laws,  is  enforceable  here,  though  interest  would  be  higher  than  al- 
lowed by  local  laws. 

[83] 


10  Wheat.  51-204  Notes  on  U.  S.  Eeports.  84 

10  \Yheat.  51-66,  6  L.  264,  UNITED  STATES  BANK  v.  HALSTEAD. 

Syl.  2   (II,  383).     State  practice  in  federal  court. 

Approved  in  King  v.  Davis,  137  Fed.  241,  Va.  Code,  §  3566,  pro- 
viding that  no  lis  pendens  binds  bona  fide  purchaser  of  realty  unless 
memorandum  filed  in  oflSce  of  clerk  of  court  in  county  where  land 
lies  does  not  apply  to  federal  courts. 

10  Wheat.  66-133,  6  L.  268,  THE  ANTELOPE. 

Syl.  5  (II,  390).     Execution  of  foreign  penal  laws. 

Approved  in  Schick  v.  United  States,  195  U.  S.  76,  49  L.  103,  24 
Sup.  Ct.  826,  State  v.  Warner,  197  Mo.  658,  94  S.  W.  964,  and  Casey 
V.  St.  Louis  Transit  Co.,  116  Mo.  App.  268,  91  S.  W.  431,  all  arguendo. 

10  Wheat.  146-152,  6  L.  287,  THOMAS  v.  HAEVEY'S  HEIES. 

Syl.  1   (II,  392).     Equity— Time  to  file  bill  of  review. 

Approved  in  In  re  Holmes,  142  Fed.  394,  time  within  which  petition 
for  revision  in  matter  of  law  under  Bankrupt  Act,  §  24b,  of  appeal- 
able order,  is  limited  by  time  fixed  by  bankruptcy  law  for  appeal; 
Jorgensen  v.  Young,  136  Fed.  381,  69  C.  C.  A.  222,  bill  of  review  in 
court  of  equity  not  filed  until  two  years  after  entry  of  judgment  ip 
original  suit  entered,  and  until  after  time  for  appeal  had  expired, 
is  too  late;  Watkinson  v.  Watkinson,  68  N.  J.  Eq.  641,  642,  60  Atl. 
935,  bill  of  review  cannot  be  filed  after  lapse  of  three  years  frorn. 
final  decree. 

10  Wheat.  152-181,  6  L.  289,  ELMENDOEF  v.  TAYLOE. 

Syl.  1  (II,  395).     Following  state  statutory  construction. 

Approved  in  York  v.  Washburn,  129  Fed.  567,  64  C.  C.  A.  132,  ap- 
plying rule  in  determining  invalidity  of  lease  of  realty  under  state 
statute  of  frauds;  Alaska  Commercial  Co.  v.  Debney,  2  Alaska,  325, 
arguendo. 

10  Wheat.  192-204,  6  L.  300,  McCOEMICK  v.  SULLIVAN. 

Syl.  1  (II,  408).     Federal  jurisdiction  must  appear. 

Approved  in  Eiverdale  Cotton  Mills  v.  Alabama  etc.  Mfg.  Co.,  198 
U.  S.  197,  49  L.  1016,  25  Sup.  Ct.  629,  federal  court,  which  has  decreed 
foreclosure  in  suit  in  which  diverse  citizenship  was  admitted  and 
property  described  as  lying  in  state,  may  by  ancillary  suit  restrain 
attack  on  purchaser's  title  under  decree,  by  state  suit  brought  by 
party  to  original  suit,  which  proceeds  on  theory  that  by  reason  of 
own  untruthful  admission  of  citizenship,  federal  court  assumed  juris- 
diction; Edelstein  v.  United  States,  149  Fed.  638,  judgments  of  bank- 
ruptcy court  import  absolute  verity  unless  reversed;  Eidge  v.  Manker, 
132  Fed.  602,  67  C.  C.  A.  596,  decree  against  receiver  of  another  court 
is  not  nullity  which  may  be  collaterally  attacked  merely  because 
record  does  not  affirmatively  show  leave  to  sue;  Eoss-Lewin  v.  Goold, 
211  111.  387,  71  N.  E.  1029,  where  bankruptcy  petition  attempted  to 


85  Notes    on    U.    S.    Reports.         10  Wheat.  204-358 

charge  proper  residence  of  petitioner  in  district,  and  court  adjudged 
him  bankrupt,  it  is  presumed  on  collateral  attack  that  court  heard 
evidence  as  to  residence;  Cobe  v.  Eicketts,  111  Mo.  App.  113,  85  S. 
W.  133,  where  after  suit  to  dissolve  loan  association  in  federal  court, 
state  court  attempted  to  transfer  jurisdiction  in  previous  similar  suit 
to  federal  court,  which  rendered  decree  of  sale  of  assets,  which  was 
never  reversed,  decree  not  collaterally  assailable  by  association's 
debtor  in  suit  by  purchaser  of  assets. 

Syl.  3  (II,  412).     Law  governing  land  sales. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ey.  Co.,  144  Fed. 
179,  construing  Oakland  waterfront  grant;  Kane  v.  Luckman,  131 
Fed.  618,  applying  rule  in  suit  for  specific  performance  of  contract  to 
exchange  cows  for  land;  Succession  of  Hasling,  114  La.  296,  38  So. 
174,  validity  of  will  made  in  Louisiana  by  citizen  thereof  bequeath- 
ing realty  situated  in  Mississippi  is  governed  by  laws  of  latter;  Fen- 
derson  v.  Missouri  Tie  etc.  Co.,  104  Mo.  App.  295,  78  S.  W.  820,  duly 
authenticated  record  of  foreign -will  affords  no  presumption  that  it 
was  duly  proved,  so  as  to  dispense  with  proof  of  such  facts  in  sup- 
port of  title  to  land  depending  thereon. 

10  Wheat.  20-1-245,  6  L.  303,  WRIGHT  v.  DENN. 

Syl.  1   (II,  414).     Devise  for  life. 

Approved  in  McCaffrey  v.  Manogue,  196  U.  S.  569,  49  L.  602,  2.j 
Sup.  Ct.  319,  where  testator  disposes  of  whole  estate  to  heirs  as  dev- 
isees equally,  they  take  fee  in  lands. 

10  Wheat.  246-305,  6  L.  314,  UNITED  STATES  v.  MOEEIS. 

Syl.  3  (II,  416).     Eemission  of  forfeitures. 

Approved  in  Marvin  v.  Trout,  199  U.  S.  225,  50  L.  162,  26  Sup.  Ct. 
31,  upholding  Ohio  Eev.  St.,  §  4275,  authorizing  action  to  subject 
building  knowingly  permitted  to  be  used  for  gambling  purposes  to 
payment  of  judgment  obtained  by  informer  for  recovery  of  money 
lost  by  play;  Walker  v.  Globe  Newspaper  Co.,  140  Fed.  309,  Eev. 
St.,  §§  4965,  4970,  do  not  take  away  right  of  owner  of  copyrighted 
map  to  recover  damages  for  infringement. 

10  Wheat.  333-358,  6  L.  334,  BANK  OF  UNITED  STATES  v.  BANK 
OF  GEORGIA. 

Syl.  2  (II,  422).     Liability  for  loss  by  forgery. 

Approved  in  Kenneth  Inv.  Co.  v.  National  Bank,  103  Mo.  App.  619, 
77  S.  .W.  1003,  applying  principle;  Troll  v.  Sauerburn,  114  Mo.  App. 
327,  89  S.  W.  366,  where  there  were  many  deeds  of  trust  with  same 
trustee  on  certain  property  and  holder  of  one,  after  purchasing  prop- 
erty on  foreclosure,  released  his  deed,  believing  junior  lienholder  had 
no  lien,  release  canceled  for  mistake;  Ford  v.  People's  Bank,  74  S.  C. 
183,  54  S.  E.  205,  determining  right  of  holder  of  forged  draft  to  re- 
tain money  obtained. 


10  Wheat.  367-472         Notes    on    U.    S.    Reporta.  86 

10  Wheat.  367-395,  6  L.  343,  DE  WOLF  v.  JOHNSON^ 

Syl.  1  (II,  426).     Law  governing  loans. 

Approved  in  In  re  Worth,  130  Fed.  930,  under  Iowa  Code,  1897,  § 
3041,  making  usurious  contract  voidable  only  to  extent  of  usurious 
interest,  creditors  of  bankrupt  cannot  set  up  defense  of  usury  against 
claim  of  another  creditor;  Midland  etc.  Co.  v.  Solomon,  71  Kan.  189, 
79  Pac.  1079,  bond  and  mortgage  on  land  here  governed  by  its  terms 
by  laws  of  Colorado  is  enforceable  here  though  interest  would  be 
higher  than  allowed  by  local  laws;  Trower  Bros.  Co.  v.  Hamilton,  179 
Mo.  225,  77  S.  W.  1087,  where  Missourian  goes  to  lender  in  Kansas 
and  executes  note  payable  there  and  secured  by  mortgage  on  cattle 
in  Missouri,  which  is  recorded  in  latter  state,  both  note  and  mortgage 
are  Kansas  contracts;  Benjamin  Bank  v.  Doherty,  42  Wash.  328,  84 
Pac.  875,  where  note  valid  in  state  where  executed,  fact  that  its 
payment  was  secured  by  mortgage  on  property  in  Washington  did  not 
render  it  subject  to  usury  laws  of  Washington. 

Syl.  7  (II,  430).     Plea  of  usury  is  personal. 

Approved  in  Lefmann  v.  Brill,  142  Fed.  49,  where  wife  in  mainte- 
nance suit  made  mortgagee  of  husband  a  party,  but  court  in  award- 
ing her  husband's  interest  in  mortgaged  property  refused  to 
pass  on  validity  of  mortgage  but  dismissed  mortgagee 's  cross- 
petition,  his  mortgage  not  having  matured,  decree  not  bar  to 
subsequent  foreclosure;  In  re  Worth,  130  Fed.  931,  under  Iowa 
Code  1897,  §  3041,  making  usurious  contract  voidable  only  to  ex- 
tent of  usurious  interest,  creditors  of  bankrupt  cannot  set  up  de- 
fense of  usury  against  claim  of  another  creditor;  Barney  v.  Pontine 
Surety  Co.,  131  Mich.  196,  91  N.  W.  142,  assignee  of  contract  cannot 
avail  himself  of  defense  of  usury. 

10  Wheat.  449-454,  6  L.  363,  DAY  v.  CHISM. 

Syl.  1  (II,  438).     Warranty — Eviction  by  paramount  title. 

Approved  in  Pabst  Brewing  Co.  v.  Thorley,  145  Fed.  122,  where 
defendant  obtained  permission  to  construct  vault  in  street  subject  to 
revocation  when  space  required  for  public  improvement,  and  leased 
premises  with  appurtenances  and  later  vault  permit  canceled,  mak- 
ing property  leased  unfit  for  purpose  intended,  defendant  liable  for 
breach  of  covenant  for  quiet  enjoyment. 

10  Wheat.  465-472,  6  L.  367,  DARBY'S  LESSEE  v.  MAYER. 

Syl.  1  (II,  440).     Lex  rei  sitae  governs  devise  of  lands. 

Approved  in  Succession  of  Hasling,  114  La.  295,  38  So.  174,  validity 
of  will  uaade  in  Louisiana  by  citizen  thereof  devising  land  in  Miss- 
issippi i*  <;overned  by  law  of  latter. 


XI    WHEATON. 


11  Wheat.  59-78,  6  L.  419,  ETTING  v.  BANK  OF  UNITED  STATES. 

Syl.  3  (II,  450).     Afl&rmance  on  division  of  court. 

Approved  in  dissenting  opinion  in  Walling  v.  Bown,  9  Idaho,  748, 
76  Pac.  321,  majority  declining  to  reopen  question  of  validity  of 
statute  where  interests  have  become  settled  under  prior  decisions. 

Syl.  4   (II,  450).     Corporation's  liability  for  agent's  representations. 

Approved  in  Sherman  v.  Harbin,  125  Iowa,  182,  100  N.  W.  631, 
where  fidelity  bond  of  president  of  mutual  life  association  filed  pur- 
suant to  statute  and  society  not  called  on  by  surety  for  information 
concerning  president's  past  conduct,  association  not  guilty  of  fraud- 
ulent concealment. 

11  Wheat.  78-102,  6  L.  423,  BROOKS  v.  MAEBURY. 

Syl.  6  (II,  453).     Stare  decisis. 

Approved  in  Harwood  v.  Wentworth,  4  Ariz.  401,  42  Pac.  1031, 
journals  of  two  houses  are  inadmissible  to  show  that  parts  of  bill, 
as  passed  by  two  houses,  were  omitted  from  enrolled  bill,  as  signed 
by  presiding  officers  and  governor. 

(II,  451.)  Miscellaneous.  Cited  in  Coney  Island  Co.  v.  Dennan, 
149  Fed.  692,  no  error  to  refuse  requested  instruction  w^hich  is  not 
entirely  correct. 

11  Wheat.  103-134,  6  L.  429,  HARDING  v.  HANDY. 

Syl.  3  (II,  456).     Cancellation — Deeds — Undue  influence. 

Approved  in  Shevlin  v.  Shevlin,  96  Minn.  412,  105  N.  W.  262,  ap- 
plying rule  in  action  to  set  aside  contract  for  transfer  of  stock  made 
by  younger  brother  with  elder  brother  on  ground  of  fraud. 

Syl.  5   (II,  458).     Report  of  master — Failure  to  except.  , 

Approved  in  Fordyce  v.  Omaha  etc.  R.  R.  Co.,  145  Fed.  557,  follow- 
ing rule;  Butler  v.  Georgia  etc.  Ry.  Co.,  119  Ga.  961,  47  S.  E.  321, 
neglect  of  party  excepting  to  master's  report  to  point  out  by  refer- 
ence to  auditor's  brief  of  evidence  those  portions  of  evidence  relied 
on  is  sufficient  reason  for  disapproval  of  exceptions. 

Distinguished  in  dissenting  opinion  in  Markey  v.  State,  47  Fla.  64, 
37  So.  62,  majority  holding  where  order  appoints  one  to  take  testi- 
mony in  divorce,  but  fails  to  designate  him  by  any  official  title,  he  has 
authority  to  administer  oaths. 

[87] 


11  Wheat.  171-303         Notes    on    U.    S.    Reports.  C8 

11  Wheat.  171-183,  6  L.  443,  BANK  OF  UNITED  STATES  t.  SMITH. 

Syl.  2  (II,  460).     Pleading — Facts  necessary  to  be  alleged. 

Approved  in  Hall  v.  Campbell,  161  Ind.  411,  68  N.  E.  894,  specifi- 
cations of  contract  in  election  contest  must  show  that  contested  bal- 
lots were  protested,  so  as  to  be  preserved  and  returned  to  clerk  of 
court. 

11  Wheat.  184-191,  6  L.  448,  UNITED  STATES  v.  VAN  ZANDT. 

Syl.  1  (II,  463).     Law  requiring  periodical  settlements  directory. 

Approved  in  Lake  Co.  v.  Neilon,  44  Or.  20,  74  Pac.  214,  failure  of 
tax  collector  to  turn  over  collections  to  treasurer  as  required  by  law 
does  not  raise  presumption  of  conversion. 

11  Wheat.  199-215,  6  L.  454,  HINDE'S  LESSEE  v.  LONG  WORTH. 

Syl.  6   (II,  470).     Fraudulent  conveyance — Gifts — Presumptions! 

Approved  in  Polk  Co.  Nat  Bank  v.  Scott,  132  Fed.  900,  66  C.  C.  A. 
51,  refusing  to  set  aside  conveyance  from  husband  and  wife  for  re- 
cited consideration  of  $1,  where  shown  that  there  was  no  fraudulent 
intent. 

11  Wheat.  237-257,  6  L.  463,  PERKINS  v.  HART. 

Syl.  4  (II,  475).     Presumptions  from  account  stated. 

Distinguished  in  Sharp  v.  Behr,  136  Fed.  798,  where  plaintiff  was 
by  contract  entitled  to  one  dollar  per  ton  royalty  and  defendant 
asked  for  reduction  of  royalty  but  plaintiff  did  not  reply  thereto  nor 
to  account  crediting  him  with  reduced  royalties,  but  later  refused  to 
accept  check  for  reduced  royalties,  he  is  not  precluded  from  claiming 
royalties  at  contract  rate. 

11  Wheat.  258-279,  6  L.  468,  ARMSTRONG  v.  TOLER. 

Syl.  2   (II,  482).     New  contract — Prior  illegality. 

Approved  in  Padilla  v.  Padilla,  11  N.  M.  553,  70  Pac.  566,  where 
brother  recovered  judgment  in  own  name  in  court  of  claims,  for  In- 
dian depredation  on  property  owned  jointly  with  sister,  his  contract 
before  judgment  to  give  her  half  of  recovery  is  valid;  Monahan  v. 
Monahan,  77  "Vt.  143,  59  Atl.  172,  70  L.  R.  A.  935,  where  complaint 
seeks  to  impress  securities  with  trust  and  alleges  they  were  secretly 
taken  in  defendant's  name  without  his  knowledge,  and  issues  raised 
only  as  to  title,  fact  that  securities  put  in  defendant's  name  to  avoid 
taxes  not  ground  for  relief. 

11  Wheat.  280-303,  6  L.  474,  CHIRAC  v.  REINICKER. 

Syl.  1  (II,  487).     Witnesses — Attorney — Privileged  communications. 

Approved  in  Ex  parte  Gfeller,  178  Mo.  2G9,  77  S.  W.  558,  in  pro- 
ceedings for  discovery  of  decedent's  assets,  attorney  for  decedent 
must  answer  questions  as  to  when  he  last  saw  certain  securities  be* 


89  Notes    on    U.    S.    Reports.         11  Wheat.  304-392 

longing  to  decedent  and  whether  after  death  he  had  money  belonging 
to  decedent  and  what  he  did  with  it. 

Syl.  2  (II,  487).     Conclusiveness  of  recovery  in  ejectment. 

Approved  in  King  v.  Davis,  137  Fed.  220,  where  ejectment  brought 
by  third  person  against  tenant,  and  landlord  has  no  knowledge  of 
action  in  time  to  have  made  himself  a  party,  he  may  have  default 
judgment  against  tenant  opened,  and  be    allowed  to  defend. 

11   Wheat.   304-309,   6    L.    480,    FINLEY    v.    BANK    OF    UNITED 
STATES. 

Syl.  2  (II,  491).     Foreclosure — Prior  encumbrances. 

Approved  in  Iron  Cliffs  Co.  v.  Negaunee  Iron  Co.,  197  U.  S.  472, 
49  L.  840,  25  Sup.  Ct.  474,  decree  of  state  court  requiring  defendants 
to  vacate  lands  and  enjoining  them  from  further  mining  thereon,  bill 
being  based  on  theory  that  corporation  lessor  of  defendant  was  no 
longer  in  existence,  is  not  reviewable  in  supreme  court  in  proceeding 
in  which  corporation  is  not  party. 

11  Wheat.  309-319,  6  L.  481,  WETZELL  v.  BUSSARD. 
Syl.  2  (II,  492).     Limitations — Acknowledgment  of  debt. 
See  102  Am.  St.  Eep.  757,  note. 

11  Wheat.  320-324,  6  L.  484,  FOWLE    v.    COMMON    COUNCIL    OF 
ALEXANDKIA. 

Syl.  1  (II,  495).     Demurrer  to  evidence. 

Approved  in  Igram  v.  Jacksonville  St.  Ey.  Co.,  43  Fla.  327,  30  So. 
801,  where  statement  of  facts  reduced  to  record  under  demurrer  to 
fividence  is  loose  and  indeterminate,  judge  should  refuse  to  give 
judgment  on  demurrer;  Bass  v.  Rublee,  76  Vt.  402,  57  Atl.  9G6,  no 
final  judgment  can  be  rendered  on  appeal  on  demurrer  to  evidence 
where  there  is  no  joinder  in  demurrer  in  record. 

11  Wheat.  332-360,  6  L.  488,  GOVERNEUR'S  HEIRS  v.  ROBERTSON. 

Syl.  2  (II,  496).     Grant  to  alien — Subsequent  naturalization. 

Approved  in  Shea  v.  Nilima,  133  Fed.  215,  66  C.  C.  A.  263,  follow- 
ing rule. 

Syl.  3  (II,  496).     Alien  taking  realty  by  grant. 

Approved  in  Louisville  Property  Co.  v.  Mayor  &  City  Council  of 
Nashville,  114  Tenn.  221,  84  S.  W.  812,  purchase  of  realty  by  foreign 
corporation  which  had  not  complied  with  statutes  relating  to  foreign 
corporations  is  valid. 

11  Wheat.  380-392,  6  L.  500,  PATTERSON  v.  WINN. 

Syl.  2  (II,  504).     Collateral  attack  on  void  grant. 

Approved  in  Reeve  v.  North  Carolina  Land  etc.  Co.,  141  Fed.  825, 
under   Tennessee  statutes  governing   grants   of   state   lauds,  valid   en- 


11   Wheat.  392-141         Notes    on    U.    S.    Eeports.  90 

try  is  not  essential  to  grant,  and  older  of  two  conflicting  grants,  each 
based  on  void  entry,  passes  state's  title;  Davis  v.  Molyes,  76  Vt. 
32,  56  Atl.  176,  graat  of  land  from  state  passes  only  title  which  state 
had. 

11  Wheat.  392-113,  6  L.  502,  UNITED  STATES  v.  AMEDY. 

Syl.  4  (II,  508).     Crimes — Liability  of  corporation. 

Approved  in  dissenting  opinion  in  Hale  v.  Henkel,  201  U.  S.  85,  50 
L.  670,  26  Sup.  Ct.  370,  majority  holding  corporation  charged  with 
violation  of  anti-trust  act  is  entitled  to  immunity  from  compulsory 
production  before  grand  jury,  under  subpoena  duces  tecum,  of  all 
papers  and  contracts  between  it  and  other  companies. 

11   Wheat.   414,   415,   6   L.  508,   WILLIAMS   v.   BANK   OF   UNITED 
STATES. 

Syl.  1  (II,  510).     Appeal  by  one  from  joint  judgment. 

Approved  in  Port  v.  Schloss  Bros.  &  Co.,  149  Fed.  732,  where  two 
partners  jointly  sued  on  firm  debt  and  judgment  entered  against 
both,  one  cannot  appeal  alone  in  absence  of  service  or  sufficient  show- 
ing for  nonjoinder. 

11  Wheat.  415-417,  6  L.  508,  BARNES  v.  WILLIAMS. 

Syl.  1   (II,  511).     Eemand — Special  verdict  insufficient. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  734,  68 
C.  C.  A.  89,  following  rule. 

11  Wheat.  431-441,  6  L.  512,  MILLS  v.  BANK  OF  UNITED  STATES. 

Syl.  3  (II,  516),  note  payable  at  bank — Usages. 

Distinguished  in  Landa  v.  Traders'  Bank,  118  Mo.  App.  366,  94 
S.  W.  773,  where  depositor  and  bank  made  contract  whereby  bank 
was  to  collect  drafts  for  ten  per  cent,  and  bank's  custom  was  to 
send  collections  to  correspondents  who  gave  credit  to  bank,  custom 
did  not  make  correspondent   agent  of  depositor. 

Syl.  8  (II,  518).     Notes — Burden  of  proving  indorsement. 

Approved  in  Sears  v.  Daly,  43  Or.  350,  73  Pac.  6,  in  action  on  note 
where  execution  denied,  there  is  no  presumption  that  it  was  regularly 
executed. 

(11,  514.)  Miscellaneous.  Cited  in  Cudahy  etc.  Co.  v.  State  Nat. 
Bank,   134  Fed.   545,  67  C.   C.  A.   662. 


XII   WHEATON. 


12  Wheat.  1-18,  6  L.  531,  THE  PALMYEA. 

Syl.  1    (II,  522).     Eeinstatement  of  dismissed  cause. 

Distinguished  in  State  v.  Marsh,  134  N.  C.  200,  204,  205,  47  S.  E. 
12,  13,  14,  67  L.  E.  A.  179,  where  on  appeal  from  conviction  judgment 
was  reversed  on  ground  that  indictment  as  contained  in  record  failed 
to  show  material  allegation,  which  was  in  fact  omitted  by  misprision 
of  clerk,  supreme  court  could  after  term  grant  certiorari  for  correction 
of  record  and  reset  case  for  hearing. 

Syl.   5   (II,   524).     Libel   in  rem — Conviction   of  persons. 

Approved  in  Scow  No.  36,  144  Fed.  934,  935,  under  30  Stat.  1152. 1153, 
vessel  used  in  depositing  refuse  matter  in  navigable  waters  is  liable 
to  penalties  though  act  was  without  knowledge  or  intent  of  owners; 
The  Bulley,  138  Fed.  172,  vessel  is  liable  for  tortious  act  of  her  master 
or  member  of  crew  on  board  in  her  service  by  which  another  vessel  is 
injured,  though  committed  without  authority  or  knuvvKdge  of  the 
owners. 

Syl.  7   (II,  525).     Probable  cause  for  seizure  bars  damages. 

Approved  in  United  States  v.  Donaldson  Sluilz  Co.,  142  Fed.  301, 
judgment  of  acquittal  in  criminal  prosecution  for  obstructing  nav- 
igable stream  bars  suit  in  equity  to  compel  removal  of  structure. 

(II,  522.)  Miscellaneous.  Cited  in  The' Ben  E.,  134  Fed.  785,  67  C. 
C.  A.  290,  decreeing  dismissal  of  libel  in  proceeding  to  enforce  penalty 
for  violation  of  Eev.  St.,  sec.  4499. 

12  Wheat.  40-63,  6  L.  544,  CLAEK  v.  CITY  OF  WASHINGTON. 

Syl.  2   (II,  530).     Acts  of  municipal  agents. 

Approved  in  Mayor  etc.  of  Jersey  City  v.  Town  of  Harrison,  7  N.  J. 
L.  71,  58  Atl.  101,  municipal  contract  for  water  supply  is  contract  for 
sales  of  goods,  wares  and  merchandise,  within  statute  of  frauds;  Okla- 
homa City  v.  Hill  Bros.,  6  Okl.  139,  50  Pac.  250,  determining  damages 
for  which  city  liable  for  trespass  by  its  officers.  See  lOS  Am.  St. 
Eep.  165,  note. 

12  Wheat.  64-116,  6  L.  552,  UNITED  STATES  BANK  v.  DANDRIDGE. 

Syl.  3   (II,  533).     Corporate  acts  need  not  be  written. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  771,  in  action  on 
county  bonds,  parol  evidence  is  admissible  to  establish  facts  concerning 
their  execution;  City  of  Denver  v.  Spencer,  34  Colo.  274,  82  Pac.  591, 

[91] 


12  "Wheat.  129-152        Notes    on   U.    S.    Eeports.  92 

2  L.  E.  A.  (N.  S.)  147,  where  city  charter  silent  as  to  manner  in  which 
park  commissioners  should  act,  parol  evidence  admissible  to  show  board 
authorized  erection  of  stand,  where  secretary  failed  to  make  record; 
State  V.  Farrier,  114  La.  586,  38  So.  462,  witness  present  at  meeting' 
held  for  election  of  officers  of  association  may  testify  as  to  who  were 
elected. 

Syl.  4  (II,  535).     Presumption  as  to  power  of  officer. 

Approved  in  United  States  v.  Mitchell,  136  Fed.  906,  where  United 
States  district  attorney  was  appointed  by  court  having  authority  to 
make  valid  appointment,  he  is  de  facto  officer  and  it  is  no  objection  to 
indictment  that  he  was  not  permanent  resident  of  district;  St.  Louis 
Police  etc.  Assn.  v.  Tierney,  116  Mo.  App.  462,  91  S.  W.  972,  973,  con- 
struing constitutional  provisions  of  mutual  benefit  society  as  to  designa- 
tion of  third  day  for  calling  by  applicant  to  designate  beneficiary  as 
merely  directory;  Pine  Tree  Lumber  Co.  v.  Fargo,  12  N.  D.  376,  96 
N.  W.  363,  applying  rule  to  acts  of  city  officers;  Board  of  Education 
V.  Boyer,  5  Okl.  231,  233,  47  Pac.  1092,  1093,  where  petition  recited 
that  signers  electors  of  adjacent  territory  presented  to  city  board  of 
education,  and  board  orders  territory  annexed  to  city  for  school  pur- 
poses, and  entry  made  on  journal,  presumption  arises  that  petition 
signed  by  majority;  Houseman  v.  International  Navigation  Co.,  214 
Pa.  563,  64  Atl.  383,  under  act  of  1806,  relating  to  patent  for  island, 
plaintiff  in  ejectment  n'eed  not  show,  by  evidence  other  than  warrant, 
survey  and  patent,  that  island  was  natural  and  capable  of  cultivation ; 
Grand  Eapids  Furniture  Co.  v.  Grand  Hotel  etc.  Co.,  11  Wyo.  149,  72 
Pac.  687,  on  mere  proof  that  three  persons  were  only  stockholders  of 
corporation,  no  presumption  arose  that  they  were  trustees  thereof. 

Syl.  5    (II,   537).     Corporations — Presumption   of   officer's   authority. 

Approved  in  Eosehill  Cemetery  Co.  v.  Dempster,  223  111.  578,  79  N.  E. 
279,  where  syndicate  of  stockholders  owning  majority  stock  employed 
financier  to  complete  settlement  between  corporation  and  creditors,  and 
after  reorganization  directors  compensated  agent  and  corporation  ac- 
cepted benefits  of  settlement,  corporation  ratified  employment;  Pine 
Tree  Lumber  Co.  v.  Fargo,  12  N.  D.  381,  96  N.  W.  365,  applying  rule  to 
acts  of  city  officers. 

12  Wheat.  129-134,  6  L.  575,  MONTGOMERY  v.  HERNANDEZ. 

Sly.  2.     (II,  548).     Accrual  of  action  on  official  bond. 
See  101  Am.  St.  Rep.  173,  note. 

12  Wheat.  136-152,  6  L.  577,  POSTMASTER  GENERAL  v.  EARLY. 

Syl.  1  (II,  550).     Statutory  construction  is  for  courts. 

Approved  in  Territory  v.  Albright,  12  N.  M.  306,  78  Pac.  208,  as- 
sessor appointed  pursiiant  to  Laws  1903,  p.  80,  amending  Laws  1903, 
p.  38,  relating  to  division  of  Bernalillo  county,  before  act  dividing  county 
went  into  effect,  not  entitled  to  office. 


93  Notes   on    U.    S.    Reports.         12  Wheat.  153-212 

12  Wheat.  153-169,  6  L.  583,  JACKSON  v.  CHEW. 

Syl.  1   (II,  552).     Following  state  statutory  construction. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry.  Co.,  144  Fed.  179, 
construing  grant  of  Oakland  waterfront;  Treat  v.  City  of  Chicago,  130 
Fed  444,  64  C.  C.  A.  645,  applying  rule  where  state  court  upheld  validity 
of  Illinois  local  improvement  act. 

12  Wheat.  183-193,  6  L.  595,  THORNTON  v.  WYNN. 

Syl.  3  (II,  561).     Sales — Rescission  of  action  on  warranty. 

Approved  in  McRae  v.  Lonsby,  130  Fed.  20,  64  C.  C.  A.  385,  where  de- 
fendants claim  right  to  rescind  contract  by  reason  of  falsity  of  repre- 
sentations made  by  plaintiff  concerning  property  purchased,  it  was  im- 
material whether  defendants  relied  on  representations  per  se,  or  on  ex- 
press warranty  of  their  truth. 

Distinguished  in  Coyle  v.  Baum,  3  Okl.  706,41  Pac.  393,  where  one 
bought  oats  for  horse  feed  and  found  they  contained  castor  beans,  and 
returned  unused  portion,  receiving  money  back  therefor,  there  was 
neither  compromise  nor  accord  and  satisfaction  for  breach  of  warranty. 

12  Wheat.   193-199,  6   L.  599,  MALLOW   v.   HINDE. 

Syl.  1   (II,  5G3).     Equitable  relief — Presence  of  parties. 

Approved  in  Moore  v.  Maryland  Casualty  Co.,  73  N.  H.  519,  111 
Am.  St.  Rep.  649,  63  Atl.  491,  where  street  railway  employer  ob- 
tained judgment,  and  on  railroad's  insolvency  sued  indemnity  com- 
pany to  compel  payment  of  indebtedness  on  policy  to  railroad,  latter 's 
receiver  indispensable  party;  Lynch  v.  United  States,  13  Okl.  158, 
73  Pac.  1100,  applying  rule  in  suit  to  cancel  townsite  patent;  State  v. 
Gormley,  40  W^ash.  604,  82  Pac.  930,  3  L.  R.  A.  (N.  S.)  256,  action 
to  restrain  payment  of  county  warrants  cannot  be  maintained  where 
holders  of  warrants  are  not  made  defendants. 

12  Wheat.  206-212,  6  L.  603,  EDWARDS'  LESSEE  v.  DARBY. 

Syl.  1   (II,  565).     Statutes — Contemporaneous  construction. 

Approved  in  Houghton  v.  Payne,  194  U.  S.  100,  103,  48  L.  891,  892.  24 
Sup.  Ct.  590,  books  complete  in  themselves,  though  published  at  stated 
intervals  ajid  in  consecutive  numbers,  entitled  to  second-class  postage 
rates;  Lorseh  v.  United  States,  135  Fed.  215,  provision  in  par.  435, 
Tariff  Act  1897,  c.  11,  §  1,  sched.  N.,  for  imitation  of  precious  stonea 
not  exceeding  an  inch  in  dimensions,  measurement  contemplated  is 
that  of  any  single  dimension;  Avery  v.  Pima  Co.,  7  Ariz.  32,  60  Pac. 
703,  construing  Rev.  St.  U.  S.,  §§  5539,  5547,  relating  to  control  of 
federal  prisoners  in  state  prisons;  Henrj^  v.  State,  87  Miss.  59,  39 
So.  872,  construing  Rev.  Code,  1892,  §  3201,  relating  to  working  of 
convicts  on  farm  leased  for  that  purpose;  Pitts  v.  Logan  County, 
3  Okl.  740,  41  Pac.  591,  act  regulating  accounting  by  clerks  of  ter- 
ritoriaJ   district  court  for   fees   is   vuid;    dissenting   opinion  in   Bates 


12  Wheat.  213-460         Notes    on   U.    S.    Keporta.  94 

etc.  Co.  V.  Payne,  194  U.  S,  111,  48  L.  896,  24  Sup.  Ct.  595,  majority 
holding  refusal  by  postmaster  general  to  admit  to  mailci  periodical 
as  second  class,  each  issue  of  which  is  complete  in  itself,  not  review- 
able by  courts. 

12  Wheat.  213-369,  6  L.  606,  OGDEN  v.  SAUNDERS. 

Syl.    1    (II,   569).     Law   governing   contracts. 

Approved  in  Greenville  Nat.  Bk.  v.  Evans-Snyder-Buell  Co.,  9  Okl. 
364,  60  Pac.  253,  chattel  mortgage  executed  and  filed  conforaiably  tr> 
laws  of  another  state  on  property  therein  is  superior  to  local  attach- 
ment after  brought  here,   though  mortgage  not  recorded  here. 

Syl.  3    (II,  572).     Impairment  of  obligation  of  contracts. 

Approved  in  Low  Foon  Yin  v.  United  States  etc.  Coramr.,  145  Fed. 
796,  upholding  Chinese  Exclusion  Act  of  1892,  placing  burden  of  proof 
of  right  of  Chinese  without  certificate  to  remain  in  United  States  on 
him;  Miners'  etc.  Bank  v,  Snyder,  100  Md.  65,  108  Am.  St.  Rep.  390, 
59  Atl.  708,  68  L.  R.  A.  312,  upholding  Acts  1904,  p.  597,  c.  337, 
taking  away  pre-existing  right  of  creditor  to  enforce  stockholders'  lia- 
bility and  substituting  therefor  suit  in  equity  by  all  creditors  against 
all   stockholders. 

Syl.   5    (II,   574).     Statutes  presumed  valid. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  766,  uphold- 
ing Act  N.  C.  1885,  p.  445,  c.  233,  §  14,  providing  for  issuance  of 
county  aid  bonds  for  railroad;  McGovern  v.  Mitchell,  78  Conn.  564, 
63  Atl.  443,  upholding  Laws  1905,  p.  410,  c.  213,  increasing  salaries 
of  judges;  dissenting  opinion  in  Allen  v.  Reed,  10  Okl.  153,  63  Pac. 
876,  majority  holding  void  act  of  1893,  relating  to  change  of  county 
seat. 

Syl.  8   (II,  578).     State  insolvency  laws  valid,  when. 

Approved  in  Boston  etc.  Co.  v.  Ould-Carter  Co.,  123  Ga.  463,  51  S.  E. 
468,  in  absence  of  proceeding  in  federal  courts,  state  courts  have 
jurisdiction  of  cases  within  purview  of  insolvent  traders'  act. 

Syl.  21  (II,  583).  Extraterritorial  effect  of  insolvency  discharge 
Approved  in  In  re  Salmon,  143  Fed.  405,  holding  Rev.  St.  Mo.  1899 
§§  1305,  1306,  relating  to  liquidation  of  insolvent  banks,  is,  iu  re 
spect  to  private  banks,  superseded  by  bankruptcy  act  of  1898;  Hols 
houser  v.  Copper  Co.,  138  N.  C.  255,  50  S.  E.  653,  70  L.  R.  A.  183 
New  Jersey  statute  declaring  annual  license  fee  imposed  on  corpora 
tions  shall  be  preferred  debt  on  insolvency  does  not  give  such  claim 
preference  in  insolvency  proceedings  in  another  state. 

12  Wheat.  419-460,  6  L.  678,  BROWN  v.  STATE  OF  MARYLAND. 

Syl.  3    (II,  595).     Duties   on  imports. 

Approved  in  Sliaw  v.  United  States,  141  Fed.  471,  importation  of 
wine    in    casks    having    wantage    in    excess    of    normal,    collector    cannot 


95  Notes    on    U.    S.    Reports.         12  Wheat.  419-460 

assess  duty  without  allowance  for  excess;  In  re  Sydow,  4  Ariz.  210, 
36  Pac.  215,  upholding  Act  No.  83,  Laws  1893,  licensing  peddlers.  See 
112  Am.  St.  Rep.  649,  note. 

Syl.  5   (II,  596).     Statutes — Exception  of  particular  thing. 

Approved  in  Bacon  v.  Locke,  42  Wash.  217,  83  Pac.  721  holding  void 
Laws  1905  providing  for  license  tax  on  peddlers  of  goods  after  ship- 
meat  to  state.  .k 

Syl.  6   (II,  597).     Power,  how  exercised. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
336,  48  L.  700,  24  Sup.  Ct.  436,  upholding  enforcement  of  anti-trust  act 
by  injunction  ngainst  corporation  organized  in  pursuance  of  combina- 
tion of  stockholders  of  two  competing  interstate  railroads;  Toney  v. 
State,  141  Ala.  125,  109  Am.  St.  Rep.  23,  37  So.  334,  67  L.  R.  A. 
286,  holding  void  act  of  1901,  making  it  penal  to  break  labor  contracts. 

Syl.  7   (II,  597).     State  tax  on  imports. 

Approved  in  Kehrer  v.  Stewart,  197  U.  S.  65,  49  L.  666,  25  Sup.  Ct. 
403,  upholding  Georgia  act  of  1900,  imposing  tax  on  resident  manag- 
ing agents  of  nonresident  meat-packing  houses;  Commonwealth  v.  Cald- 
well, 190  Mass.  357,  76  N.  E.  955,  holding  void  Rev.  Laws,  c.  65,  §§ 
15,  16,  permitting  sale  by  peddlers  of  agricultural  products  of  United 
States  without  license,  but  forbidding  unlicensed  sales  of  foreign  prod- 
ucts; Range  Co.  v.  Campen,  135  N.  C.  517,  522,  523,  529,  531,  47  S.  E. 
662,  664,  666,  607,  holding  void  Revenue  Act  1903,  §  36,  levying  tax- 
on  peddlers,  as  applied  to  sales  by  sample  of  goods  manufactured  in 
another  state  and  delivered  in  original  packages.  See  104  Am.  St. 
Rep.  299,  note. 

Distinguished  in  Cook  v.  Marshall  Co.,  196  U.  S.  269.  270,  275,  49 
L.  474,  477,  25  Sup.  Ct.  233,  upholding  Iowa  Code,  §  5007,  as  applied 
to  sales  at  retail  of  packages  of  ten  cigarettes  each  which  had  been 
imported  loose  to  retail;  American  Steel  etc.  Co.  v.  Speed,  110  Tenn. 
546,  100  Am.  St.  Rep.  814,  75  S.  W.  1042,  where  goods  sent  in  or- 
iginal packages  to  agent  and  delivered  in  that  form  to  customers,  and 
ninety  per  cent  went  to  jobbers  out  of  state  and  balance  to  jobbers  in 
state,  goods   taxable. 

Syl.  8    (II,  599).     Loss  of  character  as  import. 

Approved  in  Range  Co.  v.  Campen,  135  N.  C.  526,  47  S.  E.  665,  hold- 
ing void  Revenue  Act  1903,  §  36,  levying  tax  on  peddlers  as  applied 
to  sales  by  sample  of  goods  manufactured  in  another  state  and  de- 
livered in  original  package;  Hagan  v.  City  of  Richmond,  104  Va.  732, 
3  L.  R.  A.  (N.  S.)  1120,  52  S.  E.  389,  upholding  power  of  local  au- 
thorities to  keep  navigable  waters  unobstructed  where  Secretary  of 
War  fails  to   act. 

Syl.  9    (II,  600).     State  tax  on  occupations. 

Approved  in  Range  Co.  v.  Campen,  135  N.  C.  519,  47  S.  E.  662, 
holding   void   Revenue   Act    1903,    §    36,   levying   tax   on    peddlers   as 


12  Wheat.  460-486         Notes    on   U.   S.    Reports.  98 

applied  to  sales  by  sample  of  goods  manufactured  in  another  state 
and  delivered  in  original  package. 

Syl.  12   (II,  602).     Extent  of  state's  taxing  power. 

Approved  in  Davis  v.  Cleveland  etc.  Ey.  Co.,  146  Fed.  409,  cars 
owned  by  railroad  and  delivered  by  it  to  another  road,  with  freight, 
to  be  used  in  transportation  of  such  freight  to  another  state,  are  not 
attachable  under  laws  of  state  into  which  they  are  carried;  United 
States  V.  Green,  137  Fed.  188,  under  Oleomargarine  Act,  §  1,  arrival 
of  renovated  butter  duly  stamped  and  labeled  within  state  other 
than  that  from  which  it  was  shipped  did  not  remove  liability  for 
violating  act;  Eange  Co.  v.  Campen,  135  N.  C.  514, 516,  47  S.  E.  661, 
holding  void  Eevenue  Act  1903,  §  36,  levying  tax  on  peddlers  as  ap- 
plied to  sales  by  sample  of  goods  manufactured  in  another  state 
and  delivered  in  original  package;  Greek  etc.  Sponge  Co.  v.  Eichard- 
son  etc.  Co.,  124  Wis.  475,  102  N.  W.  890,  transaction  by  which  mer- 
chandise is  sold  to  domestic  corporation  by  foreign  corporation, 
and  is  consigned  to  local  agent  of  latter  for  inspection  by  purchaser, 
and  after  inspection  to  be  delivered  in  original  package,  constitutes 
interstate   commerce. 

Syl.  13   (II,  603).     State  interference  with   commerce. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
353,  48  L.  706,  24  Sup.  Ct.  436,  upholding  enfoz-cement  of  anti-trust 
act  by  injunction  against  corporation  organized  in  pursuance  of 
combination   of   stockholders   of.  two    competing   interstate    railroads. 

12  Wheat.  460-480,  6  L.  693,  UNITED  STATES  v.  GOODING. 

Syl.   3    (II,  613).     Crimes— Burden  of  proof. 

Approved  in  State  v.  Shuff,  9  Idaho,  130,  72  Pac.  669,  it  is  error 
to  instruct  that  to  establish  defense  on  ground  of  insanity  it  must 
be  clearly  proved  by  defendant  by  preponderance  of  evidence  given 
upon   trial. 

Syl.   7   (II,   614).     Indictment  in  language   of  statute. 

Approved  in  United  States  v.  Lake,  129  Fed.  501,  upholding  suflS- 
oiency  of  indictment  against  president  of  bankrupt  corporation  for 
making  false  oath  to  its  schedule. 

(II,  611.)  Miscellaneous.  Cited  in  Betts  v.  United  States,  132  Fed. 
231,  65  C.  C.  A.  452. 

12    Wheat.    480-486,    6    L.    700,    UNITED    STATES    v.    MAECHANT 
&  COLSON. 

Syl.  1   (II,  616).     Joint  indictment — Peremptory  challenges. 

Approved  in  Sawyer  v.  United  States,  202  U.  S.  159,  160,  161, 
50  L.  976,  977,  26  Sup.  Ct.  575,  conditional  right  of  challenge  on  be- 
half of  government  in  criminal  case,  which  has  effect  of  setting 
aside    juror    until    panel    is    exhausted,    without    assigning    cause,    is 


97  Notes   on   U.    S.    Reports.         12  Wheat.  498-590 

proper;  Betts  v.  United  States,  132  Fed.  236,  65  C.  C.  A.  452,  that 
number  of  indictments  against  same  defendant  for  using  mails  to 
defraud  are  tried  together  by  same  jury  docs  not  affect  right  to  three 
peremptory  challenges  for  each  indictment. 

Syl.  4  (II,  618).     Separate  trials  of  joint  defendants. 

Approved  in  Cochran  v.  United  States,  147  Fed.  207,  applying 
principle  to  trial  in  Oklahoma  territorial  court  on  indictment  against 
laws   of   United   States. 

12  Wheat.  498-505,  6  L.   706,  POTTER  v.   GARDNER. 

Syl.  3   (II,  620).     Land  charged  with  testator's  debt. 

Approved  in  Johnson  v,  Georgia  Loan  etc.  Co.,  141  Fed.  597,  bona 
fide  purchaser  must  allege  and  prove  want  of  notice  and  actual 
payment  of  purchase  money  independently  of  recitals  in  deed. 

12  Wheat.  505-511,  6  L.  709,  UNITED  STATES  v.  NICHOLL. 

Syl.  1   (II,  621).     Law  requiring  periodical  settlements  directory. 

Approved  in  Lake  Co.  v.  Neilon,  44  Or.  20,  74  Pac.  214,  failure 
of  tax  collector  to  turn  over  collections  to  treasurer  as  required 
by  law  does  not  raise  presumption  of  conversion. 

Syl.  2   (II,  621).     Liability  of   sureties  on   official  bond. 
See   103   Am.   St.   Rep.   933,   note. 

12   Wheat.   546-554,   6   L.   723,   THE   ANTELOPE. 

Syl.  2    (II,  628).     No  cost   decree   against   United   States. 

Approved  in  State  v.  Williams,  101  Md.  534,  109  Am.  St.  Rep. 
583,  61  Atl.  299,  1  L.  R.  A.  (N.  S.)  254,  no  costs  against  state. 

12   Wheat.    559-561,   6   L.   728,   UNITED    STATES   v.   BARKER. 

Syl.    1    (II,   631).     Diligence   where   government   holds   draft. 

Approved  in  Mountain  Copper  Co.  v.  United  States,  142  Fed.  629, 
applying  rule  in  suit  to  enjoin  injuries  to  timber  lands  by  operation 
of  smelter;  Walker  v.  United  States,  139  Fed.  413,  414,  limitation 
in  act  of  1887,  authorizing  suits  against  United  States,  in  case 
of  suit  by  marshal  to  recover  fees,  begins  to  run  as  to  each  itom 
from  time  service  rendered,  and  not  from  expiration  of  plaintiff's 
term    of    office. 

12   Wheat.   570-574,   6   L.   732,   NEWMAN  v.   JACKSON. 

(II,  634.)  Miscellaneous.  Cited  in  Wade  v.  Gould,  8  Okl.  695,  59 
Pac.  12,  issue  of  animals  follows  mother. 

12  Wheat.  586-590,  6  L.   737,  CHOTARD  v.  POPE. 

Syl.  3    (II,   636).     No   entry  on  lands   previously  appropriated. 

Approved  in  McMiehael  v.  Murphy,  12  Okl,  160,  70  Pac.   191,  fol- 
lowing   rule. 
7 


1  Pet.  1-17  Notes  on  U.  S.  Eeports.  98 

12  Wheat.  599-603,  6  L.  741,  DE  LA  CEOIX  v.  CHAMBEELAIN. 

Syl.  1  (II,  638).     Spanish  grant — Order  of  survey. 

Approved  in  Ainsa  v.  New  Mexico  etc.  E.  E.  Co.,  4  Ariz.  239, 
36  Pac.  214,  territorial  court  cannot  recognize  unconfirmed  Mexican 
grant  as  to  which  no  proceedings  are  pending  before  Congress, 
surveyor  general,  nor  private  land  court,  as  against  pre-emption  and 
homestead  claims  filed  under  United   States  laws. 

12  Wheat.  605-611,  6  L.  744,  SCOTT  v.  SHEEEVE. 

Syl.   2    (n,    639).     Equitable   relief   against   judgment. 

Approved  in  Dubreuil  v.  Gaither,  98  Md.  545,  56  Atl.  966,  though 
in  action  against  receiver  of  insolvent  bank  for  balance  of  deposit 
to  credit  of  one  as  trustee,  receiver  not  allowed  setoff  of  balance 
due  on  note  of  insolvent  partnership,  he  may  seek  setoff  in  suit 
against  partners  who  are  real  owners  of  deposit. 

12  Wheat.   611-643,  6  L.   746,  EAMSAY  v.  ALLEGEE. 

Syl.  1   (II,  639).     Supplies  in  home  port — Suit  in  personam. 
Approved  in  The   Sue,   137  Fed.   135,   arguendo. 


I  PETERS. 


1  Pet.  1-17,  7  L.  27,  HUNT  v.  EOUSMANIEEB. 
Syl.  2   (II,  642).     Eeformation  of  instruments. 

Approved  in  Carrell  v.  McMurray,  136  Fed.  670,  appljnng  rule  in 
reformation  of  deed  given  in  exchange  of  farm  for  stock  of  goods; 
Johnson  v.  Sherwood,  34  Ind.  App.  507,  73  N.  E.  187,  reforming 
mortgage  so  that  description  would  show  right  of  way  over  land; 
Scott  V.  Ford,  45  Or.  544,  78  Pac.  746,  68  L.  E.  A.  469,  denying 
recovery  to  executors  who  paid  sum  to  grandchild  under  mistaken 
belief   that  she   was   heir   under   grandfather's   will. 

Syl.   4    (II,   644).     Equitable  relief   against   mistake   of   fact. 

Approved  in  Wright  v.  Vocalion  Organ  Co.,  148  Fed.  214,  apply- 
ing rule  in  suit  for  specific  performance  of  contract  for  interest  in 
future    inventions. 

Syl.   6    (II,   645).     Eeformation  of  instruments — Mistake   of   law. 

Approved  in  Utermehle  v.  Norment,  197  U.  S.  56,  49  L.  662,  25 
Sup.  Ct.  291,  ignorance  of  law  that  party  taking  benefit  of  provi- 
sion in  his  favor  under  will  is  estopped  to  assert  invalidity  of  in- 
strument, though  coupled  Avith  ignorance  of  evidence  on  which 
contest  could  be  based,   does   not   prevent   application   of   rule;   Burk 


09  Notes  on  U.  S.  Reports.  1  Pet.  25-88 

V.  Johnson,  146  Fed.  214,  where,  on  purchase  of  copyrighted  plana 
for  establishment  of  mutual  burial  associations,  defendant  made 
misrepresentations  that  plan  not  subject  to  supervision  of  state 
insurance  departments,  rescission  not  granted;  Daniels  v.  Dean, 
2  Cal.  App.  428,  84  Pac.  335,  applying. rule,  where  widow,  mistakenly 
believing  she  was  not  entitled  to  homestead  in  deceased  husband's 
property,  executed  abandonment  in  consideration  of  payment  of 
husband's    executors. 

Syl.  7  (II,  649).     Reformation  of  instruments — Mistake. 

Approved  in  dissenting  opinion  in  Thomas  v.  Provident  Life  Ins. 
Co.,  138  Fed.  368,  majority  holding  where  executors  applied  pro- 
ceeds of  loan  raised  by  mortgage  of  real  estate  belonging  to  tes- 
tator to  pay  debts  of  estate,  estate  bound  to  repay  amount  advanced 
with  interest,  though  executors  not  authorized  by  terms  of  will 
to    execute    mortgage. 

1  Pet.  25-36,  7  L.  37,  BANK  OF  WASHINGTON  v.   TRIPLETT. 

Syl.  8  (II,  654).     Usage — Deposit  in  bank  for  collection. 

Approved  in  Cudahy  Packing  Co.  v.  State  Nat.  Bank,  134  Fed.  545, 
67  C.  C.  A.  662,  provision  for  payment  of  attorney's  fees  in  case 
note  is  not  paid  at  maturity  does  not  destroy  negotiability  of  note 
otherwise  negotiable;  Landa  v.  Traders'  Bank,  118  Mo.  App.  366, 
94  S.  W.  773,  where  depositor  left  draft  for  collection  with  bank 
whose  custom  was  to  send  collectors  to  correspondent,  who  placed 
proceeds  to  bank's  credit,  subject  to  owner's  check,  custom  did 
not  make  correspondent  depositor's  agent;  Pennsylvania  R.  R.  Co. 
V.  Naive,  112  Tenn.  253,  79  S.  W.  127,  64  L.  R.  A.  443,  where  it 
is  general  custom  at  place  to  which  freight  is  consigned  not  to 
give  notice  of  arrival  or  make  delivery  on  Fourth  of  July,  negli- 
gence cannot  be  predicated  on  failure  of  carrier  to  give  notice  or 
make  delivery  on  that  day. 

1  Pet.  46-88,  7  L.  47,  MINOR  v.  MECHANICS'  BANK.  ♦ 

Syl.  1  (II,  658).  Statutes— When  "may"  means  "must." 
Approved  in  Equitable  Life  Assurance  Society  v.  Host,  124  Wis. 
671,  672,  102  N.  W.  584,  construing  Rev.  St.  1898,  §  1952,  providing 
for  distribution  of  surplus  accumulations  of  mutual  life  insurance 
companies;  dissenting  opinion  in  Henry  v.  State,  87  Miss.  119,  39  So. 
893,  majority  upholding  Rev.  Code,  1892,  §  3201,  providing  for  leasing 
of  convicts  on  leased  farm;  dissenting  opinion  in  Jones  v.  Commis- 
sioners, 137  N.  C.  612,  50  S.  E.  302,  majority  construing  Laws  of  1903, 
p.  490,  c.  289,  relating  to  issuance  of  refunding  bonds  as  manda- 
tory. 

Syl.  2  (II,  659).     Statutes — Meaning  of  word  "may." 
Approved  in  United  States  v.  Cornell  Steamboat  Co.,  137  Fed.  459, 
69   C.   C.   A.   603,   under   Rev,   St.,    §   2984,   relating   to   refunding   of 


1  Pet.  89-104  Notes  on  U.  S.  Eeports.  100 

duties  on  damaged  goods,  Secretary  of  Treasury  cannot  arbitrarily 
refuse  refund;  Hampden  Trust  Co.  v.  Leary,  186  Mass.  581,  72  N.  E. 
89,    construing    deed   of    trust, 

Syl.  14  (II,  663).     Eatification  of  cashier's  fraud — Stockholders. 

Approved  in  American  B.  Co.  v.  Spokane  etc.  Co.,  130  Fed.  740, 
Cj  C.  C.  a.  121,  where  application  for  fidelity  insurance  by  loan 
society  stated  that  secretary  insured  derived  authority  from  trus- 
tees, knowledge  on  part  of  president  that  secretary  was  indebted 
to  society  at  time  of  application  is  not  breach  of  warranty  that 
secretary  not  indebted;  Goshorn  v.  People's  Nat.  Bank,  32  Ind. 
App.  432,  102  Am.  St.  Eep.  248,  69  N.  E.  186,  bank  is  liable  for 
misappropriation  by'  cashier,  who  received  from  depositor  check  with 
instructions  to   transmit  amount   named  to  another. 

Syl.    19    (II,  665).     Nolle  prosequi  not  retraxit. 

Approved  in  Lindsay  v,  Allen,  112  Tcnn.  651,  82  S.  W.  173, 
mere  dismissal  of  cause  by  consent  of  parties  will  not  bar  future 
action. 

Syl.  20   (IT,  665).     Nolle  prosequi — Severance  by  sureties. 

Approved  in  Texas  &  P.  Ey.  Co.  v.  Sheftall,  133  Fed.  724,  66 
C.  C.  A.  552,  motion  made  pending  term  at  hearing  of  motion 
for  new  trial  to  discontinue  suit  as  to  one  defendant  is  timely  though 
vordict    and    judgment    have   been    entered. 

(II,  658.)  Miscellaneous.  Cited  in  W.  L.  Wells  Co.  v.  Gastonia 
Cotton  Mfg.  Co.,  198  U.  S.  185,  49  L.  1007,  25  Sup.  Ct.  640,  incor- 
porators under  charter  which  declares  that  they  "are  hereby  created 
a  body  politic  and  corporate  "  become  corporation  under  laws  of 
Mississippi,  for  purpose  of  suit  in  federal  court,  as  citizens  of  that 
state. 

1  Pet.   89-93,  7  L.   65,  PEAESON  v.  BANK   OF  METROPOLIS. 

Syl.    2    (II,    668).     Demand — Payment    at    particular    place. 

Approved  in  Nelson  v.  Grondahl,  13  N.  D.  366,  100  N.  W.  1095, 
following    rule. 

1   Pet.  100-104,  7  L.  69,  UNITED  STATES  v.   SALINE  BANK. 

Syl.  1   (II,  669).     Exposure  to  penalty  bars  discovery. 

Approved  in  Ballmann  v.  Fagin,  200  U.  S.  195,  50  L.  437,  26  Sup. 
Ct.  212,  possibility  that  book  which  grand  jury  seeks  in  investigating 
liability  of  national  bank  employee  for  disappearance  of  cash  might 
show  that  owner  was  guilty  of  violating  state  "bucket-shop"  laws, 
justifies  refusal  to  produce  book. 

Distinguished  in  Hale  v.  Ilenkel,  201  U.  S.  69,  50  L.  663,  26  Sup. 
Ct.  370,  protection  against  unreasonable  searches  and  seizures  cannot 
be  invoked  to  justify  refusal    of    corporation    officer    to    produce    its 


101  Notes  on  U.  S.  Eeports.  1  Pet.  110-237 

paperf  m  obedience  to  subpoena  duces  tecum,  issued  in  aid  of  grand 
jury  investigation  of  violation  of  anti-trust  act  by  corporation. 

1  Pet.  110-135,  7  L.  135,  GOVERNOR  OF  GEORGIA  v.  MADRAZO. 

Syl.  4  (II,  671).     Suit  against  state  oflicer. 

Approved  in  State  v.  Woodruff,  83  Miss.  117,  36  So.  81,  in  action 
against  auditor  and  treasurer  as  successors  of  levee  commissioners, 
etate  properly  made  party;  dissenting  opinion  in  Henry  v.  State,  87 
Miss.  96,  97,  39  So.  884,  885,  majority  holding  under  Const.,  art.  5, 
defining  executive  powers,  power  of  governor  to  sue  at  common  law 
was  superseded. 

1  Pet.  138-150,  7  L.  85,  GREENLEAF  v.  QUEEN. 

Syl.  2  (II,  673).     Stranger  to  trust  cannot  object  to  sale. 

Cited  in  Mobile  Land  Imp.  Co.  v.  Gass,  142  Ala.  52S,  39  So.  232, 
arguendo. 

1  Pet.  105-169,  7  L.  96,  WEIGHT  v.  LESSEE  OF  IIOLLINGSWORTH. 
Syl.  2  (II,  677).  Ruling  on  amendments  or  new  trial  discretionary. 
Cited  in  Cassett  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  43,  arguendo. 

1  Pet.  170-192,  7  L.  98,  McLANAHAN  v.  UNIVERSAL  INS.  CO. 

Syl.  11  (II,  681).     Insurance — Material  representations. 

Approved  in  Kerr  v.  Union  Marine  Ins.  Co.,  130  Fed.  417,  64  C.  C. 
A.  617,  where  misrepresentation  as  to  time  of  sailing  of  vessel  on 
which  insurance  was  requested  was  made  in  reph*  to  specific  question 
bj'  insurer,  it  is  conclusively  presumed  to  have  been  material. 

1  Pet.  193-221,  7  L.  108,  COMEGYS  v.  VASSE. 

Syl.  3  (II,  683).     Assignability  of  torts  and  property  rights. 

Approved  in  In  re  Burnstine,  131  Fed.  831,  whore  bankrupt  prior  to 
adjudication  transferred  to  wife  claim  against  railroad  for  killing  of 
son,  in  consideration  of  payment  of  funeral  expenses,  it  was  valid  to 
extent  it  was  accepted  as  security  for  amount  paid,  and  husband's 
bankruptcy  trustee  was  entitled  to  assignment  of  claim  only  on  pay- 
ment of  amount  expended  by  wife. 

(II,  681.)  Miscellaneous.  Cited  in  Smith  v.  Love,  49  Fla.  239,  38 
So.  379,  where  patent  obtained  by  fraudulent  imposition  on  land 
ofiicers,  equity  gives  relief  to  party  entitled  to  patent. 

1  Pet.  232-237,  7  L.  125,  HORSBUEY  v.  BAKER. 

Syl.  1  (n,  690).     Forfeitures  not  enforceable  in  equity. 

Approved  in  Jensen  v.  Deep  Creek  Farm  etc.  Co.,  27  Utah,  77,  74 
Pac.  430,  following  rule;  Brewster  v.  Lauyon  Zinc  Co.,  140  Fed.  818, 
enforcing  forfeiture  of  oil  lease  for  breach  of  condition  to  continue 
work  of  development  with  reasonable  diligence;  Duff  v.  Gilliland,  135 


1  Pet,  264-342  Notes  on  U.  S,  Eeports.  102 

Fed.  585,  refusing  to  cancel  contract  assigning  title  to  patented  ma- 
chine for  certain  royalties  received  from  licenses,  where  assignee  built 
machines  at  profit  and  granted  licenses  to  those  for  whom  it  built; 
Wheeling  etc.  R.  R.  Co.  v.  Town  of  Triadelphia,  58  W.  Va.  520,  52  S. 
E.  512,  enjoining  forfeiture  of  street  railway  privilege  in  street. 

Distinguished  in  Sawyer  v.  Cook,  188  Mass.  167,  74  N.  E.  357,  where 
three  persons  bought  land  to  sell  in  subdivisions,  and  legal  title  was 
put  in  two  of  them,  all  three  to  use  best  endeavors  to  sell,  and  one 
who  held  no  legal  title  and  who  furnished  no  money  ceased  to  par- 
ticipate and  assigned  interest,  he  could  not  require  accounting  of 
profits  after  thirty  years, 

1  Pet.  264-292,  7  L.  138,  SCHIMMELPENNICH  v.  BAYARD. 

Syl.  2  (II,  694).     Drafts— Promise  to  accept. 

Approved  in  Bank  of  Seneca  v.  First,  Nat.  Bank,  105  Mo.  App.  726, 
78  S.  W.  1093,  where  bank  issued  general  letter  of  credit,  checks 
drawn  by  bearer  of  letter  and  cashed  by  bank  having  no  knowledge 
of  letter  cannot  be  applied  in  extinguishment  of  amount  named  in 
letter, 

1  Pet.  299-310,  7  L.  152,  MECHANICS'  BANK  v.  SETON. 

Syl.  1  (II,  697),     Specific  performance — Personalty  contracts. 

Approved  in  Ridenbaugh  v.  Thayer,  10  Idaho,  672,  80  Pac.  233, 
specifically  enforcing  contract  to  furnish  wood,  defendant  to  furnish 
money  necessary  to  chop  and  deliver  wood,  when  contract  partly  per- 
formed; Livesley  v.  Johnston,  45  Or.  49,  106  Am.  St.  Rep.  647,  76 
Pac.  950,  65  L.  R.  A.  783,  granting  specific  performance  of  contract  of 
sale  and  delivery  of  hops  at  certain  price,  hops  to  be  grown  in  suc- 
ceeding five  years,  buyer  to  advance  cost. 

Syl.  4  (II,  098),     Who  are  necessary  parties. 

Apjirovod  in  Tod  v.  Crisman,  123  Iowa,  699,  99  N.  W.  688,  contractor 
to  pay  whom,  board  of  supervisors  has  ordered  levy  of  tax  is  not  nec- 
essary party  to  certiorari  to  test  legality  of  order. 

1  Put.  31S-327,  7  L.  160,  DOX  v.  POSTMASTER  GENERAL, 
Syl.  2  (II,  703).  Laches  of  government  ofiicers — Sureties. 
Approved  in  Christie  Street  Com.  Co.  v.  United  States,  129  Fed.  509, 
statements  made  by  departmental  ofiicers  to  claimant  for  tax  pending 
appeal  to  internal  revenue  commissioner,  to  effect  that  claim  wouhl  be 
allowed  or  had  been  certified  favorably  to  auditing  ofiice,  do  not  estop 
government,  so  as  to  avoid  operation  of  limitations.  See  101  Am. 
St.  Rep.  152,  note. 

1  Pet.  328-342,  7  L.  164,  ELLIOTT  v.  PEIRSOL. 

Syl.  10   (II,  705).     Judgment  binding  till  reversed. 

Approved  in  Southern  Pine  L.  Co.  v.  Ward,  16  Okl.  158,  85  Pac.  467, 
following  rule;  Ex  parte  Robinson,  144  Fed.  836,  where  circuit  court 


103  Notes  on  U.  S.  Keporta.  1  Pet.  351-454 

had  no  jiirisfliotion  of  subject  matter  of  suit,  adjuclication  of  con- 
tempt for  violating  injunction  is  void  and  collaterally  attackable  by 
habeas  corpus;  United  States  v.  Atchison  etc.  Ey.  Co.,  142  Fed.  182, 
applying  rule  to  contempt  proceedings  based  on  violation  of  void  in- 
junction against  granting  rebates;  Harper  v.  Eankin,  141  Fed.  630, 
judgment  of  court  of  competent  jurisdiction  in  favor  of  national  bank 
receiver  and  against  defendant  duly  served,  based  upon  findings  that 
defendant  while  officer  of  bank  embezzled  funds,  is  conclusive  of 
character  of  indebtedness  with  reference  to  release  of  it  in  bank- 
ruptcy; Fay  V.  Costa,  2  Cal.  App.  244,  83  Pac.  277,  plaintiff's  action 
against  administrator,  who  took  possession  of  property  in  belief  that 
he  was  dead,  is  barred  three  years  after  knowledge;  In  re  Patswald, 
5  Okl.  795,  50  Pac.  141,  when  judge  adjourned  court  for  two  days  and 
wont  to  another  county  while  jury  was  not  deliberating  in  criminal 
case,  verdict  rendered  on  his  return  is  void. 

1  Pet.  351-375,  7  L.  174,  BELL  v.  MORRISON. 
Syl.  6  (II,  716).     Object  of  statute  of  limitations. 

Approved  in  Lynchburg  Cotton  etc.  Co.  v.  Travelers'  Ins.  Co.,  140 
Fed.  724,  where  insurance  policy  provides  that  action  barred  if  not 
commenced  within  thirty  days,  and  conduct  of  company  induces  de- 
lay beyond  time,  limitation  runs  from  refusal  to  pay.  See  notes,  101 
Am.  St.  Rep.  145;  102  Am.  St.  Rep.  757,  709. 

Syl.  7   (II,  720).     Limitations — New  promise. 

Approved  in  In  re  McGuire,  132  Fed.  394,  holding  ducbill  reciting 
amounts  due  and  dates  did  not  remove  bar  of  limitations;  Kleis  v. 
McGrath,  127  Iowa,  462,  109  Am.  St.  Rep.  396,  103  N.  W.  372,  69  L. 
R.  A.  260,  execution  of  note  for  unpaid  interest  on  prior  note  does  not 
remove  bar  of  limitations. 

1  Pet.  376-3S5,  7  L.  185,  MECHANICS'  BANK  OF  ALEXANDRIA  v. 
LYNN. 

Syl.  1   (II,  731).     Specific  performance — Modification  of  agreement. 

Approved  in  Wright  v.  Vocalion  Organ  Co.,  148  Fed.  214,  applying 
rule  in  suit  for  specific  performance  of  contract  for  interest  in  future 
inventions. 

1  Pet.  386-454,  7  L.  189,  CONRAD  v.  ATLANTIC  INS.  CO. 
Syl.  7  (II,  734).     Mortgage  transfers  property  as  security. 

Approved  in  In  re  Moore,  146  Fed.  188,  where  instrument  given  as 
security  for  loan,  and  purporting  to  be  deed,  but  not  accompanied  by 
reconveyance  bond  as  required  by  Georgia  code,  and  containing  con- 
tradictory recitals,  constitutes  common-law  mortgage,  and  where  prop- 
erty was  in  debtor's  possession,  and  surrendei:ed  to  bankruptcy  trus- 
tee, it  is  subject  to  sale  as  part  of  assets  of  his  estate. 


1  Pet.  455-475  Notes  on  U.  S.  Eeports.  104 

Syl.  8  (II,  736).     Jiulgment  lien  as  property. 

Approved  in  Illinois  Nat.  Bank  v.  School  Trustees,  211  111.  511,  71 
N.  E.  1074,  junior  mortgagee  may  redeem  from  senior  mortgagee  and 
thereby  become  subrogated  to  all  rights  of  such  senior  mortgagee. 

Syl.  12  (n,  739).     Bills  of  lading  pass  by  indorsement. 

Approved  in  General  Electric  Co.  v.  Southern  Ky.,  72  S.  C.  254,  110 
Am.  St.  Eep.  603,  51  S.  E.  696,  where  freight  shipped  under  bill  of 
lading  to  order  of  shipper,  notify  third  party,  and  draft  was  attached, 
carrier  cannot  deliver  to  third  party  without  production  of  bill  prop- 
erly indorsed. 

Syl.  14  (II,  739).     Bills  of  lading — Assignment  by  owner  of  goods. 
See  105  Am.  St.  Kep.  342,  note. 

1  Pet.  455-468,  7  L.  219,  BANK  OP  COLUMBIA  v.  HAGNER. 

Syl.  2  (II,  754).     Vendor  and  vendee's  undertaking  dependent. 

Approved  in  Michigan  Home  Colony  Co.  v.  Tabor,  141  Fed.  336, 
following  rule;  Stein  v.  Waddell,  37  Wash.  639,  80  Pac.  186,  where 
vendee's  covenants  to  pay  price  and  vendor's  covenants  to  execute  and 
deliver  deed  are  mutual,  vendor  cannot  sue  to  forfeit  contract  because 
of  purchaser's  failure  to  pay  price  on  day  specified,  without  execut- 
ing and  tendering  deed. 

Distinguished  in  Watkins  v.  American  Nat.  Bank,  134  Fed.  42,  67 
C.  C.  A.  110,  where  vendor  sued  vendee  for  balance  due  on  purchase 
money  note,'  and  vendee  denied  liability  to  pay  balance  because  title 
to  part  of  property  lost,  and  court  found  value  of  unconveyed  portion^ 
and  gave  judgment  for  defendant,  vendee  barred  from  suing  for  dif- 
ference between  value  as  found  and  amount  due  on  note. 

Syl.  5   (II,  748).     Land  sale — Time  of  essence  of  contract. 

Approved  in  Seibel  v.  Purchase,  134  Fed.  488,  applying  rule  where 
defendant  sold  option  for  purchase  of  realty  exercisable  by  certain 
date  but  there  was  mortgage  on  property;  Wright  v.  Astoria  Co.,  45  Or. 
229,  77  Pac.  600,  where,  under  contract,  deed  put  in  escrow  for  de- 
livery on  payment  after  examination  of  title,  title  passed  to  grantee 
on  delivery  of  deed  as  against  purchaser  for  grantor  on  day  deed  de- 
livered. 

1  Pet.  409-475,  7  L.  224,  DOE  EX  DEM.  ELMORE  v.  GEYMES. 

Syl.  1  (II,  750).      Peremptory  nonsuit  in  federal  court. 

Approved  in  Parks  v.  Southern  Ry.  Co.,  143  Fed.  278,  applying  rule 
in  action  for  damages  for  negligent  killing  of  person;  Huntt  v.  Mc- 
Namee,  141  Fed.  294,  where  voluntary  nonsuit  permitted  by  state 
practice,  it  is  discretionary  with  federal  court  to  refuse  nonsuit  after 
conclusion  of  plaintiff's  evidence,  and  motion  by  defendant  for  direc- 
tion of  verdict  had  been  sustained. 


105  Notes  on  U.  S.  Reports.  1  Pet.  503-546 

1  Pet.  503-510,  7  L.  239,  DAVIS  v.  MASON". 

Syl.  2  (II,  756).     Curtesy  in  wife's  wild  lands. 
See  112  Am.  St.  Rep.  582,  note. 

1   Pet.   511-546,   7   L.   242,   AMERICAN   INS.   CO.   v.    THREE   HUN- 
DRED AND   FIFTY-SIX  BALES   OF  COTTON. 

Syl.  5  (II,  759).     Transfer  of  territory  by  nations. 

Approved  in  United  States  v.  Winans,  198  U.  S.  383,  49  L.  1093, 
25  Sup.  Ct.  662,  fishing  rights  in  Columbia  river  secured  to  Yakima 
Indians  by  treaty  prevail  over  rights  acquired  to  lands  bordering  on 
river,  by  virtue  of  patent;  Dorr  v.  United  States,  195  U.  S.  141,  49 
L.  129,  24  Sup.  Ct.  808,  upholding  denial  of  jury  trial  in  Philippines; 
In  re  Chavez,  147  Fed.  75,  on  bankruptcy  of  husband  having  only  com- 
munity estate  under  New  Mexico  laws,  claims  of  antenuptial  creditor 
are  postponed  until  after  community  creditors  satisfied. 

Syl.  7  (II,  759).     Power  of  governing  territory. 

Approved  in  Kepner  v.  United  States,  195  U.  S.  124,  49  L.  122,  24 
Sup.  Ct.  797,  government  cannot  appeal  from  acquittal  in  court  of 
first  instance  in  the  Philippines;  Kneeland  v.  Korter,  40  Wash.  363, 
82  Pac.  609,  1  L.  R.  A.  (N.  S.)  745,  Congress  has  power  to  grant  tide 
land  between  high  and  low  water  work  within  a  territory  of  United 
States. 

Syl.  9   (II,  761).     Jurisdiction  of  territorial  courts. 

Approved  in  Higgins  v.  Tax  Assessors  of  Pawtucket,  27  R.  I.  408, 
63  Atl.  37,  upholding  Practice  Act  1905,  p.  4,  §  12,  giving  superior 
court  jurisdiction  of  writs  of  habeas  corpus,  mandamus  and  quo  war- 
ranto. 

Syl.  13  (II,  762).     Admiralty  jurisdiction  in  territorial  courts. 

Approved  in  Allen  v.  Myers,  1  Alaska,  118,  after  applicant  for 
patent  has  once  initiated  proceedings  in  land  office  under  Rev.  St., 
§§  2325,  2326,  independent  equity  suit  to  quiet  title  is  not  maintain- 
able. 

Syl.  14  (II,  763).     Territorial  courts  not  constitutional  courts. 

Approved  in  Ex  parte  Moran,  144  Fed.  598,  upholding  jurisdiction 
of  circuit  court  of  appeals  in  habeas  corpus  to  inquire  into  power  of 
Oklahoma  territory  court  to  imprison  one  convicted  of  capital  crime; 
Wallace  v.  Adams,  143  Fed.  725,  upholding  jurisdiction  of  United 
States  in  Indian  Territory  over  ejectment  by  Indian  allottee  against 
possessor  of  allotment;  Welty  v.  United  States,  14  Okl.  15,  76  Pac. 
123,  in  trial  of  federal  cases  in  territorial  district  court,  territorial 
procedure  prevails;  Fuller  etc.  Co.  v.  Johnson,  8  Okl.  605,  58  Pac. 
747,  United  States  court  of  Indian  Territory  is  not  United  States 
court  within  Okl.  St.  1890,  p.  930,  §  2;  United  States  v.  Choctaw  etc. 
R.  R.  Co.,  3  Okl.  452,  41  Pac.  745,  Rev.  St.,  §  1001,  exempting  United 
States  from  giving  bond  on  appeal,  does  not  apply  to  appeals  from 


1  Pet.  591-669  Notes  on  U.  S.  Reports.  106 

territorial  district  to  territorial  supreme  court;  Burke  v.  Territory,  2 
Okl.  515,  37  Pac.  835,  Rev.  St.,  §  725,  limiting  powers  of  United  States 
court  to  summarily  punish  for  contempt  does  not  apply  to  territorial 
courts. 

1  Pet.  591-G03,  7  L.  275,  TAYLOR  v.  RIGGS. 

Syl.  1    (IT,  775).     Best  evidence. 

Approved  in  Security  Trust  Co.  v.  Robb,  142  Fed.  79,  refusing 
copy  of  letter  where  adverse  party  not  subpoenaed  to  produce  original. 

Syl.  4  (II,  776).     Foundation  for  secondary  evidence. 

Approved  in  Jenkins  v.  Emmons,  117  Mo.  App.  9,  94  S.  W.  814, 
where  contents  of  written  instrument  have  been  proven,  party  may 
testify  as  to  its  loss  in  suit  against   administrator. 

Syl.  6   (II,  777).     Contracts — Preceding  conversations  inadmissible. 
Approved  in  Capell  v.  Fagan,  30  Mont.  512,  77  Pac.  56,  applying 
rule  to  deed. 

Syl.  8   (II,  777).     Sufficiency  of  parol  to  prove  written  contract. 
Approved   in   Capell  v.   Fagan,  30  Mont.   513,   515,  77   Pac.  56,  57, 
applying  rule  to  deed. 

1  Pet.  620-625,  7  L.  287,  McDONALD  v.  SMALLEY. 

Syl.  3  (II,  782).  Contracts — Motives  do  not  affect  validity. 
Approved  in  Bedford  etc.  Co.  v.  Oman,  134  Fed.  448,  stranger  to 
contract  to  maintain  switch  over  private  property,  who  is  interested 
in  maintenance  of  switch  by  railroad,  cannot  complain  of  contract 
as  fraudulent  merely  because  purchase  price  on  sale  of  switch  was 
paid   in   notes. 

1  Pet.  G40-654,  7  L.  295,  BARRY  v.  COOMBE. 

Syl.  3   (II,  785).     Statute  of  frauds — Place  of  signature. 

Approved  in  Delaware  Ins.  Co.  v.  Pennsylvania  Ins.  Co.,  126  Ga. 
388,  391,  55  S.  E.  333,  335,  upholding  contract  of  fire  insurance  signed 
at  place  other  than  end. 

Syl.  6   (II,  786).     Evidence  to  remove  ambiguity  in  writing. 

Approved  in  Ismon  v.  Loder,  135  Mich.  351,  97  N.  W.  771,  uphold- 
ing deed  by  corporation  signed  by  its  president  and  secretary  whose 
signature  had  appended  to  it  designation  "Pres.,"  "Sec." 

1  Pet.     655-669,  7  L.  302,  ROSS  v.  BARLAND. 

Syl.  2  (II,  788).     Legal  title  prevails  in  ejectment. 

Approved  in  United  States  v.  Anderson,  194  U.  S.  399,  48  L.  1039, 
24  Sup.  Ct.  716,  United  States  is  precluded  from  retaining,  as  against 
grantees  of  indemnity  lands,  sum  eolleeted  from  trespassers  thereou 
for  removal  of  stone  during  period  of  selection  of  lands  to  supply 
deficiency. 


107  Notes  on  U.  S.  Keports.  2  Pet.  1-57 

Syl.  3   (II,  788).     Ejectment— Practice. 

Approved  in  Peyton  t.  Desmond,  129  Fed.  11,  63  C.  C.  A.  651, 
patent  issued  under  homestead  laws  relates  back  to  initiation  of  claim, 
and  gives  patentee  right  to  recover  value  of  timber  wrongfully  cut 
and  removed  from  land  after  initiation  of  claim,  and  prior  to  is- 
suance of  patent. 

1    Pet.  686-694,    7    L.    315,    BIDDLE    v.    WILKINS. 

Syl.  5   (II,  792).     Administrator's  suit — Profert  of  letters. 

Approved  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  30G,  executor 
may  sue  in  another  state  to  recover  of  his  agent  proceeds  of  sale 
of  realty  belonging  to  decedent's  estate. 

Syl.  7   (II,   793).      Action   on   judgment   by   administrator. 

Approved  in  Coram  v.  Ingersoll,  148  Fed.  176,  judgment  against 
ancillary  administrator,  in  action  on  chose  in  action,  deemed  assets  of 
estate  in  his  jurisdiction,  bars  ancillary  administrator  in  another  jur- 
isdiction from  suing  on  same  cause  of  action. 


II  PETERS. 


2  Pet.  1-24,  7  L.  327,  PENNOCK  v.  DIALOGUE. 

Syl.  2   (II,   795).     Necessity  for  requests  for  instructions. 

Approved  in  Chicago  Live  Stock  Com.  Co.  v.  Fix,  15  Okl.  42,  78 
Pac.  317,  following  rule:  Steel  Rail  Sup.  Co.  v.  Baltimore  etc.  Ey.  Co., 
130  Fed.  435,  64  C.  C.  A.  635,  exception  to  so  much  of  charge  as  states 
that  only  question  is  (stated  question),  does  not  support  assignment 
of  error  based  on  failure  to  submit  another  question  on  which  no  in- 
struction asked. 

Syl.  7     (II,  797).     Patents— Prior  public  use. 

Distinguished  in  Eastman  v.  Mayor  etc.  of  N.  Y.,  134  Fed.  853,  69 
C.  C.  A.  628,  where  inventor  of  fire-engine  pump  put  device  on 
engine  of  which  he  was  engineer,  where  it  was  used  for  years,  and 
shown  to  manufacturers,  their  placing  it  on  other  engines  is  not 
fraudulent. 

2  Pet.     25-57,  7  L.  335,  COLUMBIAN  INS.  CO.  v.  LAWEENCE. 

Syl.  7   (II,  800).     Insurer  must  disclose  all  facts. 

Approved  in  Parsons,  Eich  &  Co.  v.  Lane,  97  Minn.  113,  106  N.  W. 
492,  condition  in  fire  policy  for  unconditional  ownership  by  insured 
and  for  ownership  of  lot  on  which  building  stands  makes  it  incumbent 
on  insured  to  disclose  ground  lease  where  no  inquiries  made;  Tyree 
y.  Virginia  Ins.  Co.,  55   W.  Va.  68,   104  Am.  St.   Rep.  983,  46  S.   E. 


2  Pet.  58-169  Notes  on  IT.  S.  Reports.  108 

708,  66  L.  E.  A.  657,  false  statement  by  applicant  to  insurance  agent 
that  he  is  sole  and  absolute  owner  avoids  policy. 

2  Pet.  58-95,  7  L.  347,  GARDNER  v.  COLLINS. 

Syl.  3  (n,  804).     Statutes — Intent  gathered  from  words  of  act. 

Approved  in  dissenting  opinion  in  Irwin  v.  Irwin,  2  Okl.  220,  37 
Pac.  560,  majority  holding  act  of  Congress  ratifying  territorial  law 
granting  probate  court  jurisdiction  in  divorce  cases  did  not  deny 
power  to  repeal  act, 

Syl.  5  (II,  805).     Succession — Heirs  of  the  blood. 

Approved  in  Finley  v.  Abner,  129  Fed.  736,  64  C.  C.  A.  262,  under 
Kansas  statute  of  descent  which  governs  descent  of  allotments  in 
Indian  Territory,  where  Indian  woman,  whose  parents  were  dead, 
died  unmarried  and  without  issue,  but  leaving  half-brother,  he  in- 
herited to  exclusion  of  uncles  and  cousins. 

2  Pet.  137-149,  7  L.  374,  VAN  NESS  v.  PACARD. 

Syl.  2   (II,  812).     Removal  of  fixtures  by  tenant. 

Approved  in  Shafter  Estate  Co.  v.  Alvord,  2  Cal.  App.  605,  84  Pac. 
280,  upholding  right  of  lessee  of  game  preserve  to  remove  buildings 
during  term;  Hay  ward  v.  School  District  No.  9,  139  Mich.  542,  102  N. 
W.  1000,  school  district  is  owner  of  schoolhouse  which  it  erects  on 
leased  land,  and  may  remove  same  within  reasonable  time  after  ter- 
mination of  lease  on  contingency;  Winans  v.  Beidler,  6  Okl.  605,  52 
Pac.  405,  homestead  settler  making  improvements  on  government 
land,  whose  entry  afterward  canceled,  may  remove  same  after  land 
awarded  to  adverse  settler;  Crocker  v.  Donovan,  1  Okl.  174,  30  Pac. 
377,  improvements  made  by  homesteaders  on  their  claims  are  taxable, 

2  Pet.  150-156,  7  L.  379,  BOYCE  v.  ANDERSON. 

Syl.  2   (II,  815).     Liability  of  slave  carriers. 

Approved  in  Lewis  v.  Pennsylvania  etc.  R.  R.  Co.,  70  N.  J.  L.  135, 
56  Atl.  129,  carrier  of  livestock  not  liable  for  injuries  to  cattle  caused 
by  failure  to  feed  and  water  them  where  contract  provided  that 
shipper  should  do  so. 

2  Pet.  157-169,  7  L.  381,  THOMPSON  v.  TOLMIE. 

Syl.  3   (II,  817).     Judgments— Collateral  attack. 

Approved  in  Threadgill  v.  Colcord,  16  Okl.  470,  85  Pac.  710,  apply- 
ing rule  to  receiver's  sale;  Eddy  v.  People,  218  111.  616,  75  N.  E. 
1072,  under  Laws  1879,  relating  to  police  pensions,  board  of  trustees 
i^n  passing  on  right  of  applicant  for  pension  acts  in  quasi-judicial 
capacity  and  its  finding  is  binding. 

Syl.  4   (II,  819).     Collateral  attack  on  judicial  sale. 
Approved  in  Clark  v.  Rossier,  10  Idaho,  359,  78  Pac.  360,  applying 
rule  to  sale  of  mining  claims. 


109  Notes  on  U.  S.  Eeports.  2  Pet.  201-317 

2  Pet.  201-215,  7  L.  397,  HUNT  v.  WICKLIFFE. 

Syl.  6  (II,  828).     "Two  months"  does  not  mean  eight  weeka. 

Approved  in  Bertwell  v.  Haines,  10  Okl.  471,  63  Pac.  702,  term 
"month"  in  land  contest  statute  means  calendar  month  and  not 
period  of  thirty  days. 

2  Pet.  245-252,  7  L.  412,  WILLSON  v.  BLACKBIRD  CREEK  MARSH 
CO. 

Syl.  2   (II,  832).     Benefits  to  public  through  medium  of  individuals. 

Approved  in  Pittsburg  etc.  Ey.  Co.  v.  Wolcott,  162  Ind.  405,  69 
N.  E.  453,  upholding  Burns'  Eev.  St.,  §§  4401-4410,  relating  to  open- 
ing of  streets. 

Syl.  3  (II,  832).  Commerce — State  law  conflicting  with  congres- 
sional. 

Approved  in  Allen  v.  Eeed,  10  Okl.  124,  60  Pac.  78S,  holding  void 
territorial  act  regulating  change  of  county  seats. 

Syl.  4   (II,  833).     Regulation  of  navigation  by  states. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  478,  482,  50  L.  277, 
279,  26  Sup.  Ct.  127,  upholding  state  statute  authorizing  construction 
of  dam  across  navigable  stream  to  subserve  drainage  of  lowlands; 
The  Nonpariel,  149  Fed.  523,  railroad  maintaining  bridge  over  Erie 
Canal  with  piers  resting  on  cribs  which  extend  over  piers  on  canal 
sides  without  marking  location  is  liable  for  damage  by  collision 
therewith;  United  States  v.  Union  Bridge  Co.,  143  Fed.  390,  391,  up- 
holding 30  Stat.  1153,  relating  to  alteration  of  bridges  which  Secre- 
tary of  War  decides  obstruct  navigation;  Maine  Water  Co.  v.  Knick- 
erbocker Steam  Towage  Co.,  99  Me.  475,  59  Atl.  954,  water  pipe  line 
across  Kennebec  river  by  authority  of  legislature  and  in  accordance 
with  plans  authorized  by  Secretary  of  "War  is  not  unlawful  obstruc- 
tion; Crookston  Waterworks  etc.  Co.  v.  Sprague,  91  Minn.  46S,  98  N. 
W.  349,  64  L.  E.  A.  977,  construing  Gen.  St.  1894,  §§  2385,  2386,  re- 
lating to  log  dams;  Kansas  City  etc.  E.  R.  Co.  v.  Wiygul,  82  Miss. 
231,  33  So.  967,  61  L.  R.  A.  578,  railroad  which,  under  grant  from 
state,  has  built  bridge  over  navigable  stream,  may  repair  same. 

2  Pet.  253-317,  7  L.  415,  FOSTER  v.  NEILSON. 

Syl.  4   (II,   S3S).     Individual   rights  under  treaties. 

Approved  in  In  re  Minook,  2  Alaska,  208,  construing  Russian 
treaty  with  reference  to  citizenship  of  half-breeds  who  have  severed 
tribal  relations. 

Syl.  7  (II,  839).  Treaties  equivalent  to  statutes. 

See  112  Am.  St.  Eep.  108,  note. 


2  Pet.  318-416  Notes  on  U.  S.  Reports.  110 

2  Pet.  318-326,  7  L.  437,  BANK  OF  KENTUCKY  v.  WISTER. 

Syl.  4  (II,  842).     Assumpsit  for  bank  deposit. 

Approved  in  Retan  v.  Union  Trust  Co.,  134  Mich.  8,  95  N.  W.  1008, 
deposits  in  bank  of  moneys  paid  into  court  are  not  special  deposits 
entitled  to  priority  over  others  on  insolvency  of  bank. 

Syl.  6   (II,  843).     Federal  courts — Suits  by  holder  of  note. 

Distinguished  in  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  122,  66 
C.  C.  A.  179,  suit  by  assignee  of  oral  contract  to  recover  money  due 
thereon  cannot  be  maintained  in  federal  court  unless  assignor  could 
Bue  therein. 

2  Pet.  358-369,  7  L.  450,  AMERICAN  FUR  CO.  v.  UNITED  STATES. 

Syl.  2   (II,  847),    Liquor  in  Indian  country — Burden  of  proof. 

Approved  in  State  v.  Barrett,  138  N.  C.  640,  50  S.  E.  510,  upholding 
Laws  N.  C.  1903,  prohibiting  selling  of  liquor  without  license  and 
making  possession  of  liquor  in  quantities  over  quart  prima  facie 
evidence  of  his  keeping  it  for  sale. 

2  Pet.  370-379,     7     L.     454,     DANDRIDGE     v.     WASHINGTON'S 
EXECUTORS. 

Syl.  4  (II,  850).     Executor  represents  residuaries. 

Approved  in  Rankin  v.  City  of  Big  Rapids,  133  Fed.  672,  66  C.  C.  A. 
568,  where  it  had  been  determined  in  probate  proceedings  by  receiver 
of  insolvent  national  bank  to  establish  claim  for  assessment  on  de- 
cedent 's  stock  that  decedent  was  owner,  distributees  are  estopped  to 
relitigate  decedent's  ownership  in  subsequent  suit  to  recover  sub- 
sequent assessment. 

2  Pet.  380-416,  7  L.  458,  SATTERLEE  v.  MATTHEWSON. 

Syl.  2  (II,  850).     Retrospective  validating  statute. 

Approved  in  Lohrstorfer  v.  Lohrstorfer,  140  Mich.  556,  104  N.  W. 
144,  act  of  1905,  amending  act  of  1897,  relating  to  payment  of  fees 
on  appeal,  by  providing  for  reinstatement  of  appeal  dismissed  for 
nonpaj^ment  of  register's  fees,  is  void  as  to  appeals  dismissed  prior 
to  amendment. 

Syl.  4   (II,  852).     Exercise  of  judicial  functions  by  legislature. 

Approved  in  Eddy  v.  People,  218  111.  616,  75  N.  E.  1072,  under  Laws 
1879,  relating  to  police  pensions,  board  of  trustees  in  passing  on 
application  for  pension  acts  in  quasi-judicial  capacity  and  its  find- 
ing is  binding. 

Syl.  5  (II,  852).  Retrospective  laws  valid  unless  contracts  im- 
paired. 

Approved  in  Whitlock  v.  Hawkins,  105  Va.  250,  53  S.  E.  403,  up- 
holding act  of  1906,  amending  and  re-enacting  Code,  c.  23,  relating 
to  assessment  of  land. 


Ill  Notes  on  U.  S.  Reports.  2  Pet.  417-481 

2   Pet.  417-441,   7  L.   470,   EEYNOLDS   v.   M 'ARTHUR. 

Syl.  1   (II,  856).     Retrospective  construction  of  statutes. 

Approved  in  United  States  v.  Jackson,  143  Fed.  788,  32  Stat.  397, 
relating  to  allowance  to  prisoners  for  good  time,  did  not  apply  to 
prisoners  sentenced  before  act  took  effect. 

2  Pet.  449-480,  7  L.  481,  WESTON  v.  CITY  COUNCIL  OF  CHARLES- 
TON. 

Syl.  1   (II,  857).     Suit  defined. 

Approved  in  South  Dakota  etc.  Ry.  Co.  v.  Chicago  etc.  Ry.  Co.,  141 
Fed.  580,  proceeding  by  railroad  to  condemn  right  of  way  under 
South  Dakota  statute  is  removable  where  requisite  diversity  of  citizen- 
ship and  amount  exist. 

Syl.  2   (II,  858).     Prohibition  is  suit. 

Approved  in  State  v.  Chittenden,  127  Wis.  494,  107  N.  W.  508, 
certiorari  lies  to  review  action  of  dental  board  in  passing  upon  repu- 
tability  of  college  under  state  statute. 

Syl.  7   (II,  859).     Eight  to  tax  unlimited. 

Approved  in  Gay  v.  Thomas,  5  Okl.  10,  46  Pac.  581,  upholding  act 
of  1895,  relating  to  taxation  or  personalty  in  unorganized  country  or 
reservation. 

Syl.  10   (II,  861).     State  tax  on  government  stock. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  452,  466, 
50  L.  266,  272,  26  Sup.  Ct.  110,  United  States  may  exact  license  tax 
from  selling  agents  of  state  which  has  taken  charge  of  liquor  business; 
Mosely  ^.  State,  115  Tenn.  56,  57,  61,  86  S.  W.  715,  716,  717,  interest 
on  United  States  bonds  does  not  become  taxable  immediately  upon 
being  paid  into  hands  of  bondholder;  dissenting  opinion  in  Kingsley 
V.  Merrill,  122  Wis.  202,  99  N.  W.  1049,  67  L.  R.  A.  200,  majority  up- 
holding Rev.  St.  1898,  §  1036,  making  debts  due  from  solvent  debt- 
ors subject  to  taxation. 

Distinguished  in  Hibernia  Savings  etc.  Soc.  v.  San  Francisco,  200 
U.  S.  313,  50  L.  496,  26  Sup.  Ct.  265,  United  States  orders  for  inter- 
est accrued  on  registered  government  bonds  are  taxable  by  state  in 
hands  of  owner. 

(II,  857.)  Miscellaneous.  Cited  in  State  v.  Godfrey,  54  W.  Va. 
71,  46  S.  E.  192,  as  to  whether  prohibition  lies  to  enjoin  prosecution 
under  void  ordinance. 

2  Pet.  481,  7  L.  492,  PRESIDENT  ETC.  BANK  OF  UNITED  STATES 
v.  WEISINGER. 

Syl.  1   (II,  862).     Death  pending  submission — Entry  of  order. 
Approved  in  Teske  v.  Dettberner,  70  Neb.  559,  9S  N.  W.  62,  following 
rule. 


2  Pet.  492-585  Notes  on  U.  S.  Eeports.  112 

2  Pet.  492-526,  7  L.  496,  BANK    OF    HAMILTON    v.    DUDLEY'S 

LESSEE. 

Syl.  4  (II,  865).     Eepeal  of  law  authorizing  administrator's  sales. 
Approved  in  Scott  v.  Jenkins,  46  Fla,  529,  35   So.   105,  following 
rule. 

2  Pet.  527-542,  7  L.  508,  BANK  OE  UNITED  STATES  v.  OWENS. 

Syl.   1    (II,   867).     Usury  defined. 

Approved  in  Gunby  v.  Armstrong,  133  Fed.  433,  66  C.  C.  A.  627, 
construing  contract  of  loan  association  with  borrowing  stockholder 
as   not  being  usurious. 

Syl.  2  (II,  868).     Bank  loan  at  ultra  vires  interest. 

Approved  in  Urwan  v.  Northwestern  Nat.  Life  etc.  Co.,  125  Wis. 
360,  103  N.  W.  1105,  under  Eev.  St.  1898,  §  1955  o,  prohibiting  discrim- 
inatory contracts  of  insurance,  where  special  agent's  contract  is 
issued,  in  violation  of  statute,  as  inducement  to  taking  out  of  policy, 
insurer  may  sue  for  return  of  money  paid  in  consideration  of  issu- 
ance of  policy. 

Syl.  6   (II,  870).     Enforcement  of  illegal  contracts. 

Approved  in  Montgomery  v.  Whitbeck,  12  N.  D.  392,  96  N.  W.  329, 
holding  void  mutual  insurance  policy  issued  in  disregard  of  statutes 
regulating  same;  Light  v.  Conover,  10  Okl.  737,  63  Pac.  968,  no  ac- 
tion can  be  maintained  on  lease  for  pasturage  of  cattle  on  Indian 
reservation  made  without  approval  of  Indian  agent;  Garst  v.  Love, 
6  Okl.  59,  55  Pac.  22,  in  suit  for  compensation  under  cattle  pasturage 
contract,  answer  alleging  pasture  incloses  government  lafd  states 
good  defense;  Kelly  v.  Courter,  1  Okl.  282,  30  Pac,  373,  where  one 
leases  premises  for  sale  of  liquor,  sale  being  illegal,  tenant  cannot 
recover  for  damage  to  liquor  by  landlord's  breach  of  agreement  to 
supply  ice  as  agreed;  dissenting  opinion  in  Monahan  v.  Monahan,  77 
Vt.  151,  59  Atl.  174,  70  L.  R.  A.  935,  majority  holding  where  com- 
plaint seeking  to  impress  securities  with  trust  alleges  they  were  takeh 
in  defendant's  name  without  his  knowledge  and  issues  are  only  as 
to  title,  relief  not  denied  because  securities  placed  in  defendant's  name 
to  avoid  taxation;  Escondido  Lum.  etc.  Co.  v.  Baldwin,  2  Cal.  App. 
G08,  84  Pac.  285,  arguendo. 

2  Pet.  566-585,  7  L.  521,  BEATTY  v.  KURTZ. 

Syl.  1    (II,  875).     What  is  valid  dedication. 

Approved  in  Corsicana  v.  Anderson,  33  Tex.  Civ.  600,  78  S.  W.  263, 
following  rule. 

Syl.  2   (II,   876).      Charitable    uses — Particular   grantee   unnecessary. 

Approved  in  Penny  v.  Central  Coal  &  Coke  Co.,  138  Fed.  774,  where 
unincorporated  religious  society  had  had  uninterrupted  possession  of 
land  in  controversy  for  thirty  years,  and  had  used  it  as  its  own  under 


113  Notes  ou  U.  S.  Reports.  2  Pot.  5'j5-663 

lost  deed,  it  is  presumed  that  title  legally  conveyed  to  trustees  for  its 
benefit. 

Syl.  4  (IT,  877).     Grant  of  land  afterward  used  for  cemetery. 
Limited  in  Ex  parte  McCall,  68  S.  C.  492,  47  S.  E.  974,  church  which 
has  allowed  members  to  bury  dead  in  church  lot  for  twenty  years  not 
enjoined,   where   cemetery   much   neglected   and   church    about   to    be 
moved,  from  selling  lot  and  removing  bodies. 

Syl.  6   (II,  878).     Suit  by  members  of  religious  society. 

Approved  in  Bingle  v.  State,  161  Ind.  370,  68  N.  E.  646,  upholding 
indictment  for  larceny  alleging  property  stolen  was  property  of  several 
persons   named   "as   trustees   of"    church. 

2  Pet.  595-612,  7  L.  5,31,  ENGLISH  v.  FOXHALL. 

Syl.  4  (II,  881).     Relief  under  general  prayer. 

Approved  in  Lockhart  v.  Leeds,  195  U.  S.  437,  49  L.  209,  25  Sup.  Ct. 
76,  under  bill  averring  title  to  mine  acquired  under  relocation  made  in 
pursuance  of  alleged  fraudulent  conspiracy  with  complainant's  partner, 
whereby  partner  was  to  fail  to.  perfect  original  location,  injunction 
against  further  mining  may  be  granted. 

2   Pet.  613  626,  7  L.  538,  CHIRAC  v.   REINECKER. 

Syl.  5   (II,  882).     Ejectment  against  tenant  bars  landlord. 
See  112  Am.  St.  Rep.  27,  32,  note. 

2  Pet.  627-663,  7  L.  542,  WILKINSON  v.  LELAND. 

Syl.  4   (II,  884).     Law  violating  property  rights. 

Approved  in  King  v.  Hatfield,  130  Fed.  582,  holding  void  West  Vir- 
ginia constitutional  and  statutory  provisions  relating  to  forfeiture  of 
tracts  of  over  one  thousand  acres;  McKinster  v.  Sager,  163  Ind.  675, 
106  Am.  St.  Rep.  268,  72  N.  E.  856,  68  L.  R.  A.  273,  holding  void  Acts 
1903,  p.  276,  c.  153,  making  sales  by  merchant,  except  in  due  course  of 
trade,  void  as  to  creditors  unless  certain  conditions  as  to  schedule  of 
creditors  complied  with;  Ex  parte  Anderson,  46  Tex.  Cr.  390,  392,  81  S. 
W.  982,  983,  city  court  has  no  jurisdiction  to  try  an  accused  for  alleged 
violation  of  state  penal  statute. 

Syl.  5    (II,  886).  Heir's  title  vests  encumbered  by  liens. 

See  112  Am.  St.  Rep.  1022,  note. 

Syl.  7   (II,  887).  Act  confirming  void  executor's  sale  valid. 

Approved  in  Fuller  v.  Hager,  47  Or.  244,  83  Pae.  783,  Laws  1899, 
p.  64,  §  3,  validating  guardians'  sales  made  to  bona  fide  purchasers, 
cured  failure  of  guardian  to  take  statutory  oaths  before  fixing  time  and 
place  of  sale. 

Syl.  8  (II,  887).     Validity  of  retrospective  laws. 

Approved  in  Lohrstrofer  v.  Lohrstrofer,  140  Mich.  556,  104  N.  W. 
144,  act  1905,  amending  act  of  1897,  relating  to  payment  of  fees  ou 
8 


5  Pet.  12-56  Notes  on  U.  S.  Reports.  Il4 

appeal,  by  providing  for  reinstatement  of  appeals  dismissed  for  non- 
payment of  register's  fees,  is  void  as  to  appeals  dismissed  prior  to 
amendment. 

Syl.  9  (II,  889).     Statutes  construed  according  to  intent. 

Approved  in  Wadsworth  v.  Boysen,  148  Fed.  776,  construing  Act  of 
Cong.,  March  3,  1905,  ratifying  agreement  by  w^hich  Wyoming  Indians 
ceded,  for  disposal  by  government,  lands  in  Wind  River  Reservation; 
Parsliall  v.  United  States,  147  Fed.  436,  railway  postal  clerks  cannot 
recover  against  government  for  expenses  for  bed  and  board  vyhile  on 
regular  run,  in  addition  to  fixed  salary;  United  States  v.  Jackson,  143 
Fed.  787,  32  Stat.  397,  relating  to  allowance  for  good  time,  does 
not  apply  to  prisoners  sentenced  before  it  took  eifect;  Braitliwaite  v. 
Cameron,  3  Okl.  635,  38  Pac.  1086,  legislature  may  provide  for  payment 
of  compensation  out  of  territorial  treasury  to  stenographer  employed  by 
legislature. 


Ill  PETERS. 


3  Pet.  12-32,  7  L.  585,  UNITED  STATES  v.  BUFORD. 

Syl.  1    (III,  9).     Treasury  transcripts  as   evidence. 

Approved  in  United  States  v.  Pierson,  145  Fed.  819,  in  action  on 
Indian  agent's  bond,  transcript  of  books  and  proceedings  of  Treas- 
ury Department  was  admissible,  though  it  contained  some  items 
of  credit  or  debit  concerning  which  it  was  not  competent  evidence. 

Syl.   2    (III,   9).     State   not   barred  by  limitations. 
See   101  Am.  St.   Rep.  151,  165,  note. 

Syl.   5    (III,   10).     Assignment   of   claim   to   government. 
See   101   Am.   St.   Rep.   183,   note. 

3   Pet.   43-56,   7   L.   596,   WILLISON   v.   WATKINS. 

Syl.   1    (III,   14).     Tenant   cannot   dispute   landlord's   title. 

Approved  in  Ilagar  v.  WikoflF,  2  Okl.  584,  39  Pac.  282,  one  going 
into  possession  of  town  lot  on  public  lands  as  tenant  of  one  who 
has  erected  building  cannot  assert  claim  adverse  to  landlord  till 
he    surrenders    premises. 

Syl.   4    (III,    16).     Tenant   disclaiming   tenure. 

Approved  in  Stover  v.  Davis,  57  W.  Va.  204,  205,  49  S.  E.  1025, 
1026,  following  rule;  Dawson  v.  Falls  City  Boat  Club,  136  Mich. 
263,  99  N.  W.  19,  good  faith  is  not  element   of   adverse  possession. 

Syl.  5    (III,   18).     Adverse   possession   by   disclaimer   of   tenure. 
Approved   in  Patterson   v.   Hewitt,   11   K   M.   42,  66   Pac.   565,   55 
L.   K.   A.   658,   Conip.   Laws,   1897,    §§    2916,   2930,   apply   limitations 


115  Notes  on  U.  S.  Reports.  3  Pet.  99-208 

to  trusts  founded  on  verbal  agreements  where  defendant  has  not 
fraudulently  concealed  his  cause  of  action,  or  its  existence  thereof 
from    party    entitled. 

3  Pet.  99-192,  7  L.  617,  INGLIS  v.  SAILORS'   SNUG  HARBOR. 

Syl.  2  (III,  28).  Wills — Designation  of  trustees  by  official  char- 
acter. 

Approved  in  Thompson  v.  Hale,  123  Ga.  310,  51  S.  E.  385,  superior 
court  may  fill  vacancies  in  trusteeship  of  trust  for  educational  pur- 
poses  where    no    provision    made    therefor. 
'  Syl.  3  (III,  28).     Bequest  to  society — Subsequent  incorporation. 

Approved  in  Stearns  v.  Newport  Hospital,  27  R.  I.  317,  62  Atl. 
135,  hospital  established  under  Laws  1873,  §  222,  may  administer 
trust   under   will   for   care    of    sick,   injured    or   infirm   poor    persons. 

Syl.  5   (HI,  31).     Devise  on  happening  of  future  event. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed. 
522,  67  C.  C.  A. '393,  construing  bequtst  to  trustees  to  manage  and 
invest  income  for  certain  period,  at  expiration  of  which  they  were  to 
form  corporation  to  which  estate  and  axicumulations  should  be 
transferred  for  purpose  of  founding  hospital. 

Syl.   7    (III,  32).     Wills— Enforcement  of  testator's   intent. 

Approved  in  Speer  v.  Colbert,  200  U.  S.  145,  50  L.  413,  26  Sup. 
Ct.  201,  upholding  bequest  of  sum  not  to  exceed  $5,000,  to  be  equally 
■  divided  between  two  named  charitable  institutions  which  testator 
directs  to  be  made  in  event  of  invalidity  of  prior  bequest  for  an- 
other purpose;  Anderson  v.  Messinger,  146  Fed.  938,  where  tes- 
tator declared  if  either  of  sons  should  die  without  lineal  descendants, 
survivor  should  take,  and  if  survivor  had  no  descendants,  half  of 
all  should  go  to  testator's  brother  and  a  remainder  to  other  brothers, 
sons  acquired  life  estate  in  moiety. 

Syl.   8    (III,   32).     When   trust   created   by   will. 

Approved  in  Speer  v.  Colbert,  200  U.  S.  146,  50  L.  413,  26  Sup. 
Ct.  201,  death  or  resignation  of  trustees  named  in  will  who  are 
directed  to  pay  and  see  to  application  of  bequest  to  educational 
institution  to  be  used  for  colonial  research  does  not  cause  trust  to 
fail;  Gidley  v.  Lovenberg,  35  Tex.  Civ.  210,  79  S.  W.  835.  uphold- 
ing devise  of  fund  for  establishing  home  for  bettering  condition 
and  comforting  the  unfortunate  widows  of  certain  city. 

3  Pet.  193-208,  7  L.   650,  EX  PARTE  WATKINS. 

Syl.    2    (III,    38).     Habeas    corpus    by    federal    court. 

Approved  in  Ex  parte  Moran,  144  Fed.  600,  601,  upholding  juris- 
diction of  circuit  court  of  appeals  to  issue  habeas  corpus  to  inquire 
into  power  of  Oklahoma  territorial  court  to  imprison  one  convicted 
of   capital   crime. 


3  Pet.  210-221  Notes  on  U.  S.  Reports.  IIG 

Syl.  8   (m,  41).     When  judgment  of  imprisonment  a  nullity. 

Approved  in  Ex  parte  Stacey,  45  Or.  87,  75  Pae.  1061,  following 
rule;  In  re  Burkell,  2  Alaska,  110,  when  justice  of  peace  added 
"at  hard  labor"  to  penalty,  habeas  coi-pus  does  not  lie  where  hard 
labor  not  in  fact  being  imposed  as  part  of  penalty;  Ex  parte 
Harlan,  1  Old.  50,  27  Pac.  921,  habeas  corpus  does  not  lie  to  review 
judgment   or   sufficiency  of  indictment  where   court   had  jurisdiction. 

Syl.  9   (III,  43).     Habeas   corpus — Sufficiency  of  indictment. 

Approved  in  Hyde  v.  Shine,  199  U.  S.  83,  50  L.  97,  25  Sup.  Ct. 
760,  refusing  on  habeas  corpus  to  determine  sufficiency  of  indictment 
for  conspiracy. 

Syl.    10    (III,   44).     Judgment   binding   till   reversed. 

Approved  in  Cobe  v.  Eicketts,  111  Mo.  App.  113,  85  S.  W.  133, 
where,  after  suit  to  dissolve  loan  association  was  brought  in  federal 
court,  state  court  transferred  similar  suit  brought  previously  and 
federal  court  rendered  decree  for  sale  of  assets,  decree  not  col- 
laterally attackable  by  one  indebted  to  association  on  note  in  suit 
thereon  by  purchase  of  association's  assets. 

Syl.  15  (III,  48).     Collateral  attack  on  court-martial 's  judgment. 

Approved  in  Hamilton  v.  McClaughry,  136  Fed.  447,  where  return 
to  habeas  corpus  alleges  that  petitioner  is  held  under  judgment  of 
military  coui't-martial,  burden  is  on  respondent  to  show  condition 
of   war   existed. 

3  Pet.  210-221,  7  L.  655,  BOYCE  v.  GRUNDY. 

Syl.  2   (III,  49).     Equity — Adequacy  of  law  remedy. 

Approved  in  United  Cigarette  etc.  Co.  v.  "Wright,  132  Fed.  197, 
following  rule;  Farwell  v.  Colonial  Trust  Co.,  147  Fed.  482,  up- 
holding bill  against  vendor  and  corporation  to  rescind  sale  of  stock, 
recover  purchase  price  and  to  relieve  complainant  from  liability  to 
corporation  on  account  of  the  stock;  Wilhite  v.  Skelton,  149  Fed. 
72,  upholding  specific  performance  of  agreement  to  convey  fifth  in- 
terest in  leasehold;  Trade  Dollar  etc.  Min.  Co.  v.  Fraser,  148  Fed. 
593,  fact  that  defendants  claiming  right  to  take  water  from  stream 
under  plans  approved  by  state  would  be  compelled  to  condemn 
right  of  way  over  prior  appropriator 's  lands  does  not  prevent  latter 
from  enjoining  works  where  construction  would  irreparably  injure 
his  prior  rights;  Castle  Creek  Water  Co.  v.  City  of  Aspen,  146  Ped. 
14,  upholding  specific  performance  where  city  has  refused  to  per- 
form its  contract  to  purchase  waterworks  at  price  based  on  pro- 
ductive worth  to  be  determined  by  appraisers;  General  Elec.  Co. 
V.  Westinghouse  Elec.  &  Mfg.  Co.,  144  Fed.  466,  where  contract 
for  manufacture  and  sale  of  electric  equipment  provided  that  in 
case  of  violation,  violator  should  pay  fifty  per  cent  of  regular  sale 
price    as    liquidated    damages,    injunction    will    not    lie    to    prevent 


117  Notes  on  U.  S.  Eeports,  3  Pet.  242-291 

violation  of  contract;  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  816, 
upholding  equity  jurisdiction  on  bill  to  give  effect  to  forfeiture 
of  oil  lease  and  for  cancellation  of  lease  as  cloud  on  title;  Big  Six 
etc.  Co.  V.  Mitchell,  138  Fed.  2S6,  upholding  bill  to  cancel  mining 
lease  as  cloud  on  title  enjoins  lessee  from  mining;  Glucose  Ref.  Co. 
V.  City  of  Chicago,  138  Fed.  211,  upholding  sufficiency  of  bill  to 
enjoin  enforcement  of  illegal  smoke  ordinance  providing  fine  for 
each  separate  violation;  Manning  v.  Berdane,  135  Fed.  160,  up- 
holding federal  equity  jurisdiction  of  suit  for  cancellation  of  note 
obtained  by  fraud;  Williams  v.  Neely,  134  Fed.  10,  69  L.  R.  A.  232, 
07  C.  C.  A.  171,  granting  injunction  to  stay  action  at  law  on 
purchase  money  note  until  equitable  defense  of  reduction  for  partial 
failure  of  consideration  due  to  defect  of  title;  Southern  Pac.  R.  Co. 
V.  United  States,  133  Fed.  65G,  66  C.  C.  A.  581,  upholding  equity 
jurisdiction  over  suit  by  United  States  against  railroad  and  its 
mortgagees  to  determine  what  portion  of  lands  erroneously  patented 
to  company  have  been  sold  to  bona  fide  purchasers,  and  for  cancella- 
tion of  patents  to  lands  not  so  disposed  of;  Brown  v.  Arnold,  131 
Fed.  727,  upholding  suit  for  specific  performance  of  stipulation  that 
action  at  law  which  has  passed  to  judgment  shall  abide  final  deci- 
sion of  another  action;  Gulf  Red  Cedar  Co.  v.  Crenshaw,  138  Ala. 
141,  35  So.  51,  upholding  jurisdiction  over  suit  by  tenant  in  common 
against  cotenant  for  accounting  for  timber  taken  during  term  of 
years,  discovery  and  restraint  of  waste;  Barnes  v.  Newton,  5  Okl. 
435,  48  Pac.  193,  successful  contestant  before  Land  Department  may 
enjoin  adversary  from  further  interfering  with  possession  and  further 
occupancy;  Ritterhoff  v.  Puget  Sound  Nat.  Bank,  37  Wash.  80,  107 
Am.  St.  Rep.  791,  79  Pac.  602,  enjoining  collection  of  note  alleged 
to  be  forgery;  Stauffer  v.  Cincinnati  etc.  R.  R.  Co.,  33  Ind.  App.  358, 
70   N.   E.   543,   arguendo. 

Distinguished  in  dissenting  opinion  in  Barnes  v.  Newton,  5  Okl. 
446,  49  Pac.  1077,  majority  holding  successful  contestant  before  Land 
Department  may  enjoin  adversary  from  further  interfering  with 
possession    and    further    occupancy. 

3  Pet.  242-268,  7  L.  666,  SHANKS  v.  DUPONT. 

Syl.  10   (III,  59).     Construction  of  treaties. 

Approved  in  In  re  Wyman,  191  Mass.  278,  77  N.  E.  380,  on  death 
of  Russian  subject  intestate,  Russian  vice-consul  was  entitled  to 
administer  estate  to   exclusion  of  public   administrator. 

3  Pet.  280-291,  7  L.  679,  JACKSON  v.  LAMPHIRE. 

Syl.  1   (III,  62).     Supreme  court — Invalidity  of  law. 

Approved  in  Cantwell  v.  Missouri,  199  U.  S.  602,  50  L.  329,  26 
Sup.  Gt.  749,  following  rule. 


3  Pet.  307-458  Notes  on  U.  S.  Reports.  118 

Syl.  3   (III,  63).     Recording  acts  make  void  unrecorded  deeds. 

Approved  in  Knights  of  Maccabees  of  the  World  v.  Nitsch,  69 
Neb.  375,  95  N.  W.  627,  upholding  Comp.  St.  1901,  c.  43,  §  112, 
requiring  filing  of  proposed  amendment  to  constitution  or  by-laws 
of  fraternal  beneficial  societies  with  auditor  of  accounts  as  applied 
to    certificate   issued   prior   to   law. 

Svl.    5    (III,    64).     Legislature    regulates    limitations. 

Approved  in  Lamb  v.  Powder  Riv.  etc.  Co.,  132  Fed.  438,  67 
L.  R.  A.  558,  65  C.  C.  A.  570,  holding  void  Colorado  act  of  1899, 
limiting  time  for  action  on  judgment  as  applied  to  action  on  sister 
state  judgment  rendered  prior  to  passage  of  act. 

3  Pet.  307-319,  7  L.  688,  CANTER  v.  AMERICAN  INS.  CO. 

Syl.  5  (III,  70).     No  appeal  from  costs  decree. 

Distinguished  in  Western  Coal  etc.  Co.  v.  Petty,  132  Fed.  606, 
in  action  at  law  in  circuit  court  judgment  rendered  on  dismissal 
denying  prevailing   party   costs   is   reviewable   on   writ   of   error. 

3  Pet.  340-390,  7  L.  701,  FINLAY  v.  KING. 

Syl.  1  (III,  72).  Conditions  precedent  and  subsequent  distin- 
guished. 

Approved  in  Ranncls  v.  Rowe,  145  Fed.  300,  condition  in  deed  of 
Innd  to  railroad,  that  if  road  not  built  within  three  years  lands  to 
rrvert,  was  condition  subsequent.  See  102  Am.  St.  Rep.  366,  367, 
note. 

Syl.  4   (III,   74).     Wills   construed   according  to   intent. 

Approved  in  Blinn  v.  Gillett,  208  111.  485,  100  Am.  St.  Rep.  234, 
70  N.  E.  707,  construing  bequest  of  profits  of  bank  stock,  with  cer- 
tain conditions  in  case  of  liquidation  of  bank;  Missouri  etc.  Sani- 
tarium y.  McCune,  112  Mo.  App.  338,  87  S.  W.  85,  where  testatrix 
made  several  specific  bequests  in  proper  form,  clause  of  will  di- 
recting sale  of  stock  to  highest  bidder  and  division  of  proceeds 
among  specified  legatees  is  bequest  of  proceeds  and  not  of  stock. 

3    Pet.    398-410,    7    L.    719,     FOWLE    v.     COMMON     COUNCIL     OF 
ALEXANDRIA. 

Syl.   4   (III,   76).     City  not  liable   for  nonfeasance. 

Approved  in  Fifield  v.  Common  Council  of  Phoenix,  4  Ariz.  287, 
36  Pac.  917,  24  L.  R.  A.  430,  city  is  not  liable  for  injuries  caused 
by  discharge  of  fireworks  because  city  authorities  suspended  for 
day     ordinance    prohibiting    discharge   of    fireworks. 

3  Pet.  433-458,  7  L.  732,  PARSONS  v.  BEDFORD. 

Syl.  4  (III,  83).     Common  law  distinguished  from  equity. 

Approved  in  In  re  E.  T.  Kenney  Co.,  136  Fed.  454,  where  cred- 
itors  of   bankrupt  before   bankruptcy  assigned   claims   vo   committee 


119  Notes  on  U.  S.  Reports.  4  Pet.  1-101 

in    trust    to    purchase    bankrupt's    property    and  sell    it    for    benefit 

of    assignors,    latter     could    not    prove     equitable  interest    as    claims 

against    estate    though    state    statute    abolished  distinction    bewecn 
law    and    equity. 

Syl.   5    (III,  84).     Jury  not   required  in   equity. 

Approved  in  United  States  v.  Luce,  141  Fed.  420,  applying  rule 
in    suit    to    abate    nuisance. 

Syl.   6    (III,   84).     Jury — Suit   at   common   law   defined. 

Approved  in  Seliner  v.  McKay,  2  Alaska,  566,  in  action  to  quiet 
title  where  answer  shows  defendant  was  rightfully  in  possession 
and  was  ousted  by  plaintiff  and  wrongfully  kept  out  of  possession, 
defendant  is  entitled  to  jury  trial;  Chessman  v.  Hale,  31  Mont.  589, 
79  Pac.  257,  plaintiff  in  action  for  damages  for  maintenance  of  nui- 
sance is  entitled  to  jury  though  he  also  seeks  injunction;  Bradford 
V.  Territory,  1  Old.  370,  34  Pac.  67,  proceeding  b/  information  in 
nature  of  quo  warranto  requires  jury;  dissenting  opinion  in  Dorr 
V.  United  States,  195  U.  S.  157,  49  L.  136,  24  Sup.  Ct.  808,  majority 
holding  under  Philippine  temporary  civil  government  right  of  trial 
by   jury   not   included. 

Syl.   8    (in,   85-).     Seventh   amendment   and   judiciary   act. 

Approved  in  Illinois  Cent.  Ry.  Co.  v.  Davies,  146  Fed.  248,  as- 
signment that  verdict  awarded  excessive  damages  through  preju- 
dice and  passion  is  not  reviewable  on  appeal. 

3  Pet.  459,  460,  7  L.  741,  FARRAR  v.  UNITED  STATES. 

Syl.  3   (III,  88).     Appearance  cures  defective  service  of  process. 

Approved  in  dissenting  opinion  in  Fisher  v.  Crowley,  57  W.  Va. 
329,  50  S.  E.  429,  majority  holding  defect  in  summons  not  waived 
by  pleading  to  merits  after  overruling  of  motion  to  quash  to  which 
exception   taken. 


IV  PETERS. 


4  Pet.  1101,  7  L.   761,  CARVER  v.  JACKSON. 

Syl.   2    (III,  92).     Appeal — Instructions   on   facts   not   considered. 

Approved  in  Pittsburgh  Ry.  Co.  v.  Bloomer,  146  Fed.  721,  apply- 
ing rule  in  action  for  damages  against  street  railway  for  negli- 
gence. 

Syl.  4  (III,  93).     Recital  of  lease  in  deed  binds  parties. 
Approved  in  Davis  v.  Movies,  76  Vt.   33,  56  Atl.   176,  petitions  to 
legislature  for  grants   of  lauds   reciting  lands   confiscated  from  peti- 


4  Pet.  102-183  Notes  on  U.  S.  Ecports.  120 

tioner's  father,  and  private  acts  granting  lands  and  reciting  con- 
fiscation, not  evidence  of  confiscation,  so  as  to  show  title  in  state  at 
time  of  grant  as  against  trespasser;  Eonk  v.  Higginbotham,  54  W. 
Va.   143,  46  S.  E.   130,  applying  rule  in  ejectment. 

Syl.  6    (m,  98).     State   claiming  under  deed. 

Approved  in  Clark  v.  Sayers,  55  W.  Va.  526,  47  S.  E.  318,  where 
one  conveys  land  with  general  warranty  which  at  time  he  does 
not  own,  or  title  to  which  is  defective,  and  afterward  acquires  good 
title,   acquisition   inures   to   grantee. 

4  Pet.  102-107,  7  L.  796,  EX  PARTE  BRADSTREET  v.  THOMAS. 

Syl.  1   (III,  98).     Mandamus  to  compel  signing  bill  of  exceptions. 

Approved  in  Herren  v.  Merrilecs,  7  Okl.  266,  54  Pac.  469,  after 
bill  of  exceptions  signed  copy  of  motion  for  new  trial  certified  to  by 
clerk  cannot  be.  annexed. 

4  Pet.   108-110,   7  L.   798,   EX  PARTE   TILLINGHAST. 

Syl.  1   (III,  101).     Disbarment  for  contempt. 

Approved  in  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S.  337,  48  L. 
1005,  24  Sup.  Ct.  665,  order  of  circuit  court  finding  one  not  a  party 
to  suit  guilty  of  contempt  in  violating  restraining  order,  is  review- 
able on  writ  of  error;  State  v.  Mosher,  128  Iowa,  87,  103  N.  "W. 
107,  upholding  jurisdiction  of  district  court  to  revoke  license  of 
attorney. 

4  Pet.  111-123,  7  L.  799,  BOYCE  v.  EDWARDS. 

Syl.  1   (III,  101).     Drafts — Promise  to  accept. 

Approved  in  Bank  of  Seneca  v.  First  Nat.  Bank,  105  Mo.  App. 
726,  78  S.  W.  1093,  bank  having  no  notice  of  letter  of  credit  can- 
not have  check  v^-hich  it  cashed  applied  in  extinguishment  of  amount 
named   in   letter. 

4  Pet.  124-138,  7  L.  804,  UNITED  STATES  v.  MORRISON. 

Syl.    2    (III,    104).     Following    state    statutory    construction. 

Approved  in  dissenting  opinion  in  James  v.  Gray,  131  Fed.  414, 
65  C.  C.  A.  385,  majority  holding  loan  made  by  wife  to  husband 
from  her  separate  projierty  is  provable  against  his  estate  in  bankruptcy, 
irrespective  of  state  law  respecting  its  enforceability. 

4  Pet.  172-t83,  7  L.  821,  WILCOX  v.  PLUMMER. 

Syl.    1    (III,    110).     When    limitations    for    negligence    runs. 

Approved  in  O'Connor  v.  Aetna  Life  Ins.  Co.,  67  Neb.  126,  93 
N.  W.  138,  where  one  borrowed  money  to  pay  off  mortgage  and 
gave  mortgage  on  same  premises  as  security,  and  lender  paid  off 
mortgage  without  getting  surrender  and  assignee' thereof  foreclosed, 
borrower's  suit  against  lender  for  damages  barred  in  five  years  after 


121  Notes  on  U.  S.  Reports.  4  Pet.  184-290 

payment;  Mast  v.  Sapp,  140  N.  C.  539,  540,  541,  111  Am.  St.  Eep. 
868,  53  S.  E.  352,  5  L.  R.  A.  (N.  S.)  379,  determining  survival  of 
action  for  injuries  to  house  caused  by  breaking  of  reservoir  in 
which   accident   owner   killed. 

4  Pet.  184-189,  7  L.  825,  BARTLE  v.  COLEMAN. 

Syl.   1    (III,   112).     No   remedy  on   illegal   contract. 

Approved  in  dissenting  opinion  in  Monahan  v.  Monahan,  77  Vt. 
152,  59  Atl.  174,  70  L.  R.  A.  935,  majority  impressing  securities  with 
trust  where  only  issue  raised  was  as  to  title,  though  complainant 
placed  securities  in   defendant's   name   to   avoid   taxation. 

4  Pet.   190-204,  7   L.   828,   CALDWELL   v.   TAGGART. 

Syl.   1    (III,   114).     Necessary  parties   must  be   before   court. 

Approved  in  Lynch  v.  United  States,  13  Okl.  158,  73  Pac.  1101, 
applying  rule  in  suit   to   cancel  townsite   patent. 

4  Pet.   205-231,  7  L.   833,  LLOYD   v.   SCOTT. 

Syl.    1    (III,   115).     Usury — Necessity   for  intent. 

Approved  in  Lusk  v.  Smith,  71  Kan.  555,  81  Pac.  175,  where  son 
received  sum  from  mother  stating  he  could  get  her  ten  per  cent 
interest,  and  he  deposited  sum  in  bank  as  agent  and  gave  his  memo- 
randum-book in  which  he  credited  her  with  sum,  adding  "to  be 
loaned  out,"  usurious  agreement  not  presumed  from  payment  of 
interest  by  son. 

Syl.   6    (III,   117).     Usurious   contracts  void   as  to   strangers. 

Distinguished  in  In  re  Worth,  130  Fed.  932,  under  Iowa  Code, 
1897,  §  3041,  creditors  of  bankrupt  cannot  set  up  defense  of  usury 
against  claim  of  another  creditor. 

4  Pet.  232-286,  7  L.  842,  VAN  NESS  v.  CITY  OF  WASHINGTON 
AND   THE   UNITED   STATES. 

Syl.   2    (III,   118).     Preliminary   agreement   urged   in   indenture. 

Approved  in  Arion  Knitting  Mills  v.  United  States  etc.  Guaranty 
Co.,  137  N.  C.  570,  50  S.  E.  306,  70  L.  R.  A.  167,  applying  rule  in 
construing  fidelity  bond. 

4  Pet.  287-290,  7  L.  861,  LA  GRANDE  v.  CHOUTEAU. 

Syl.  3   (III,  121).     Specific  performance   on  paying  for  surplus. 

Approved  in  King  v.  Raab,  123  Iowa,  638,  99  N.  W.  308,  where 
five  year  lease  of  town  lot  gave  option  to  purchase  for  specified 
sum  during  term,  and  city  caused  street  to  be  paved  at  cost  of 
abutting  owners,  lessee  must  assume  cost  of  pavement  on  asking 
specific    performance. 


4  Pet.  291-465  Notes  on  U.  S,  Keports.  122 

(III,  119.)  Miscellaneous.  Distinguished  in  South  Bound  B.  E. 
V.  Burton,  67  S.  C.  520,  46  S,  E.  341,  fee  of  streets  in  Columbia  ia  in 
«tate. 

4  Pet.  291-310,  7  L.  862,  CONRAD  v.  NICOLL. 

Syl.  1  (III,  119).     Burden  of  proof  of  fraud. 

Approved  in  Kcssler  v.  Ensley,  141  Fed.  137,  applying  rule  to  pur- 
chase  of   pi'operty   of   corporation  by   director. 

4  Pet.  331-348,  7  L.  876,  GALT  v.  GALLOWAY. 

Syl.    1    (III,   122).     Equity   does   not   relieve   against   trespassers. 

Approved  in  dissenting  opinion  in  Barnes  v.  Newton,  5  Okl.  460, 
49  Pac.  1081,  majority  holding  successful  contestant  before  Land 
Department  may  enjoin  adversary  from  further  interfering  with  pos- 
session   and    further    occupancy. 

4  Pet.  349-365,   7  L.  882,  EONKENDORFF  v.   TAYLOR. 

Syl.  5    (III,   126).     Publication   once   a  week. 

Approved  in  Forsman  v.  Bright,  8  Idaho,  472,  69  Pac.  475,  publi- 
cation of  summons  in  weekly  paper  five  consecutive  weeks,  first 
issue  on  July  18th  and  last  on  August  15th,  is  publication  for  one 
month  as  required  by  statute;  Derby  v.  Dancey,  112  La.  894,  36 
So.  796,  summons  and  notice,  by  which  abandonment  of  wife  by 
husband  is  required  to  appear  by  Civ.  Code,  art.  145,  must  be  given 
each  calendar  month. 

4  Pet.  393-109,   7   L.  897,  SPRATT   v.   SPRATT. 

Syl.   1    (III,    128).     Conclusion   of   naturalization   proceedings. 

Approved  in  Dolan  v.  United  States,  133  Fed.  449,  certified  copy 
of  record  of  court  showing  admission  of  alien  to  citizenship  is 
"certificate  of  citizenship"  within  Rev.  St.,  §§  5425,  5427,  making  it 
an  offense  to  use  or  aid  another  in  using  false  certificate  of  citizen- 
ship; Tinn  v.  United  States  Dist.  Atty.,  148  Cal.  775,  84  Pac.  152, 
order  admitting  alien  to  citizenship  cannot  be  set  aside  on  motion 
after  lapse  of  six  months;  State  v.  Weber,  96  Minn.  428,  105  N.  W. 
492,  record  of  common  pleas  ordering  certificate  of  naturalization 
to  be  issued  constitutes  a  judgment;  State  v.  Chittenden,  127  Wis. 
505,  107  N.  W.  512,  dental  college  entitled  to  certiorari  to  deter- 
mine  its   status   among   reputable   colleges. 

4  Pet.   410-465,   7   L.   903,   CRAIG   v.   STATE    OF   MISSOURL 

Syl.   2   (III,   130).     Exceptions  on  trial  to   court. 

Approved  in  Streeler  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  131, 
66  C.  C.  A.  190,  where  case  is  trial  by  court,  admission  or  rejection 
of  evidence  not  necessarily  ground  for  reversal. 

Syl.  9   (III,  133).     Promise  in  consideration  of  illegal   act  is  void. 

Approved    in    Monahan    v.    Monahan,    77    Vt.    143,    59    Atl.    172,    70 

L.  E.  A.  935,  impressing  securities  with  trust  where  only  issue   was 


123  Notes  on  U.  S.  Reports.  4  Pet.  46'3  565 

as  to  title,  tliough  complainant  placed  securities  in  defendant's  name 
to  avoid   taxation. 

4   Pet.   466-479,   7   L.   922,   HOLLINGSWOETH  v.   BARBOUR. 

Syl.   2    (III,  135).     Publication  against  unknown  heirs. 

Approved  in  Clapp  v.  Houg,  12  N.  D.  606,  607,  102  Am.  St.  Rep. 
589,  98  N.  W.  712,  65  L.  R.  A.  757,  holding  void  Codes  1899,  §  6325, 
subd.  2,  providing  for  appointment  of  administrator  where  death  of 
person  not  satisfactorily  proven,  as  applied  to  property  of  live  per- 
son; Flournoy  v.  Bullock,  11  N.  M.  101,  66  Pac.  549,  55  L.  E.  A.  745, 
arguendo. 

4  Pet.  480510,  7  L.  927,  SOCIETY  FOR  THE  PROPAGATION  ETC. 
V.  TOWN  OF  PAWLET. 

Syl.  1   (III,  137).     Corporations — General  issue — Capacity  to  sue. 
Approved   in   Leader   Printing   Co.   v.   Lowry,   9   Okl.    106,   59   Pac. 
247,  plaintiff  corporation  need  not  aver  that  it  is  corporation. 

4   Pet.   514-565,  7  L.   939,  PROVIDENCE   BANK   v.   BILLINGS. 

Syl.  2   (III,   143).     Tax  exemption  not  presumed. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  IT.  S. 
36,  50  L.  74,  25  Sup.  Ct.  715,  upholding  special  franchise  imposed 
by  N.  Y.  Laws  1899,  c.  712,  as  not  impairing  obligation  of  con- 
tracts by  which  right  to  construct  and  maintain  street  railways  was 
granted  in  consideration  of  payment  of  certain  amount;  Kersey  v. 
Terre  Haute,  161  Ind.  474,  68  N.  E.  1029,  upholding  license  ordi- 
nance taxing  vehicles  using  streets,  but  omitting  street-cars,  auto- 
mobiles and  vehicles  of  nonresidents;  Lake  Drummond  Canal  Co. 
v.  Commonwealth,  103  Va.  345,  49  S.  E.  508,  on  purchase  of  prop- 
erty and  franchises  of  another  corporation  on  foreclosure  of  trust 
deed,  corporation  cannot  claim  tax  immunity  granted  to  prior  cor- 
poration.    See   105  Am.   St.  Rep.   698,  note. 

Syl.  3  (III,  148).     Object  of  incorporation. 

Approved  in  dissenting  opinion  in  Hale  v.  Henkel,  201  IT.  S. 
85,  50  L.  670,  26  Sup.  Ct.  370,  majority  holding  protection  against 
unreasonable  searches  cannot  be  invoked  to  justify  refusal  of  officer 
of  corporation  to  produce  its  books  and  papers  in  obedience  to 
subpoena  duces  tecum;  Fulkerson  v.  Taylor,  102  Va.  321,  46  S.  E.  311, 
railroad  acquiring  imperfect  title  to  land  is  governed  by  same  prin- 
ciples as  individuals  in  claiming  compensation  for  value  of  improve- 
ments. 

Syl.  4  (III,  149).     Taxing  power  operates  on  all. 

Approved  in  People  v.  Ronner,  185  N.  Y.  291,  77  N.  E.  1063,  up- 
holding Laws  1905,  p.  2059,  c.  729,  relating  to  taxation  of  real 
estate  mortgages. 


5  Pet.  1-114  Notes  on  U.  S.  Eeporta.  124 

Syl.   5    (in,    149).     Seeuritv   against   unwise   legislation. 

Approved  in  Michigan  etc.  E.  E.  Co.  v.  Powers,  201  U.  S.  296, 
50  L.  762,  26  Sup.  Ct.  466,  affirming  Michigan  E.  E.  Tax  Cases,  138 
Fed.  234,  and  upholding  Mich.  Pub.  Acts,  1901,  act  No.  173,  for 
taxation  of  railroad  property  at  average  rate  of  taxation  imposed 
on  other  property;  Eddy  v.  People,  218  111.  616,  75  N.  E.  1072,  under 
Laws  1879,  relating  to  police  pensions,  board  of  trustees  in  passing 
on  application  for  pension  acts  in  quasi-judicial  capacity  and  its 
finding  is  binding;  Pryor  v.  Bryan,  11  Okl.  363,  66  Pac.  350,  up- 
holding act  exempting  from  taxation  property  on  Indian  reservation 
attached  to  county  for  tax  purposes,  except  for  territorial  and  court 
fundsL 


V  PETERS. 


5  Pet.   1-80,  8  L.  25,   CHEEOKEE   NATION  v.   GEOEGIA. 

Syl.  1    (III,   153).     Status  of  Indian  tribe. 

Approved  in  Buster  v.  Wright,  135*  Fed.  950,  68  C.  C.  A.  505, 
upholding  power  of  deportation  from  Creek  nation  of  person  not 
paying  permit  tax;  Labadie  v.  United  States,  6  Okl.  413,  51  Pac. 
670,  act  of  1888,  punishing  person  cutting  standing  timber  on  Indian 
reservation,  applies  to  tribal  Indian  cutting  timber  for  speculative 
purposes. 

Syl.   5    (III,   155).     Indian   occupancy   like   fee   simple. 

Approved  in  Winters  v.  United  States,  143  Fed.  748,  portion  of 
waters  of  Milk  river  having  been  reserved  by  treaty  for  Indians 
cultivating  reservation,  grantees  of  lands  outside  reservation  could  not 
acquire  exclusive  right  to  use  all  waters  of  river  for  irrigation 
under  desert  land  act. 

5  Pet.  99-114,  8  L.  60,  UNION  BANK  OP  GEOEGETOWN  v.  GEAEY. 

Syl.  6  (III,  159).  Eelinquishment  of  right  to  defense  is  considera- 
tion. 

Approved  in  Moore  v.  First  Nat.  Bank  of  Florence,  139  Ala.  609,  36 
So.  781,  forbearance  by  debtor  to  interpose  defense  to  action  by  cred- 
itor is  consideration  for  agreement  by  creditor  to  pay  debtor's  debt 
to  third  person;  Duck  v.  Antle,  5  Okl.  156,  47  Pac.  1057,  answer  in 
suit  on  note  that  it  was  given  as  consideration  for  dismissal  of  con- 
test of  homestead  entry,  which  was  prosecuted  only  to  extort  money, 
states  good  defense. 


125  Notes  on  U.  S.  Reports.  5  Pet.  115-247 

5  Pet.  115-130,  8  L.  66,  UNITED  STATES  v.  LINGEY. 

Syl.  2    (III,   160).     United   States  may   contract. 

Approved  in  Smith  v.  United  States,  5  Ariz.  64,  45  Pac.  344,  where 
bond  of  receiver  of  public  moneys  of  land  district  was  increased  by 
direction  of  President  over  amount  required  by  statute,  it  was  not 
void;  Dudley  v.  Eice,  119  Wis.  100,  95  N.  W,  937,  where  bond  of 
guardian  of  lunatic  was  conditioned  to  pay  over  amount  found  due 
on  settlement,  it  was  enforceable  as  voluntary  bond,  though  court  had 
no   jurisdiction  of  guardianship   proceedings. 

Syl.  4  (III,  161).     Bond  exacted  for  public  officer. 

Approved  in  Commissioners  of  Logan  Co.  v.  Harvey,  6  Okl.  632,  52 
Pac.  403,  holding  void  bond  exacted  of  official  whore  statute  did  not 
require  bond  as  condition  precedent  to  discharge  of  duties. 

Distinguished  in  United  States  Fidelity  etc.  Co.  v.  United  States, 
150  Fed.  553,  554,  bond  required  from  Indian  agent  containing  pro- 
visions not  required  by  law  not  void  when  conditions  not  in  viola- 
tion of  law. 

5  Pet.  151-159,  8  L.  79,  HENDERSON  v.  GRIFFIN. 

Syl.  1  (III,  164).     Following  state  statutory  construction. 

Distinguished  in  Davis  v.  Commonv»'calth  Land  etc.  Co.,  141  Fed. 
716,  where,  pending  suits  to  quiet  title  in  federal  court  which  in- 
volved question  of  boundary,  replevin  to  recover  logs  begun  in  state 
court  and  issues  framed  to  cover  boundaries,  and  owners  not  parties 
thereto,  state  decision  not  binding  on  federal  court. 

5  Pet.  190  223,  8  L.  92,  EX  PARTE  CRANE. 

(Ill,  166.)  Miscellaneous.  Cited  in  Cassett  v.  Mitchell  Coal  & 
Coke  Co.,  150  Fed.  43,  as  to  discretionary  right  to  permit  amendments 
or  grant  new  trials. 

5  Pet.  224-232,  8  L.   105,  YEATON  v.  LYNN. 

(Ill,  168.)  Miscellaneous.  Cited  in  Leahy  v.  Haworth,  141  Fed. 
854,  foreign  executor  may  sue  in  federal  court  to  foreclose  mortgage 
belonging  to  testator's  estate,  and  subsequent  taking  out  of  ancillary 
letters  in  local  jurisdiction  relates  back  to  filing  of  bill. 

5  Pet.  233-247,  8  L.  108,  PATTERSON  v.  WIXN. 

Syl.  1   (III,  169).     "What  constitutes  our  common  law. 

Approved  in  In  re  Burkell,  2  Alaska,  118,  stealing  of  dog  is  larceny; 
Valentine  v.  Roberts,  1  Alaska,  541,  issuance  and  service  of  order  of 
arrest  in  civil  action  on  Sunday  is  void;  Johnson  v.  Union  Pac.  Coal 
Co.,  28  Utah,  58,  76  Pac.  1092,  67  L.  R.  A.  506,  construing  Rev.  St. 
Wyo.  1899,  §  2C95,  adopting  common  law. 


5  Pet.  264-303  Notes  on  TJ.  S.  Eeporta.  126 

5  Pet.  264-283,  8  L.  120,  CATHCAET  v.  KOBINSON. 

Syl.  2  (III,  172).     Specific  performance — Fraud — Unreasonableness. 

Approved  in  Marks  v.  Gates,  2  Alaska,  527,  refusing  to  specifically 
enforce  grubstake  contract  as  vague,  uncertain,  unjust  and  perpetual; 
Schneider  v.  Schneider,  125  Iowa,  16,  98  N.  W,  164,  refusing  specific 
performance  of  contract  to  sell  realty  between  parties  in  fiduciary 
relation  where  contract  obtained  by  fraud. 

Syl.  4  (HI,  172).     Unfairness  giving  right  to  equitable  relief. 
Approved  in  Ferguson  v.  Blackwell,  8  Okl.  498,  58  Pac.  650,  follow- 
ing rule. 

Syl.  6  (III,  173).     Equity — Decree  as  to  legal  matters. 

Approved  in  Marthinson  v.  King,  150  Fed.  54,  denying  specific  per- 
formance of  option  to  purchase  cross-tie  outfit  where  seller  sold  di- 
rect to  buyer's  vendee;  Clinton  v.  Shngart,  126  Iowa,  188,  101  N.  W. 
789,  where,  under  contract  for  conveyance  of  land  in  futuro,  vendor 
was  to  pay  taxes  until  conveyance,  and  he  failed  so  to  do  and  vendee 
tendered  purchase  price  less  taxes  on  day  contract  matured,  vendee 
entitled  to  specific  performance;  Lowry  v.  Mitchell,  14  Okl,  248, 
78  Pac.  381,  defendant  in  forcible  entry  and  detainer  may  plead 
former  judgment  in  suit  to  enjoin  defendant  from  interfering  with 
plaintiff's  possession,  which  allowed  defendant  possession  pending 
further  hearing;  dissenting  opinion  in  Hawley  v.  Griffin,  121  Iowa, 
703,  97  N.  W.  90,  majority  holding  where  heirs  of  deceased  owner 
on  securing  vacation  of  decree  in  suit  to  quiet  title  by  grantees  in  tax 
deed  against  owner,  who  was  insane  and  did  not  appear,  cannot 
defend  suit  by  setting  up  right  of  redemption  conferred  by  Code, 
§§  892,  893. 

Syl.   7    (III,  173).     Construction  of  adopted  statutes. 

Approved  in  Johnson  v.  Union  Pac.  Coal  Co.,  28  Utah,  57,  76  Pac. 
1092,  67  L.  E.  A.  506,  construing  Eev.  St.  Wyo.  1899,  §  2695,  adopting 
common  law. 

5  Pet.  284-291,  8  L.  127,  NEW  JERSEY  v.  NEW  YORK. 

Syl.  2  (III,  175).     Equity — Service  of  subpoena. 

Approved  in  dissenting  opinion  in  Henry  v.  State,  87  Miss.  95,  39 
So.  884,  majority  holding  under  constitution  governor  cannot  sue  in 
name  of  state. 

5  Pet.  292-303,  8  L.  130,  SMITH  v.  UNITED  STATES. 

Syl.  9  (III,  177).     Treasury  transcript  as  evidence. 

Approved  in  United  States  v.  Pierson,  145  Fed.  817,  in  action  on 
bond  of  Indian  agent,  introduction  of  duly  certified  transcript  of 
books  and  proceedings,  of  treasury  department  established  prima  facie 
case  for  government. 


127  Notes  on  U.  S.  Reports.  5  Pet.  319-397 

5  Pet.  319-357,  8  L.  140,  CLARK  v.  COURTNEY. 

Syl.  1   (III,  178).     Proof  of  handwriting  of  dead  witness. 
Approved  in  Keely  v.  Moore,  196  U.  S.  41,  49  L.  379,  25  Sup.  Ct. 
169,  applying  rule  to  proof  of  execution  of  will. 

Syl.  5  (III,  179).     Adverse  possession — Owner's  possession  of    part. 

Approved  in  United  States  Min.  Co.  v.  Lawson,  134  Fed.  772,  67 
C.  C.  A.  587,  bill  to  quiet  title  alleging  possession  and  ownership 
of  mining  claim  in  complainant  is  not  insufficient,  because  it  also 
shows  that  defendant  has  through  underground  workings  wrongfully 
entered  and  removed  ore  beneath  surface  of  claim. 

Syl.  7   (III,  179).     Possession  under  deed — Limits. 
Approved  in  Haggart  v.  Ranney,  73  Ark.  353,  84  S.  W.  706,  following 
rule. 

5  Pet.  358-372,  8  L.  154,  TAYLOE  v.  THOMSON. 

Syl.  8  (III,  182).  Statutes  regulating  judgment  liens — Rules  of 
property. 

Approved  in  dissenting  opinion  in  "Woodruff  v.  Wallace,  3  Okl. 
381,  41  Pac.  366,  majority  holding  district  court  may,  by  injunction, 
give  exclusive   possession   to  successful   contestant  before   land  office. 

5  Pet.  373-389,  8  L.  159,  FARRAR  v.  UNITED  STATES. 

Syl.  1  (III,  182).     Surety  not  liable  beyond  penalty. 

Approved  in  Board  of  Education  v.  National  Surety  Co.,  183  Mo. 
184,  82  S.  W.  75,  in  action  on  bond  to  secure  performance  of  building 
contract,  judgment  for  full  amount  of  bond  with  interest  is  erroneous. 

Distinguished  in  Greer  v.  McNeal,  11  Okl.  541,  69  Pac.  898,  sureties 
on  administrator's  bond  are  liable  for  all  moneys  shown  on  final  set- 
tlement to  have  come  into   his  hands, 

Syl.  4  (III,  183).     Surety — Liability  for  past  misconduct. 

Approved  in  United  States  etc.  Co.  v.  Fultz,  76  Ark.  415,  89  S.  W. 
95,  where,  as  condition  for  doing  business,  insurance  company  must 
give  bond  for  prompt  payment  of  claims,  and  bond  dated  March  1, 
1900,  for  one  year  was  not  approved  until  March  16th,  it  covered  fire 
occurring  March  2,  1900;  Lake  Co.  v.  Neilon,  4  Or.  17,  74  Pac.  213, 
applying  rule  to  sureties  on  tax  collector's  bond. 

5  Pet.  390-397,  8  L.  166,  SHANKLAND  v.  MAYOR  ETC.  OF  WASH- 
INGTON. 

Syl.  4  (III,  186).     Parol  evidence  to  vary  writing. 

Approved  in  Blue  Mt.  Iron  etc.  Co.  v.  Portner,  131  Fed.  60,  65  C. 
C.  A.  295,  where  order  of  court  appointing  receiver  for  corporation 
was  in  writing,  parol  evidence  of  judge  who  made  order  was  inad- 
missible to  show  grounds  thereof;   Gill  v.  General  Electric  Co.,  129 


5  Pet.  398-494  Notes  on  U.  S.  Eeports.  128 

Fed.  351,  G4  C.  C.  A.  99,  where  series  of  writings  intended  to  em- 
body entire  contract  from  wliicli  it  appeared  that  one  of  defendants 
was  joint  contractor,  parol  evidence  inadmissible  to  vary  his  con- 
nection therewith. 

5  Pet.  398-401,  8  L.  168,  HINDS  v.  VATTIER. 
Syl.  2  (III,  186).     Judicial  notice  of  state  laws. 
See  113  Am.  St.  Eep.  873,  note. 

5  Pet.  402-448,  8  L.  170,  BRADSTREET  v.  HUNTINGTON. 
Syl.  1  (III,  187).     Disseisin — Deed  by  one  without  title. 
See  109  Am.  St.  Rep.  612,  note. 

5  Pet.  457-469,  8  L.  190",  HAWKINS  v.  BARNEY. 

Syl.  1   (III,  19.0).     Limitations — Reasonableness  of  time. 

Approved  in  Lamb  v.  Powder  Riv.  etc.  Co.,  132  Fed.  438,  67  L.  R. 
A.  558,  65  C.  C.  A.  570,  Colorado  act  of  1899,  prescribing  limitations 
on  actions  on  foreign  judgments,  is  void  as  applied  to  action  on  foreign 
judgment  based  on  contract  rendered  prior  to  passage  of  action. 

Syl.  6   (III,  192).     Burden  of  proof — Exception  in  deed. 
Approved  in  Davis  v.  Commonwealth  Land  etc.  Co.,  141  Fed.   733, 
applying  rule  in  suit  to  quiet  title. 

5  Pet.  470-478,  8  L.  195,  LEWIS  v.  MARSHALL. 

Syl.  6  (III,  193).     Bible  entries  to  prove  death. 

Approved  in  Collins  v.  German-American  etc.  Assn.,  112  Mo.  App. 
219,  220,  86  S.  W.  894,  admitting  Irish  church  baptismal  record  as 
evidence  of  pedigree  and  of  entries  therein  though  party  making  en- 
tries is  dead;  Murray  v.  Supreme  Hive,  L.  O.  T.  M.,  112  Tenn.  680, 
80  S.  W.  831,  reports  of  boards  of  health  and  census  reports  are  com- 
petent evidence  on  questions  of  age  and  pedigree  on  hearing  of  com- 
plaint for  expulsion  from  benefit  society. 

5  Pet.  485-494,  8  L.  200,    PEYTON  v.  SMITH. 

Syl.  3  (III,  194).     Tenant  cannot  contest  landlord's  possession. 

Approved  in  Stover  v.  Davis,  57  W.  Va.  204,  49  S.  E.  1026,  following 
rule. 

Syl.  6  (in,  195).     Forcible  entry  judgment  for  defendant. 

See  112  Am.  St.  Rep.  40,  note. 

Syl.  7  (III,  195).     Possession  of  tenant  is  landlord's. 

Approved  in  Hagar  v.  Wikoff,  2  Okl.  585,  39  Pac.  282,  one  going 
into  possession  of  town  lot  on  public  land  as  tenant  of  one  who  has 
erected  building  thereon  cannot  assert  claim  adverse  to  landlord  un- 
til vacation  of  premises. 


129  Notes  on  U.  S.  Reports.  5  Pet.  495-717 

5  Pet.  495  504,  8  L.  204,  FOWLES  v.  LAWRSON. 

Syl.  1   (III,  196).     Equity  jurisdiction  over  accounts. 

Approved  in  Hosier  Constr.  Co.  v.  National  Bank  of  Commerce,  35  Ind, 
App.  276,  73  N.  E.  1008,  action  to  recover  for  goods  sold  is 
at  law  and  triable  by  jury,  though  complaint  alleges  defendant  is 
entitled  to  certain  credits,  which  sum  cannot  be  stated  because  un- 
known to  plaintiff,  and  concludes  with  prayer  for  accounting. 

Syl.  2  (III,  197).     Objection  to  jurisdiction  raised  sua  sponte. 

Approved  in  Allen  v.  Myers,  1  Alaska,  117,  after  applicant  for 
patent  has  initiated  proceedings  in  land  office  under  Rev.  St.,  §§  2325, 
232G,  independent  suit  to   quiet  title   is  not  maintainable. 

5  Pet.   518-528,  8  L.  212,  SMITH  v.  UNION  BANK  OF  GEORGE- 
TOWN. 

Syl.  1  (III,  198).     Law  governing  distribution  of  estates. 

Approved  in  Lewis  v.  Rutherford,  71  Ark.  220,  72  S.  W.  374,  where 
on  death  of  nonresident  leaving  property  here,  administrators  ap- 
pointed in  both  states,  probate  court  here  could  not  order  ancillary 
administrator  to  pay  to  primary  administrator  assets  so  that  all 
creditors  would  receive  equal  percentage  of  debts. 

Syl.  2  (III,  198).     Goods  within  state  subject  to  its  laws. 

Approved  in  Manley  v.  Mayer,  68  Kan.  383,  75  Pac.  552,  upholding 
Administrator's  Act,  §  203,  relative  to  enforcing  of  contracts  of  non- 
resident decedents  who  owned  realty  in  Kansas,  by  attachment  in 
suit  against  nonresident  executor;  Cooper  v.  Philadelphia  Worsted 
Co.  (Lees  v.  Harding  etc.  Co.),  68  N.  J.  Eq.  625,  60  Atl.  353,  contract 
with  reference  to  title  to  machinery  situated  in  another  state  made 
there  between  resident  thereof  and  New  Jersey  corporation,  and  is 
to  be  there  performed,  is  governed  by  law  of  that  state. 

5  Pet.  529-579,  8  L.  216,  WINSHIP  v.  BANK  OP  UNITED  STATES. 

Syl.  2  (III,  199).     Partner's  authority  to  "Tjorrow. 

Approved  in  Union  Nat.  Bank  v.  Neill,  149  Fed.  716,  upholding 
liability  of  firm  to  bona  fide  holder  on  accommodation  note  signed 
by  member  in  firm  name. 

5  Pet.  675-717,  8  L.  268,  SHEPPARD  v.  TAYLOR. 

Syl.  1  (III,  209).     Admiralty — Lien  on  proceeds  of  vessel. 

Approved  in  The  Conveyor,  147  Fed.  591,  592,  seamen  having  liens 
for  wages  on  vessel  which  was  sunk  may  enforce  same  against  in- 
surance money  paid  on  account  of  loss,  subject  only  to  claims  for 
salvage,  where  proceeds  of  sale  of  vessel  are  insufficient  to  pay  same; 
Bank  of  British  N.  A.  v.  Freights  etc.  of  Hutton,  137  Fed.  538,  70 
C.  C.  A.  118,  where  bank  had  maritime  lien  on  freights  of  certain 
9 


6  Pet.  8-40  Notes  on  U.  S.  Eeports.  130 

vessels  for  advances,  it  was  entitled  to  enforce  same  in  admiralty  in 
rem,  regardless  of  fact  that  it  also  had  lien  enforceable  in  equity, 

5  Pet.  718-723,  8  L.  285,  POTTER  v.  GAEDNEB. 

(in,  212.)  Miscellaneous.  Cited  in  Johnson  v.  Georgia  Loan  etc. 
Co.,  141  Fed.  597,  bona  fide  purchaser  must  allege  and  prove  want  of 
notice  and  actual  payment  of  purchase  price  independently  of  recitals 
in  deed. 


VI  PETERS. 


6  Pet.  8-19,  8  L.  299,  UNITED  STATES  BANK  v.  BANK  OF  WASH- 
INGTON. 

Syl.    2    (III,    213).     Eestoration   on   reversal    of   judgment. 

Approved  in  The  Eliza  Lines,  132  Fed.  244,  65  C.  C.  A.  538,  one  who 
acted  as  agent  for  party  in  obtaining  erroneous  judgment  directing  sale 
of  cargo,  but  who  was  not  party  to  record  and  had  no  personal  interest 
in  suit,  cannot  be  held  in  damages  as  tort-feasor  on  account  of  sale; 
Chambliss  v.  Hass,  125  Iowa,  491,  101  N.  W.  155,  68  L.  E.  A.  126,  where 
defendant  appealed  and  judgment  affirmed,  and  paid  on  execution,  it 
is  no  ground  for  denial  of  new  trial  for  newly  discovered  evidence. 

Syl.  5   (III,  215).     Eeversal  after  execution. 

Approved  in  Embry  v.  Galbreath,  110  Tenn.  301,  75  S.  W.  1017,  agent 
employed  by  grantor  under  trust  deed  to  collect  rents  is  not  affected 
by  notice  that  purchaser  at  foreclosure  claimed  property  and  would  hold 
agent  for  rents  collected;  North  Chicago  St.  E.  Co.  v.  North  Chicago 
Union  Tr.  Co.,  150  Fed.  628,  arguendo. 

Syl.  6   (III,  216).     Effect  of  reversal  on  rights. 

Approved  in  Harrigan  v.  Gilchrist,  121  Wis.  441,  99  N.  W.  1009, 
applying  rule  where  amount  allowed  receiver  for  attorney's  fee  was  re- 
duced. 

6  Pet.  29-40,  8  L.  308,  UNITED  STATES    v.    BANK    OF    NOETH 
CAEOLINA. 

Syl.  3  (III,  217).     "Due"  means  owing. 

Approved  in  Pope  v.  Matthews,  125  Ga.  347,  54  S.  E.  154,  construing 
act  of  1905,  requiring  all  taxes  due  state  and  county  by  persons  re- 
siding in  or  on  property  in  new  county  to  be  paid  to  collector  of  county 
from  which  territory  taken. 

Syl.  5   (III,  218).     Statutory  construction — Long  acquiescence. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591,  holding 
void  territorial  act  regulating  accounting  of  fees  of  district  court 
clerks. 


131  Notes  on  U.  S.  Reports.  6  Pet.  51-85 

6  Pet.  51-GO,  8  L.  316,  UNITED  STATES  BANK  v.  DUNN. 

Syl.  2   (III,  221).     Parol  to  vary  writing. 

Approved  in  Earle  v,  Enos,  130  Fed.  470,  parol  agreement  hj  bank, 
made  at  time  of  delivery  of  accommodation  note  and  its  discount  by 
bank,  that  it  would  not  look  to  maker  for  payment,  cannot  be  shown  to 
defeat  action  on  note. 

6  Pot.  61-67,  8  L.  320,  MILLER  v.  McTNTYRE.  •  ' 

Syl.  2  (III,  225).  Limitations — Amendment  adding  new  parties. 
Approved  in  United  States  v.  Martinez,  195  U.  S.  473,  49  L.  283,  25 
Sup.  Ct.  80,  petition  in  action  under  Indian  depredation  act  in  which 
wrong  alleged  to  have  been  done  by  particular  tribe  cannot  be  amended 
after  expiration  of  three  year  limitation  prescribed  by  act,  by  stating 
different  tribe  as  wrongdoer. 

6  Pet.  68-85,  8  L.  322,  SMITH  v.  BELL. 

Syl.  1   (III,  227).     Testator's  intention  prevails. 

Approved  in  Anderson  v.  Messinger,  146  Fed.  938,  construing  will 
which  declared  that  if  either  of  testator's  sons  died  without  issue,  sur- 
vivor should  take  his  estate,  and  if  survivor  died  without  lineal  de- 
scendants, then  estate  divided  among  brother  and  sisters  of  testator. 

Syl.  2   (III,  229).     Wills — Construction  of  ambiguous   expressions. 

Approved  in  Burnes  v.  Burnes,  137  Fed.  792,  70  C.  C.  A.  357,  where 
will  devised  property  to  brothers  and  expressed  desire  that  they  should 
adopt  testator's  children  as  his  heirs,  so  that  they  would  share  equally 
with  their  children,  no  trust  in  favor  of  children  created. 

Syl.  4  (III,  230).     Wills— Life  estate. 

Approved  in  Coats  v.  Harris,  9  Idaho,  466,  75  Pae.  245,  will  giving  to 
wife  life  estate  and  son  all  property  after  her  death  empowers  son  to 
convey  to  mother  and  her  heirs  and  assigns,  property  to  become  his  after 
her  death ;  dissenting  opinion  in  Meyer  v.  Weiler,  121  Iowa,  62,  65,  95 
N.  W.  258,  259,  majority  holding  bequest  to  wife  of  all  property  re- 
citing intention  to  make  her  sole  residuary  legatee  and  owner,  but  con- 
ditioned that  part  remaining  on  her  death  should  go  to  their  heirs, 
created  fee  in  wife  and  conditional  limitation  was  void. 

Distinguished  in  Widows'  Home  v.  Lippardt,  70  Ohio  St.  281,  287, 
288,  289,  290,  71  N.  E.  772,  773,  774,  will  giving  wife  all  estate,  and 
providing  that  after  her  death  if  there  is  anything  left  it  shall  be 
distributed  in  certain  way,  gives  widow  power  to  convey  fee. 

Syl.  6   (III,  232).     Wills— Primary  intent  controls. 

Approved  in  Wheeler  v.  Long,  128  Iowa,  646,  105  N.  W.  162,  where 
will  gave  daughter  realty  but  subsequent  paragraphs  provided  that  if 
she  died  before  reaching  maturity  property  to  be  divided  between  others, 
but  if  she  married  before  maturity  she  should  come  into  full  control, 
devise  not  reduced  to  life  estate. 


6  Pet.  95-217  Notes  on  U.  S.  Keports.  132 

6    Pet.    95-101,   8   L.    332,    PEIESOLL   v.   ELLIOTT. 

Syl.  2  (III,  235).     Cancellation  of  deed  void  on  face. 

Distinguished  in  Shewalter  v.  Lexington,  143  Fed.  166,  where  suit  was 
brought  in  federal  court  to  quiet  title  as  against  street  improvement  cer- 
tificates amounting  to  less  than  $2,000,  amount  of  certificates  fixed 
jurisdictional  amount. 

6  PSt.  124-140,  8  L.  342,  SICAED  v.  DAVIS. 

Syl.  1  (III,  237).     Object  of  acknowledgment  of  deeds. 

Approved  in  Whalon  v.  North  Platte  Canal  etc.  Co.,  11  Wyo.  348, 
71  Pac.  1000,  unacknowledged  and  unrecorded  transfers  of  permits  to 
construct  irrigation  ditch  pass  title  as  between  parties. 

Syl,  6  (III,  239).     Limitations — Amendment  adding  new  cause. 

Approved  in  Patillo  v.  Allen  West  Com.  Co.,  131  Fed.  681,  65  C.  C. 
A.  508,  where  complaint  stated  facts  from  which  there  is  presumption 
of  promise  to  pay  balance  of  account  stated,  and  demanded  judgment 
therefor,  amendment  adding  averment  of  promise  to  pay  balance  pre- 
sents no  new  cause  of  action;  Covington  v.  Berry,  76  Ark.  464,  88  S.  W. 
1006,  where  second  action  of  ejectment  instituted  after  nonsuit  in  first 
is  based  on  title  acquired  by  plaintiff  subsequent  to  commencement  of 
first  action,  limitations  do  not  cease  to  run  against  second  action  till 
commencement  thereof. 

C  Pet.  141,  142,  8  L.  348,  UNITED  STATES  v.  PAUL. 

Syl.  1  (III,  239).     Federal  crimes— State  laws. 

Approved  in  Hollister  v.  United  States,  145  Fed.  778,  779,  uphold- 
ing 32  Stat.  793,  adopting  punishment  provided  for  like  offenses  in 
South  Dakota,  for  offenses  on  Indian  reservation. 

6  Pet.  143-150,  8  L.  349,  OLIVEE  v.  ALEXANDEE. 

Syl.  4  (III,  240).     Admiralty  appeal — Joinder  of  joint  libelants. 

Approved  in  The  Joseph  B.  Thomas,  148  Fed.  767,  following  rule; 
Feely  v.  Bryan,  55  W.  Va.  592,  47  S.  E.  310,  where  several  creditors 
with  separate  demands  attack  mortgage  as  preference,  and  decree 
adjudges  property  to  be  for  benefit  of  all  insolvent's  creditors,  sums 
due  complainants  cannot  be  added  to  give  appellate  jurisdiction. 

6  Pet.  172-204,  8  L.  359,  COX  v.  UNITED  STATES. 
Syl.  1  (in,  243).     Appeal  by  principal  and  surety. 
Approved  in  Grunberg  v.  United  States,  145  Fed.  84,  arguendo. 

6  Pet.  216,  217,  8  L.  375,  EX  PAETE  EOBEETS. 
Syl.  1  (III,  247).     Mandamus  to  set  aside  default. 
See  98  Am.  St.  Eep.  901,  note. 


133  Notes  on  U.  S.  Eeports.  6  Pet.  218-347 

6  Pet.  218-249,  9  L.  376,  GRANT  v.  EAYMOND. 

Syl.  3  (III,  247).     Correction  of  defective  patent. 

Approved  in  Thomson-Houston  Electric  Co.  v.  Black  River  Tr.  Co., 
135  Fed.  766,  68  C.  C.  A.  461,  though  changes  in  description  in  speci- 
fication of  reissued  patent  are  not  material,  and  claims  are  identical 
■with  some  of  those  of  original  patent,  such  facts  do  not  impeach  their 
validity. 

Syl.  4  (III,  248).     Construction  of  patent  laws. 

Approved  in  Cortelyou  v.  Chas.  Eneu  Johnson  &  Co.,  138  Fed.  114, 
owner  of  patent  for  rotary  ncostyle,  used  for  stencil  duplication,  may 
sell  machines  under  restriction  that  they  be  used  only  with  paper  and 
ink  made  by  owner;  disscTiting  opinion  in  Continental  Paper  Bag  Co. 
V.  Eastern  Paper  Bag  Co.,  150  Fed.  747,  majority  holding  void  Liddell 
patent  No.  558,969,  for  paper-bag  machine;  Bobbs-Merril  Co.  v. 
Straus,  139  Fed.  169,  arguendo. 

6  Pet.  291-301,  8  L.  402,  GREEN  v.  NEAL. 

Syl.  3  (III,  257).     Following  change  in  state  statutory  construction. 

Approved  in  Yocum  v.  Parker,  134  Fed.  212,  67  C.  C.  A.  227,  apply- 
ing rule  in  construing  devise  of  land. 

6  Pet.  302-316,  8  L.  406,  GREENLEAF  v.  BIRTH. 

Syl.  5  (III,  259).     Ejectment— Burden  of  proof. 

Approved  in  Robinson  v.  Lowe,  56  W.  Va.  312,  49  S.  E.  252,  and 
Altschul  v.  Casey,  45  Or.  190,  76  Pac.  1085,  both  following  rule;  Davis 
V.  Commonwealth  Land  etc.  Co.,  141  Fed.  733,  applying  principle  in 
suit  to  quiet  title. 

6  Pet.  323-327,  7  L.  414,  NEW  JERSEY  v.  NEW  YORK. 

Syl.  1   (III,  261).     Demurrer  is  appearance. 

Approved  in  United  States  v.  Grief  en  (Sayre  etc.  Co.  v.  Grief  en),  72 
N.  J.  L.  3,  60  Atl.  513,  filing  of  demurrer  waives  objection  to  juris- 
diction over  person;  Groel  v.  United  Elec.  Co.,  68  N.  J.  Eq.  250,  59 
Ala.  641,  under  Chancery  Act,  §  3,  plea  by  foreign  corporation  in  suit 
in  which  personal  decree  sought,  reciting  that  defendant  appears  by 
officers  solely  to  object  to  jurisdiction,  is  sufficient. 

6  Pet.  328-347,  8  L.  415,  BOARDMAN  v.  REED. 

Syl.  1  (III,  261).     Hearsay  evidence  to  prove  boundaries. 

Approved  in  Ivey  v.  Cowart,  124  Ga.  162,  110  Am,  St.  Rep.  163,  52 
S.  E.  438,  following  rule. 

Syl.  9  (III,  264).     Repugnant  call  in  patent. 

Approved  in  United  States  v.  Utah  etc.  Stage  Co.,  199  U.  S.  423, 
50  L.  255,  26  Sup.  Ct.  69,  increase  in  service  required  on  mail  route  as 
result    of    establishment    of    new    distributing    station,    amounting    to 


6  Pet.  389-444  Notes  on  U.  S.  Reports.  134 

three  hundred  thousand  miles  of  additional  transfer  service,  cannot 
be  required  by  postmaster  without  extra  compensation;  American 
Bonding  Co.  v.  Pueblo  Inv.  Co.,  150  Fed.  27,  construing  lessee's  agree- 
ment and  bond  to  install  heating  plant  and  to  pay  for  same  to  end  that 
no  lien  should  be  fastened  on  property;  United  States  etc.  Co.  v.  Board 
of  Commrs.,  145  Fed.  148,  construing  fidelity  bond  given  by  cashier  of 
bank  made  depository  of  county  funds ;  Luhrig  Coal  Co.  v.  Jones  etc. 
Co.,  141  Fed.  622,  construing  contract  of  sale  of  coal  for  future  delivery. 

6  Pet.  389-403,  8  L.  437,  WATTS  v.  WADDLE. 

Syl.  6  (III,  271).     Belief  granted  under  general  prayer. 

Approved  in  Ratliff  v.  Sommers,  55  W.  Va.  37,  46  S.  E.  715,  deter- 
mining right  to  amend  bill  to  bring  in  necessary  party  as  shown  by 
evidence. 

Syl.  7  (III,  271).     Compelling  conveyance  of  extraterritorial  lands. 

Approved  in  State  v.  District  Court,  94  Minn.  372,  102  N.  W.  870, 
action  to  cancel  contract  for  sale  of  land  on  ground  of  fraud  and  for 
recovery  of  purchase  price  paid  before  fraud  discovered  is  transitory. 

6  Pet.  404-430,  8  L.  443,  McLANE  v.  UNITED  STATES. 

Syl.  2   (III,  271).     Release  of  forfeiture. 

Approved  in  Marvin  v.  Trout,  199  U.  S.  225,  50  L.  162,  26  Sup.  Ct. 
31,  upholding  Ohio  Rev.  St.,  §  4275,  authorizing  action  to  subject  build- 
ing knowingly  permitted  to  be  used  for  gambling  purposes  to  payment 
of  judgment  obtained  by  informer  for  recovery  of  money  lost  there  at 
play. 

6  Pet.  431-444,  8  L.  452,  CINCINNATI  v.  WHITE. 

Syl.  5   (III,  275).     Dedication — Fee  in  original  owner. 

Approved  in  Nelson  v.  Randolph,  222  111.  538,  78  N.  E.  916,  under 
Rev.  Laws  1833,  p.  599,  §  1,  providing  that  plats  of  towns  be  made  by 
county  surveyor,  plat  not  made  by  surveyor  does  not  affect  dedication 
of  streets;  Anderson  v.  Messinger,  146  Fed.  948,  arguendo. 

Syl.  6  (III,  275).     Owner  cannot  revoke  dedication. 
Approved  in  Wilkins  v.  Chicago  etc.  R.  R.  Co.,  110  Tenn.  450,  75  S. 
W.  1032,  arguendo. 

Syl.  7  (III,  278).     Construction  of  dedications. 

Cited  in  Lomax  v.  Phillips,  113  La.  858,  37  So.  780,  arguendo. 

See  106  Am.  St.  Rep.  239,  note. 

Syl.  10  (III,  282).     Ejectment  by  owner  of  dedicated  land. 

Approved  in  Conradt  v.  Miller,  2  Alaska,  436,  injunction  lies  to  pre- 
vent erection  of  wharves  or  warehouses  by  private  persons  on  public 
highway  or  navigable  streams  in  front  of  plaintiff's  property,  where  hb 
shows  special  injury. 


135  Notes  on  U.  S.  Reports.  6  Pet.  470-621 

Distinguished  in  Bork  v.  United  N.  J.  etc.  Co.,  70  N.  J.  L.  2G9,  103 
Am.  St.  Rep.  808,  57  Atl.  413,  64  L.  R.  A.  836,  owner  of  fee  of  land 
subject  to  easement  of  public  highway  may  maintain  ejectment  against 
intruder  who  appropriates  same  to  purpose  foreign  to  easement. 

6  Pet.  470-497,  4  L.  467,  UNITED  STATES  v.  NOURSE. 

Syl.  5   (III,  286).     Appeal — Dismissal  for  want  of  jurisdiction. 

Approved  in  Miltimore  v.  Hoffman,  12.5  Wis.  562,  104  N.  W.  842, 
where  appeal  from  justice's  court  was  perfected  and  circuit  court  found 
justice  had  no  jurisdiction,  it  was  its  duty  to  dismiss  action, 

6  Pet.  498-514,  8  L.  477,  BARCLAY  v.  HOWELL'S  LESSEE. 

Syl.  1  (III,  286).     Ejectment — Description  of  premises. 

See  101  Am.  St.  Rep.  118,  note, 

Syl.  2  (III,  286),     Map  as  evidence  of  dedication. 

Approved  in  Evans  v.  Blankenship,  4  Ariz.  315,  39  Pac.  813,  deter- 
mining dedication  of  land  as  public  square. 

Syl.   6    (III,   289).     Property   dedicated   to   particular   use — Reverter. 
Approvetl  in  McAlpine  v.  Chicago  etc.  Ry.  Co.,  68  Kan.  214,  75  Pac. 
75,  64  L.  R.  A.  85,  following  rule. 

Syl.  10  (III,  291).     Dedication — Fee  remains  in  land  owner. 
See  101  Am.  St.  Rep.  104,  note, 

6  Pet.  515-597,  8  L.  483,  WORCESTER  v.  GEORGIA, 
Syl.  14  (III,  297).  Construction  of  Indian  treaties. 
Approved  in  Conway  v.  United  States,  149  Fed.  266,  where  Ponca 
squaw  selected  allotment  and  before  approval  thereof  she  married  an- 
other allottee,  and  later  each  made  separate  lieu  applications  and  by  mis- 
take patent  issued  to  husband  as  head  of  family,  she  was  entitled  to  half 
of  land ;  Winters  v.  United  States,  143  Fed.  746,  under  Indian  treaty  of 
18S8,  Indians  residing  on  reservation  were  entitled  to  portion  of  waters 
of  Milk  river  for  irrigation  of  reservation  lands;  In  re  Heff,  197  U. 
S.  499.  49  L.  853,  25  Sup.  Ct.  506,  arguendo. 

Distinguished  in  Delaware  Indians  v.  Cherokee  Nation,  193  U.  S.  140, 
48  L.  653,  24  Sup.  Ct.  342,  parol  evidence  of  understanding  of  parties 
is  inadmissible  to  contradict  terms  of  agreement  of  1867  between  Dela- 
ware and  Cherokee  nations. 

(Ill,  292.)  Miscellaneous.  Cited  in  Blevins  v.  Morledge,  5  Okl. 
145,  47  Pac.  1069,  words  giving  joint  authority  to  three  or  more  public 
officers  give  authority  to  majority  of  them. 

6  Pet.  598-621,  8  L,  514,  CRANE  v.  MORRIS. 

Syl.  1   (III,  298).     Nonsuit  against  plaintiff's  consent. 

Approved  in  Parks  v.  Southern  Ey.  Co.,  143  Fed.  278.  on  making  mo- 
tion by  defendant  for  direction  of  verdict  it  is  discretionary  with  court 


6  Pet.  622-665  Notes  on  U.  S.  Reports.  136 

to  grant  motion  and  to  refuse  plaintiff  nonsuit;  Huntt  v.  McXamee,  141 
Fed.  294,  after  plaintiff  submits  evidence  and  motion  for  direction  of 
verdict  by  defendant  has  been  submitted  and  sustained,  it  is  dis- 
cretionary to  allow  nonsuit. 

Syl.  7  (III,  300).     Prima  facie  evidence  not  disregarded. 

Approved  in  State  v.  Martin,  47  Or.  290,  83  Pac.  852,  witness  in 
homicide  case  cannot  be  impeached  by  production  of  his  testimony  at 
inquest  where  stenographer  could  not  say  notes  contained  all  of  witness' 
testimony. 

6  Pet.  622-633,  8  L.  523,  KELLY  v.  JACKSON. 

Syl.  3  (III,  301).     Prima  facie  evidence  defined. 

Approved  in  State  v.  Dodds,  54  W.  Va.  300,  46  S.  E.  232,  following 
rule;  Tift  v.  Southern  Ry.  Co.,  138  Fed.  759,  act  to  regulate  commerce 
creates  presumption  in  favor  of  commissioner's  report;  Gilpin  v.  Mis- 
souri etc.  Ey.  Co.,  197  Mo.  325,  94  S.  W.  871,  holding  prima  facie  case 
not  made  out  in  action  for  killing  of  mare  under  statute  making  rail- 
road liable  where  stock  killed  after  going  on  track  at  place  where  no 
cattle-guards  existed. 

6  Pet.  648-660,  BOYLE  v.  ZACHRIE. 

Syl.  1  (III,  306).     No  error  from  refusal  to  quash  execution. 

Approved  in  King  v.  Davis,  137  Fed.  233,  where  ejectment  was  brought 
by  third  person  against  tenant,  and  landlord  had  no  knowledge  of  ac- 
tion in  time  to  have  himself  made  party,  he  may  have  default  judgment 
against  tenant  opened,  and  be  allowed  to  defend. 

Syl.  3   (III,  307).     Federal  equity  practice  not  governed  by  states. 
Approved  in  Brown  v.  Lanyon,  148  Fed.  842,  action  at  law  not  main- 
tainable for  recovery  of  profits  from  infringement  of  patent. 

Syl.  5  (III,  308).     Federal  execution— Effect  of  state  law. 

Approved  in  King  v.  Davis,  137  Fed.  241,  Va.  Code,  1887,  §  3566,  re- 
quiring  filing  of  lis  pendens  in  office  of  clerk  of  court  in  county  where 
land  lies  does  not  apply  to  federal  courts. 

Syl.  6  (III,  309).     Stay  of  execution — Supersedeas  prior  to  levy. 

Approved  in  Thalheim  v.  Camp  Phosphate  Co.,  48  Fla.  195,  37  So. 
525,  Rev.  St.  1892,  §  1272,  does  not  have  effect  of  restoring  property 
levied  on  to  defendant  in  execution. 

6  Pet.  661-665,  8  L.  537,  EX  PARTE  DAVENPORT. 

Syl.  1   (III,  309).     Mandamus  to  allow  double  plea. 
See  98  Am.  St.  Rep.  903,  note. 

6  Pet.  666-679,  8  L.  538,  LINDSEY  v.  MILLER. 
Syl.  1    (III,  310).     No  limitations  against  state. 
See  101  Am.  St.  Rep.  151,  165,  182,  note. 


137  Notes  on  U.  S.  Reports.  6  Pet.  666-760 

6  Pet.  691-760,  8  L.  547,  UNITED  STATES  v.  ARREDONDO. 
Syl.  1  (III,  312).     Jurisdiction  defined. 

Approved  in  Franklin  Union  v.  People,  220  111.  366,  110  Am.  St.  Rep. 
248,  77  N.  E.  180,  fact  of  defect  of  parties  does  not  deprive  court  of 
jurisdiction  over  suit  for  injunction;  O'Brien  v.  People,  210  111.  3G3,  lOS 
Am.  St.  Rep.  219,  75  N.  E.  112,  where  in  suit  to  obtain  injunction  against 
strikers,  defendants  were  served  with  process;  but  failed  to  file  an- 
swers or  demurrers,  court  acquired  jurisdiction  irrespective  of  defects 
in  bill. 

Syl.  4  (III,  316).     Effect  of  government's  consent  to  suit. 

Affirmed  in  Walker  v.  United  States,  139  Fed.  412,  where  marshal  has 
in  good  faith  rendered  accounts  against  government,  covering  services  of 
deputies,  which  have  been  allowed  and  paid,  government  cannot  recover 
such  sums  after  lapse  of  years. 

Syl.  9   (III,  318).     Actual  fraud  not  presumed. 

Approved  in  Kessler  v.  Ensley,  141  Fed.  137,  applying  rule  to  pur- 
chase of  proj^erty  of  corporation  by  director. 

Syl.  13  (III,  319).     Acts  of  ofliccrs  not  presumed  usurped. 

-  Approved  in  McGuire  v.  Blount,  199  U.  S.  146,  50  L.  129,  26  Sup. 
Ct.  1,  documents  which  show  probate  of  will  in  proceedings  had  during 
Spanish  control  of  Florida,  and  judicial  sale  of  testator's  lands,  and 
bear  evidence  of  age  and  authenticity,  and  come  from  custody  of  United 
States  surveyor  general,  are  admissible  as  ancient  documents. 

Syl.  16  (III,  321).     Conclusiveness  of  finding  of  public  officers. 

Approved  in  Eddy  v.  People,  218  HI.  616,  75  N.  E.  1072,  under  laws 
1877,  board  of  trustees  in  passing  upon  application  for  pension  acts  in 
quasi  judicial  capacity,  and  its  finding  is  conclusive. 

Syl.  17  (III,  323).     Judicial  questions — Acts  of  public  officers. 

Approved  in  Ward  v.  Board  of  Regents,  138  Fed.  378,  where  board  of 
regents  of  college  were  authorized  by  statute  to  remove  professors  when- 
ever best  interests  of  college  should  require,  ground  on  which  professor 
was  removed  prior  to  expiration  of  contract  is  not  subject  for  judicial 
investigation;  Threadgill  v.  Colcord,  16  Okl.  469,  85  Pac.  710,  purchaser 
at  master's  sale  who  is  himself  party  cannot  collaterally  attack  decree 
for  irregularity. 

Syl.  22  (III,  325).     Nothing  implied  in  public  grant. 

Approved  in  Knoxville  Water  Co.  v.  Knox\-ille,  200  U.  S.  35.  50  L. 
359,  26  Sup.  Ct.  224,  municipal  grant  of  waterworks  franchise  does  not 
impliedly  devest  municipality  of  power  to  construct  its  own  waterworks. 


7  Pet.  1-50  Notes  on  U.  S.  Eeports.  138 

Syl.  26  (III,  328).     Seisin  presumed  from  title. 

Approved  in  Tyee  Consol.  Min.  Co.  v.  Langstcdt,  136  Fed.  128,  69 
C.  C.  A.  548,  no  disseisin  sufficient  to  start  statute  of  limitations  as 
against  locator  of  mining  claim  can  exist  prior  to  issuance  of  patent. 

Syl.  29  (III,  329).     Ratification  of  treaty  relates  to  date. 
Approved  in  In  re  Minook,  2  Alaska,  208,  construing  Eussian  treaty 
with  reference  to  citizenship  of  half-breeds. 


VII  PETERS. 


7  Pet.  1-17,  8  L.  587,  UNITED  STATES  v.  McDANIEL. 

Syl.  3  (III,  334).     Authority  of  departmental  heads  presumed. 

Approved  in  Benson  v.  Henkel,  198  U.  S.  12,  49  L.  923,  25  Sup.  Ct. 
569,  objections  to  indictment  charging  violation  of  Eev.  St.,  §  5451,  in 
bribing  federal  officer  to  reveal  contents  of  reports  of  pending  land 
department  investigation,  are  not  available  in  proceedings  before  com- 
missioner for  removal  of  accused  to  another  federal  district. 

Syl.  4  (III,  334).     Usage  as  evidence  of  construction  of  law. 

Approved  in  Walker  v.  United  States,  139  Fed.  416,  applying  rule  in 
estopping  government  from  claiming  setoff  in  suit  by  marshal,  where 
items  of  setoff  allowed  and  audited  and  paid  to  deputies  for  services. 

Syl.  5   (III,  335).     Setoff  by  departmental  clerk. 

Approved  in  United  States  v.  Warren,  12  Okl.  365,  71  Pac.  690,  in 
action  by  United  States  defendant  may  plead  setoff  to  extent  of  demand 
made,  but  no  judgment  for  balance  in  his  favor  can  be  rendered. 

(Ill,  334.)  Miscellaneous.  Cited  in  McDaid  v.  Territory  1  Okl. 
112,  30  Pac.  444,  as  to  right  to  appeal  to  courts  from  decision  of  local 
land  office. 

7  Pet.  28-50,  8  L.  596,  UNITED  STATES  v.  FILLEBEOWN. 

Syl.  1  (III,  338).     Parol  proof  of  proceedings  of  boards. 

Approved  in  City  of  Denver  v.  Spencer,  34  Colo.  274,  2  L.  E.  A.  (N. 
S.)  47,  82  Pac.  591,  where  city  charter  did  not  specify  how  park  board 
should  act  or  that  record  of  its  acts  should  be  exclusive  evidence  thereof, 
parol  evidence  admissible  to  show  board  had  ordered  erection  of  stand. 

Syl.  2  (III,  339).     Services  according  to  departmental  usage. 
Approved  in  United  States  v.  Schlierholz,  133  Fed.  335,  special  agent 
of  general  land  office  is  not  officer  of  United  States  within  extortion  act. 


139  Notes  on  U.  S.  Reports.  7  Pet.  51-149 

7  Pet.  51-98,  8  L.  604,  UNITED  STATES  v.  PERCHEMAN. 

Syl.  2  (III,  341),     Cession  of  territory  preserves  property  rights. 

Approved  in  In  re  Chavez,  149  Fed.  75,  on  bankruptcy  of  husband 
having  only  community  estate,  claims  of  antenuptial  creditor  postponed 
till  satisfaction  of  community  creditors;  Catron  v.  Laughlin,  11  N.  M. 
630,  72  Pac.  31,  where  New  Mexico  surveyor  general  declared  Mexican 
land  grant  valid  and  recommended  its  confirmation  without  limitation 
as  to  quantity,  and  Congress  confirmed  grant  as  recommended  confir- 
mation is  declaration  that  title  to  all  land  claimed  is  valid. 

7  Pet.  99-102,  8  L.  621,  MINOR  v.  TILLOTSON. 

Syl.  1  (III,  347).     Secondary  evidence — Diligence  to  obtain  original. 

Distinguished  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  So^, 
refusing  evidence  of  contents  of  plaintiff's  record-book  in  action 
by  distiller  to  recover  revenue  taxes  illegally  collected,  where  col- 
lector took  books. 

7  Pet.  113-129,  8  L.  626,  DOUGLASS  ▼.  REYNOLDS. 

Syl.  4  (III,  350).     Construction  of  guaranties. 

Approved  in  First  Nat.  Bank  v.  Waddell,  74  Ark.  248,  85  S.  W. 
419,  where  mortgage  issued  by  father  to  bank  to  cover  advances 
to  son  to  certain  sum,  payments  made  by  son  within  amount  did  not 
discharge    mortgage. 

Syl.  5  (III,  351).     Letter  of  credit  as  continuing  guaranty. 
Approved  in  Rouss  v.  King,  69  S.  C.  174,  48  S.  E.  222,  surety  not 
released  by  extension  of  credit  beyond  amount  stipulated  in  contract. 

7  Pet.  138-143,  8  L.  636,  UNITED  STATES  v.  MILLS. 

Syl.  2  (III,  356).     Indictment  in  language  of  statute. 

Approved  in  United  States  v.  Allen,  150  Fed.  154,  holding  indict- 
ment under  Rev.  St.,  §  4046,  for  embezzlement  of  money  order  funds, 
insuiTicient  where  it  does  not  allege  funds  came  into  defendant  5p 
possession  by  virtue  of  employment;  United  States  v.  Green,  136  Fed. 
641,  643,  holding  insufficient  indictment  under  Rev.  St.,  §  5431,  for 
bribing  officer  with  check. 

7  Pet.  144-149,  8  L.  638,  PICKETT'S  HEIRS  v.  LEGERWOOD. 

Syl.  1   (III,  359).     Failure  to  file  return  of  error  during  term. 

Approved  in  Equitable  etc.  Soc.  v.  Tolbert,  145  Fed.  339,  where, 
owing  to  delay  in  payment  of  docket  fee,  record,  though  lodged 
with  clerk  in  time,  was  not  filed  until  five  days  after  return  day, 
motion  to  dismiss  writ  of  error  four  months  afterward  denied. 

Syl.  2    (III,  359).     Error  prior  to  judgment  corrected  on  motion. 
Approved  in  Billups  v.  Freeman,  5  Ariz.  272,  52  Pac.  368,  arguendo. 
See   97  Am.  St.  Rep.  372,  note. 


7  Pet.  150-242  Notes  on  U.  S.  Keports.  140 

Syl.  4  (III,  360).     "When  coram  nobis  lies. 

Approved  in  King  v.  Davis,  137  Fed.  227,  233,  vacating  judgment 
in  ejectment  suit  brought  against  tenant  where  landlord  not  made 
party  to  suit;  Fugate  v.  State,  85  Miss.  94,  107  Am.  St.  Eep.  272, 
37  So.  556,  writ  of  error  coram  nobis  cannot  be  invoked  in  criminal 
proceeding  to  revoke  judgment  by  showing  jurors  had  formed  opinion 
unfavorable  to  accused;  Hadley  v.  Bernero,  103  Mo.  App.  562,  78 
S.  W.  68,  where,  on  appeal  from  justice  judgment,  question  of  jur- 
isdiction for  failure  to  appeal  in  time  is  not  raised,  motion  in  nature 
of  writ  of  error  coram  nobis  will  not  lie. 

7  Pet.  150-163,  UNITED  STATES  v.  WILSON. 
Syl.  2  (III,  361).     Pardon  defined. 

Approved  in  Territory  v.  Eichardson,  9  Okl.  584,  60  Pac.  245,  49 
L.  E.  A.  440,  reaffirming  rule;  Fite  v.  State,  114  Tenn.  656,  88  S.  W. 
943,  holding  void  statutory  provision  authorizing  deduction  of  time 
for  good  conduct. 

Syl.  7  (in,  363).     Pardon,  how  brought  before  court. 

Approved  in  Territory  v.  Eichardson,  9  Okl.  583,  60  Pac.  247,  49 
L.  E.  A.  440,  pardon  may  be  available  at  any  time  before  execution 
of  sentence. 

Syl.  8   (III,  363).     Pardon  annuls  offense. 

Approved  in  In  re  Briggs,  135  N.  C.  123,  47  S.  E.  405,  upholding 
Code,  §  1215,  providing  no  witness  can  refuse  to  testify  on  prosecu- 
tion relative  to  gambling,  but  providing  that  disclosures  made  by 
him  cannot  be  used  against  him. 

7  Pet.  171-219,  8  L.  647,  HOLMES  v.  TEOUT. 

Syl.  3   (III,  365),     Cancellation  of  deed — Grantor's  title   not   rein- 
stated. 
# Approved  in  Clark  v.  Harper,  215  111.  39,  74  N.  E.  67,  applying  rule 
where  deed  made  in  violation  of  injunction  was  destroyed  before  rec- 
ord. 

7  Pet.  222-242,  8  L.  665,  SAMPEYEEAC  v.  UNITED  STATES. 
Syl.  1   (III,  366).     Eetrospeetive  statutes  valid. 

Approved  in  Wallace  v.  Adams,  143  Fed.  726,  power  conferred  on 
Dawes  Commission  and  federal  courts  in  Indian  Territory  by  act  of 
1896,  and  on  supreme  court  by  act  of  1898,  to  determine  who  were 
citizens  of  Choctaw  nation,  was  legislative,  and  judgments  thereunder 
were  subject  to  subsequent  legislation  respecting  citizenship;  Boggs 
V.  Ganeard,  148  Cal.  721,  84  Pac.  199,  upholding  amendment  of  1903, 


141  Notes  on  U.  S.  Reports.  7  Pet.  243-275 

to  Pol.  Code,  §  3443,  relating  to  contests  by  previous  settlers  as  against 
purchasers  who  made  application  for  purchase  prior  to  ite  passage. 

Syl.  3  (III,  367).     Grantee  conveys  only  his  title. 

Approved  in  Lindblom  v.  Rocks,  146  Fed.  663,  where  defendant's 
grantor  had  no  title  nor  right  of  possession  to  land  in  controversy 
at  time  he  attempted  to  sell  such  right  of  possession  to  defendant, 
defendant  acquired  no  title  to  subject  matter  of  purchase  and  could 
not  avail  himself  of  defense  of  bona  fide  purchaser;  Slaughter  v. 
Mallet  Land  etc.  Co.,  141  Fed.  293,  Texas  county  commissioner's  courts 
may  lease  school  lands  and  give  preferential  right  of  purchase  to 
lessee. 

7  Pet.  243-251,  8  L.  672,  BARRON  v.  MAYOR  AND  CITY  COUNCIL 
OF  BALTIMORE. 

Syl.   1    (III,  3G7).     Fifth   amendment   not  applicable  to   states. 

Approved  in  Ex  parte  Munn,  140  Fed.  783,  federal  court  has  no 
power  on  habeas  corpus  to  discharge  prisoner  for  contempt  of  state 
court  in  refusing  to  answer  questions  as  witness  on  ground  that  an- 
swers might  incriminate  him;  Town  of  Nahant  v.  United  States,  136 
Fed.  281,  69  L.  R.  A.  723,  70  C.  C.  A.  641,  determining  right  of 
municipality  to  compensation  for  structures  and  improvements  on 
lands  and  streets  taken  by  government  by  eminent  domain;  St.  Louis 
etc.  Ry.  Co.  v.  Davis,  132  Fed.  632,  federal  court  is  not  given  juris- 
diction of  suit  to  enjoin  officers  of  state  from  contemplated  act  by 
allegation  that  act  will  be  in  violation  of  fifth  amendment;  State  v. 
Rudolph,  187  Mo.  82,  85  S.  W.  587,  upholding  state  prosecution  for 
felony  by  information;  State  v.  Miller,  71  N.  J.  L.  532,  60  Atl.  203, 
admitting  evidence  of  jail  physician  that  he  compelled  defendant  to 
strip  and  found  wounds  on  back  of  his  hands;  State  v.  MacQueen,  69 
N.  J.  L.  527,  55  Atl.  1008,  admitting  newspaper  articles  found  on 
defendant  when  arrested;  In  re  Briggs,  135  N.  C.  120,  47  S.  E.  404, 
upholding  Code,  §  1215,  denying  right  to  refuse  to  testify  touching 
gambling  transactions,  and  providing  discovery  made  b}'  witness 
cannot  be  used  against  him;  Territory  v.  Stroud,  6  Okl.  Ill,  50  Pac. 
267,  upholding  prosecution  of  misdemeanors  by  information  without 
preliminary  examination;  Riley  v.  Charleston  Union  Station  Co.,  71  S.  C. 
483,  110  Am.  St.  Rep.  581,  51  S.  E.  495,  upholding  act  of  1902,  grant- 
ing corporation  right  to  condemn  land  for  union  depot;  King  v.  Hat- 
field, 130  Fed.  578,  arguendo. 

7  Pet.  252-275,  8  L.  675,  VATTIER  v.  HINDE. 

Syl.  4  (III,  374).     Rights  of  bona  fide  purchaser. 

Approved  in  Lindblom  v.  Rocks,  146  Fed.  663,  where  defendant's 
grantor  had  no  title  nor  right  of  possession  to  land  in  controversy  at 
time  he  attempted  to  sell  right  of  possession  to  defendant,  defendant 
acquired  no  title  and  could  not  set  up  liona  fide  purchase ;  .lohnson 
V.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  598,  bona  fide  purchaser  must 


7  Pet.  292-463  Notes  on  U.  S.  Reports.  142 

allege  want  of  actual  notice  and  actual  payment  of  purchase  price 
independently  of  recitals  in  deed;  Shook  v.  Southern  B.  &  L.  Assn., 
140  Ala.  579,  37  So.  410,  beneficiary  in  void  trust  deed  executed  by 
husband  and  wife  conveying  realty  belonging  in  equity  to  wife,  hus- 
band having  legal  title,  to  secure  husband's  debt,  is  not  bona  fide 
purchaser  without  notice  of  wife's  equity;  Slaughter  v.  Coke  Co., 
34  Tex.  Civ.  602,  79  S.  W.  865,  under  conveyance  reciting  grantor 
sold  all  right,  title  and  interest  in  certain  lands  transferred  to  grantor 
by  order  of  commissioner's  court  and  contract  for  deed,  grantee  took 
only  grantor's  title. 

7  Pet.  292-323,  8  L.  689,  SHAW  v.  COOPER. 

Syl.  6   (III,  380).     Patents — Acquiescence  in  public  use. 

Approved  in  Victor  Talking  Mach.  Co.  v.  American  Graphaphone 
Co.,  140  Fed.  864,  mere  exhibition  of  an  experimentally  constructed 
machine  by  inventor  to  audience,  accompanied  by  explanation  of 
invention,  no  charge  being  made,  is  not  public  use  so  as  to  defeat 
right  to  patent  applied  for  two  years  afterward. 

Distinguished  in  Eastman  v.  Mayor  etc.  of  N.  Y.,  134  Fed.  853,  69 
C.  C.  A.  628,  where  inventor  of  improved  fire-engine  pump  placed 
device  on  engine  of  which  he  was  engineer,  where  it  was  publicly 
tested  and  used  for  years,  and  shown  to  manufacturers  of  engine, 
there  is  no  piracy  in  manufacturer  placing  device  on  another  en- 
gine which  they  sold  to  another  city. 

7  Pet.  324-347,  8  L.  700,  PEYROUX  v.  HOWARD  (THE  PLANTER). 

Syl.   3   (III,  382).     Admiralty — Enforcement   of  local  law  lien. 

Approved  in  Fredericks  v.  Jas.  Rees  &  Sons  Co.,  135  Fed.  731,  68  C. 
C.  A.  368,  Pa.  Act  1858,  giving  lien  for  repairs  on  vessels  navi- 
gating certain  rivers  in  state,  does  not  apply  to  dredger-boat  used  only 
for  supporting  and  moving  dredging  apparatus;  Commonwealth  v. 
Aver  etc.  Co.,  117  Ky.  169,  77  S.  W.  688,  home  port  of  vessel  en- 
gaged in  interstate  commerce  is  its  tax  situs  though  owner  resides  in 
different  state;   The  Sue,  137  Fed.   135,  arguendo. 

7  Pet.  348-398,  8  L.  709,  MAGNIAC  v.  THOMPSON. 

Syl.  2   (III,  387).     Charge   on  matters  of  fact   not  reviewable. 

Approved  in  Pittsburgh  Ry.  Co.  v.  Bloomer,  146  Fed.  721,  applying 
rule  in  action  for  personal  injuries  against  street  railway. 

7  Pet.  453-463,  8  L.  745,  IN  RE  UNITED  STATES  v.  EIGHTY-FOUR 
BOXES  OF  SUGAR. 

Syl.  2   (III,  394).     Revenue  penal  laws  strictly  construed. 

Approved  in  United  States  v.  Ninety-nine  Diamonds,  139  Fed.  967, 
968,  2  L.  R.  A.  (N.  S.)  185,  where  one  who  had  right  of  possession 
of   and   lien   on    imports,    together    with   option    to    purchase,   declared 


143  Notes  oa  U.  S.  Reports.  7  Pet.  4G9-650 

in  good  faith    in  making  entry  tbat  he  was  owner,  he  was  not  guilty 
of  offense  under  26  Stat.  135. 

7  Pet.  469-553,  8  L.  751,  LESSEE  OF  LIVINGSTON  v.  MOORE. 
Syl.  4   (III,  397).     Ninth  amendment  not  limitation  on  states. 

Approved  in  Territory  v.  Stroud,  6  Old.  Ill,  50  Pac.  267,  uphold- 
ing prosecution  of  misdemeanor  by  information  without  preliminary 
examination. 

Distinguished  in  Bradford  v.  Territory,  1  Okl.  371,  34  Pac.  67,  hold- 
ing void  Okl.  St.,  c.  70,  art.  18,  §  22,  providing  that  nine  jurors  may 
return  verdict. 

7  Pet.  568-585,  8  L.  780,  EX  PARTE  WATKINS. 

Syl.  3   (III,  401).     Commitment  till  fine  paid. 

Approved  in  State  ex  rel.  Caillouet  v.  Mannought,  111  La.  236,  35 
So.  533,  commitment  for  vagrancy  fixing  period  of  detention  for 
certain  designated  period  not  void,  though  contrary  to  ordinance. 

7  Pet.  608-624,  8  L.  801,  BRASHEAR  v.  WEST. 

Syl.  9  (III,  407).     Counterclaims  acquired  after  assignment. 

Distinguished  in  Williams  v.  Neely,  134  Fed.  5,  69  L.  R.  A.  232, 
67  C.  C.  A.  171,  a  sound  reason,  inhering  in  same  transaction  from 
which  note  springs,  why  holder  ought  not  recover  face  value,  is  good 
equitable  defense,  though  it  constitute  no  offset  against  holder  of 
note. 

Syl.    11    (III,   408).     Service   of   garnishment. 

Approved  in  Barton  v.  Spencer,  3  Okl.  274,  278,  41  Pac.  606,  608, 
where  service  of  process  in  garnishment  is  had,  subsequent  attach- 
ing creditors  obtain  no  rights  as  against  creditor  obtaining  garnish- 
ment. 

7  Pet.  634-650,  8  L.  810,  EX  PARTE  BRADSTREET. 

Syl.  3   (III,  410).     Mandamus  to  reinstate  cause  and  enter  decree. 

Approved  in  Barber  Asphalt  Pav.  Co.  v.  Morris,  132  Fed.  934,  956, 
67  L.  R.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to  compel  cir- 
cuit judge  to  vacate  order  staying  proceedings  pending  determina- 
tion of  appeals  in  state  court;  In  re  Dowd,  133  Fed.  751,  arguendo. 
See  98  Am.  St.  Rep,  893,  note. 


VIII  PETERS. 


8   Pet.    1-3,    8    L.    845,    DUNN    v,    CLARKE. 

Syl.  .3   (III,  414).     Citizenship — Injunction  to  stay  execvition. 

Approved  in  O'Connor  v.  O'Connor,  146  Fed.  997,  federal  equity 
suit  to  set  aside  dismissal  entered  by  same  court  in  action  at  law  is 
ancillary  to  such  action  and  within,  jurisdiction  of  federal  court,  ir- 
respective of  citizenship;  Campbell  v.  Golden  Cycle  Min.  Co.,  141 
Fed.  613,.  616,  dependent  suit  cannot  be  sustained  to  adjudicate  claims 
of  those  not  parties  to  or  in  privity  with  original  suit,  except  in 
case   of  those  who  claim  interest  in  property  in  custody  of  court. 

8  Pet.  4-11,  8  L.  846,  STRATTON  v.  JARVIS. 

Syl.  6  (III,  417).     Admiralty — Amount  in  dispute — Joint  claimants. 

Approved  in  The  Joseph  B.  Thomas,  148  Fed.  767,  where  number 
of  libelants  j(nn  in  suit  for  wages,  claims  cannot  be  added  together 
to  give  appellate  jurisdiction. 

8  Pet.  18-29,  8  L.  852,  ERWIN  v.  BLAKE. 

Syl.  4   (III,  420).     Equitable  relief  on  equitable  terms. 

Approved  iu  dissenting  opinion  in  Haydon  v.  St.  Louis  etc.  R.  R. 
Co.,  117  Mo.  App.  108,  93  S.  W.  843,  majority  holding  restoration  of 
consideration  received  is  not  prerequisite  to  cancellation  of  agree- 
ment and  damages,  if  petition  ask  that  all  sums  paid  out  by  de- 
fendant under  contract  be  credited  on  judgment. 

8  Pet.  44-51,  1   L.  861,  LEE  v.   LEE. 

Syl.  5   (111,  422).     Acts  in  fraud  of  law  violate  it. 

Approved  in  Curley  v.  United  States,  130  Fed.  11,  64  C.  C.  A. 
369,  one  who,  by  agreement  with  another  who  desires  appointment 
as  letter  carrier,  falsely  impersonates  other  at  civil  service  ex- 
amination, is  guilty  of  conspiracy    to  defraud  within  Rev.  St.,  §  5440. 

8  Pet.  52-74,  8  L.  863,  ARMSTRONG  v.  LEAR. 
Syl.  3    (III,  422).     Foreign  laws  must  be   pleaded. 
See  113  Am.  St.  Rep.  871,  note. 

8  Pet.  88-111,  8  L.  876,  WATSON  v.  MERGER. 

Syl.  4   (III,  427).     Validating  acts  do  not  impair  contracts. 

Approved  in  Whitlock  v.  Hawkins,  105  Va.  251,  53  S.  E.  404, 
upholding  act  of  1906,  amending  Code,  c.  23,  relating  to  assessments 
and  validating  assessments. 

[144] 


145  Notes  on  U.  S.  Reports,  8  Pet.  112-28T 

8  Pet.  112-117,  8  L.  885,  BEOWN  v.  KEENE. 

Syl.  2   (III,  430).     Federal  jurisdiction  must  affirmatively  appear. 

Approved  in  Thomas  v.  Board  of  Trustees,  195  U.  S.  210,  218,  49  L. 
164,  167,  25  Sup.  Ct.  24,  allegation  that  defendant,  board  of  trustee3 
of  Ohio  University,  is  citizen  of  that  state,  is  insufficient  averment 
that  it  is  Ohio  corporation,  within  federal  jurisdictional  rule,  where 
statute  creating  board  has  been  held  not  to  confer  corporate  powers; 
Irving  V.  Smith,  132  Fed.  207,  allegation  in  removal  petition  tliat 
defendant  is  citizen  of  another  state  is  not  equivalent  to  allegation 
of  nonresidence;  Myers  v.  Berry,  3  Okl.  618,  41  Pac.  582,  denying 
equity  jurisdiction  of  suit  to  annul  action  of  townsite  trustees  in 
disposing  of  lot  where  petition  insufficient. 

8  Pet.  128-147,  8  L.  890,  BANK  OF  UNITED  STATES  v.  RITCHIE. 

Syl.  5  (III,  434).     No  decree  pro  confesso  against  infant. 

Approved  in  Rankin  v.  Schofield,  71  Ark.  173,  100  Am.  St.  Rop. 
59,  66  S.  W.  198,  compromise  judgment  affecting  interests  of  ward 
in  estate,  to  which  guardian  assents,  does  not  preclude  appeal  by 
ward  after  majority. 

8  Pet.  148,  149,  8  L.  898,  JACKSON  v.  ASHTON. 

Syl.  4   (III,  437).     Want  of  jurisdiction  cannot  be  waived. 

Approved  in  International  etc.  R.  Co.  v.  Hoyle,  149  Fed.  182, 
want  of  jurisdiction  of  suit  removed  by  one  of  two  joint  defendants 
raisable  at  any  time  by  any  party  or  by  court  sua  sponte. 

8  Pet.  150-164,  8  L.  899,  UNITED  STATES  v.  RINGGOLD. 

Syl.   S   (III,   438).     Setoff  against  United  States. 

Approved  in  United  States  v.  Warren,  12  Okl.  365,  71  Pac.  690, 
allowing  setoff  in  suit  by  United   States  to  extent  of  demand  made. 

8  Pet.   262-270,  8  L.  938,  BANK  OF  UNITED  STATES   v.  WHITE. 

Syl.  1   (in,  445).     Necessary  parties  to  bill  of  review. 

Approved  in  State  Fair  Assn.  v.  Terry,  74  Ark.  157.  85  S.  W.  89, 
where,  pending  appeal  in  suit  to  redeem  from  foreclosure,  one  de- 
fendant represented  by  guardian  died,  and  appeal  dismissed  for 
failure  to  revive,  notice  of  bill  of  review  served  on  guardian  and 
not  on  heirs  is  insufficient. 

8  Pet.  2S1-287,  8  L.  945,  MUMMA  v.  POTOMAC  COMPANY. 

Syl.  2  (III,  448).     Scire  facias — Dissolution  of  corporation. 

Distinguished  in  Hudson  v.  Limestone  Natural  Gas  Co.,  132  Fed. 
411,  in  absence  of  statutory  authority  therefor,  stockholders  of  dis- 
solved corporation  cannot  be  held  imlividually  liable  for  damages 
caused  by  negligence  of  corporation  committed  in  conduct  of  its 
business  before  dissolution. 

10 


8  Pet.  291-374  Notes  on  U.  S.  Eeports.  146 

Syl.  3  (III,  449).     Corporate  contracts — Cancellation  of  charter. 

Approved  in  Griffith  v,  Blackwater  B.  &  L.  Co.,  55  W.  Va.  609, 
48  S.  E.  443,  69  L.  E.  A.  124,  where  executory  contract  with  cor- 
poration is  terminated  by  dissolution  of  corporation,  contractor  is 
entitled  to  compensation  for  services  till  termination  of  contract 
and  for  reimbursement  of  necessary  outlay.  See  103  Am.  St.  Eep. 
570,  note. 

8  Pet.  291-305,  8  L.  949,  LIFE  AND  FIEE  INS.  CO.  OF  NEW  YOEK 
V.  WILSON'S  HEIES. 

Syl.  1   (III,  453).     No  mandamus  in  doubtful  cases. 

Approved  in  State  v.  United  States  Express  Co.,  95  Minn.  445, 
104  N.  W.  557,  denying  mandamus  to  compel  carrier  to  accept  pack- 
ages from  one  engaged  in  lottery  business. 

Syl.   3    (III,  454).     Mandamus   to   inferior   tribunal. 
Cited  in  In  re  Dowd,  133  Fed.  751,  arguendo. 
Syl.  4  (III,  454).     New  trial  by  successor  of  trial  judge. 
Approved  in  United  States  v.  Meldrum,  146  Fed.  392,  applying  rule 
in  criminal  case. 

Syl.  6   (III,  455).     Mandamus  to  compel  signing  of  judgment. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  954,  956, 
67  L.  E.  A.  761,  66  C.  C.  A.  55,  mandamus  lies  to  compel  circuit 
judge  to  vacate  order  staying  proceedings  pending  determination 
of  appeals   in   state   court.     See  98   Am.   St.   Eep.   894,   note. 

8   Pet.   361-374,   8   L.    974,   BANK    OF   UNITED    STATES   v.    DON- 
NALLY. 

Syl.  7   (III,  460).     Law  governing  remedy  on  contracts. 

Approved  in  Anglo-American  etc.  Co.  v.  Wood,  143  Fed.  684, 
under  Pennsylvania  law  permitting  joinder  of  causes  of  action,  judg- 
ment creditor  of  Kansas  corporation  suing  stockholder  in  Pennsyl- 
vania federal  court  may  join  in  the  statement  of  claim  counts  based 
on  Kansas  statute  giving  him  right  of  action  because  of  insolvency 
of  corporation  and  giving  him  right  of  action  because  of  its  dis- 
solution; Murray  v.  Farrell,  2  Alaska,  363,  applying  rule  in  action 
on  note  made  in  Montana  where  defendant  moved  to  Alaska  before 
Montana  limitations  ran;  Brand  v.  Brand,  116  Ky.  797,  798,  76  S.  W. 
872,  63  L.  E.  A.  206,  where  plaintiff  holding  note  against  defend- 
ant assigned  it  to  A.  for  collection,  and  New  York  court  decided 
for  defendant  on  ground  of  limitations,  such  judgment  not  bar  to 
action  in  Kentucky  where  different  limitation  existed;  Clark  v. 
Eltinge,  38  Wash.  383,  107  Am.  St.  Eep.  858,  80  Pac.  559,  exemp- 
tions of  married  woman  as  debtor  are  governed  by  law  of  place 
of  suit;  Supreme  Lodge,  Knights  of  Pythias  v.  Meyer,  198  U.  S. 
517,  49  L.   1149,  25  Sup.  Ct.  754,  arguendo. 


147  Notes  on  U.  S.  Reports.  8  Pet.  375-699 

8  Pet.  375-386,  8  L.  979,  UNITED  STATES  v.  JONES. 

Syl.  3  (III,  462).     Admissibility  of  item  in  treasury  transcript. 

Approved  in  United  States  v.  Pierson,  145  Fed.  819,  in  action  on 
bond  of  Indian  agent,  transcript  of  books  and  proceedings  of  treasury 
department  is  not  evidence  of  receipt  by  such  agent  of  moneys  that 
did  not  come  to  his  hands  through  ordinary  channels  of  depart- 
ment. 

Syl.   4    (III,    463).     Treasury   transcript    as   evidence. 

Approved  in  United  States  v.  Pierson,  145  Fed.  817,  in  absence 
of  countervailing  evidence  in  action  on  Indian  agent's  bond,  duly 
certified  transcript  of  books  and  proceedings  of  treasury  depart- 
ment entitle  government  to  judgment. 

8   Pet.    399-419,    8   L.   988,   UNITED   STATES    v.   JONES. 
Syl.  5   (III,  4G4).     Burden  to  disprove  receipts. 

Approved  in  Devencenzi  v.  Cassinelli,  28  Nev.  232,  81  Pac.  42, 
applying  rule  in  action  for  balance  due  on  account  stated. 

8  Pet.  420-434,  8  L.  995,  HOLT  v.  EODGERS. 

Syl.  2   (III,  464).     Laches  defeats  specific  performance. 

Approved  in  Marks  v.  Gates,  2  Alaska,  526,  refusing  specific  per- 
formance  of   grubstake   contract. 

8  Pet.  538-556,  8  L.  1036,  THE  VIRGIN  v.  VYFHIUS. 

Syl.  6   (III,  477).     Libel  on  bottomry  bond — Burden  of  proof. 
Approved  in   The  Wyandotte,  145  Fed.  326,  following  rule. 

8  Pet.   588-590,   8  L.   1054,  BRADSTREET   v.   HUNTINGTON. 
Syl.  1   (III,  481).     Mandamus  does  not  control  discretion. 

Distinguished  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed. 
956,  67  L.  R.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to  compel 
circuit  Judge  to  vacate  order  staying  proceedings  pending  deter- 
mination of   appeals  in  state   court. 

8     Pet.     591-699,    8     L.     1055,     WHEATON     AND     DONALDSON   v. 
PETERS  AND  GRIGGS. 

Syl.  3   (III,  482).     Literary  proprietorship  in  manuscript  protected. 

Approved  in  Walker  v.  Globe  Newspaper  Co.,  140  Fed.  306,  307, 
upholding  right  to  sue  at  law  for  damages  for  infringement  of 
copyrighted  map;  Werckmeister  v.  American  Lith.  Co.,  134  Fed.  325, 
68  L.  R.  A.  591,  exhibition  of  original  copyrighted*  painting  at 
academy,  at  which  no  person  was  entitled  to  copy  same,  and  others 
than  members  only  admitted  on  payment  of  fee,  without  notice  of 
copyright  thereon,  is  not  publication  avoiding  copyright. 


9  Pet.  8-106  Notes  on  U,  S.  Eeports.  148 

Syl.  4  (m,  483).  Common  law  of  United  States, 
Approved  in  Walker  v.  Globe  Newspaper  Co.,  130  Fed.  596  (re- 
versed 140  Fed.  305),  owner  of  copyrighted  map  cannot  recover 
damages  at  law  for  infringement  thereof;  Valentine  v.  Koberts, 
1  Alaska,  544,  issuance  and  service  of  order  of  arrest  in  civil  pro- 
ceeding on  Sunday  is  void;  In  re  Burkell,  2  Alaska,  117,  stealing  of 
dog  is  larceny, 

Syl.  7  (III,  484).     Copyright  is  purely  statutory. 

Approved  in  Bobbs-Mcrrill  Co.  v,  Straus,  147  Fed.  19,  21,  23, 
where  complainant  sold  copies  of  copyrighted  book  in  which  was 
published  notice  that  retail  price  was  $1,  and  that  sales  at  less 
price  would  be  treated  as  copyright,  he  was  not  entitled  to  injunc- 
tion restraining  sale  at  less  than  $1;  Hartman  v.  Park  &  Sons  Co., 
145  Fed.  360,  upholding'  contracts  between  maker  of  proprietary 
medicine  between  himself  and  wholesalers,  to  whom  alone  he  sold 
medicine  by  which  they  sold  only  at  certain  price  and  to  certain 
retailers,  and  between  him  and  retailers  whereby  they'  agreed  to 
sell   only   at   certain   price. 

Syl.  9  (III,  485).     Copyright  vests  on  recordation. 

Approved  in  G.  &  C.  Merriam  Co.  v.  United  Diet.  Co.,  140  Fed. 
769,  where  plates  for  copyrighted  books  are,  after  publication  here, 
taken  to  England  and  edition  printed  there  without  notice  of  Ameri- 
can copyright,  reproduction  here  from  copy  of  English  edition  is  not 
infringement. 


IX  PETSES; 


9  Pet.  8-32,  9  L.  31,  UNITED  STATES  v.  NOUESE, 

Syl.  2   (III,  489).     Execution  is  end  of  law. 

Approved  in  Ingraham  v.  National  Salt  Co.,  139  Fed.  690,  where, 
pending  federal  suit  by  attachment,  state  insolvency  proceedings  against 
defendant  instituted  under  which  receiver  took  possession  of  attached 
property  and  sold  same,  and  subsequently  plaintiff  secured  judgment  in 
federal  court  and  got  execution,  and  state  court  enjoined  federal  sale, 
federal  court  refused  to  enjoin  receiver;  McKinster  v,  Sager,  163  Ind. 
686,  106  Am.  St.  Kep.  268,  72  N.  E.  860,  68  L.  E.  A.  273,  holding  void 
Acts  1903,  p.  276,  c.  153,  making  sales  by  merchant,  save  in  usual 
course  of  trade,  void  as  to  creditors,  excepting  under  certain  conditions. 

9  Pet.  86-106,-9  L.  660,  CALDWELL  v.  CAEEINGTON. 

Syl.  3   (III,  493).     Jurisdiction  necessary  to  lis  pendens. 

Approved  in  Hunter  v.  Coe,  12  N.  D.  512,  97  N.  W.  871,  one  pur- 
chasing realty  with  notice  of  outstanding  option  compelled  to  convey 


149  Notes  on  U.  S.  Eeports.  9  Pet.  117-266 

on  purchaser  paying  him  from  unpaid  purchase  price  amount  paid  to 
vendor. 

9  Pet.  117-136,  9  L.  71,  DELASSUS  v.  UNITED  STATES. 

Syl.  2   (III,  494).     Inchoate  title  to  land  is  property. 

Approved  in  Crochet  v.  McCamant,  116  La.  12,  40  So.  477,  homostcad 
entry  becomes  community  property  though  certificate  and  patent  issued 
after  death  of  wife. 

Syl.  3  (III,  494).     Cession  treaty  protects  private  property  rights. 

Approved  in  Corkran  Oil  etc.  Co.  v.  Arnaudet,  111  La.  577,  35  So. 
753,  reaffirming  rule. 

9  Pet.  174-181,  9  L.  91,  TARVER  v.  TARVER. 

Syl.  4   (III,  498).     Federal  courts — Correction  of  erroneous  probate. 

Approved  in  Medill  v.  Snyder,  71  Kan.  598,  81  Pac.  219,  time  limited 
by  statute  of  wills  for  bringing  action  in  district  court  to  contest  will 
is  not  extended  by  Code  Civ.  Proc,  §  23,  relating  to  revival  of  actions  by 
representatives.     See  106  Am.  St.  Rep.  643,  note. 

9  Pet.  182-203,  9  L.  94,  FIELD  v.  UNITED  STATES. 

Syl.  1  (III,  499).     Priority  of  United  States— Local  law. 

See  101  Am.  St.  Rep.  165,  note. 

Syl,  4  (in,  499).     Exceptions  to  evidence — Trial  to  court. 

Approved  in  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  131,  66 
C.  C.  A.  190,  applying  rule  in  action  to  recover  amount  due  on  con- 
tract for  excavation  of  canal. 

9  Pet.  238-260,  9  L.  113,  UNITED  STATES  v.  BAILEY. 

Syl.  2  (III,  503).     Perjury  before  state  official. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  387,  up- 
holding 30  Stat.  1153,  requiring  alteration  of  bridges  over  navigable 
waters  on  determination  by  Secretary  of  War  that  they  obstruct  navi- 
gation; United  States  v.  Hardison,  135  Fed.  422,  where  defendant 
swore  falsely  as  to  qualifications  as  surety  on  distiller's  bond,  before 
deputy  internal  revenue  collector,  he  was  guilty  of  perjury  under 
Rev.  St.,  §  5392,  though  under  state  law  he  was  guilty  of  false  swear- 
ing; Finch  V.  United  States,  1  Okl.  401,  403,  33  Pac.  640,  641,  giving 
false  testimony  by  juror  on  voir  dire  before  United  States  district 
court  is  perjury. 

Distinguished  in  United  States  v.  Sandefuhr,  115  Fed.  51,  Rev.  St., 
§  3449,  does  not  apply  to  shipment,  concealing  name  or  brands  required 
by  regulations  of  internal  department  to  be  put  on  all  vessels  contain- 
ing liquors. 


9  Pet.  275-404  Notes  on  U.  S.  Eeports.  150 

9  Pet.  275-291,  9  L.  127,  BOYCE'S  EXECUTOES  v.  GRUNDY. 
Syl.  2  (III,  505).     Decreeing  sale  of  land  in  another  state. 
Approved  in  Jones  v.  Byrne,  149  Fed.  470,  following  rule. 

9  Pet.  319-328,  9  L.  142,  UNITED  STATES  v.  EOBESON. 

Syl.  1  (in,  507).     Setoff  against  United  States. 

Approved  in  United  States  v.  Warren,  12  Okl.  365,  71  Pae.  690,  al- 
lowing setoff  in  action  by  United  States  to  extent  of  demand  made. 

Syl.  5  (III,  508).     Contract  fixing  mode  of  compensation. 

Approved  in  Continental  Ins.  Co.  v.  Vallandingham,  116  Ky.  300, 
105  Am.  St.  Eep.  218,  76  S.  W.  24,  failure  of  insured  to  submit  ad- 
justment of  loss  to  appraisers  as  provided  in  policy  is  good  defense  to 
suit  thereon;  Hebert  v.  Dewey,  191  Mass.  410,  413,  77  N.  E.  825,  where 
under  building  contract  providing  for  final  payment  only  ou  certifi- 
cate of  architect,  recovery  may  be  had  without  certificate  where  ar- 
chitect without  excuse  refuses  to  act;  McNichols  v.  Prudential  Ins. 
Co.,  191  Mass.  308,  77  N.  E.  757,  where  life  policy  provided  that 
premiums  to  be  recognized  must  be  entered  on  premium  receipt-book, 
it  is  error  to  admit  evidence  of  payment  not  entered  on  book;  E.  E. 
Souther  Iron  Co.  v.  Laclede  Power  Co.,  109  Mo.  App.  364,  84  S.  W. 
453,  where  meter  designated  in  contract  for  measuring  electric  power 
furnished  under  contract  is  inadaquate  for  that  purpose,  evidence  is 
admissible  as  to  operation  of  another  meter  and  of  results  obtained; 
Grady  v.  Home  etc.  Ins.  Co.,  27  E.  I.  441,  63  Atl.  175,  where  policy 
provided  for  arbitration  of  loss  as  condition  precedent  to  right  of 
uction,  where  arbitration  fails  without  fault  of  either  party,  insured 
must  demand  new  arbitration  before  suing;  Plumbing  Co.  v.  Carr,  54 
W.  Va.  278,  282,  46  S.  E.  461,  463,  where  plumbing  and  heating  con- 
tract provided  work  to  be  done  to  satisfaction  of  owner,  reasons  for 
rejection  cannot  be  ignored  where  not  fraudulent. 

Syl.  8  (III,  513).     Adopting  state  practice. 

improved  in  Jones  v.  Eogers,  85  Miss.  830,  38  So.  745,  execution 
sale  by  marshal  on  federal  judgment,  outside  of  county  in  which 
land  situated,  is  void,  unless  return  shows  it  was  held  at  place  of 
holding  federal  court  at  written  request  of  defendant. 

9    Pet.    378-404,  9    L.   163,   BANK   OF  UNITED  STATES   v.   WAG- 
GENEE. 

Syl.  1  (III,  515).     Usury — Necessity  for  intent. 

Approved  in  Gunby  v.  Armstrong,  133  Fed.  432,  66  C.  C.  A.  627, 
applying  rule  to  note  given  by  borrowing  stockholder  of  loan  associa- 
tion where  borrower  subscribed  for  stock;  Anderson  v.  Creamery  etc. 
Mfg.  Co.,  8  Idaho,  208,  101  Am.  St.  Eep.  188,  67  Pac.  495,  56  L.  E. 
A.  554,  where  note  provides  for  interest  at  ten  cent  per  annum  both 
before  and  after  judgment,  and  no  corrupt  intent  on  part  of  lender 
to  receive  unlawful  rate  of  interest  appears,  it  is  not  usurious. 


151  -        Notes  on  U.  S.  Keports.  9  Pet.  405-091 

9  Tot.  405-417,  9  L.  173,  PJATT  v.  VATTIER. 

Syl.  1   (III,  517),     Pleading  exception  in  limitation  statute. 

Approved  in  Pierce  v.  Perry,  189  Mass.  335,  109  Am.  St.  Eep.  637, 
75  N.  E.  736,  where  bill  alleged  that  defendant  acted  as  financial 
agent  and  trusted  adviser  of  plaintiff's  intestate,  and  as  such  did 
various  acts  described  in  bill,  allegations  were  sufficient  to  show  limi- 
tations pleaded  in  bar  inapplicable,  without  special  replication. 

9  Pet.  483-540,  9  L.  201,  HARRISON  v.  NIXON. 

Syl.  4  (III,  524).     Law  governing  construction  of  wills. 

Approved  in  In  re  Estate  of  Riescnberg',  116  Mo.  App.  314,  90  S.  W. 
1172,  where  testator  domiciled  in  Missouri  makes  bequest  to  sister 
resident  in  Germany,  or  in  case  of  her  death  before  him  to  her  heirs, 
question  of  who  are  her  heirs  is  governed  by  laws  of  Missouri. 

9  Pet.  607-G31,  9  L.  246,  OWINGS  v.  HULL. 

Syl.  3  (III,  529).     Judicial  notice  of  state  laws. 
See  113  Am.  St.  Eep.  873,  note. 

Syl.  6   (III,  530).     Ratification  of  agent's  acts — Knowledge. 

Approved  in  McGlassen  v.  Tyrrell,  5  Ariz.  54,  44  Pac.  lOSS,  payee 
of  note  does  not,  by  accepting  interest  paid  in  advance  to  agent, 
without  knowledge  that  it  was  advance  interest,  ratify  act  of  such 
agent,  so  as  to  discharge  surety  on  note;  Fosha  v.  O'Donnell,  120 
Wis.  336,  97  N.  W.  927,  applying  principle  to  ratification  of  stipu- 
lations  of  attorney. 

9  Pet.  632-662,  9  L.  255,  LIVINGSTON  v.  STORY. 

Syl.  2  (III,  532).     Equitable  remedies  in  federal  courts. 

Approved  in  Bowdish  v.  Metzger,  71  Kan.  754,  81  Pac.  484,  where 
petition  in  suit  to  quiet  title  is  sufficient  except  that  it  does  not 
plead  title  under  which  defendants  claim,  but  states  that  its  nature 
and  extent  is  unknown,  and  prays  its  disclosure,  it  states  good  cause 
of  action  for  discovery  and  relief. 

Syl.  5  (III,  532).     Demurrer  to  bill  good  in  part. 

Approved  in  Maeder  v.  Buffalo  Bill's  W.  W.  Co.,  132  Fed.  282, 
applying  rule  where  necessary  party  not  made  defendant  in  suit  to 
set  aside  conveyance. 

9  Pet.  682-691,  9  L.  273,  UNITED  STATES  v.  BRIG  BURDETT. 

Syl.  3  (III,  535).     Reasonable  doubt  bars  forfeiture. 

Approved  in  dissenting  opinion  in  Paine  v.  Foster,  9  Okl.  283,  60 
Pac.  31,  majority  determining  rights  arising  over  contest  between 
homesteader  and  townsite  settler. 


10  Pet.  1-24  Notes  on  U.  S.  Eeports.       -  152 

9  Pet.  704-710,  9  L.  280.     EX  PARTE  MILBURN. 

S7I.  3  (III,  537).    Arrest  not  barred  by  forfeiture  of  bail. 

Approved  in  State  v.  Schenck,  138  N.  C.  564,  49  S.  E.  918,  holding 
bail  bond  liable  for  fine  where  accused  did  not  pay  it. 

9  Pet.  711-763,  9  L.  283,  MITCHELL  v.  UNITED  STATES. 

Syl.  5  (m,  537).     Property  rights  in  ceded  territory. 

Approved  in  In  re  Chavez,  149  Fed.  75,  on  bankruptcy  of  husband 
having  only  community  estate,  claims  of  antenuptial  creditor  post- 
poned to  those  of  community  creditors. 

Syl.  8  (III,  538).     King  sues  as  subject. 

Approved  in  Mountain  Copper  Co.  v.  United  States,  142  Fed.  629, 
government  suing  as  land  owner  to  enjoin  lawful  business  as  nuisance 
has  only  rights  of  individual  suitor. 

Syl.  9  (III,  538).     Fee  in  crown  subject  to  Indian's  possession. 

Distinguished  in  Labadie  v.  United  States,  6  Okl.  416,  51  Pac.  671, 
Indian  sustaining  tribal  relations  is  subject  to  penalty  under  Act 
Cong.  .June  4,  1888,  for  cutting  timber  on  reservation  for  speculative 
purposes. 


X  PETERS. 


10  Pet.  1-23,  9  L.  325,  DUBOIS  v.  HEPBURN. 

Syl.  1  (III,  541).     Construction  of  tax  redemption  acts. 

Approved  in  Hillis  v.  O'Keefe,  189  Mass.  140,  75  N.  E.  148,  where 
complainant  claimed  land  under  deed  from  one  of  heirs  of  R.,  and 
testified  he  had  been  on  land  and  paid  taxes  assessed  in  name  of  heirs 
of  R.,  evidence  is  prima  facie  to  show  ownership  under  statute  au- 
thorizing owner  to  redeem  from  tax  sale;  Rogers  v.  Nichols,  186  Mass. 
443,  71  N.  E.  951,  upholding  statute  of  1902  providing  for  redemption 
from  tax  sale  by  tender  to  collector  instead  of  purchaser  at  sale,  as 
against  purchaser  after  passage  of  act  for  taxes  assessed  prior  to  its 
passage.  , 

Syl.  2   (III,  542).     Suit  to  redeem  from  tax  sale — Tender. 

Approved  in  Hillis  v.  O'Keefe,  189  Mass.  141,  75  N.  E.  149,  where, 
in  suit  to  redeem  from  tax  sale,  court  found  that  plaintiff's  agent 
offered  to  pay  defendant  what  was  due  him  on  last  day  allowed  for 
redemption  and  that  defendant  refused,   tender  waived. 

10  Pet.  24,  9  L.  333,  OWINGS  v.  TIERMAN. 

Syl.  1  (III,  542).     Contemporaneous  motions  to  docket  and  dismiss. 

Approved  in  Equitable  Life  Assur.  Soe.  v.  Tolbert,  145  Fed.  339, 
where,  owing  to   delay    in  payment    of    docket    fee,    writ    of    error, 


153  Notes  on  U.  S.  Keports.  10  Pet.  25-256 

though  lodged  with  clerk  in  due  time,  was  not  filed  until  five  days 
after  return  day,  motion  to  dismiss  made  four  months  after  record 
filed  denied. 

10  Pot.  25-57,  9  L.  333,  HAEKIS  v.  ELLIOTT. 

Syl.  2  (III,  543).     Land  not  appurtenant  to  land. 

Approved  in  Moss  v.  Chappell,  126  Ga.  202,  54  S.  E.  971,  construing 
deed  to  railroad  for  railroad  purposes. 

Syl.  3   (III,  543).     Highways — Fee  remains  in  land  owner. 
See  101  Am.  St.  Rep.  117,  note. 

10  Pet.  58-79,  9  L.  345,  TUCKER  v.  MORELAND. 

Syl.  4  (III,  545).     How  infant  avoids  acts. 

Approved  in  Seed  v.  Jennings,  47  Or.  407,  83  Pac.  873,  where  father 
conveyed  property  to  minor  son  and  son  reconvcycd  same  during 
minority  but  promptly  disaffirmed  reconveyance  on  majority,  title 
after  disaffirmance  was  in  son. 

10  Pet.  107,  9  L.  363,  HOOK  v.  LINTON. 

(Ill,  550.)     Dismissal  where  appellant  dies. 

Approved  in  Brown  v.  Fletcher,  140  Fed.  645,  where  after  death  of 
complainant  in  federal  equity  court  representatives  do  not,  within 
reasonable  time,  revive  suit,  defendant  may  move  to  dismiss. 

10  Pet.  137-159,  9  L.  373,  ELLIOTT  v.  SWARTWOUT. 

Syl.  3  (III,  553).     Recovery  of  payments — Mistake  of  law. 

Approved  in  Scott  v.  Ford,  45  Or.  544,  78  Pac.  746,  68  L.  R.  A.  469, 
where  testator  left  property  to  daughter's  five  children  and  executor 
paid  sixth  to  child  of  deceased  child,  he  cannot  recover  sum  so  paid. 

10  Pet.  161-176,  9  L.  382,  VENTRESS  v.  SMITH. 

Syl.  7   (III,  558).     Administrator's  authority  to  sell. 

Approved  in  dissenting  opinion  in  Thomas  v.  Provident  Life  etc. 
Co.,  138  Fed.  369,  majority  holding  where  executor  applied  proceeds 
of  loan  raised  by  mortgage  of  testator's  realty  to  pay  debts  of  estate', 
estate  bound  to  repay,  though  under  will  executor  not  authorized  to 
execute  mortgage. 

10  Pet.  177-256,  9  L.  388,  BOONE  v.  CHILES. 

Syl.  1   (III,  559).     Equity— Presence  of  necessary  parties. 

Approved  in  Lynch  v.  United  States,  13  Okl.  156,  73  Pac.  1100, 
applying  rule  in  suit  to  annul  townsite  patent  where  lots  sold  to 
numerous  purchasers. 

Syl.  4   (III,  560).     Bona  fide   purchaser — Grantor's  notice. 
Approved  in  United  States  v.   Clark,  138  Fed.   299,  after  entry  is 
confirmed    and    patent    issued,    government    cannot    recover    land    for 


10  Pet.  257-268  Notes  on  U.  S.  Reports.  154 

fraudulent  entry,  as  against  bona  fide  purchaser;  United  States  v. 
Detroit  etc.  Co.,  131  Fed.  678,  purchasers  in  good  faith,  without 
notice,  for  value,  of  title  evidenced  by  receiver's  final  receipts  upon 
which  patents  subsequently  issue,  may  defend  as  bona  fide  purchasers 
against  suit  by  government  to  avoid  patents  for  fraud  in  procurement 
of  patent. 

Syl.  6  (III,  561).     Title  of  bona  fide  purchaser. 

Approved  in  Lynch  v.  United  States,  13  Okl.  145,  73  Pac.  1096, 
applying  rule  in  suit  to  annul  townsite  patent  where  lots  sold  to 
innocent  purchasers. 

Syl.  7  (III,  561).    Pleading  defense  of  bona  fide  purchaser. 

Approved  in  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  598, 
one  claiming  as  bona  fide  puchaser  must  allege  and  prove  want  of 
notice  and  actual  payment  of  purchaser  of  money  independently  of  re- 
citals in  deed;  Bell  v.  Pleasant,  145  Cal.  414,  104  Am.  St.  Eep.  61, 
78  Pac.  958,  in  action  to  cancel  deeds,  where  plaintiff  claims  under 
prior  unrecorded  deed  and  defendant  claims  under  recorded  deed  rest- 
ing upon  subsequent  recorded  deed  from  plaintiff's  granter,  under 
which  grantee  took  no  title  as  such,  defendant  has  burden  of  proving 
he  is  bona  fide  purchaser;  Slaughter  v.  Coke  Co.,  34  Tex.  Civ.  602,  79  S. 
W.  865,  conveyance  reciting  that  grantor  sold  all  right,  title  and  in- 
terest in  lands  transferred  to  grantor  by  order  of  court  and  contract 
for  deed  shows  grantee  took  only  title  grantor  had. 

Syl.  8  (III,  564).     Champerty  does  not  bar  action. 

Approved  in  Elser  v.  Village  of  Gross  Point,  223  111.  240,  79  N.  E. 
30,  fact  that  litigation  grows  out  of  champertous  contract  is  no  de- 
fense in  collateral  proceeding;  Robertson  v.  Cayard,  111  Tenu.  366, 
77  S.  W.  1059,  repeal  of  champerty  act  of  1821,  by  act  of  1899,  did 
not  bar  suit  relating  to  champertous  agreement. 

Syl.  10  (III,  565).     Limitations  against  express  trust. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  42,  66  Pac.  565,  55 
L.  R.  A.  C58,  applying  rule  in  enforcement  of  oral  trust  relating  to 
mining  locations. 

Syl.  14  (III,  567).     Equity — Relief  under  general  prayer. 

Approved  in  Lockhart  v.  Leeds,  195  U.  S.  437,  49  L.  269,  25  Sup. 
Ct.  76,  in  suit  to  declare  mining  location  by  defendant  void,  and  that 
plaintiff  have  possession,  defendant  may  be  treated  as  trustee  ex  male- 
ficio  under  prayer  for  general  relief. 

10  Pet.  257-268,  9  L.  416,  SPRIGG  v.  BANK  OF  MOUNT  PLEASANT. 

Syl.  3   (III,  568).     Estoppel  of  principal  to  show  he  is  surety. 

Approved  in  Merchants'  Nat.  Bank  v.  Murphy,  125  Iowa,  609,  101 
N.  W.  442,  applying  rule  where  surety  agreed  that  whatever  his  re- 
lation was  in  fact,  he  should,  as  between  himself  and  the  creditor, 
be  regarded  as  principal. 


155  Notes  on  U.  S.  Reports.  10  Pet.  298-365 

10  Pet.  298-302,  9  L.  432,  GILMAN  v.  RIVES. 

Syl.  2  (III,  572).     Judgment  on  demurrer  as  res  adjudicata. 

Approved  in  Board  of  County  Commrs.  v.  Cross,  12  N.  M.  77,  73 
Pac.  G16,  judgment  of  dismissal  on  sustaining  demurrer  passing  on 
material  issues  involved  is  bar  to  second  suit;  Frye  v.  Miley,  54  W. 
Va.  333,  46  S.  E.  139,  decree  dismissing  bill  on  demurrer  must  show 
it  is  not  on  merits  or  that  it  is  without  prejudice;  State  v.  McEl- 
downey,  54  W.  Va.  701,  47  S.  E.  652,  applying  rule  in  suit  attacking 
tax  sale. 

10  Pet.  303-305,  9  L.  434,  UNITED  STATES  v.  FERNANDEZ. 

Syl.  1  (III,  573).     Grant  of  lands  in  possession  of  Indians — Cession. 

Distinguished  in  Labadie  v.  United  States,  6  Okl.  416,  51  Pac.  671, 
Indian  sustaining  tribal  relations  who  cuts  timber  on  reservation  for 
speculative  purpo.ses  is  liable  imder  Act  Cong.  June  4,  1888. 

10  Pet.  308,  9  L.  435,  UNITED  STATES  v.  CHAIRES. 

Syl.  1   (III,  574).     Confirmation  of  Spanish  governor's  grant. 
Cited  in  Wilson  v.  Knight,  48  Fla.  200,  37  So.  187,  arguendo. 

10  Pet.  326-337,  9  L.  442,  SMITH  v.  UNITED  STATES. 

Syl.  2   (III,  575).     French  treaty  protected  inchoate  titles. 

Approved  in  Corkran  Oil  etc.  Co.  v.  Arnaudet,  111  La.  577,  35  So. 
753,   following  rule. 

Syl.  5  (III,  576).     Private  surveys  not  binding. 

Approved  in  United  States  v.  Montana  Lumber  etc.  Co.,  196  U.  S. 
578,  49  L.  605,  25  Sup.  Ct.  367,  until  identification  by  government 
survey  of  odd-numbered  sections  of  railroad  grant.  United  States  may 
recover  value  of  timber  cut  and  removed  by  railroad  or  its  grantees. 

10  Pet.  343-365,  9  L.  448,  UNITED  STATES  v.  BRADLEY. 

Syl.  2   (III,  578).     Voluntary  bond  to  United  States. 

Approved  in  Smith  v.  United  States,  5  Ariz.  64,  45  Pac.  344,  where 
bond  of  receiver  of  public  moneys  was,  by  direction  of  President, 
increased  above  statutory  amount,  bond  not  void  on  ground  of  duress; 
Dudley  v.  Rice,  119  Wis.  100,  95  N.  W.  937,  where  guardian's  bond 
was  conditioned  to  pay  over  amount  found  due  on  settlement  with 
court  or  ward,  it  was  enforceable  as  voluntary  bond,  though  court  had 
no  jurisdiction  of  guardianship  proceedings. 

Syl.  3   (III,  579).     Bond  good  in  part. 

Approved  in  Potter  v.  Potter,  43  Or.  153,  72  Pac.  703,  contract 
whereby  husband,  on  payment  of  sum,  agrees  to  convey  to  wife  con- 
ditioned that  paper  is  drawn  that  she  release  her  dower  in  certain 
land  and  he  release  curtesy  in  her  land,  is  entire;  Probate  Court  of 
Central  Falls  v.  Adams,  27  R.  I.  99,  60  Atl.  770,  bond  given  by  executor 


10  Pet.  400-446  Notes  on  U.  S.  Keports.  156 

who  is  also  residuary  legatee,  when  property  conditioned  to  pay  debts 
and  legacies,  is  not  invalidated  because  it  also  contains  clause  re- 
quiring executor  to  account;  Yost  v.  Eamey,  103  Va.  120,  48  S.  E. 
864,  where  executor's  bond  contained  provision  waiving  right  to  dis- 
charge any  liability  except  in  legal  tender  as  provided  by  repealed 
statute,  bond  not  void;  Osgood  v.  Central  Vermont  Ry.  Co.,  77  Vt. 
342,  60  Atl.  139,  70  L.  R.  A.  930,  where  lessee  of  railroad  right  of 
way  for  coalsheds  agreed  to  indemnify  defendant  for  injuries  to  his> 
property  or  servants  by  negligence  of  defendant,  contract  was  en- 
forceable as  to  indemnity,  though  statute  punishing  railroad  agent's 
negligence  provided  it  did  not  exempt  liability  for  damages;  dissent- 
ing opinion  in  McBride  v.  Farrington,  149  Fed.  115,  majority  holding 
valid  leases  by  secretary  of  Chickasaw  nation  of  mining  lands,  so  far 
as   they  authorized  coal  mining  for  period  not  exceeding  ten  years. 

Syl.  4  (III,  581).    Paymaster  may  act  without  bond. 

Approved  in  Houston  v.  Estes,  35  Tex.  Civ.  104,  79  S.  W.  851, 
though  manner  of  qualification  of  policeman  is  not  in  strict  con- 
formity with  law,  he  is  an  officer  de  jure  where  he  has  taken  oath  and 
given  bond  which  has  been  accepted. 

10  Pet.  400-406,  9  L.  470,  HAGAN  v.  LUCAS. 

Syl.  1   (III,  584).     First  levy  gives  jurisdiction. 

Approved  in  In  re  Porterfield,  138  Fed.  197,  where  trust  deed  from 
bankrupt  to  wife  was  recorded  less  than  four  months  prior  to  state 
court  suit,  but  more  than  four  months  prior  to  bankruptcy  proceed- 
ings, which  were  brought  within  four  months  of  state  suit,  and  all 
parties  to  bankruptcy  proceedings,  state  law  relating  to  preferences 
not  available  to  creditors;  Burnham  etc.  Co.  v.  Dickson,  5  Okl.  117, 
47  Pac.  1061,  where  execution  issued  out  of  probate  court  and  later, 
on  same  day,  attachment  issued  out  of  district  court  of  same  county, 
latter,  having  been  first  served,  has  priority. 

Syl.  2   (III,  589).     Federal  levy  after  state  execution. 

Approved  in  Hearn  v.  Ayers,  77  Ark.  504,  92  S.  W.  770,  where 
property  seized  by  sheriff  on  replevin  was  adjudged  to  belong  to 
plaintiii",  sheriff  could  not  thereafter  question  plaintiff's  title. 

10  Pet.  412-446,  9  L.  475,  ELLICOTT  v.  PEARL. 

Syl.  2  (III,  591).  Witnesses — Impeachment  and  corroboration  by 
declarations. 

Approved  in  Burks  v.  State,  78  Ark.  274,  93  S.  W.  984,  where  wit- 
ness denied  making  statements  contradicting  testimony  and  evidence 
of  contradictory  statements  admitted,  former  statements  supporting 
testimony  inadmissible  in  absence  of  proof  of  change  of  circum- 
stances; Legere  v.  State,  111  Tenn.  375,  77  S.  W.  1061,  where  wit- 
ness in  murder  prosecution  had  made  prior  statements  contradicting 
those  made  at  trial,  evidence  that  subsequent  to  those  statements  and 


157  Notes  on  U.  S.  Reports.  10  Pet.  449-506 

while  negotiating  for  turning  state's  evidence  for  same  murder  he 
had  made  statements  corroborative  of  those  made  at  trial  is  inad- 
missible. 

Syl.  3  (III,  591),     Discrediting  own  witness. 

Approved  in  dissenting  opinion  in  People  v.  Elco,  131  Mich.  531, 
94  N.  W.  1070,  majority  holding  prosecution  in  criminal  case  may 
show  contradictory  statements  of  hostile  witness,  whom  law  compels 
it  to  call,  for  purpose  of  affecting  his  credibility. 

Syl.  6  (m,  593).    Entrance  under  color  of  title — Boundaries. 

Approved  in  Scott  v.  Mineral  Development  Co.,  130  Fed.  501,  503, 
506,  64  C.  C.  A.  659,  continuation  of  possession  of  part  of  tract  under 
deed  of  whole  tract,  for  statutory  period  gives  title  to  whole,  though 
title  obtained  through  separate  conveyances  of  different  parts  of  tract; 
United  States  v.  Roth,  2  Alaska,  264,  holding  possession  of  homestead 
entryman  under  public  land  laws  coextensive  with  his  boundaries  and 
to  extend  over  shore  lands  of  navigable  gtream  abutting  thereon; 
Haggart  v.  Ranney,  73  Ark.  353,  84  S.  W.  706,  actual  possession  of  tract 
under  instrument  giving  color  of  title  to  it  and  to  adjacent  tract  does 
not  draw  to  it  constructive  possession  of  adjacent  tract  as  against 
true  owner. 

10  Pet.  449-479,  9  L.  490,  VOORHEES  v.  JACKSOX  EX  DEM.  BANK 
OP  THE  UNITED  STATES. 

Syl.  2   (III,  595).     Conclusiveness  of  confirmation  of  judicial  sale. 

Approved  in  Salemonson  v.  Thompson,  13  N.  D.  194,  101  N.  W.  323, 
judgment  regularly  rendered  by  court  of  competent  jurisdiction  is 
conclusive  of  debt  and  amount  in  action  to  try  title  by  judgment 
creditor  against  alleged  fraudulent  grantee  of  debtor;  Threadgill  v. 
Colcord,  16  Okl.  471,  85  Pac.  710,  applying  rule  to  receiver's  sale; 
dissenting  opinion,  Dye  v.  Crary,  12  N.  M.  479,  78  Pac.  536,  majority 
holding  property  levied  on  under  alias  attachment  gives  no  jurisdic- 
tion over  attachment;  Clark  v.  Eltinge,  38  Wash.  3S2,  107  Am.  St. 
Rep.  858,  80  Pac.  558,  arguendo. 

Distinguished  in  Dye  v.  Crary,  12  N.  M.  471,  474,  78  Pac.  533,  534, 
property  levied  on  under  alias  attachment  gives  no  jurisdiction  over 
property. 

Syl.  4  (III,  602).    Judgment  without  jurisdiction  is  void. 

Approved  in  Harrigan  v.  Gilchrist,  121  Wis.  228,  99  N.  W.  934, 
determining  power  of  court  which  had  appointed  receiver  for  corpora- 
tion who  had  lost  some  of  property  to  make  parties  participating  in 
loss  defendants  in  pending  suit  and  determine  their  liability. 

10  Pet.  497-506,  9  L.  508,  BROWN  v.  SWANN. 

Syl.  2   (III,  608).     Requisite  averments  of  bill  of  discovery. 

Approved  in  Larkey  v.  Gardner,  105  Va.  721,  54  S.  E.  SS7,  follow- 
ing  rule. 


10  Pet  507-595  Notes  on  U.  S.  Eeports.  158 

10  Pet.  507-520,  9  L.  512,  COLUMBIA  INS.  CO.  v.  LAWEENCE. 

Syl.   8    (III,   613).     Insurance — Fire   caused   by   negligence. 

Approved  in  Beavers  v.  Security  etc.  Ins.  Co.,  76  Ark.  598,  90  S,  W. 
14,  where  policy  did  not  exempt  liability  for  loss  of  insured's  negli- 
gence, it  was  error  to  charge  that  insurer  not  liable  if  loss  occurred 
through  negligence  of  insured  or  was  result  of  his  own  wrong. 

10  Pet.  524-531,  9  L.  519,  DENN  v.  EEID. 

Syl.   1    (III,   616).     Construction   of   unambiguous   statute. 

Approved  in  Farmers'  Loan  etc.  Co.  v.  Sioux  Falls,  131  Fed.  908, 
construing  grant  of  franchise  to  water  company  to  use  city  streets; 
Kaufman  v.  Carter,  67  S.  C.  318,  45  S.  E.  214,  Eev.  St.  1893,  §  1432, 
relating  to  posting  up  of  names  of  partners  in  mercantile  partnership 
applies  only  to  limited  partnerships. 

10  Pet.  532-571,  9  L.  522,  PETEE  v.  BEVEELY. 

Syl.  1  (III,  617).     Each  executor  liable  for  own  acts. 

Approved  in  Cheever  v.  Ellis,  144  Mich.  484,  108  N.  "W.  392,  apply- 
ing rule  where  loss  occurred  through  fault  of  agent  appointed 
by  both  executors,  but  one  of  them  assumed  through  agent  sole  con- 
trol of  properties. 

Syl.  5   (III,  618).     Extinction  of  power  by  death  of  one  trustee. 

Approved  in  Haggart  v.  Eanney,  73  Ark.  348,  84  S.  W.  704, 
power  to  sell  and  convey  in  will  to  executor  named  vests  legal  title 
in  him  with  power  to  sell,  as  trustee  under  will  and  not  by  virtue 
of  appointment  by  court;  Weaver  v.  Eichards,  144  Mich.  406,  407, 
415,  108  N.  W.  386,  387,  390,  power  appointing  attorney  to  sell  prop- 
erty of  estate  of  decedent  belonging  to  signers  of  power  and  to 
distribute  proceeds,  and  reciting  that  it  should  be  irrevocable  and 
survive,  is  revoked  by  death  of  one  grantor  before  execution. 

Syl.  8   (III,  620).     Note  taken  for  antecedent  debt. 

Approved  in  Delaney  etc.  Co.  v.  The  Winnebago,  142  Mich.  91, 
105  N.  W.  530,  where  builder's  note  taken  for  materials  furnished 
for  construction  of  vessel,  but  not  paid,  statutory  lien  not  lost. 

10  Pet.  572-582,  9  L.  538,  DICKINS  v.  BEAL. 

Syl.  4  (III,  622).     Notary's  testimony  as  to  notice  of  dishonor. 

Approved  in  Schofield  v.  Palmer,  134  Fed.  755,  certificate  of  notary 
that  he  gave   notice  of  dishonor  is  insufficient   evidence   thereof. 

10  Pet.  583-595,  9  L.  542,  WALLINGSFOED  v.  ALLEN. 

Syl.  2  (III,  624).     Validity  of  conveyance  by  husband  to  wife. 

Approved  in  In  re  Tucker,  131  Fed.  648,  transfer  of  stock  by 
husband  to  wife  as  gift  by  surrendering  certificates  and  causing:  new 
ones   to   be   issued  in   her   name,   being  void   under   law   of   domicile, 


159  Notes  on  U.  S.  Reports.  10  Pet.  596-738 

its  rctransfer  to  him  by  wife  as  loan  is  no  basis  for  claim  by  her 
against  his  bankrupt  estate;  James  v.  Gray,  131  Fed.  403,  404,  65 
C.  C.  A.  385,  loan  made  by  wife  to  husband  from  separate  estate 
is  provable  as  debt  against  his  estate  in  bankruptcy  irrespective  of 
its  enforceability  under  state  laws. 

10  Pet.  59G-617,  9  L.  547,  BRENT  v.  BANK  OF  WASHINGTON. 

Syl.  3  (III,  626).  United  States  bound  by  equities. 
,  Approved  in  Mountain  Copper  Co.  v.  United  States,  142  Fed.  629, 
applying  rule  in  suit  by  government  as  land  owner  to  abate  alleged 
nuisance  caused  by  smelter;  Lynch  v.  United  States,  13  Okl.  145,  73 
Pac.  1096,  applying  rule  in  suit  to  cancel  townsite  patent.  See  101 
Am.  St.  Rep.   170,  note. 

Syl.  5   (III,  627).     Limitation  statute  bars  remedy  only. 

Approved  in  Brand  v.  Brand,  116  Ky.  798,  76  S.  W.  873,  63  L.  R. 
A.  206,  where  plaintiff  assigned  note  to  A.  for  collection  and  de- 
fendant got  judgment  in  New  York  on  ground  of  limitations,  such 
judgment  no  bar  to  action  in  Kentucky  where  different  limitations 
exist. 

10  Pet.  662-738,  9  L.  573,  NEW  ORLEANS  v.  UNITED  STATES. 

Syl.   1    (III,   628).     Dedication  without  vesting  title. 

Approved  in  Evans  v.  Blankenship,  4  Ariz.  316,  39  Pac.  813,  apply- 
ing rule  where  land  platted  in  recorded  map  as  park. 

Syl.  2   (III,  628).     Accretions  follow  riparian  title. 

Approved  in  Missouri  v.  Nebraska,  196  U.  S.  34,  35,  49  L.  375,  25 
Sup.  Ct.  155,  avulsion  by  Missouri  river,  middle  of  whose  channel 
forms  boundary  line  between  two  states,  works  no  change  in  boundary 
but  leaves  it  in  center  of  old  channel. 

Syl.  3  (III,  630).     Dedication — Designation  on  map  and  user. 

Approved  in  German  Bank  v.  Brose,  32  Ind.  App.  87,  69  N.  E.  303, 
determining  dedication  of  street  by  user;  Kemp  v.  Stradley,  134 
Mich.  678,  97  N.  W.  41,  under  act  authorizing  council  to  construct 
wharves  on  public  land  and  lease  wharfing  privileges,  city  may  leas9 
land  and  authorize  lessee  to  build  wharf. 

Syl.  5  (III,  632).     Public  common  cannot  be  granted. 
Approved   in   Wilkins   v.    Chicago    etc.   E.   E.    Co.,    110    Tenn.    450, 
75  S.  W.  1032,  arguendo. 


XI  PETERS. 


11  Pet.  41-54,  9  L.  624,  EWING  v.  BUKNET. 

Syl.  4  (III,  638).  Entry  under  color  of  title  is  ouster. 
Approved  in  Zerres  v.  Vanina,  134  Fed.  613,  applying  rule  in  eject- 
ment by  relocator;  Jasperson  v.  Scliarnikow,  150  Fed.  573,  taking 
possession  and  occupancy  of  vacant  land  by  mere  squatter  does  not 
work  disseisin  of  true  owner;  Swope  v.  Ward,  185  Mo.  325,  84  S.  W. 
897,  where  person  claiming  title  to  land  by  adverse  possession  entered 
in  beginning  under  claim  of  ownership  with  intent  to  claim  land,  he 
is  not  mere  squatter. 

Syl.  13   (III,  643).     Adverse  possession — Payment  of  taxes. 

Approved  in  McCaughn  v.  Young,  85  Miss.  293,  37  So.  842,  applying 
rule  to  wild  land  where  one  paid  taxes  for  long  term,  used  timber 
thereon  and  mortgaged  same,  and  offered  it  for  sale  to  public. 

11  Pet.  63-72,  9  L.  633,  ALLEN  v.  HAMMOND. 

Syl.   1   (III,  644),     Eelief  against  contract  made  by  mistake. 

Approved  in  Adams  v.  Washington  Brick  etc.  Co.,  38  Wash.  253,  80 
Pac.  449,  where  lease  of  clay  land  made  solely  for  purpose  of  using 
clay  for  brick-making,  on  exhaustion  of  clay  before  expiration  of 
term,  lessee  could  abandon  premises. 

n  Pet.  80-85,  9  L.  639,  EVANS  v.  GEE. 

Syl.  3  (III,  647).     Blank  indorsement — Order  to  pay  individual. 

Approved  in  Leahy  v.  Haworth,  141  Fed.  860,  written  assignment 
on  back  of  promissory  note  payable  to  order  of  payee,  signed  by 
such  payee,  is  equivalent  of  blank  indorsement  to  transfer  title  to 
note  free  from  equities;  Consterdine  v.  Moore,  65  Neb.  293,  101 
Am.  St.  Eep.  620,  91  N.  W.  399,  indorsement  on  note,  "Pay  to  the 
order  of  ...  .  without  recourse,"  signed  by  payee,  docs  not  destroy 
negotiability  in  hands  of  bona  fide  purchaser. 

11  Pet.  86-101,  9  L.  642,  UNITED  STATES  v.  LEFFLER, 
Syl.  8  (III,  649).  Surety — Signing  on  condition  other  signs. 
Approved  in  Bunker  v.  Bunker,  140  N,  C.  22,  52  S.  E.  239,  where, 
on  accounting,  claim  for  costs  in  prior  suit  filed  as  lien  on  realty 
belonging  to  estate  payable  out  of  rents  by  B,  and  disallowed  and 
final  judgment  rendered  providing  that  plaintiff  recover  certain  sum 
and  costs  of  action,  and  it  was  paid,  judgment  was  res  adjudicata 
of  B. 's  liability  to  pay  costs  of  former  suit  from  assets  of  estate. 

[160] 


161  Notes  on  U.  S.  Reports.  11  Pet.  102-184 

11  Pet.  102-lGl,  9  L.  G48,  CITY  OF  NEW  YORK  v.  MILN. 

Syl.   1    (III,   651).     Comnieicc — Requiring   report   as   to   passengers. 

Approved  in  Southern  Ry.  Co.  v.  Greensboro  etc.  Co.,  134  Fed.  92, 
order  of  state  corporation  commission  directing  railroad  to  place 
cars  loaded  with  coal  shipped  from  another  state  on  certain  track 
for  unloading,  as  requested  by  consignee,  is  void. 

Syl.  6  (III,  654).     State's  jurisdiction  within  its  territory. 

See  101  Am.  St.  Rep.  159,  note. 

Syl.  7   (HI,  656).     Exclusive  state  police  power. 

Approved  in  dissenting  opinion  in  Pabst  Brewing  Co.  v.  Crenshaw, 
198  U.  S.  41,  49  L.  935,  25  Sup.  Ct.  552,  majority  upholding  Missouri 
beer  inspection  act. 

Syl.  8   (III,  656).     State  health  laws  valid. 

Approved  in  State  v.  Hyman,  98  Md.  614,  57  Atl.  8,  64  L.  R.  A.  637, 
upholding  act  of  1902,  relating  to  use  of  rooms  and  apartments  under 
sweating  system  of  labor. 

Syl.  12  (III,  657).     Congressional  regulation  of  commerce  in  states. 

Apjirovcd  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  391, 
upholding  30  Stat.  1153,  requiring  alteration  of  bridges  over  navigable 
streams  on  determination  by  Secretary  of  War  that  they  obstruct 
navigation. 

11   Pet.    175-184,   9   L.    677,   STEAMBOAT   ORLEANS   v.    PHOEBUS. 

Syl.   2    (III,   660).     Admiralty — Accounts  between   i)art   owners. 

Distinguished  in  The  Emma  B.,  140  Fed.  771,  admiralty  court  may, 
as  incidental  to  principal  cause  of  action,  decree  accounting  between 
owners  of  vessel,  with  respect  to  past  earnings  in  suit  for  her  sale 
for  partition. 

Syl.  3  (III,  661).     Admiralty  jurisdiction  limited. 

Approved  in  The  Mary  F.  Chisholm,  129  Fed.  817,  sale  by  merchant 
to  fishermen,  who  are  about  to  go  on  fishing  voyage  under  lay 
contract,  of  tobacco,  clothing  and  other  articles  for  personal  use, 
is  not  maritime  transaction. 

Syl.  8   (III,  664).     Federal  jurisdiction    not    conferred    by    local    law. 

Approved  in  Jung  v.  Myer,  11  N.  M.  386,  68  Pac.  936,  Laws  1901, 
c.  S2,  authorizing  ajipeals  to  supreme  court  from  interlocutory  orders 
affecting  substantial  rights,  conflicts  with  organic  act  providing  that 
appeals  are  allowed  to  supreme  court  from  final  decisions  in  all  cases, 
under  rules  prescribed  by  law. 
11 


11  Pet.  213-650  Notes  on  U.  S.  Keports.  162 

11  Pet.  213-225,  9  L.  691,  WATERS  v.  THE  MERCHANTS'  LOUIS- 
VILLE INS.  CO. 

Syl.  3  (in,  672).     Explosion  caused  by  fire — Proximate  cause. 

Approved  in  Hall  v.  Insurance  Co.,  115  Tenn.  517,  92  S.  W.  402, 
■where  policy  excepted  loss  by  explosion  unless  fire  ensued,  and  then 
for  fire  only,  and  goods  damaged  solely  by  explosion  in  adjoining 
building,  caused  by  fire  therein,  but  without  any  fire  in  plaintiff's 
building,  insurer  not  liable. 

11  Pet.  257-350,  9  L.  709,  BRISCOE  v.  THE  BANK  OF  THE  COM- 
MONWEALTH OF  KENTUCKY. 

Syl.   6    (III,   677).     Presumption   as   to   state's  powers   from   usage. 
Approved  in  State  v.  Stimpson,  78  Vt.  132,  62  Atl.  17,  1  L.  E.  A. 
(N.  S.)  1153,  upholding  prosecutions  by  information. 

Syl.  7   (III,  678).     State  not  suable  without  consent. 

Approved  in  Berman  v.  Minnesota  etc.  Society,  93  Minn.  127,  100 
N.  W.  732,  Minnesota  state  agricultural  society  is  department  of  state 
and  immune  from  suits  for  wrongful  conduct  of  servants. 

11  Pet.  351-419,  9  L.  746,  LIVINGSTON  v.  STORY. 

Syl.   2    (III,   680).     Matter   in    abatement   raised   by  plea. 

Approved  in  Wetzel  etc.  Ry.  Co.  v.  Tennis  Bros.  Co.,  145  Fed.  464, 
where,  in  action  by  foreign  corporation^  defendant  answered  after  de- 
murrer overruled,  and  after  replication  defendant  filed  cross-bill 
and  plaintiff  answered  it,  after  demurrer  overruled,  it  is  too  late 
to  plead  in  abatement  plaintiff's  alleged  disability  to  sue  because 
it  had  not  complied  with  state  laws. 

(Ill,  680.)  Miscellaneous.  Cited  in  Moore  v.  Boagni,  111  La. 
503,  35   So.   72L 

11  Pet.  420-650,  9  L.  773,  CHARLES  RIVER  BRIDGE  v.  WARREN 
BRIDGE. 

Syl.  3   (III,  682).     State  grants  strictly  construed. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  472,  50  L.  831,  26  Sup. 
Ct.  427,  construing  Illinois  street  railway  corporation  act  of  1865; 
Kuoxville  Water  Co.  v.  Knoxville,  200  U.  S.  33,  50  L.  359,  26  Sup. 
Ct.  224,  municipal  grant  of  waterworks  franchise  does  not  devest 
city  of  power  to  construct  its  own  waterworks;  Manigault  v.  Springs, 
199  U.  S.  481,  50  L.  279,  26  Sup.  Ct.  127,  obligations  of  agreement 
to  remove  existing  dam  from  navigable  stream  and  to  allow  stream 
to  remain  unobstructed,  not  impaired  by  subsequent  state  statute 
authorizing  construction  of  dam  by  private  persons  to  drain  low- 
lands; New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S.  37,  50  L. 
75,  25  Sup.  Ct.  715,  special  franchise  tax  imposed  by  N.  Y.  Laws, 
1899,  c.  712,  does  not  impair  obligation  of  contracts  by  which  right 


1C3  Notes  on  U.  S.  Reports.  12  Pet.  11-58 

to  construct  and  operate  street  railroads  given  in  consideration  of  pay- 
ment of  per  cent  of  earnings;  Pabst  Brewing  Co.  v.  Thorley,  145 
Fed.  12C,  where  lessor  obtained  permit  to  build  vault  under  side- 
walk subject  to  revocation  when  space  needed  for  public  improve- 
ments and  thereafter  leased  premises  for  purpose  for  which  vault 
necessary,  and  thereafter  vault  permit  revoked,  lessor  was  liable  for 
breach  of  covenant;  Tillamook  "Water  Co.  v.  Tillamook  City,  139  Fed. 
40G,  contract  between  city  and  water  company,  by  which  latter  is  granted 
franchise  to  lay  pipes  in  streets  and  furnish  inhabitants  with  water 
for  term,  does  not  bind  city  not  to  construct  competing  plant; 
Cleveland  El.  Ry.  Co.  v.  City  of  Cleveland,  137  Fed.  123,  construing 
city  ordinances .  as  not  extending  life  of  street  railroad  franchises; 
Green  v.  Ivey,  45  Fla.  349,  33  So.  714,  refusing  to  enjoin  defendant 
from  operating  ferry  near  complainant 's,  where  latter 's  ferry  fran- 
chise not  exclusive;  Commonwealth  v.  Boston  Terminal  Co.,  185  Mass. 
287,  70  N.  E.  127,  under  Acts  1896,  creating  terminal  company,  there 
was  no  free  grant  of  state  lands  below  low-water  mark;  Peru 
V.  Barrett,  100  Me.  217,  109  Am.  St.  Rep.  494,  60  Atl.  970,  70  L.  R.  A. 
567,  where  merchant  controls  land  on  both  sides  of  river  and  trans- 
ports customers  free  from  his  warehouse  on  one  side  to  store  on  other, 
he  is  liable  to  holder  of  nearby  ferry  franchise  for  profits;  Story 
V.  Woolverton,  31  Mont.  354,  355,  78  Pac.  590,  act  Cong.  1891,  grant- 
ing to  Montana  section  of  land  of  former  military  reservation  to 
be  selected  so  as  to  embrace  improvements  thereon,  did  not  grant 
right  to  use  of  water  of  stream  from  which  government  took  water 
by  means  of  ditch  across  other  lands;  dissenting  opinion  in  Houghton 
St.  Ry.  Co.  V.  Laurium  Common  Council,  135  Mich.  623,  98  N.  W. 
396,  majority  construing  street-car  franchise  as  authorizing  connec- 
tion with  branch  line.     See  105  Am.  St.  Rep.  699,  note. 


XII  PETERS. 


12  Pet.  11-26.  9  L.  980.  SWAYZE  v.  BURKE. 

Syl.   2    (III,   700).     Fraud   cognizable  in  law. 

Distinguished  in  Levin  v.  Northwestern  Nat.  Ins.  Co.,  146  Fed.  77, 
in  action  at  law  in  federal  court  on  fire  policy,  award  of  arbitrators, 
fixing  amount  of  loss,  made  according  to  policy  and  pleaded  by  de- 
fendant, cannot  be  impeached  by  plaintiff  for  fraud. 

12  Pet.  32-58,  9  L.  989,  BANK  OF  UNITED  STATES  v.  DANIEL. 

Syl.  5  (III,  702).     Equitable  relief  against  mistake. 

Approved  in  Utermehle  v.  Norment,  197  U.  S.  56,  49  L.  662,  25  Sup. 
Ct.  291,  ignorance  of   rule  that  party  taking  benefit  of  provision  in 


12  Pet.  59-100  Notes  on  U.  S.  Keports,  164 

will  itt  bis  favor  is  estopped  to  question  validity  of  will,  though 
coupled  with  ignorance  of  evidence  on  which  contest  based,  does  not 
prevent  application  of  rule  in  absence  of  fraud;  Burk  v.  Johnson, 
146  Fed.  214,  refusing  to  rescind  contract  assigning  territory  for 
promotion  of  burial  associations  under  copyrighted  plan,  because  of 
misrepresentation  concerning  rights  under  copyright,  and  that  plan 
was  not  subject  to  supervision  by  state  insurance  departments;  Scott 
V.  Ford,  45  Or.  544,  78  Pac.  746,  68  L.  E.  A.  469,  where  will  left 
property  to  five  children  and  executor  paid  sixth  share  to  child  of 
one   of   deceased   children,    executor   cannot   recover. 

12  Pet.  59-Go,  9  L.   999,  BEADSTEEET  v.   THOMAS. 

Syl.    1    (III,    705).     Waiver    of    want    of    allegation    of    citizenship. 

Approved  in  North  Jersey  etc.  Ey.  Co.  v.  Purdy,  142  Fed.  957, 
where  no  objection  was  made  in  trial  court  to  sufficiency  of 'proof 
to  sustain  obligation  of  plaintiff's  citizenship  for  jurisdictional  pur- 
poses, question  of  want  of  jurisdiction  on  that  ground  not  considered 
on  appeal. 

12  Pet.  72-83,  9  L.  1004,  UNITED  STATES  v.  COOMBS. 

Syl.  4    (III,   707).     Commerce — Eegulation   of   navigation. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  391, 
upholding  30  Stat.  1153,  relating  to  alteration  of  bridges  over  naviga- 
Lle  streams  on  determination  of  Secretary  of  War  that  they  ob- 
struct navigation. 

12  Pet.  91-100,  9  L.  1012,  GEOEGETOWN  v.  ALEXANDRIA  CANAL 
CO. 

Syl.  4  (III,  710).     Abatem'ent  of  public  nuisance. 

Approved  in  State  v.  Louisiana  etc.  Gravel  Eoad  Co.,  116  Mo.  App. 
199,  92  S.  W.  161,  upholding  injunction  where  gravel  road  company 
was  unlawfully  exacting  tolls  from  persons  using  public  highway; 
Wilkins  v.  Chicago  etc.  E.  E.  Co.,  110  Tenn.  463,  75  S.  W.  1036, 
property  owners  who  have  no  special  interest  different  from  that 
of  other  inhabitants  as  to  period  for  which  city  contracts  extend 
cannot  restrain  execution  of  contracts  because  they  are  too  long; 
Van  Alstyne  v.  Morrison,  33  Tex.  Civ.  672,  77  S.  W,  657,  arguendo. 

Syl.  5  (III,  711).     Injunction  against  nuisance. 

Approved  in  Conradt  v.  Miller,  2  Alaska,  436,  injunction  lies  to 
prevent  building  of  wharves  or  warehouses  by  private  persons  on 
public  highwaj'  or  navigable  streams  in  front  of  plaintiff's  property, 
where  he  shows  special  injury;  West  &  Severns  v.  Ponca  City  Milling 
Co.,  14  Okl.  648,  79  Pac.  101,  refusing  to  enjoin  erection  of  frame 
building  within  fire  limits. 


165  Notes  on  U.  S.  Reports.  12  Pet.  143-200 

12  Pet.  143,  144,  9  L.  1033,  SAECIIET  v.  UNITED  STATES. 

Syl.  1  (III,  716).     Supreme  court — Cases  appealed  to  circuit. 

Approved  in  Comstock  v.  Eagleton,  196  U.  S.  100,  49  L.  403,  25  Sup. 
Ct.  210,  judgment  of  supreme  court  of  Oklahoma  affirming  judgment 
of  lower  court  on  demurrer  to  petition  for  false  imprisonment  can 
only  be  reviewed  in  supreme  court  on  writ  of  error. 

12  Pet.  151-163,  9  L.  1035,  ZACHARIE  v.  FRANKLIN. 

Syl.  1  (III,  718).     Signing  by  mark. 

Approved  in  Loughren  v.  Bonniwell,  125  Iowa,  520,  106  Am.  St. 
Rep.  319,  101  N.  W.  288,  upholding  sufficiency  of  subscription  to 
notice  by  justice  of  peace  with  stamp  bearing  fac-simile  of  signature; 
Agurs  V.  Belcher,  111  La.  380,  100  Am.  St.  Rep.  485,  35  So.  608, 
where  body  of  act  of  sale  gave  true  name,  but  name  at  foot  of  deed 
signed  by  mark  was  written  differently  by  notary,  it  was  notice 
sufficient  to  put  subsequent  purchaser  on  inquiry. 

12  Pet.   164-173,  9  L.   1041,  CLARKE  v.  MATTHEWSON. 

Syl.  1  (III,  718).     Executor  as  real  party  in  interest. 

Distinguished  in  Brown  v.  Fletcher,  140  Fed.  641,  Rev.  St.  955,  re- 
lating to  revival  of  actions  abated  by  death  of  party,  has  no  applica- 
tion to  suits  in  equity. 

Syl.  2   (III,  718).     Attached  jurisdiction — Change  in  parties. 

Approved  in  Kirby  v.  American  Soda  etc.  Co.,  194  U.  S.  146,  48 
L.  913,  24  Sup.  Ct.  619,  upholding  jurisdiction  of  circuit  court  where 
cross-bill  seeks  to  recover  balance  of  $1,700,  due  on  contract  of  ex- 
change, where  original  bill,  dismissed  on  complainants'  motion,  asked 
cancellation  of  agreement  to  pay  $2,025,  in  consideration  of  exchange; 
O'Connor  v.  O'Connor,  146  Fed.  997,  equity  suit  in  federal  court 
to  set  aside  judgment  of  dismissal  in  same  court  is  ancillary  to  such 
action,  and  where  defendants  named  in  bill  were  privies  with  parties 
to  original  action,  service  may  be  made  on  them,  though  they  reside 
out  of  district. 

12  Pet.  178-200,  9  L.  1046,  CLARKE  v.  WHITE. 

Syl.  1   (III,  721).     Specific  performance  of  personalty  contracts. 

Approved  in  Kane  v.  Luckman,  131  Fed.  619,  refusing  specific  per- 
formance of  oral  contract  for  purchase  of  cows  in  exchange  for  land^ 
where  it  was  indefinite  and  incomplete. 

Syl.  4  (III,  722).     Setting  aside  transaction  for  fraud. 

Approved  in  Kessler  v.  Ensley,  141  Fed.  148,  applying  rule  where 
land  purchased  of  company  by  former  director,  and  by  corporation  of 
which  he  was  large  stockholder  from  trustees,  to  whom  it  had  been 
conveyed  under  agreement  between  stockholders  and  creditors;  In 
re  A.  L.  Robertshaw  Mfg.  Co.,  133  Fed.  5G0,  where  debtor  conveyed 


12  Pet.  207-299  Notes  on  U.  S.  Reports,  166 

property  to  certain  creditors,  -with  intent  to  pay  debts  owing  to  tlicm, 
facts  that  transfer  postponed  other  creditors,  as  intended,  and  that 
creditor  aided  in  such  intent,  does  not  invalidate  transfer. 

Syl.  9  (III,  722).     Secret  agreement  on  composition  with  creditors. 

Approved  in  Wheeler  v,  Pettyjohn,  14  Okl.  76,  77,  76  Pac.  119,  fol- 
lowing rule. 

Syl.  10  (III,  722).     Debtor  may  prefer  creditor. 

Approved  in  Price  v.  Winnebago  Nat.  Bank,  14  Okl.  278,  79  Pac. 
108,  following  rule. 

12  Pet.  207-214,  9  L.  1058,  ADAMS  v.  JONES. 

Syl.    2    (III,    724).     Notice    to    guarantor    of   future    advances. 

Approved  in  dissenting  opinion  in  Cowan  v.  Eoberts,  134  N.  C. 
426,  101  Am.  St.  Eep.  845,  46  S.  E.  983,  65  L.  R.  A.  729,  majority 
holding  where  one  signed  written  guaranty,  to  be  delivered  only 
on  condition  that  it  be  signed  by  another  and  delivered  to  debtors, 
who  delivered  it  to  creditors  without  securing  other  signature,  and 
creditor,  having  no  notice  of  condition,  extended  credit  on  faith  of 
guaranty,  guarantor  is  liable. 

12  Pet.  221-233,  9  L.  1063,  ROGERS  v.  BATCHELOR. 

Syl.   3    (III,   728).     Use   of   firm   funds   to   pay  individual   debts. 

Approved  in  Hier  v.  Miller,  68  Kan.  265,  75  Pac.  79,  63  L.  R.  A. 
952,  where  bank  cashier  undertakes  to  pay  individual  debt  to  de- 
positor by  crediting  amount  on  passbook  and  permits  latter  to  check 
out,   bank   may   recover   of   creditor. 

12  Pet.  241-263,  9  L.   1070,  JENKINS  v.  PYE. 

Syl.   3    (III,   731).     Deed   to   parent   valid. 

Distinguished  in  Perns  v.  Chapman,  211  111.  607,  71  N.  E.  1110, 
holdin'g  in  suit  to  set  aside  for  undue  influence  deed  from  son  to 
father  shortly  after  child  comes  of  age,  burden  is  on  father  to  re- 
but presumption  of  improper  influence. 

12   Pet.   204-299,   9   L.    1079,   GALLOWAY   v.   FINLEY, 
Syl.  1    (III,  732).     Vendee   cannot   disown  vendor's  title. 
Approved   in  Petraski  v,  Minzgohr,   144  Mich.  358,   108  N.  W.   78, 

following    rule. 

Syl.    3    (III,    733).     Vendee    perfecting    title    reimbursed. 

Approved  in  Holloway  v.  Miller,  84  Miss.  781,  36  So.  533,  where 
vendee,  finding  title  was  in  United  States,  retained  possession  and 
perfected  title  in  himself  without  notice  to  vcndnr,  he  can  only 
recover  sums  expended  and  other  damages  caused  by  breach  of 
warranty. 


167  Notes  ou  U.  S.  Kepoils.  12  Pet.  300-475 

12  Pet.  300-338,  9  L.  1093,  TOLAND  v.  SPEAGUE. 

Syl.   4   (III,   735).     Circuit   court's   process   outside   district. 

Approved  in  American  etc.  Colony  Co.  v.  Schuler,  34  Tex.  Civ. 
566,  79  S.  W.  374,  where  foreign  corporation  acquired  lands  in 
Texas,  courts  of  latter  cannot  forfeit  its  charter. 

Syl.    7    (III,    737).     Appearance    waives    service    in    district. 

Approved  in  Iowa  etc.  Min.  Co.  v.  Bliss,  144  Fed.  449,  where  alien 
brought  suit  in  state  court  against  nonresident  corporation,  suit 
was   removable   to   federal   court   by   defendant. 

Syl.   10   (III,  739).     Eendition  of  account   does  not  make  stated. 

Approved  in  Gillett  v.  Chavez,  12  N.  M.  370,  78  Pac.  73,  where 
statement  of  affairs  of  firm  made  by  one  of  partners,  who  acted 
as  firm's  clerk  merely,  as  basis  for  future  settlement,  fact  that 
senior  partner  retained  account  without  objecting  thereto  does  not 
render  it   account   stated. 

12   Pet.   345-377,  9  L.   1111,  HEPBURN  v.   DUBOIS. 

Syl.  5   (III,   743).     Finding  of  jury  concluded   defeated   party. 

Approved  in  Eureka  Co.  Bank  v.  Clark,  130  Fed.  326,  64  C.  C.  A. 
571,  finding  of  fact  by  court  precludes  appellate  court  from  weigh- 
ing evidence  for  purpose  of  determining  whether  findings  justified 
thereby. 

12  Pet.  410-471,  9  L.  1137,  STROTHER  v.  LUCAS. 

Syl.  4   (III,  746).     Property   rights  ou   cession. 

Approved  in  O'Reilly  DeCamara  v.  Brooke,  135  Fed.  391,  exclu- 
sive franchise  to  slaughter  cattle  in  Havana  granted  by  Spain  is 
property  which  cannot  be  taken  away  by  military  governor  of  Cuba 
without  compensation;  Territory  v.  Delinquent  Taxpayers.  12  N. 
M.  66,  73  Pac.  622,  lands  embraced  in  perfect  Mexican  land  grant 
are  taxable  though  grant  submitted  to  confirmation  by  court  of 
private   land  claims  and   patent  not   yet   issued. 

Syl.    7    (III,    747).     Grant    evidences    own    validity. 

Approved  in  McGuire  v.  Blount,  199  U.  S.  146,  50  L.  129,  26 
Sup.  Ct.  1,  judicial  sale  had  during  Spanish  control  of  Florida  not 
defeated  by  technical  objections,  where  sale  had  been  confirmed  as 
sufficient    by    land    title    commissioners. 

12  Pet.  472-475,  9  L.  1161,  POULTNEY  v.  CITY  OF  LA  FAYETTE. 

(Ill,  751.)  Miscellaneous.  Cited  in  Meyers  v.  United  States,  5 
Okl.  185,  48  Pac.  189,  as  to  power  of  Land  Department  to  promulgate 
rule   for  reopening  of   case  on   equitable   grounds. 


12  Pet.  488-653  Notes  on  U.  S.  Eeports,  168 

12  Pet.  488-496,  9    L.   1167,    EX    PARTE    SIBBALB     v.     UNITED 
STATES. 

Syl.  3   (III,  755).     Correction  of  judgment  after  term. 

Approved  in  King  v.  Davis,  137  Fed.  227,  federal  law  court  cannot 
vacate  judgment  of  former  term  founded  on  false,  but  apparently 
valid,  return  of  service  of  process;  United  States  v.  Four  Lorgnette 
Holders,  132  Fed.  565,  judgment  of  forfeiture  for  attempt  to  defraud 
customs  laws  cannot  be  vacated  on  petition  filed  after  term,  to  per- 
mit importer  to  defend  on  ground  of  irregularities  in  procedure; 
dissenting  opinion  in  State  v.  Marsh,  134  N.  C.  200,  47  S.  E.  12,  67 
L.  R.  A.  179,  majority  holding,  where  on  appeal  conviction  reversed 
because  of  omission  of  material  allegation  in  indictment  as  contained 
in  record,  and  it  subsequently  appeared  that  allegation  was  omitted 
by  misprision  of  clerk,  supreme  court  could,  after  term,  grant  cer- 
tiorari to  correct  record,  and  reset  case. 

Syl.  5  (III,  756).     Execution  of  mandate  of  appellate  court. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  etc.  Co.,  147  Fed.  903, 
where  circuit  court  of -appeals  affirmed  judgment  for  plaintiff,  but 
subsequently  on  cross-writ  reversed  judgment  on  different  questions 
and  ordered  new  trial,  questions  determined  on  two  appeals  will  not 
be  reconsidered  on  error  from  second  judgment;  American  etc.  Co.  v. 
Sample,  136  Fed.  858,  where  circuit  court  of  appeals  has  adjudged  in- 
valid claims  of  patent  in  issue  in  infringement  suit,  reversing  circuit 
court,  and  ordering  decree  in  conformity  with  opinion,  circuit  court 
cannot  grant  rehearing  on  ground  that  complainant  has  filed  disclaimer 
in  patent  office;  State  v.  District  Court,  32  Mont.  24,  79  Pac.  411, 
where  order  taxing  costs  in  favor  of  plaintiff  and  included  in  judg- 
ment did  not  include  certain  item,  trial  court  could  not,  after  affirm- 
ance on  appeal,  make  order  taxing  such  costs.  See  98  Am.  St.  Kep.  904, 
note. 

Syl.  7    (III,   758).  Construction  of  appellate  mandate. 
See  98  Am.  St.  Rep.  905,  note. 

(Ill,  753.)  Miscellaneous.  Cited  in  dissenting  opinion  State  v. 
Marsh,  134  N.  C.  192,  47  S.  E.  9,  67  L.  R.  A.  179,  on  point  that  when 
government  litigates  with  citizen,  it  has  no  superior  rights  by  virtue 
of  sovereignty. 

12  Pet.  524-653,  9  L.  1181,  KENDALL  v.  UNITED  STATES. 

Syl.  2   (III,  764).     Mandamus  to  compel  ministerial  duty. 

Approved  in  Traynor  v.  Beckham,  116  Ky.  24,  74  S.  W.  1108, 
granting  mandamus  to  compel  governor  to  issue  commission  to  police 
judge  legally  appointed  by  city  council;  McDaid  v.  Territory,  1  Okl. 
97,  30  Pac.  440,  upholding  territorial  district  court's  jurisdiction  to 
issue  mandamus  compelling  townsite  trustees  to  issue  deed  to  party 
they   have   decided  is   entitled  to   same;   Clement  v.   Graham,   78   Vt. 


169  Notes  on  U.  S.  Reports.  12  Pet.  524-653 

319,  63  Atl.   155,  granting  mandamus  to   compel  state  auditor  of  ac- 
counts to  permit  inspection  of  record.    See  98  Am.  St.  Rep.  874,  note. 

Syl.  5   (III,  768).  Mandamus  defined. 

Approved  in  dissenting  opinion  in  Henry  v.  State,  87  Miss.  95,  39 
So.  884,  arguendo. 

S}'!.  6  (III,  768).  Mandamus  to  enforce  right — Adequacy  of 
remedies. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  95.5,  67 
L.  R.  A.  761,  66  C.  C.  A,  55,  granting  mandamus  to  command  circuit 
judge  to  vacate  order  staying  proceedings  pending  determination  of 
state  court  appeals;  State  v.  United  States  Exp.  Co.,  95  Minn.  444, 
104  N.  W.  557,  denying  mandamus  to  compel  express  company  to  re- 
ceive package  from  one  engaged  in  lottery  scheme;  In  re  Epley,  10 
Okl.  644,  64  Pac.  21,  judgment  granting  peremptory  mandamus  is  re- 
viewable on  appeal  same  as  any  other  law  judgment;  Rider  v.  Brown, 
1  Okl.  247,  32  Pac.  342,  better  practice  is  for  writ  of  mandamus  to 
issue  in  name  of  territory  on  relation  of  party  interested.  See  98  Am. 
St.  Rep.  865,  note. 

Syl.  13  (III,  770).     Supreme  court's  mandamus  to  inferior  court. 

Approved  in  Ex  parte  Moran,  144  Fed.  590,  upholding  jurisdiction 
of  circuit  court  of  appeals  to  issue  habeas  corpus  to  determine  power 
of  Oklahoma  court  to  imprison  one  convicted  of  capital  crime;  Bar- 
ber Asphalt  etc.  Co.  v.  Morris,  132  Fed.  952,  67  L.  R.  A.  701,  60  C.  C. 
A.  55,  granting  mandamus  to  compel  circuit  judge  to  vacate  order 
staying  proceedings  pending  determination  of  state  court  appeals. 

Syl.  15   (III,  770).     Requisites  of  jurisdiction  over  person. 

Approved  in  Kibbler  v.  St.  Louis  etc.  R.  Co.,  147  Fed.  880,  foreign 
corporation  is  not  suable  in  federal  court  in  state  unless  it  does 
business  in  some  one  of  the  counties  within  territorial  jurisdiction  of 
such  court. 

Syl.  16  (III,  770).     District  of  Columbia  court  issues  mandamus. 

Approved  in  McDaid  v.  Territory,  1  Okl.  97,  30  Pac.  440,  upholding 
territorial  district  court's  jurisdiction  to  issue  mandamus  to  compel 
townsite  trustees  to  execute  deed  to  party  whom  they  have  decided 
is  entitled  to  same. 

Syl.  19   (III,  772).     Construction  of  adopted  statutes. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987, 
city  court  has  no  jurisdiction  to  try  accused  for  violation  of  state 
penal  statute. 

Syl.  20  (III,  772).     Federal  court's  mandamus  to  executive  ofiicers. 

Approved  in  United  States  v.  Lake  Shore  etc.  Ry.  Co.,  i97  U.  S. 
542,  49  L.  871,  25  Sup.  Ct.  538,  circuit  court  has  no  jurisdiction  over 
original  proceeding  by  mandamus  to  compel  interstate  carrier  to 
make  report  which  interstate  commerce  commission  is  authorized  by 
commerce  act  to  require. 


12  Pet.  657-754  Notes  on  U.  S.  Reports.  170 

(III,  703.)  Miscellaneous.  Cited  in  dissenting  opinion  in  Tampa 
Waterworks  Co.  v.  Tampa,  199  U.  S.  247,  50  L.  175,  26  Sup.  Ct.  23, 
majority  holding  provision  of  state  constitution  giving  legislature  full 
.power  to  correct  abuses  and  jirevent  excessive  charges  is  self -execut- 
ing to  extent  that  contracts  made  after  its  passage  are  subject  to 
possibility  of  exercise  of  such  power. 

12  Pet.  657-754,  9  L.  1233,  RHODE  ISLAND  v.  MASSACHUSETTS. 

Syl.  1  (in,  774),     Jurisdiction  defined. 

Approved  in  Blake  v.  Nesbet,  144  Fed.  283,  fact  that  defendant 
claims  as  his  own  money  admitted  to  have  been  paid  to  him  by 
bankrupt  within  four  months  of  bankruptcy,  on  ground  that  payment 
was  made  to  him  as  creditor,  does  not  affect  bankruptcy  court's  juris- 
diction in  suit  by  trustee  to  recover  money  as  preference  to  issue 
injunction  against  disposing  of  same;  Franklin  Union  v.  People,  220 
111.  366,  110  Am.  St.  Eep.  248,  77  N.  E.  180,  it  is  no  defense  to  con- 
tempt proceedings  for  violation  of  injunction  that  injunction  is 
broader  than  justified  by  bill;  O'Brien  v.  People,  216  111.  363,  108  Am. 
St.  Rep.  219,  75  N.  E.  112,  defects  in  bill  to  enjoin  strikers  does 
not  affect  jurisdiction  when  defendants  served  but  did  not  appear; 
Parker  v.  Lynch,  7  Okl.  647,  56  Pac.  1087,  upholding  jurisdiction  to 
declare  resulting  trust  in  land  acquired  by  homestead  entry. 

Syl.  3  (III,  776).     Appearance  waives  defect  in  service. 

Approved  in  Alabama  etc.  School  v.  Addler,  144  Ala,  557,  42  So. 
117,  under  constitutional  provision  that  state  cannot  be  sued,  judg- 
ment against  Alabama  Girls'  Industrial  School  is  against  state,  and 
void  for  want  of  jurisdiction,  and  failure  of  defendant  to  claim  im- 
munity is  not  waiver. 

Syl.  10   (III,  778).     Constitution — Exceptions  not  implied. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  380,  81  S.  W.  976,  city 
court  has  no  jurisdiction  to  try  accused  for  alleged  violation  of  state 
penal  statute. 

Syl.  11  (III,  778).  Constitutional  construction — Contemporaneous 
history. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987, 
city  court  has  no  jurisdiction  to  try  accused  for  alleged  violation  of 
state  penal  statute. 

Syl.  14  (III,  778).     Jurisdiction  to  determine  state  boundary. 

Approved  in  Missouri  v.  Illinois,  200  U.  S.  520,  50  L.  578,  26  Sup. 
Ct.  268,  determining  jurisdiction  of  supreme  court  to  enjoin  discharge 
of  sewage  of  Chicago  through  canal  into  Mississippi  on  complaint  of 
Missouri  that  water  supply  of  its  inhabitants  contaminated. 


XIII  PETERS. 


13  Pet.  6-16,  10  L.  33,  WHITING  v.  BANK  OF  UNITED  STATES. 

Syl.  7   (III,  785).     No  bill  of  review  after  five  years. 

Approved  in  Jorgensen  v.  Young,  136  Fed.  381,  69  C.  C.  A.  222,  bill 
of  review  in  equity  court  not  filed  until  after  lapse  of  two  years  from 
judgment  in  original  suit,  and  until  long  after  expiration  of  time  to 
appeal  is  too  late. 

13  Pet.  26-44,  10  L.  42,  SMITH  v.  RICHARDS. 

Syl.  2   (III,  7S9).     Contract — Rescission — False  representations. 

Approved  in  Kcll  v.  Trenchard,  142  Fed.  23,  applying  rule  whore 
plaintiff  purchased  timber  land  under  contract  stating  timber  to  be 
not  less  than  certain  amount,  and  on  estimation  of  amount  defend- 
ant's agent  by  false  representations  as  to  boundaries  deceived  plain- 
tiff as  to  amount;  Kimber  v.  Young,  337  Fed.  748,  70  C.  C.  A.  178, 
determining  sufficiency  of  allegations  in  action  for  deceit  in  sale  of 
bonds. 

13  Pet.  45-64,  10  L.  51,  ROSS  v.  DUVAL. 

Syl.   1    (III,   791).     Applying  state   practice — Statute. 

Distinguished  in  King  v.  Davis,  137  Fed.  239,  Va.  Code  1SS7,  § 
3566,  providing  lis  pendens  shall  not  affect  bona  fide  purchaser,  un- 
less memorandum  filed  with  clerk  of  court  in  county  where  land  lies 
does  not  apply  to  federal  courts. 

Syl.  2   (III,  791).     Burden  of  showing  statutory  exception. 

Approved  in  Bealmear  v.  Hutchins,  134  Fed.  266  (reversed  148 
Fed.  545),  under  Rev.  St.  N.  C.  1837,  c.  42,  §  1.  one  claiming  entry  of 
Cherokee  lands  has  burden  of  showing  on  face  of  grant  itself  that 
land  was  at  time  vacant  and  unsurveyed. 

Distinguished  in  Bealmear  v.  Hutcliins,  148  Fed.  558  (reversing 
134  Fed.  257),  under  Pub.  Laws  N.  C.  1835,  p.  7,  c.  6,  as  amended  in 
1837,  grant  of  Cherokee  lands  issued  pursuant  to  authority  of  such 
law  is  presumptively  of  vacant  and  unsurveyed  lands,  and  sufficient 
to  maintain  ejectment. 

Syl.  3  (III,  791).     Bar  of  judgment  bars  execution. 

Approved  in  Miller  v.  Melone,  11  Old.  251,  67  Pac.  482,  56  L.  R.  A. 
620,  creditor's  bill  seeking  to  set  aside  fraudulent  sale  is  barred 
where  plaintiff's  judgment  becomes  dormant  pending  suit. 

Syl.  6   (III,  792).     Limitations — Pre-existing  causes. 
See  111  Am.  St.  Rep.  461,  note. 

[171] 


13  Pet.  65-122  Notes  on  U.  S.  Eeports.  172 

13  Pet.  65-80,  10  L.  61,  ANDEEWS  v.  POND. 

Syl.  2  (III,  793).     Usury — Charge  for  exchange  as. 

Approved  in  In  re  Troy  &  Cohoes  Shirt  Co.,  136  Ped.  427,  arguendo. 

Syl.  5  (III,  794).     Contracts — Lex  loci  governs. 

Approved  in  Easton  v.  Geo.  Wostenholm  &  Son,  137  Fed.  530,  70  C. 
C.  A.  108,  where  firm  doing  business  in  California  and  Costa  Eica 
bought  goods  in  England  through  purchasing  agent,  under  agreement 
that  agent  in  England  should  advance  price  and  expenses  for  com- 
mission, agent's  contract  governed  by  English  law;  Nashua  Sav. 
Bank  v.  Sayles,  184  Mass,  522,  100  Am.  St.  Eep.  573,  69  N.  E.  310, 
arguendo. 

Syl.  7  (III,  795).     Law  governing  interest  in  contracts. 

Approved  in  Davis  v.  Tandy,  107  Mo.  App.  449,  81  S.  W.  460, 
where  note  is  usurious  under  laws  of  state  where  made  and  also  where 
payable,  and  under  laws  of  latter  state  mortgage  securing  it  is  void 
for  usury,  but  is  not  void  by  laws  of  former  state,  mortgage  is  en- 
forceable in  latter  state  under  limitations  placed  on  it  in  former. 

13  Pet.  89-106,  10  L.  72,  BRADLEY  v.  WASHINGTON  ETC.  STEAM 
PACKET  CO. 

Syl.  1  (III,  799).     Parol  to  explain  writing. 

Approved  in  Simpson  v.  United  States,  199  U.  S.  399,  50  L.  246, 
26  Sup.  Ct.  54,  construing  contract  to  furnish  beef  to  interior  army 
posts  in  Cuba;  Guaranty  Trust  Co.  v.  Atlantic  etc.  E.  Co.,  138  Fed. 
521,  affirming  132  Fed.  71,  construing  railroad  mortgage  giving  lien 
on  after-acquired  property;  Darnell  v.  Lafferty,  113  Mo.  App.  303,  88 
S.  W.  791,  memorandum  evidencing  sale  of  personalty  described  as 
"ten  head  of  cows  and  heifers"  is  sufficiently  definite  in  description 
of  subject  matter  to  satisfy  statute  of  frauds;  Humphrey  v.  Tinikon 
Carriage  Co.,  12  Old.  432,  75  Pac.  534,  where  complaint  sets  out 
order  for  goods  and  alleges  acceptance  and  shipment,  defendant  may 
show  by  parol  that  order  was  not  accepted  on  terms  proposed. 

13  Pet.  107-122,  10  L.  81,  BANK  OF  UNITED  STATES  v.  LEE. 

Syl.  5  (III,  802).     Estoppel  of  wife  by  silence. 

Approved  in  Mutual  Eeserve  Fund  etc.  Ins.  Co.  v.  Scott,  136  N.  C. 
160,  48  S.  E.  583,  defendant  in  default  judgment  cannot  set  it  aside 
for  fraud,  consisting  of  false  allegations  and  proofs,  which  were 
known  to  him  at  time  judgment  was  rendered. 

Syl.  6  (III,  802).     Sales  of  personalty  valid  where  made. 

Approved  in  Cooper  v.  Philadelphia  Worsted  Co.  (Lees  v.  Harding 
etc.  Co.),  68  N.  J.  Eq.  631,  60  Atl.  356,  Public  Laws  1889,  p.  421, 
relating  to  conditional  sales,  does  not  apply  to  contracts  made  and 
to  be  performed  in  another  state  with  reference  to  chattels  situated 
there  betTreen  president  of  that  state  and  a   New  Jersey   corporation; 


173  Notes  on  U.  S.  Reports.  13  Pet.  123-194 

Greenville  Xat.  Bk.  v.  Evans-Snydcr-Buell  Co.,  9  Okl.  3G9,  60  Pac. 
254,  mortgage  executed  in  another  state  on  property  situated  there 
and  recorded  according  to  laws  of  such  state  is  valid  after  such  prop- 
erty is  brought  into  Oklahoma  without  being  filed. 

13  Pet.  123-127,  10  L.  89,  BANK  OF  UNITED  STATES  v.  PETER. 
S.vl.  1   (III,  803).     Junior  encumbrancer  paying  prior. 
See  99  Am.  St.  Rep.  521,  note. 

13  Pet.  136-152,  10  L.  95,  WALLACE  v.  McCONNELL. 

Syl.  4   (III,  804).     Concurrent  jurisdiction — Priorities. 

Approved  in  Louisville  Trust  Co.  v.  Knott,  130  Fed.  825,  65  C.  C.  A. 
158,  where  corporation's  franchise  had  expired  and  assets  delivered 
to  liquidator,  and  minority  stockholders  filed  bill  in  state  court  to 
ascertain  assets  and  liabilities  and  sell  and  distribute  assets,  and  ma- 
jority appeared  in  such  suit,  and  pending  suit  creditor  had  federal 
receiver  appointed,  state  court  entitled  to  priority  though  receiver 
took  assets;  Logan  County  v.  McKinlcy  etc.  Trust  Co.,  70  Neb.  405, 
97  N.  \V.  044,  where  foreclosure  decree  erroneously  denies  to  owner 
of  equity  of  redemption  the  time  to  redeem  allowed  by  law,  he  can- 
not obtnined   modification  by  objecting  to  confirmation  of  sale. 

13  Pet.  181-194,  10  L.  115,  STOKES  v.  SALTOXSTALL. 

Syl.  1    (III,  810).     Care  required  of  carrier  of   i)assengers. 

Approved  in  Gavin  v.  Southern  Pac.  Co.,  136  Fed.  593,  69  C.  C.  A. 
366,  in  action  by  mail  clerk  for  injuries  caused  by  derailment  due  to 
washout,  it  is  error  to  charge  that  defendant  only  required  to  use 
such  care  as  reasonably  careful  man  would  exercise  in  management 
of  dangerous  business;  The  Oregon,  133  Fed.  617,  6S  C.  C.  A.  603, 
giving  damages  to  passengers  for  failure  of  Nome  steamer  to  furnish 
sufficient  provisions  and  to  be  kept  clean;  Fillingham  v.  St.  Louis 
Transit  Co.,  102  Mo.  App.  584,  77  S.  W.  317,  upholding  charge  that 
carrier  is  held  to  utmost  care  and  vigilance,  accompanied  by  recital 
of  particular  facts  which  will  sustain  recovery;  Taillon  v.  Mears,  29 
Mont.  174,  74  Pac.  425,  under  Civ.  Code,  §  2790,  carrier  is  liable  for 
injuries  to  passenger  caused  by  negligent  acts  of  his  servant,  even 
though  the  acts  complained  of  were  not  within  scope  of  servant's  em- 
ployment; Williams  v.  Spokane  Falls  etc.  Ry.  Co.,  39  Wash.  89,  80 
Pac.  1103,  applying  rule  where  in  making  up  train  coupler  gave  way 
and  cars  ran  into  mail  car,  in  which  plaintiff  was  working,  and  in- 
jured him. 

Distinguished  in  Stanley  v.  Steele,  77  Conn.  693,  60  Atl.  641,  69 
L.  R.  A.  561,  livery-stable  keeper  is  not  held  to  such  degree  of  care 
with  reference  to  defects  in  vehicles  as  common  carrier  of  passenger. 

Syl.  3   (III,  812).     Carriers — Presumptions  from  accident. 
Approved   in   Southern   Pac.   Co.   v.   Gavin,    144   Fed.   351,   following 
rule;    Cincinnati   etc.  Ry.   Co.   v.  South  Fork  Goal  Co.,   139  Fed.  533, 


13  Pet.  195-204  Notes  on  U.  S.  Reports,  174 

where  as  result  of  rear  end  collision  oil  cars  telescoped  and  sparks 
from  engine  started  fire,  which  burned  lumber  piled  on  right  of  way, 
presumed  that  collision  due  to  negligence  in  operation  of  trains;  Burr 
V.  Knickerbocker  etc.  Co.,  132  Fed.  249,  65  C.  C.  A.  554,  where  tug 
moving  schooner  from  dock  to  wider  part  of  channel,  to  be  there 
turned  and  headed  for  sea,  ran  aground  on  calm  day  with  moderate 
tide,  prima  facie  case  of  negligence  shown;  Denver  Con.  Tramway 
Co.  V.  Rush,  19  Colo.  App.  73,  78,  73  Pac.  664,  666,  applying  principle 
where  passenger  injured  while  alighting  from  car  because  of  sud- 
den starting  of  car;  Redmon  v.  Metropolitan  St.  Ry.  Co.,  185  Mo. 
9,  105  Am.  St.  Rep.  558,  84  S.  W.  28,  in  action  by  street-car  passen- 
ger, showing  that  car  came  to  sudden  stop  and  passenger  was  thrown 
from  his  seat  and  injured,  made  prima  facie  case;  St.  Louis  etc.  Ry. 
Co.  V.  Parks,  97  Tex.  135,  76  S.  W.  742,  in  action  for  injuries  to  pas- 
senger, when  carrier  introduces  evidence  to  show  it  has  used  all 
proper  care  to  avoid  accident,  charge  that  fact  of  injury  is  prima 
facie  evidence  of  negligence  which  defendant  may  rebut  by  show- 
ing due  care  is  improper;  Firebough  v.  Seattle  Elec.  Co.,  40  Wash. 
662,  82  Pac.  997,  2  L.  R.  A.  (N.  S.)  836,  applying  rule  where  street- 
car passenger  injured  on  jumping  out  when  controller  blew  up.  See 
113  Am.  St.  Rep.  992,  1021,  note. 

Syl.  4  (III,  815).     Negligence — Acts  in  apprehension  of  injury. 

Approved  in  Omaha  Water  Co.  v.  Schamel,  147  Fed.  506,  where  fire 
started  through  negligence  of  defendants '  employee  and  flames  shut 
off  stairs,  though  some  persons  ran  through  them  to  stairs,  plaintiff 
not  negligent  in  jumping  from  window. 

Distinguished  in  Chretien  v.  New  Orleans  Ry.  Co.,  113  La.  766,  104 
Am.  St.  Rep.  519,  37  So.  718,  where  decedent  was  passenger  on  car 
and  wire  fell  and  struck  car  and  loud  explosion  occurred,  scaring 
decedent  so  that  he  jumped  olf  and  was  killed,  carrier  is  not  liable, 
neither  car  nor  other  passengers  being  injured. 

13  Pet.  195-204,  10  L.  123,  CLARK  v.  SMITH. 

Syl.  2  (III,  817).     Administering  state  law  creating  property  rights. 

Approved  in  Mathews  S.  Co.  v.  Mathews,  148  Fed.  493,  Rev.  Laws 
Mass.,  c.  159,  §  3,  cl.  7,  providing  that  supreme  and  superior  courts 
shall  have  jurisdiction  in  equity  of  creditors '  suits  to  reach  property 
of  debtor  which  cannot  be  attached  or  executed  upon  at  law,  is  not 
enforceable  in  federal  courts;  Ames  Realty  Co.  v.  Big  Indian  etc.  Co., 
146  Fed.  174,  175,  176,  applying  rule  to  equity  suit  where  under  Mon- 
tana Code  in  action  to  protect  water  rights  plaintiff  may  make  any 
or  all  jjcrsons  who  have  diverted  water  from  same  stream  parties; 
United  States  Min.  Co.  v.  Lawson,  134  Fed.  771,  67  C.  C.  A.  587,  remedy 
given  by  Utah  statute  authorizing  suit  to  quiet  title  without  previous 
adjudication  of  title  in  law  action,  and  without  reference  to  pos- 
session, is  enforceable  in  federal  court. 


175  Notes  on  U.  S.  Rexjorta.  13  Pet.  209-262 

Distinguished  in  Illinois  Life  Ins.  Co.  v.  Newman,  141  Fed.  453, 
refusing  to  enjoin  collection  of  state  tax  on  ground  of  its  illegality 
alone,  though  state  authorized  such  action. 

13  Pet.  209-224,  10  L.  129,  STEIN  v.  BOWMAN. 

Syl.  7  (III,  822).     Wife  as  witness  against  husband. 

Approved  in  Brock  v.  State,  44  Tex.  Cr.  342,  100  Am.  St.  Rep.  859, 
71  S.  W.  22,  60  L.  R.  A.  465,  wife  is  incompetent  witness  against 
husband  in  prosecution  for  rape  though  no  objection  raised  by  hus- 
band. 

Syl.  9  (iri,  823).     Deposition  of  absent  witness. 

Approved  in  Toledo  Traction  Co.  v.  Cameron,  137  Fed.  60,  65,  69 
C.  C.  A.  28,  permitting  reading  of  testimony  of  witness  given  on 
former  trial  where  he  is  without  district  and  more  than  one  hundred 
miles  distant  from  place  of  trial. 

13  Pet.  230-262,  10  L.  138,  EX  PARTE  HEXNEN. 

Syl.  2   (III,  824).     Removal  of  officers  at  pleasure. 

Approved  in  Hartigan  v.  United  States,  196  U.  S.  174,  49  L.  436, 
25  Sup.  Ct.  204,  West  Point  cadet  may  be  dismissed  summarily  by 
President;  Cole  v.  Territory  of  Arizona,  5  Ariz.  141,  48  Pac.  218, 
territorial  treasurer  a])pointed  by  the  governor  after  the  adoption  of 
Rev.  St.,  par.  3049,  may  be  removed  at  any  time;  State  v.  Maroney, 
191  Mo.  551,  90  S.  W.  147,  under  Laws  1903,  p.  170,  election  commis- 
sioners cannot  remove  judge  or  clerk  without  charges  and  notice 
thereof. 

Distinguished   in   Christy    v.    City   of   Kingfisher,    13    Okl.    593,    76 
Pac.  138,  under  statute,  marshal  of  city  of  first  class  cannot    be  re- 
moved for  cause  without  notice  of  charges. 

Syl.  4  (III,  826).     Discretion  to  remove  officer — Grounds. 

Approved  in  W'ard  v.  Board  of  Regents,  138  Fed.  378,  where  act 
incorporating  board  of  regents  of  college  authorized  board  to  remove 
professors  whenever  interests  of  college  required,  in  absence  of  fraud 
regents  not  liable  in  damages  for  discharging  professor  before  ter- 
mination of  contract  of  employment;  dissenting  opinion  in  Mial  v. 
Ellington,  134  N.  C.  177,  46  S.  E.  976,  65  L.  R.  A.  G97,  majority  hold- 
ing officer  appointed  for  a  definite  time  to  public  office  has  no  vested 
interest  therein  or  contract  right  thereto. 

Distinguished  in  Mial  v.  Ellington,  134  U.  S.  142,  46  S.  E.  965,  65 
L.  R.  A.  697,  an  officer  appointed  for  a  definite  time  to  public  office 
has  no  vested  interest  therein  or  contract  right  thereto. 

Syl.  5  (III,  826).     Officers — Appointment  of  successor  is  removal. 

Distinguished  in  Board  of  Education  v.  Territory,  12  Okl.  301,  70 
Pac.  797,  appointment  of  new  commission  to  locate  site  for  normal 
school  under  act  of  1901,  after  time  for  appointment  of  commissioB 
had  expired,  is  void. 


13  Pet.  279-330  Notes  on  U.  S.  Eeports,  176 

13  Pet.  279-291,  10  L.  161,  EX  PAETE  HOYT. 

Syl.  1  (III,  829).     Mandamus  to  compel  judgment. 

Approved  in  Cattermole  v.  Ionia  Circuit  Judge,  136  Mich.  280,  99 
N.  W.  4,  mandamus  does  not  lie  to  review  the  action  of  circuit  judge 
in  quashing  a  writ  of  capias  ad  respondendum  and  to  compel  the 
setting  aside  of  the  order. 

Syl.  2  (III,  829).  Mandamus  to  correct  erroneous  inferior  judg- 
ment. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  955,  67 
L.  R.  A.  761,  66  C.  C.  A.  55,  upholding  jurisdiction  of  circuit  court 
of  appeals  to  grant  mandamus  to  compel  circuit  court  to  vacate  order 
staying  proceedings  pending  state  court  appeals.  See  98  Am.  St.  Eep. 
892,  note. 

13  Pet.  294-301,  10  L.  168,  VAN  NESS  v.  HYATT. 

Syl.  2   (III,  830.)      Mortgage  vests  legal  title  in  mortgagee. 

Approved  in  Lefmann  v.  Brill,  142  Fed.  48,  wife  who  recovered  de- 
cree against  husband  in  suit  for  maintenance  which  awarded  her 
specific  property,  including  realty,  upon  which  husband  had  prior  to 
suit  executed  mortgage  of  his  interest,  cannot  avoid  mortgage  on 
ground  that  it  was  made  to  defeat  claim  for  maintenance. 

13  Pet.  312-330,  10  L.  177,  McELMOYLE  v.  COHEN. 

Syl.  3   (III,  832).     No  execution  on  foreign  judgments. 

Approved  in  Lamb  v.  Powder  Eiv.  etc.  Co.,  132  Fed.  440,  67  L.  R. 
A.  558,  65  C.  C.  A.  570,  holding  void  Colorado  act  of  1895,  as  amended 
in  1899,  prescribing  limitation  for  actions  on  foreign  judgments,  as 
applied  to  action  on  foreign  judgment  based  on  contract  and  rendered 
prior  to  passage  of  act  on  cause  of  action,  accruing  more  than  six 
years  prior  thereto;  In  re  Culp,  2  Cal.  App.  82,  83  Pac.  94,  judgment 
of  sisfrer  state  giving  petitioner  in  habeas  corpus  right  to  custody  of 
child  cannot  be  enforced  in  habeas  corpus  proceedings  for  possession 
of  child.     See  103  Am.  St.  Rep.  312,  313,  note. 

Syl.  6   (III,  835).     Limitations  governed  by  lex  fori. 

Approved  in  Rankin  v.  Barton,  69  Kan.  632,  77  Pac.  532,  an  ac- 
tion to  enforce  the  individual  liability  of  a  stockholder  in  a  national 
bank  is  governed  by  statute  of  limitations  of  state  where  action  is 

brought. 

Syl.  7  (III,  837).     Limitation  on  action  on  foreign  judgments. 

Approved  in  Lamb  v.  Powder  Riv.  etc.  Co.,  132  Fed.  438,  67  L.  R. 
A.  558,  65  C.  C.  A.  570,  holding  void  Colorado  act  of  1895  as  amended 
by  act  of  1899,  prescribing  limitation  for  actions  on  foreign  judg- 
ments, as  applied  to  action  on  foreign  judgment  based  on  contract  and 
rendered  prior  to  passage  of  act  on  cause  of  action  which  accrued 
more  than  six  years  prior  thereto;  Terry  y.  Heisen,  115  La.  1083,  40 


177  Notes  on  U.  S.  Eeports.  13  Pet.  359-408 

So.   4G5,   upliokling  article   233   of  Constitution   of   1898,   establishing 
prescription  of  three  years  against  actions  to  annul  tax  sales. 

Syl.  8   (III,  837).     Foreign  judgment — Priority  in  marshaling  assets. 

Approved  in  Murray  v.  Farrell,  2  Alaska,  3G3,  where  one  became 
indebted  in  Montana  and  before  debt  barred  he  removed  to  Alaska, 
in  action  on  debt  in  Alaska,  limitation  statutes  of  that  territory 
govern. 

13  Pet.  359-377,  10  L.  200,  STORY  v.  LIVINGSTON. 

Syl.  1   (III,  840).     Exceptions  to  master's  rejwrt. 

Approved  in  General  Fire  Extinguisher  Co.  v.  Lamar,  141  Fed.  355, 
following  rule;  Neher  v.  Armijo,  11  N.  M.  83,  G6  Pac.  519,  applying 
principle  to  errors  in  referee's  report. 

Syl.  G  (in,  842).     Interested  persons  are  necessary  parties. 

Approved  in  In  re  E.  T.  Kenney  Co.,  136  Fed.  455,  beneficial  inter- 
est of  assignors  in  net  proceeds  of  claims  assigned  to  liquidating  com- 
mittee after  administering  trust,  not  provable  in  bankru[»tcy. 

(Ill,  840.)  Miscellaneous.  Cited  in  Brown  v.  Fletcher,  140  Fed. 
648,  where  cause  of  action  involved  in  suit  in  equity  has  passed  by 
assignment  or  devise  from  estate  of  deceased  complainant  to  another, 
suit  cannot  be  revived;  Ex  parte  Marks,  136  Fed.  170,  69  C.  C.  A.  80, 
where  mandate,  after  appeal,  directed  trial  court  to  take  such  further 
proceedings  as  according  to  right  and  law  ought  to  be  had,  court 
could,  on  ascertaining  mistake  in  computation  of  judgment,  correct 
error. 

13  Pet.  378-380,  10  L.  209,  WILCOX  v.  HUNT. 

Syl.  5   (III,  844).     Contracts — Lex  fori  governs  enforcement. 

Approved  in  Supreme  Lodge,  Knights  of  Pj'thias  v.  Meyer,  198  V. 
S.  517,  49  L.  1149,  25  Sup.  Ct.  754,  applying  rule  to  question  as  to 
existence  of  relation  of  pliysician  and  patient  so  as  to  exclude  former's 
testimony;  Clark  v.  Eltinge,  38  Wash.  383,  107  Am.  St.  Rep.  858, 
80  Pac.  559,  married  woman  as  debtor  is  entitled  only  to  those  ex- 
emptions provided  by  statutes  of  state  of  her  residence  and  of  place 
of  suit. 

13  Pet.  404-408,  10  L.  221,  EX  PARTE  WHITNEY, 

Syl.   1    (III,  846).     Mandamus   to   compel   equity   practice. 

Distinguished    in   Barber    Asphalt    etc.    Co.   v.    Morris,    132    Fed.    956, 
67  L.  R.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to  compel  circuit 
court   to  vacate  order  staying  proceedings  pending  determination   of 
state  court  appeals. 
12 


13  Pet.  309-485  Notes  on  U.  S.  Keports.  178 

13  Pet.  309-414,  10  L.  223,  EMERSON'S  HEIES  v.  HALL. 

Syl.  2   (III,  848).     Claims  under  private  acts. 

Approved  in  United  States  v.  Foreman,  5  Okl,  253,  48  Pac.  97,  one 
suing  government  for  recovery  of  money  paid  for  land  on  wliich  er- 
roneous entry  was  canceled  need  not  show  surrender  of  duplicate  cer- 
tificate to  Secretary  of  Interior  nor  relinquishment  of  all  claims  to 
land. 

Distinguished  in  Nutt  v.  Forsythe,  84  Miss.  219,  36  So.  248,  where 
Congress  appropriated  a  sum  of  money  to  the  administrator  of  a  de- 
cedent in  payment  of  a  claim  of  the  decedent  against  the  United 
States,  the  representatives  of  deceased  heirs  are  entitled  to  share  with 
living  heirs  in  the  distribution  thereof. 

13  Pet.  423-435,  10  L.  229,  ANTHONY  v.  BUTLER. 

Syl.  1   (III,  849).     Partner's  deed  does  not  bind  other. 

Approved  in  Runner  v.  Woitke,  2  Alaska,  395,  realty  held  by 
mercantile  firm  cannot  be  sold  by  one  partner  without  written  au- 
thority. 

13   Pet.   436-458,   10  L.   235,  BAGNELL  v.  BRODERICK. 
Syl.    8    (III,    853).     Patent    is    conclusive    of    legal    title. 

Approved  in  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  47,  69 
C.  C.  A.  22,  federal  court  may  entertain  suit  in  equity  to  permit 
presentation  of  probate  claim  after  time  limited  by  order  of  Min- 
nesota probate  court  and  within  eighteen  months  allowed  by  stat- 
ute; Tyee  Consol.  Min.  Co.  v.  Langstcdt,  13G  Fed.  127,  69  C.  C.  A. 
548,  as  against  locator  of  mining  claim  there  is  no  disseisin  suffi- 
<-ient  to  start  limitations  prior  to  issuance  of  patent;  Anglo-Amer- 
ican etc.  Co.  V.  Lombard,  132  Fed.  731,  68  C.  C.  A.  89,  in  action 
at  law  in  federal  court  to  enforce  statutory  liability  of  stockholder 
in  Kansas  corporation,  defendant  cannot  set  off  debt  from  corpora- 
tion to  him;  Peyton  v.  Desmond,  129  Fed.  10,  63  C.  C.  A.  651,  state 
statute  purporting  to  regulate  effect  of  final  receipts  issued  by 
United  States  Land  Department  cannot  withhold  from  grantees  of 
United  States  any  of  incidents  of  the  transfer  of  government  title; 
Tyee  Consol.  Min.  Co.  v.  Langstedt,  1  Alaska,  444,  ten  year  stat- 
ute of  limitations  begins  to  run  in  favor  of  one  in  adverse  posses- 
sion of  part  of  mining  claim  from  time  of  location  and  not  from 
date  of  patent;  Adams  v.  Couch,  1  Okl.  29,  26  Pac.  1013,  recovery 
in  ejectment  on  duplicate  receipt  of  register  and  receiver,  not  au- 
thorized by  Neb.  Code  Civ.  Proc,  §  411. 

13   Pet.    464-485,   10    L.    248,    BURTON    v.    SMITH. 

Syl.    2    (III,    856).     Sale    of    reversion    to    satisfy    decedent's   debt. 
See   112   Am.   St,   Rep.    1022,   note. 


179  Notes  on  U.  S.  Reports.  13  Pet,  486-518 

13  Pet.  48G  497,  10  L.  258,  MEREDITH  v.  UNITED  STATES. 

Syl.  1    (III,  857).     Debt  for  unpaid   duties. 

Approved  in  United  States  v.  National  Fibre  Board  Co.,  133 
Fed.  597,  upholding  jurisdiction  of  district  court  over  action  to 
recover  duties  due  from  importer,  which,  through  accident,  mistake 
or  fraud   have   not   been  paid. 

Syl.   3    (III,   857).     Duties   accrue   on   arrival   of   goods. 

Approved  in  United  States  v.  Ed.  S.  Hartwell  L.  Co.,  142  Fed. 
436,  where  merchandise  was  imported  before  tariff  of  1897  went 
into  effect,  and  entry  tendered  before  importation  complete  was  re- 
jected and  not  renewed  until  act  became  operative,  it  was  gov- 
erned by  section  33  of  said  act. 

13    Pet.    498-518,    10    L.    264,    WILCOX   v.    JACKSON    ex    dcm.    Mc- 
CONNELL. 

Syl.    1    (III,    858).     Judgment    binding    till    reversed. 

Approved  in  United  States  v.  Praeger,  149  Fed.  485,  whore  a 
civilian  was  subpoenaed  to  testify  before  court-martial  and  refused 
to  answer  because  answers  might  tend  to  incriminate  him,  decision 
of  court  that  questions  were  proper  is  not  conclusive  on  civil  courts 
of  question  whether  witness  was  guilty  of  contempt  in  refusing  to 
answer. 

Syl.  3   (III,  8C0).     Land  officer's  decision  conclusive. 

Distinguished  in  De  Laittre  v.  Board  of  Commissioners,  149  Fed. 
804,  under  Oregon  statutes  prior  to  issuance  of  deed  for  school 
lands,  state  land  board  may,  on  receiving  information  of  fraud  in 
application   for   purchase,   institute   hearing. 

Syl.   5    (III,    861).     President    acts   through    departments. 

Approved  in  United  States  v.  Tully,  140  Fed.  901,  lands  occupied 
but  without  limits  of  lands  reserved  for  Missoula  ^Military  Reserva- 
tion by  executive  order,  are  not  within  such  reservation;  Behrends 
V.  Goldsteen,  1  Alaska,  524,  acts  of  Secretary  of  the  Navy  in  re- 
serving parts  of  public  domain  constitute  valid  reservation  so  that 
discovery  of  mineral  within  reservation  will  not  sustain  mining  loca- 
tion. 

Syl.   6    (III,   862).     Legally   appropriated   lands   severed. 

Approved  in  Scott  v.  Carew,  196  U.  S.  109,  112,  49  L.  405,  406, 
407,  25  Sup.  Ct.  193,  right  of  pre-emption  given  by  act  of  1826  did 
not  extend  to  lands  which  had  been  appropriated  for  military  post 
until  such  post  was  abandoned;  United  States  v.  Oregon  etc.  Co., 
143  Fed.  771,  railroad  land  grant  of  1866  did  not  embrace  land 
which  at  time  of  grant  was  subject  to  live  homestead  entry,  though 
such  entry  relinquished  prior  to  filing  of  map  of  definite  location; 
Winters  v.  United  States,  143  Fed.  748,  grantees  of  public  lands  out- 


13  Pet.  498-518  Notes  on  U.  S.  Reports.  180 

side  of  Fort  Belknap  reservation  could  not  acquire,  as  against 
Indians,  exclusive  right  to  waters  of  Milk  river,  for  purposes  of 
irrigation;  United  States  v.  Tully,  140  Fed.  905,  lands  occupied  but 
without  limits  of  lands  reserved  for  Missoula  Military  Reservation 
by  executive  or9er  are  not  within  such  reservation;  Northern  Lum- 
ber Co.  v.  O'Brien,  139  Fed.  616,  under  Northern  Pacific  grant  of 
1864,  lands  withdrawn  by  land  department  in  advance  of  per- 
manent location  of  another  road  not  embraced  therein;  Gibson  v. 
Anderson,  131  Fed.  42,  65  C.  C.  A.  277,  President,  by  proclamation, 
may  reserve  portion  of  unoccupied  public  lands  for  Indian  reserva- 
tion; Gavigan  v.  Crary,  2  Alaska,  380,  where  tract  of  public  land 
is  actually  set  apart  by  war  department  for  military  purposes,  and 
government  appropriations  expended  in  fitting  it  for  such  use  and 
military  forces  remain  in  possession  thereof  until  its  abandon- 
ment by  formal  notice,  it  was  a  military  reservation;  Crawford  v. 
13urr,  2  Alaska,  35,  where  commander  of  military  post  gave  party 
permission  to  erect  stable  on  reservation,  he  initiated  no  right  to 
ground  by  such  possession;  State  v.  Trustees  of  the  Internal  Im- 
provement Fund,  47  Fla.  325,  35  So.  995,  applying  rule  where  lands 
were  listed  as  swamp  and  overflowed  lands;  Florida  Town  Imp. 
Co.  V.  Bigalsky,  44  Fla.  776,  33  So.  451,  applying  rule  to  public 
lands  on  north  end  of  Amelia  Island  reserved  for  military  purposes; 
State  V.  Tully,  31  Mont.  382,  78  Pac.  766,  determining  jurisdic- 
tion of  state  over  homicide  committed  on  land  set  apart  to  military 
reservation;  McMichael  v.  Murphy,  12  Okl.  160,  161,  70  Pac.  191, 
homestead  entry  valid  on  its  face  segregates  it  from  the  public 
domain  and  precludes  it  from  subsequent  entry  until  original  entry 
is  canceled.     See  106  Am.  St.  Eep.   800,  note. 

Syl.   8    (III,   865).     Patent   alone   passes   perfect   title. 

Approved  in  McCune  v.  Essig,  199  U.  S.  390,  50  L.  241,  26  Sup. 
Ct.  78,  doctrine  of  relation  cannot  be  invoked  to  confer  any  right 
in  land  under  operation  of  state  laws  upon  daughter  of  deceased 
homesteader   as   against   widow   to   whom   patent    has   issued. 

Syl.   9    (III,   866).     Statute   conveying   lands   in   present   tense. 

Approved  in  Smith  v.  Beloit,  122  Wis.  407,  100  N.  W.  881,  where 
entryman  on  public  land,  after  having  paid  his  money  and  obtained 
register's  certificate,  platted  land  into  city  lots,  on  recording  of 
patent   to   him,   deeds   to    grantees   conveyed   legal   title. 

Syl.  10  (III,  867).  Federal  laws  govern  passing  of  government 
title. 

Approved  in  Peyton  v,  Desmond,  129  Fed.  10,  63  C.  C.  A.  651, 
state  statute  purporting  to  regulate  effect  of  final  receipts  of  United 
States  land  department  cannot  withhold  from  grantees  of  govern- 
ment any  of  incidents  of  transfer  of  government  title;  Moore  v. 
Halliday,  43  Or.  253,  99  Am.  St.  Eep.  724,  72  Pac.  804,  one  who  haa 


181  Notes  on  U.  S.  Ecports.  13  Pet.  519-G06 

made  Tiomcstcad  filing  on  government  land,  and  is  in  possession, 
but  has  not  obtained  title,  cannot  have  title  quieted  as  against 
one   claiming  an  interest   therein. 

Syl.    11    (III,    8G7).     State    regulation    when    title    passes. 

Approved  in  Cunningham  v.  Krutz,  41  "Wash.  197,  83  Pac.  112, 
where  husband  homcsteaded  lands  and  resided  thereon  with  wife, 
and  patent  issued  to  him,  and  wife  left  will  giving  undivided  half 
of  land  to  her  children,  wife  could  not  devise  any  part  of  same  as 
coinmuincy  property  as  patent  vested  entire  estate  in  husband. 

Syl.   12    (III,   867).     Suit   against   government   officer. 

Approved  in  Wadsworth  v.  Boysen,  148  Fed.  780,  suit  to  enjoin 
Indian  agent  from  obstructing  complainant  in  prospecting  on  reser- 
vation is  not  suit  against  government  though  defendant  claims 
to  be  acting  in   official  capacity. 

13  Pet.  519-G06,  10  L.  274,  BANK  OF  AUGUSTA  v.  EAELE. 

Syl.    4    (III,    871).     Corporation    cannot    migrate. 

Approved  in  Lee  v.  Atlantic  etc.  R.  Co.,  150  Fed.  800,  where  peti- 
tion for  removal  by  tlefendant  corjioration  alleges  that  it  was  or- 
ganized under  laws  of  state  other  than  that  on  which  it  is  sued, 
an  allegation  that  it  is  not  a  citizen  of  latter  state  is  unnecessary; 
Miller  v.  Ahrens,  150  Fed.  056,  since  under  West  Virginia  laws 
religious  societies  cannot  be  incorporated,  a  trust  created  by  will 
for  benefit  of  foreign  religious  corporation,  involving  devise  of 
land  in  West  Virginia,  is  void;  Kirven  v.  Virginia  etc.  Co.,  145 
Fed.  292,  failure  of  foreign  corporation  to  comply  with  state  stat- 
ute imposing  conditions  precedent  to  right  of  such  corporations 
to  do  business  in  state,  does  not  render  contracts  wholly  void,  but 
only  suspends  right  to  sue  thereon  until  it  complies.;  Western  Union 
Tel.  Co.  V.  Pittsburg  etc.  Ey.  Co.,  137  Fed.  437,  in  federal  equity 
suit  for  specific  performance  of  telegraph  right  of  way  contracts 
with  certain  consolidated  railroads,  necessary  parties  being  subject 
to  court's  jurisdiction,  it  is  immaterial  that  portion  of  property 
affected  is  outside  of  district;  Old  Wayne  Mut.  Life  Assn.  v.  Mc- 
Donough,  164  Ind.  327,  73  N.  E.  705,  upholding  Pennsylvania  stat- 
ute requiring  foreign  insurance  companies  to  file  with  insurance 
commissioner  permitting  service  of  process  on  commissioner  or  on 
agent  designated  by  company;  Ham  v.  Booth,  72  Kan.  431,  83  Pac. 
25,  tax  deed  is  not  void  for  failing  to  give  residence  of  assignee 
of  certificate  of  sale  where  such  assignee  is  foreign  corporation  and 
recital  is  that  it  is  a  corporation  organized  and  existing  under  laws 
of  designated  state;  Williams  v.  Metropolitan  St.  Ey.  Co.,  68  Kan. 
21,  74  Pac.  602,  64  L.  R.  A.  794,  foreign  corporation  is  "out  of 
the  state"  within  meaning  of  Code,  §  21,  and  therefore  cannot  avail 
itself  of  the  statute  of  limitations;  Pollock  v.  German  Fire  Ins. 
Co.,   132    Mich.    227,    93    N.    W.    437,   upholding    statutes    relating    t© 


13  Pet.  519-606  Notes  on  U.  S.  Reports.  182 

foreign  insurance  companies  providing  that  term  "agent"  shall 
include  any  acknowledged  agent  or  other  person  who  shall  aid  in 
transaction  of  company's  business;  Groel  v.  United  Elec.  Co.,  G9 
N.  J.  Eq.  410,  60  Atl.  827,  upholding  service  on  designated  agent 
of  foreign  corporation;  Myatt  v.  Ponca  City  Land  etc.  Co.,  14  Okl. 
223,  224,  226,  78  Pac.  194,  195,  68  L.  R.  A.  810,  where  foreign  cor- 
poration, acting  in  excess  of  its  conferred  authority,  attempts  to 
acquire  property  vested  in  individual,  latter  may  deny  corporate 
f-apacity  as  defense  to  right  of  recovery;  Chapman  y.  Cash  Register 
Co.,  32  Tex.  Civ.  77,  73  S.  W.  970,  under  Rev.  St.,  arts.  745,  746, 
requiring  foreign  corporation  to  file  certified  copy  of  articles  of  in- 
corporation, such  corporations  must,  on  suing,  allege  compliance 
with  statute;  Booth  v.  Weigand,  28  Utah,  384,  79  Pac.  572,  uphold- 
ing constitutional  and  statutory  provisions  prescribing  conditions 
for  transaction  of  business  by  foreign  corporations;  National  Coun- 
cil etc.  American  Mechanics  v.  State  Council,  104  Va.  205,  51  S.  E. 
169,  upholding  act  of  Feb.  17,  1900,  constituting  certain  persons 
a  body  corporate  and  giving  corporation  exclusive  authority  to 
charter  subordinate  chapters,  thereby  in  effect  annulling  prior  ex- 
isting right  of  foreign  corporation;  dissenting  opinion  in  Security 
etc.  Ins.  Co.  v.  Prewitt,  202  U.  S.  265,  50  L.  1021,  26  Sup.  Ct.  619, 
majority  holding  state  may  provide  that  if  foreign  insurance  com- 
pany shall  remove  to  federal  court  case  commenced  in  state  court, 
I'cense  to  do  business  in  state  shall  be  revoked;  Kansas  City  etc. 
Py.  Co.  V.  Stevenson,   135  Fed.  554,  arguendo. 

Distinguished  in  Goodwin  v.  Clayton,  137  N.  C.  235,  107  Am.  St. 
Rep.  479,  49  S.  E.  177,  67  L.  R.  A.  209,  upholding  right  to  proceed 
against  New  Jersey  corporation  by  garnishment  where  services  sued 
on  performed  in  North  Carolina  and  it  had  no  property  in  former 
state. 

Syl.    8    (III,    877).     Comity — Enforcement    of    foreign    laws. 

Approved  in  Corbin  v.  Houlehan,  100  Me.  256,  61  Atl.  135,  70 
L.  R.  A.  568,  action  for  liquors  sold  in  another  state  cannot  be  main- 
tained where  statute  of  this  state  prohibits  such  sales;  Holshouser 
v.  Copper  Co.,  138  N.  C.  258,  50  S.  E.  654,  70  L.  R.  A.  183,  claim 
for  state  license  fee  imposed  by  New  Jersey  statute  on  corpora- 
tions created  by  that  state  is  not  entitled  to  preference  in  insol- 
vency proceedings  against  such  corporations  in  another  state;  dis- 
senting opinion  in  Warren  v.  Pim,  66  N.  J.  Eq.  417,  59  Atl.  797, 
majority  holding  voting  trust  in  stock  of  fisheries  company  a  New 
Jersey  corporation,  claimed  by  a  British  corporation,  contrary  to 
public  policy  and  void. 

Syl.  11    (III,  879).     Suit   by  foreign   corporation. 

Approved  in  Evansville  etc.  Co.  v.  Henderson  B.  Co.,  132  Fed. 
404,  federal  equity  court  sitting  in  Kentucky  cannot  compel  domes- 
tic  corporation   to   permit  Indiana   railroad,   which   has   not   complied 


183  Notes  on  U.  S.  Reports.  13  Pet.  519-606 

with   law  relating  to   foreign   corporations,   to   connect   with   and   uso 
tracks   over   bridge   to   enable    railroad    to    do   business   in   Kentucky. 

Syl.  12   (III,  8S0).     Imposition  of  terms  on  foreign  corporations. 

Approved  in  Miller  v.  Ahrens,  150  Fed.  656,  since,  under  West 
Virginia  laws,  religious  societies  cannot  be  incorporated,  a  trust 
created  by  will  for  benefit  of  foreign  religious  corporation  involving 
devise  of  land  in  West  Virginia  is  void;  Kirven  v.  Virginia  etc.  Co., 
145  Fed.  292,  failure  of  foreign  corporation  to  comply  with  state 
statute  imposing  conditions  precedent  to  right  of  such  corporations 
to  do  business  in  state  does  not  render  contracts  wholly  void,  but 
only  suspends  right  to  sue  therein  until  it  complies;  Prewitt  v. 
Security  etc.  Ins.  Co.,  119  Ky.  327,  83  S.  W.  612,  upholding  Ky. 
St.  1903,  §  631,  providing  that  if  any  foreign  insurance  company 
shall,  without  the  consent  of  the  other  party  to  the  suit,  remove 
action  to  federal  court,  insurance  commissioner  shall  revoke  its 
license;  State  v.  Cumberland  Tel.  etc.  Co.,  114  Tenn.  200,  86  S.  W. 
391,  failure  of  foreign  telephone  company  to  file  abstract  of  its 
charter  in  each  county,  where  it  has  exchange  as  required  by  stat- 
ute, docs  not  work  forfeiture  of  charter;  Standard  Oil  Co.  v.  Com- 
monwealth, 104  Va.  685,  52  S.  E.  390,  holding  Va.  Code  1904,  p. 
2214,  imposing  license  fee  on  foreign  corporations,  requires  fee  of 
corporations  authorized  to  exercise  powers  of  public  service  cor- 
poration, though  it  does  not  intend  to  exercise  business  of  public 
service  corporations;  Presbyterian  Ministers'  Fund  v.  Thomas,  126 
Wis.  286,  110  Am.  St.  Eep.  919,  105  N.  W.  803,  where  foreign  in- 
surance has  failed  to  comply  with  statutes  imposing  conditions 
precedent  to  right  of  companies  to  do  business  witli  residents,  it 
cannot   recover  on  such   contract  though  made   in  anotlur  state. 

Syl.    13    (III,    8S3).     Franchises    defined. 

Approved  in  Chicago  v.  Eothschild,  212  111.  593,  72  N.  E.  699.  city 
ordinance  granting  right  to  niaintain  elevated  passageway  connect- 
ing store  with  elevated  railroad,  and  limiting  right  to  fifty  years, 
was  neither  franchise  nor  freehold  interest;  Purnell  v.  McLane,  98 
Md.  592,  56  Atl.  831,  upholding  Baltimore  ordinance  authorizing 
electrical  commission  to  rent  conduit  space  only  to  companies  hav- 
ing  authority    to   use    streets. 


XIV  PETERS. 


14     Pet.     19-32,    10     L.    335,     BANK     OF     THE     METROPOLIS    v. 
GUTTSCHLICK. 

Syl.  2  (IV,  8).     Corporation's  contract  through     officers. 

Approved  in  Sudworth  v.-  Morton,  137  Mich.  578,  100  N.  W.  770, 
where,  in  action  to  recover  money  obtained  by  false  representa- 
tions, declaration  alleged  representations  were  made  to  plaintiff, 
who  paid  money  relying  thereon,  proof  that  representations  mado 
to  plaintiff's  agent  and  that  she  paid  money  on  plaintiff's  behalf, 
and    that   he    subsequently   ratified    her   act,    constitute    no    variance. 

Syl.    12    (IV,    10).     Judgment    on    note.     Limitations — Foreclosure. 

Approved  in  Haggart  v.  Wilczinski,  143  Fed.  28,  under  Mississippi 
statutes  fact  that  debt  secured,  by  mortgage  was  barred  di<l  not 
preclude  mortgagee  in  possession  under  void  sale  from  suing  to 
compel  mortgagor's  heirs  from  electing  to  affirm  or  disaffirm  sale, 
and  for  judicial  foreclosure. 

14  Pet.   33-42,    10   L.   341,   KANE   v.   PAUL. 

Syl.   3    (IV,   11),     Suits  by  or   against   foreign   executors. 

Approved  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  306.  ex- 
ecutor may  sue  in  another  state,  without  procuring  new  letters  to 
recover  from  agents  employed  by  him  proceeds  of  sale  of  realty 
belonging  to  decedent's  estate. 

Syl.  6  (IV,  12),  Executor's  suit — Personal  or  representative  ca- 
pacity. 

Approved   in    Leahy   v.   Haworth,    141   Fed.   852,   arguendo. 

14   Pet.   51-55,    10   L.   350,   WEST   v.   BRASHEAR. 

Syl.    2    (IV,    14).     Construction    of    appellate    mandate — Oiiinion. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  etc.  Co.,  147  Fed.  904, 
M-here  circuit  court  of  appeals  on  error  by  defendant  affirmed  judg- 
ment of  circuit  court,  but  subsequently  on  cross-error  by  plaintiff 
reversed  on  different  questions  and  ordered  new  trial,  opinions  in 
two  cases  are  law  of  case  on  subsequent  error  from  second  judgment; 
Wollman  v.  Loewen,  108  Mo.  App.  586,  84  S.  W.  167,  applying  rule 
in  action  on  promissory  notes.     See  98  Am.  St.  Rep.  905,  note. 

[184] 


185  Notes  on  U.  S.  Eeports.  14  Pet.  60-83 

14  Pet.  60-66,  10  L.  354,  COMMERCIAL  ETC.  BANK  v.  SLOCOMB. 

Syl.   3    (IV,   17).     Special   appearance   by   corporation. 

Approved  in  Greenleaf  v.  National  Assn.  Ky.  Post  Clerks,  130 
Fed.  212,  where  foreign  insurance  company  after  suit  brought  in 
state  court  took  reasonable  steps  to  have  same  removed,  it  could, 
after  removal,  appear  specially  for  purpose  of  dismissing  on  ground 
of  lack  of  jurisdiction  of  person;  Hilton  v.  Consumers'  Can  Co., 
103  Va.  260,  48  S.  E.  901,  execution  of  attachment  bond  by  defend- 
ant in  attachment  is  not  such  appearance  as  gives  jurisdiction  to 
enter    personal    judgment    against    defendant. 

14  Pet.   67-76,   10  L.   357,   SUYDAM  v.   BROADNAX. 

Syl.  3   (IV,  19).     Insolvency  statute  exempting  from  suit — Courts. 

Approved  in  Metropolitan  Rubber  Co.  v.  Place,  147  Fed.  95,  de- 
cree entered  in  suit  for  dissolution  of  corporation  barring  all  claims 
not  presented  for  allowance  pursuant  to  previous  order,  does  not 
affect  right  of  nonresident  creditor  to  sue  on  claim;  Alice  E.  Min. 
Co.  V.  Blanden,  136  Fed.  254,  nonresident  creditor  may  establish 
his  claim  in  federal  courts  against  personal  representatives  of  de- 
ceased debtor,  though  state  laws  limit  right  to  establish  such  claims 
to  proceedings  in  probate  court;  Barber  Asphalt  etc.  Co.  v.  Morris, 
132  Fed.  950,  67  L.  R.  A.  761,  60  C.  C.  A.  55,  Duluth  charter,  §  80, 
providing  for  appeals  from  allowance  or  rejection  of  claims  to 
county  court,  and  prohibiting  payment  of  claims  pending  appeal, 
does  not  restrict  power  of  federal  courts  to  enforce  their  judgments 
on    such    claims. 

14  Pet.  77-83,  10  L.  361,  CAER  v.  DUVAL. 

Syl.    1    (IV,   23).     Contracts — Acceptance   not   according   to   offer. 

Approved  in  Cella  v.  Brown,  144  Fed.  762,  applying  principle  to 
negotiations  with  stockholders  of  railroads  for  agreement  for  re- 
organization; Kelley,  Mans  &  Co.  v.  Sibley,  137  Fed.  588,  69  C.  C.  A. 
G74,  construing  contract  for  carriage  bolts  as  conditional  acceptance 
of  offer  to  purchase;  Henry  v.  Black,  213  Pa.  627,  63  Atl.  253, 
refusing  specific  performance  where  holder  of  option  to  purchase 
accepted   on   terms   varying  from   those   offered. 

Syl.   2    (IV,   23).     Specific    performance   of   uncertain    contract. 

Approved  in  Sharp  v.  West,  150  Fed.  461,  refusing  specific  per- 
formance of  contract  for  sale  of  land  where  there  was  three  years' 
delay  in  suing;  Jones  v.  Byrne,  149  Fed.  461,  refusing  specific  per- 
formance of  contract  to  purchase  lands  where  defendant,  under 
contract  between  parties,  was  both  attorney  and  trustee  for  com- 
plainant; Couch  V.  McCoy,  138  Fed.  704,  construing  correspondence 
for  purchasing  lands  as  not  constituting  option  to  purchase;  Kane 
V.  Luckman,  131  Fed.  612,  refusing  specific  performance  of  oral 
agreement  for  exchange  of  cows  for  farm. 


14  Pet.  84-177  Notes  on  U.  S.  Eeports.  186 

14  Pet.   84-94,   10  L.  364,   EEMINGTON  v.   LINTHICUM. 
Syl.   4   (IV,   24).     Statute   of  frauds — Eeturn   on   execution. 
See  102  Am.  St.  Eep.  242,  note. 

14   Pet.    122-132,   10   L.    382,   EUNYAN   v.    COSTEE. 

Syl.   3    (IV,   30).     Exercise   of   corporate   powers   out   of   state. 

Approved  in  Julian  v.  Central  Trust  Co.,  193  U.  S.  107,  48  L. 
637,  24  Sup.  Ct.  399,  determination  by  state  court  that  property 
covered  by  mortgage  of  all  property  and  franchise  of  railroad  re- 
mains liable  after  federal  foreclosure  for  debts  thereafter  accruing 
against  mortgagor  because  of  purchaser's  failure  to  organize  domestic 
corporation    is  not  binding  on  federal   court. 

Syl.  4   (IV,  32).     Questioning  corporate  capacity  to  hold  land. 

Approved  in  Brigham  v.  Peter  Bent.  Brigham  Hospital,  134  Fed. 
527,  67  C.  C.  A.  393,  where  state  has  waived  right  to  enforce  lim- 
itation on  amount  of  property  which  charitable  corporation  may 
hold,  by  creating  particular  corporation  with  enlarged  capacity, 
power  of  corporation  cannot  be  collaterally  attacked;  Wyatt  v. 
Ponca  City  Land  etc.  Co.,  14  Old.  213,  78  Pac.  192,  68  L.  E.  A.  810, 
when  foreign  corporation  seeks  to  acquire  title  to  property  vested 
in  individual,  such  individual  may,  under  Oklahoma  statute,  deny 
its  corporate  existence  as  to  defense  to  right  of  recovery. 

14  Pet.  147-155,  10  L.  393,  WALDEN  v.  CEAIG. 

(IV,  34.)  Miscellaneous.  Cited  in  Clapp  v.  Houg,  12  N.  D.  606,  102 
Am.  St.  Eep.  589,  98  N.  W.  712,  65  L.  E.  A.  757,  holding  void  Rev 
Codes,  §  6325,  subd.  2,  providing  for  appointment  of  special  admin- 
istrators, as  applied  to  property  of  living  person. 

14   Pet.   156-165,   10   L.   398,  WALDEN   v.   BODLEY. 

Syl.  2    (IV,   36).     Amendment  presenting  new   case. 

Approved  in  EatlifF  v.  Sommers.  55  W.  Va.  37,  46  S.  E.  715,  per- 
mitting amendment  to  answer  to  bill  for  specific  performance. 

14  Pet.   172-177,   10  L.  405,  TAYLOE  v.   LONGWOETH. 

Syl.  4  (IV,  40).  Specific  performance — Time  as  essence  of  con- 
tract. 

Approved  in  Standiford  v.  Thompson,  135  Fed.  997,  68  C.  C.  A. 
425,  applying  rule  to  option  to  purchase  coal  lands  where  first  pay- 
ment not  made  until  several  months  after  time  specified;  Early 
Times  Distil.  Co.  v.  Zeiger,  11  N.  M.  234,  67  Pac.  737,  under  Laws 
1889,  c.  67,  §§  1,  2,  relating  to  assignments  for  benefit  of  creditors, 
action  by  creditor  to  compel  transfer  to  inure  to  benefit  of  all 
creditors  must  be  filed  within  six  months  after  transfer;  McClure 
V.  Leaycraft,  183  N.  Y.  43,  75  N.  E.   963,  where  object  of   covenant 


187  Notes  on  U.  S.  Reports.  14  Pet.  178-281 

against  erection  of  certain  kinds  of  buildings  on  land  had  been  de- 
feated by  erection,  in  immediate  neighborhood  of  buildings  cove- 
nanted against,  erection  of  such  buildings  on  such  land  will  not  be 
enjoined;  Hunter  v.  Coe,  12  N.  D.  512,  97  N.  W.  871,  one  buying 
realty  with  notice  of  outstanding  contract  of  sale  may  in  specific 
performance  be  required  to  pay  to  first  vendee,  from  unpaid  pur- 
chase money,  sufficient  sum  to  reimburse  latter  for  payments  made 
to  vendor. 

1-1   Pet.   178-200,   10   L.   408,   BREWER   v.   BLOUGHER. 

Syl.   1    (IV,  43).     Strict   construction   of   statutes. 

Approved  in  Mottley  v.  Louisville  etc.  R.  Co.,  150  Fed.  411,  act 
of  Congress,  June  29,  1906,  §§  2,  6,  prohibiting  interstate  carriers 
from  issuing  passes,  did  not  invalidate  contract  made  in  1871  for 
issuance  of  free  passes  to  complainant  for  life  in  consideration  of 
release  of  damages;  State  v.  Eldredge,  27  Utah,  488,  76  Pac.  341, 
construing  Const.,  art.  13,  §  11,  giving  state  board  of  equalization 
power  to  perform  "such  other  duties  as  may  be  prescribed  by  law." 

14     Pet.     201-209,     10     L.     419,     SPRIGG    v.     BANK     OF     MOUNT 
PLEASANT. 

Syl.  7    (IV,  47).     Showing  deed  absolute  is  mortgage. 

Approved  in  Weiseham  v.  Hocker,  7  Okl.  255,  54  Pac.  4Go, 
where  deed  absolute  on  its  face  is  given  in  security  of  debt,  and  an 
agreement  is  executed  by  grantee  for  reconvej-ance  on  pavment  of 
debt  secured,  and  both  instruments  were  executed  and  delivered 
at  sMii.e  time  and  as  parts  of  one  transaction,  they  are  a  legal  mort- 
gage. 

14  Pet.  210-28],  10  L.  423,  RHODE  ISLAND  v.  MASSACHUSETTS. 

Syl.  2   (IV,  48).     Sufficiency  of  pleas  in  equity. 

Approved  in  Glucose  Sugar  etc.  Co.  v.  Douglass  &  Co.,  145  Fed. 
951,  in  suit  for  infringement  of  patent,  plea  which  sets  up  single 
defense  of  noninfringement  is  not  good  plea,  and  it  will  be  stricken 
out   or   ordered   to   stand   as   answer  in   discretion  of   court. 

Syl.    4    (IV,    49).     Equity — Merits    on    determined    on    plea. 

Approved  in  American  Graphophone  Co.  v.  Leeds  etc.  Co.,  140 
Fed.  981,  applying  rule  in  suit  for  infringement  of  patent;  Mutual 
Life  Ins.  Co.  v.  Blair,  130  Fed.  973,  where  insured  died  after  com- 
mencement of  suit  to  cancel  policy  for  fraud,  but  before  answer, 
whereupon  action  on  policy  was  brought,  plea  in  bar  alleging  in- 
sured's death  aad  pendency  of  such  action  at  law  does  not  present 
objection  that  bill  was  not  sustainable  for  want  of  equity;  Barber 
V,  National  Carbon  Co.,  129  Fed.  377,  64  C.  C.  A.  40,  construing  plea 
in  suit  for  infringement  of  patent  as  plea  of  license  only  and 
sufficient    defense. 


14  Pet.  282-352  Notes  on  U.  S.  Reports.  188 

14  Pet.  282-292,  10  L.  457,  DE  VALENGIN  v.  DUFFY. 

Syl.  2  (IV,  50).  Character  of  administrator's  liability  for  projv 
erty. 

Approved  in  Newcomb  v.  Burbank,  146  Fed.  400,  where  executors 
receive  property  from  estate  of  their  testator,  but  owned  by  third 
party,  owner  may  proceed  against  them  individually  or  in  represen- 
tative capacity. 

14  Pet.  301-317,  10  L.  465,  UNITED  STATES  v.  K^TIGHT. 
Syl.   3    (IV,  55).     Federal   execution   same   as   state. 
See    101    Am.    St.   Eep.    151,    182,    note. 

Distinguished  in  Carter  v.  New  Orleans  etc.  R.  Co.,  143  Fed.  102, 
Mississippi  statute  providing  that  actions  to  recover  forfeiture  on 
penal  statute  shall  be  brought  within  one  year  does  not  govern  ac- 
tion in  federal  court  against  carrier  to  recover  damages  for  dis- 
crimination in  violation  of  Comp.  St.  1901,  pp.  3155,  3159. 

14  Pet.   318-321,   10  L.   473,  FOWLER  v.  BRANTLY. 

Syl.  1    (IV,  56).     Note — Notice  of  character  of  negotiations. 

Approved  in  In  re  Troy  &  Cohoes  Shirt  Co.,  136  Fed.  427,  whore 
president  and  treasurer  of  corporation  drew  notes  payable  to  cor- 
poration's order,  which  they  indorsed  in  name  of  corporation  and  in- 
dividually, and  they  were  delivered,  without  consideration,  to  vice- 
president  for  benefit  of  firm,  of  which  all  three  were  members,  and 
vice-president  indorsed  them  individually  and  president  indorsed 
them  in  name  of  firm,  discounter  of  such  notes  not  charged  with 
notice  that  they  were  accommodation  notes. 

14  Pet.  322-333,  10  L.  476,  GAMES  v.  STILES. 

Syl.    5    (IV,    59).     Recitals    in    deeds — Proof    of    delivery. 

Approved  in  Wilson  v.  Braden,  56  W.  Va.  375,  107  Am.  St.  Eep. 
929,  49  S.  E.  410,  recitals  of  heirship  and  widowhood  in  deeds  up- 
ward of  thirty  years  old  under  which  possession  continuously  held, 
are  presumptive  evidence  of  truth  of  same,  and  admissible  against 
strangers   to   title   claiming   adversely. 

Syl.    6    (IV,    59).     Following   state    construction    of   tax    statute. 

Approved  in  Columbia  Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130 
Fed.  175,  under  Georgia  constitution,  city  cannot  exempt  water 
company  from  payment  of  ad  valorem  tax  on  its  property  for 
municipal  purposes,  either  directly  or  by  commuting  such  taxes  in 
consideration   of    certain    service    to   be    supplied    by   company. 

14   Pet.   334-352,   10   L.   481,   UNITED   STATES   v.   WIGGINS. 

&)'l.  5  (IV,  61).     Recognition  and  confirmation  of  Spanish  grants. 

Approved  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  65, 
73  Pac.   622,   lands   embraced   in   perfect   Mexican  grant   are   taxable 


189  Notes  on  U.  S.  Reports.  14  Pet.  448-477 

though  grant  submitted  to  court  of  private  land  claims  for  confirma- 
tion and  patent  not  yet  issued. 

14   Pet.   448-463,   10   L.   535,   PHILADELPHIA    &   TEENTON   K.   R. 
CO.    V.    STIMFSON. 

Syl.    1    (IV,   67).     Patents — Officers   presumed    to    do   duty. 

Approved  in  Cleveland  Foundry  Co.  v.  Kauffman,  135  Fed.  361, 
68  C.  C.  A.  658,  holding  Jeavons'  patent  No.  702,560,  for  oil  burner, 
important  feature  of  which  is  needle  valve  controlling  oil  supply, 
infringed  as   to   claims   1-6. 

Syl.   3    (IV,   G9).     Witnesses — Scope   of   cross-examination. 

Ap])roved  in  Ayers  v,  Wabash  R.  R. -Co.,  190  Mo.  235,  88  S.'W. 
609,  applying  rule  in  action  for  injuries  caused  by  being  struck 
by  locomotive;  Stanley  v.  United  States,  1  Okl.  350,  33  Pac.  1030, 
where  evidence  of  witness  in  chief  is  immaterial,  perjury  cannot 
be  based  on  his  testimony  given  on  cross-examination,  as  to  mat- 
ters   affecting   his    credibility    only. 

Distinguished  in  dissenting  opinion  in  Resurrection  G.  Min.  Co. 
V.  Fortune  G.  Min.  Co.,  129  Fed.  081,  64  C.  C.  A.  180,  majority 
holding  where  witness  for  plaintiff  has  disclosed,  on  direct  exam- 
ination, part  of  a  transaction,  fact  tiiat  entire  transaction  consti- 
tutes afTirmative  defense  is  no  bar  to  its  disclosure  by  cross-ex- 
amination. 

Syl.  6   (IV,  72).     Declaration  of  inventor  prior  to  patent. 

Approved  in  Bullock  Elec.  Mfg.  Co.  v.  Croekcr-Wlicclcr  Co., 
141  Fed.  107,  declarations  of  patentee  relating  to  his  invention, 
accompanied  by  descriptions  thereof,  and  made  before  application 
for  patent  filed,  are  admissible  to.  carry  date  of  invention  back  to 
time   when   they   were   made. 

14  Pet.  4G4-477,   10  L.   543,  UNITED   STA'^TES  v.   MORRIS. 

Syl.   1    (IV,   73).     Penal   statutes  strictly  construed. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
358,  48  L.  709,  24  Sup.  Ct.  436,  under  anti-trust  act  of  1890,  federal 
court  may  enjoin  corporation  organized  in  pursuance  of  combina- 
tion of  stockholders  of  two  competing  interstate  roads  to  acquire 
controlling  interest  in  capital  stock  of  such  companies  from  acquir- 
ing further  stock  or  from  voting  such  stock  as  it  holds;  United 
States  v.  One  Black  Horse,  129  Fed.  170,  vehicle  owned  and  let  by 
liveryman  and  used  wholly  within  United  States  in  transporting 
liquor  illegally  brought  across  Canadian  border  was  subject  to 
seizure,  though  liveryman  had  no  knowledge  of  purpose  for  which 
team  used;  Dooley  v.  Jackson,  104  Mo.  App.  32,  78  S.  W.  334; 
Rev.  St.  1899,  §§  3430,  3431,  relating  to  betting  on  elections,  do 
not    apply   to    primary    elections. 


15  Pet.  1-8  Notes  on  U.  S.  Keports.  190 

14  Pet.   497-523,  10  L.  559,  DECATUK   v.   PAULDING. 

Syl.  1  (tV,  78).  Discretionary  action  not  controlled  by  man- 
damus. 

Approved  in  Bates  etc.  Co.  v.  Payne,  194  U.  S.  109,  48  L.  895, 
24  Sup.  Ct.  595,  refusing  to  interfere  with  action  of  postmaster 
general  in  refusing  to  admit  as  second-class  matter  monthly  musi- 
cal publication,  each  issue  of  which  is  complete  in  itself,  treating 
of  works  of  single  musician;  United  States  v.  Certain  Lands  in 
Narragansett,  E.  L,  145  Fed.  655,  under  33  Stat.  1119,  for  improv- 
ing Point  Judith  harbor  of  refuge.  Secretary  of  War  has  discre- 
tionary power  as  to  amount  of  land  necessary  to  be  condemned; 
Dever  v.  Humphrey,  68  Kan.  764,  75  Pac.  1039,  refusing  to  inter- 
fere with  appointment  to  office  on  behalf  of  one  claiming  preference 
given  by  Laws  1901,  p.  359,  to  Civil  War  veterans;  Wilbourne  v. 
Baldwin,  5  Okl.  274,  47  Pac.  1048,  determination  of  officers  of 
Interior  Department  as  to  whether  lands  applied  for  are  open  to 
settlement  or  whether  they  are  Indian  lands  will  not  be  interfered 
with  by  courts  by  injunction  in  behalf  of  homesteader  prior  to 
time  question  has  passed  beyond  control  of  department. 

14  Pet.  540-598,  10  L.  579,  HOLMES  v.  JENNISON. 

Syl.  1  (IV,  85).     Judiciary  act — Habeas  corpus  is  suit. 

Approved  in  State  v.  Chittenden,  127  Wis.  494,  107  N.  W.  508,  cer- 
tiorari is  an  action  under  Eev.  St.  1898,  §  2595. 

Syl.  4  (IV,  87).     Police  power — Exclusion  of  persons  from  state. 

Approved  in  State  v.  Stuart,  194  Mo.  360,  92  S.  W.  883,  upholding 
Eev.  St.  1899,  §  2169,  making  it  bigamy  for  anyone  having  living 
spouse  to  marry  again  and  cohabit  with  second  spouse  in  this  state. 
See  112  Am.  St.  Eep.  107,  note. 

Syl.  5   (IV,  87).     International  extradition. 
See  112  Am.  St.  Eep.  110,  note. 


XV  PETERS. 


15  Pet.  1-8,  10  L.  639,  VAUGHAN  v.  NORTHUP. 

Syl.  1   (IV,  91).     Suit  against  foreign  administrator. 

Approved  in  Courtney  v.  Pradt,  135  Fed.  820,  foreign  executor  can- 
not be  sued  in  state  other  than  that  wherein  he  was  appointed. 

Distinguished  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  306. 
an  executor  may  sue  in  courts  of  state  other  than  that  of  appointmrn': 
to  recover  from  agents  employed  by  him  the  proceeds  of  sale  of  realty 
belonging  to  decedent's  estate. 


191  Notes  on  U.  S.  Eeports.  15  Pet.  40-166 

Pyl.  3   (IV,  93).     Administrator  accountable  to  court  of  own  state. 

Aj)proved  in  Schartz  v.  Gerhardt,  44  Or.  428,  75  Pac.  699,  trustee 
appointed  by  foreign  court  cannot  be  required  to  account  for  trust 
property  by  court  of  another  jurisdiction. 

15  Pet.  40-51,  10  L.  653,  HOUSEMAN  v.  SCHOONER  NORTH  CAEO- 
LINA. 

Syl.  5  (IV,  96).  Admiralty — Amendment  on  appeal  adding  new 
case. 

Approved  in  The  Cerea,  149  Fed.  926,  substitution  of  new  owner 
as  claimant  of  libeled  vessel,  which  has  been  released  on  stipulation, 
is  not  bringing  in  of  new  party,  and  may  be  allowed  without  notice 
to  the  surety  on  the  stipulation. 

15  Pet.  93-114,  10  L.  673,  BEUSII  v.  WARE. 

Syl.  6  (IV,  98).     Bona  fide  purchaser — Notice, 

Approved  in  Pierce  v.  Vansell,  35  Ind.  App.  536,  74  N.  E.  558,  where 
administator 's  deed  of  land  sold  to  pay  debts  described  kind  of 
record,  number  of  volume  and  page  wherein  order  of  judgment 
ordering  sale  was  entered,  and  examination  of  deed  would  disclose 
sale  of  part  only,  subsequent  purchaser  under  misdescription  is  not 
innocent  purchaser. 

15  Pet.  141-106,  10  L.  689,  UNITED  STATES  v.  DICKSON. 

Syl.  2  (IV,  103).     Statutes — Contemporaneous  construction. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591,  terri- 
torial district  court  clerks  must,  under  federal  laws,  account  to  Sec- 
retary of  Treasury  for  all  fees,  and  act  of  territorial  assembly  at- 
tempting to  regulate  same  is  void. 

Syl.  3   (IV,  103).     Statutes — Provisos  strictly  construed. 

Approved  in  Long  v.  Pennsylvania  R.  Co.,  149  Fed.  600,  under  P. 
L.  N.  J.  1906,  p.  525,  where  an  action  is  brought  after  passage  of 
such  act  for  tort  committed  against  married  woman,  her  husband 
is  an  improper  party  thereto;  United  States  v.  Sohlierholz,  137  Fed. 
618,  special  agent  of  Land  Department  ajipointed  under  30  Stat.  32 
is  not  United  States  officer  within  Rev.  St.,  §  5481,  punishing  extortion; 
Gould  V.  New  York  Life  Ins.  Co.,  132  Fed.  929,  proviso  of  Bankr.  Act, 
1898,  §  70a,  giving  bankrupt  right  to  retain  life  policy  having  sur- 
render value,  does  not  prevent  vesting  in  trustee  of  title  to  policy 
■which  has  no  surrender  value,  but  which  is  payable  to  personal 
representatives  and  has  in  fact  a  cash  value;  Burke  v.  Snively,  208 
111.  342,  70  N.  E.  330,  under  Const.  1870,  §  3,  relating  to  Illinois  and 
Michigan  canal,  legislature  could  not  appropriate  moneys  from 
treasury  in  aid  of  its  operation;  Ex  jjarte  Helton,  117  Mo.  App.  618, 
93  S.  W.  914,  under  Laws  1905,  pp.  168,  109,  resident  of  state  need 
not  obtain  hunter's  license  as  condition  precedent  to  right  to  hunt 
in  county  of  his  residence. 


15  Pet.  187-406  Notes  on  U.  S.  Eeports,  192 

15  Pet.  187-210,  10  L.  706,  UNITED  STATES  v.  BOYD. 

Syl.  1  (IV,  106),     Surety's  liability  not  impliedly  extended. 

Approved  in  Gray  v.  Noonan,  5  Ariz.  173,  50  Pac.  118,  judgment 
against  certain  person  for  conversion  of  property  by  seizure  and  sale 
of  it  is  inadmissible  in  subsequent  action  by  same  plaintiff  against 
same  person  as  sheriff  and  sureties  on  bond,  for  conversion  of  same 
property  by  seizure  and  sale  of  it  by  sheriff  under  execution;  Lake 
Co.  V.  Neilon,  44  Or.  17,  74  Pac.  213,  bond  of  tax  collector  that 
sureties  will  make  good  all  moneys  that  may  or  shall  come  into  his 
hands  as  tax  collector  that  he  does  not  account  for,  does  not  include 
prior  defalcations. 

Distinguished  in  Greer  v.  McNeal,  11  Okl.  541,  69  Pac.  898,  sureties 
on  administrator's  bond  are  liable  for  whatever  is  chargeable  to  ad- 
ministrator  in  his   official   capacity. 

Syl.  4  (IV,  109).     Amendments  where  case  remanded. 

Approved  in  Graham  v.  Oregon  etc.  Nav.  Co.,  134  Fed.  693,  where 
exceptions  to  libel  for  want  of  jurisdiction  are  sustained,  leave  to 
amend  may  be  granted. 

15  Pet.  290-318,  10  L.  742,  UNITED  STATES  v.  LINN. 

Syl.  2   (IV,  113).     Official  duties  attach  irrespective  of  bond. 

Approved  in  Houston  v.  Estes,  35  Tex.  Civ.  104,  79  S.  W.  851, 
though  manner  of  qualification  of  policeman  is  not  in  strict  con- 
formity with  charter,  he  becomes  officer  de  jure  on  taking  official 
oath   and  giving   bond   which   was  accepted  without   objection. 

Syl.  6   (IV,  113).     Official  bond  not  in  statutory  form. 

Approved  in  Pima  Co.  v.  Snyder,  5  Ariz.  50,  44  Pac.  298,  where 
name  of  principal  in  official  bond  of  county  treasurer  is  recited  in 
body  of  bond,  and  he  subscribes  oath  of  office  indorsed  on  bond  and 
enters  upon  duties  of  his  office,  his  failure  to  sign  bond  does  not 
exonerate  sureties. 

15  Pet.  336-376,  10  L.  759,  GRATIOT  v.  UNITED  STATES. 

(IV,  116.)  Miscellaneous.  Cited  in  United  States  v.  Schlierholz, 
133  Fed.  335,  special  agent  of  general  land  office  is  not  officer  of 
United  States  within  Rev.  St.,  §  5481,  relating  to  extortion. 

15   Pet.   377-406,   10   L.   774,   UNITED   STATES  v.   BANK   OP   THE 
METROPOLIS. 

Sj'l.  1  (IV,  118).     Accepting  of  draft  by  United  States. 

Approved  in  Walker  v.  United  States,  139  Fed.  413,  414,  where 
marshal  rendered  accounts  against  United  States  covering  services 
of  deputies,  which  have  been  audited  and  paid,  government,  after 
long  lapse  of  time  and  after  expiration  of  term  of  office,  cannot  re- 
cover such  sums;  Lynch  v.  United  States,  13  Okl.   145,  73  Pac.   1U96, 


193  Notes  on  U.  S.  Rciwrts.  15  Pet.  407-317 

f 
petition   by   United    Stntcs   to   annul    patent   for   frauJ     must   contain 
all   material   averments   necessary  to   constitute   bill   in   equity   under 
chancery  practice.     See  101  Am.  St.  Eep.  151,  1G9,  note. 

Syl.  -  (IV,  119).  Want  of  consideration  between  drawer  and  ac- 
ceptor. 

Approved  in  Morrison  &  Co.  v.  Farmers'  etc.  Bank,  9  Okl.  700,  60 
Pac.   274,    applying   priucijilo    to    foreign    bill   of   exchange. 

15  Pet.  407-422,  10  L.  785,  UNITED  STATES  v.  FrrZG::RALD. 

Syl.   1    (IV,   120).     Federal  officer   may  pre-empt. 

Distinguished  in  Scott  v.  Carew,  196  U.  S.  112,  49  L.  406,  25  Sup. 
Ct.  193,  right  of  pre-emption  given  by  4  Stat.  154,  c.  28,  did  not  ex- 
tend to  lands  v.-liich  had  been  appropriated  by  United  States  for 
military  ])ost    until   such   post   was  abandoned. 

Syl.  3  (IV,  121).     Land  appropriation  authorized  only  by  Congress. 

Apjirovcd  in  United  States  v.   North  \Vest  Trading  Co.,  1   Alaska, 

9,    an    ai)propriation    of    water    fund    for     purposes     of     wharfage     to 

United  States  can  only  be  nuide  by  act  of  Congress. 

15  Pet.  423-448,  10  L.  791,  MINIS  v.  UNITED  STATES. 

Syl.   1    (IV,   121).     Statutes— Office   of  proviso. 

Approved  in  Jones  v.  Hoover,  144  Fed.  227,  under  23  Stat.  340,  and 
32  Stat.  730,  relating  to  I'matilla  Indian  reservation,  purchaser  of  one 
hundred  and  sixty  acres  of  untimbered  land  under  first  act  could  not 
buy  under  second,  though  he  was  settler  on  tract  he  sought  to  buy; 
Towson  V.  Denson,  74  Ark.  306,  86  S.  W.  662,  under  Kirby  's  Digest, 
§  5057,  it  is  not  necessary  that  there  shall  be  seven  years'  payment 
of  taxes  before  such  payment  will  begin  to  be  equivalent  to  pos- 
session. 

Limited  in  Interstate  Commerce  Commission  v.  Baird,  194,  U.  S.  37, 
48  L.  866,  24  Sup.  Ct.  563,  under  32  Stat.  849,  c.  708,  §  3,  direct  ap- 
peal lies  to  supreme  court  from  final  decree  of  circuit  court  in  pro- 
ceeding to  compel  production  of  papers  and  giving  of  testimony 
before  interstate  commerce  commission. 

15  Pet.  449-517,  10  L.  800,  GROVES  v.  SLAUGHTER. 

(IV,  123.)  Miscellaneous.  Cited  in  Globe  Elevator  Co.  v,  Andrew, 
144  Fed.  884,  upholding  Wisconsin  Laws  1905,  as  amended,  creating 
grain  and  warehouse  commission  and  providing  for  inspection  and  grad- 
ing  of   grain. 

13 


XVI  PETERS. 


16  Pet.  1-24,  10  L.  865,  SWIFT  v.  TYSON. 

Syl.  2  (IV,  129).     Presumption  of  bona  fide  holder. 

Approved   in   First   Nat.   Bank   v.   Moore,   148   Fed.   958,   following 

rule. 

Syl.  4  (IV,  ICO).     Local  law  as  rule  of  decision. 

Approved  in  Pabst  Brewing  Co.  v.  Tliorley,  145  Fed.  120,  determin- 
ing whether,  in  action  for  breach  of  covenant  of  quiet  enjoyment  in 
lease,  defendant  was  responsible  for  eviction  by  act  of  holder  of 
paramount  title;  Cudahy  Packing  Co.  v.  State  Nat.  Bank,  134  Fed. 
540,  67  C.  C.  A.  G62,  provision  for  payment  of  attorney's  fees  in 
case  note  not  paid  at  maturity  does  not  destroy  negotiability;  Three 
States  Lumber  Co.  v.  Blanks,  133  Fed.  482,  69  L.  E.  A.  203,  66  C. 
C.  A.  353,  decisions  of  state  courts  as  to  what  will  excuse  plaintiff  for 
nonreturn  of  property  n^plevied,  on  his  failure  in  the  action,  are  not 
binding  on  federal  court. 

Syl.  5  (IV,  133).     Prior  equities — Pre-existing  debt  as  consideration. 

Approved  in  First  Nat.  Banlc  v.  Moore,  148  Fed.  957,  purchaser  of 
note  for  value  before  maturity  is  not  deprived  of  character  of  pur- 
chaser in  good  faith  by  proof  that  he  took  note  with  knowledge  of 
such  circumstances  as  ought  to  put  ordinarily  prudent  man  on  inquiry; 
Gamble  v.  Eural  Ind.  School  Dist.,  132  Fed.  522,  one  who  obtained 
bond  issued  by  school  district  from  prior  holder  in  payment  for  legal 
services  rendered  and  to  be  rendered  is  bona  fide  holder  for  value, 
where  bond  not  due  and  contained  nothing  on  face  to  show  in- 
validity; Tollman  v.  Quincy,  129  Fed.  975,  where  defendant 's  note 
was  transferred  to  plaintiff  before  maturity  in  settlement  of  pending 
suit,  plaintiff's  counsel  being  told  that  it  had  been  given  by  maker 
to  payee  in  settlement  of  account  between  them,  plaintiff  was  bona 
fide  holder;  Birket  v.  Elward,  68  Kan.  299,  74  Pac.  1101,  64  L.  R.  A. 
568,  indorser  of  negotiable  note  taken  as  collateral  security  for  pre- 
existing debt,  there  being  no  new  consideration,  is  holder  for  value 
and  in  due  course,  and  is  protected  against  claim  of  payment  made 
to  original  payee;  Merchants'  etc.  Bank  v.  Ohio  Valley  etc.  Co.,  57 
W.  Va.  630,  50  S.  E.  882,  70  L.  R.  A.  312,  applying  rule  where  bank 
discounted  note  of  corporation  signed  by  its  president  and  treasurer 
W'hile  in  hands  of  agent. 

Distinguished  in  Empire  State  etc.  Co.  v.  Trustees  of  Fisher  &  Co., 
67  N.  J.  Eq.  605,  60  Atl.  941,  mortgage  given  merely  to  secure  ante- 
cedent debts  is  not  given  "for  value"  within  clause  "e"  in  bank- 


195  Notes  on  U.  S.  Reports,  16  Pet.  25-] 05 

ruptcy  act,  §  70,  or  for  "valuable  consideration"  within  New  Jersey 
corporation  act,  §  64. 

16  Pet.  25-64,  10  L.  873,  WATKINS  v.  HOLMAN. 

Syl.  1   (IV,  138).     Vendee  not  tenant  of  vendor. 

Approved  in  Scott  v.  Mineral  Development  Co.,  130  Fed.  502,  64 
C.  C.  A.  659,  where  one  holding  two  adjoining  tracts  under  separate 
patents  took  possession  of  one  and  made  improvements  thereon  and 
thereafter  sold  all  land  as  one  tract  to  defendants,  who  leased  it,  sub- 
sequent conveyance  to  plaintiff  by  adverse  claimant  was  •^id  as  tc 
entire  tract. 

Syl.  7  (IV,  141).    Compelling  conveyance  of  land  in  other  state. 

Approved  in  Dickson  v.  Loehr,  126  Wis.  645,  106  N.  W.  794,  4  L. 
R.  A.  (N.  S.)  986,  where  purchaser  in  land  contract  conveyed  land 
in  another  state  as  security  for  price,  vendor  in  action  on  contract 
could  get  judgment  requiring  vendee  to  pay  amount  secured  or  to 
convey  land. 

Syl.  12   (IV,  143).     Ancestor's  land  descends  to  heirs. 
See  112  Am.  St.  Rep.  1021,  note. 

16  Pet.  71-88,  10  L.  891,  COCKE  v.  HALSEY. 

Syl.  3  (IV,  145).     Collateral  attack  on  de  facto  officer. 

Approved  in  Monahan  v.  Lynch,  2  Alaska,  134,  upholding  appoint- 
ment of  poundmaster  by  town  council,  members  of  which  were 
alleged  not  to  have  been  legally  elected;  Powers  v.  State,  83  Miss. 
703,  36  So.  8,  where  on  disqualification  of  regular  circuit  judge,  special 
judge  was,  by  governor,  commissioned  to  try  criminal  case,  and  he 
discharged  duties  of  office,  his  acts  are  valid,  though  he  failed  to 
take  oath. 

16  Pet.  97-105,  10  L.  900,  GORDON  v.  LONGEST. 

Syl.  1  (IV,  147).     Declaration  determines  amount  in  dispute. 

Approved  in  Barber  v.  Boston  etc.  Co.,  145  Fed.  52,  action  on  case 
for  $2,000  damages  for  negligence  is  not  removable  though  actual 
damages  alleged  to  be  greater. 

Syl.  2    (IV,  148).     Jurisdiction — Recovery  of  less  than  claim. 

Approved  in  McCarthy  v.  American  Thread  Co.,  143  Fed.  680,  cir- 
cuit court  cannot  penalize  plaintiff  for  colorably  invoking  jurisdic- 
tion unless  such  matter  is  shown  at  trial  or  appears  from  declaration; 
Oppenheimer  v.  Regan,  32  Mont.  119,  79  Pac.  698,  arguendo. 

Syl.  5  (IV,  149).     Wrongful  refusal  of  removal  of  cause. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Langley,  145  Fed.  421,  where 
proper  removal  petition  and  bond  are  filed  in  time  in  state  court, 
and  certified  copy  of  record  filed  in  federal  court,  latter  court  ac- 
quires jurisdiction   without  state  court  order  transferring  cause. 


16  Pet.  182-316  Notes  on  U.  S.  Keports.  196 

16  Pet.   182-195,   10  L.   930,  HOBSON  v.  McAETHUE.       . 

Syl.  5   (IV,  159).     Eelief  under  general  prayer. 

Approved  in  Lockhart  v.  Leeds,  195  U.  S.  437,  49  L.  269,  25  Sup. 
Ct.  76,  bill  is  sufficient  to  entitle  complainant  to  treat  legal  holders 
of  mine  as  trustees  ex  maleficio,  and  to  recover  from  them  materials 
taken  from  mine,  where  it  avers  title  acquired  under  relocation  made 
pursuant  to  fraudulent  conspiracy  with  complainant's  partner. 

16  Pet.  196-202,  10  L.  935,  UNITED  STATES  v.  HANSON. 

Syl.  4  fIV,  160).     Force  of  surveyor  general's  certificates. 

Approved  in  United  States  v.  Montana  Lumber  etc.  Co.,  196  U.  S. 
578,  49  L.  605,  25  Sup.  Ct.  367,  private  survey  is  inadmissible  in  evi- 
dence, in  action  by  United  States,  to  recover  value  of  timber  cut 
from  unsurveyed  lands,  to  show  that  land,  when  surveyed,  will  be 
within  railroad  grant. 

16  Pet.  291-302,  10  L.  968,  UNITED  STATES  v.  ELIASON. 

Syl.  3   (IV,  169).     Executive  may  make  army  rules. 

Approved  in  United  States  v.  Hardison,  135  Fed.  422,  oath  taken  by 
distiller's  surety  with  reference  to  his  qualifications,  befc^re  deputy 
collector,  was  an  oath  taken  in  case  in  which  law  of  United  States 
authorizes  oath  to  be  administered,  within  Rev.  St.,  §  5392,  defining  per- 
.■:iry;  Peters  v.  United  States,  2  Okl.  123,  33  Pac.  1033,  false  swearing 
before  register  of  land  office  in  contest  is  punishable  as  perjury  under 
Rev.  St.,  §  5392, 

16  Pet.  303-314,  10  L.  973,  AMIS  v.  SMITH. 

Syl.  3  (IV,  170).    Defects  in  final  process  not  assignable  error. 

Approved  in  King  v.  Davis,  137  Fed.  233,  where  petitioner  applying 
to  vacate  judgment  in  ejectment,  not  party  to  action,  is  in  possession, 
and  would  be  illegally  disturbed  by  execution  of  writ  of  possession, 
she  is  entitled  to  order  directing  marshal,  in  executing  writ,  to  leave 
her  possession  undisturbed. 

Syl.  4   (IV,   170).     Interest  on  judgment. 

Approved  in  McNeill  v.  Durham  etc.  R.  Co.,  138  N.  C.  4,  50  S.  E. 
459,  under  Code,  §  530,  judgment  bears  interest  though  it  contains  no 
provision  to   that   effect. 

16  Pet.  315,  316,  10  L.  977,  GIBSON  v.  CHEW. 

Syl.  1   (IV,  172).     Federal  courts — Suits  by  assignee. 

Approved  in  Utah-Nevada  Co.  v.  De  Lcmar,  133  Fed.  122,  66  C.  C. 
A.  179  federal  court  has  no  jurisdiction  over  suit  by  assignee  of  oral 
contract  to  recover  money  due  thereon  unless  record  shows  it  could 
have  been  maintained  in  such  court  by  assignor. 


197  Notes  on  U.  S.  Keports,  16  Pet.  327-366 

16  Pet.  327-335,  10  L.  982,  FKESII  v.  GILSON. 

Syl.  2   (IV,  175).     Overcoming  of  presumptions. 

Approved  in  Wabash  R.  Co.  v.  DcTar,  141  Fed.  934,  applying  rule 
in  action  for  damages  for  death  caused  by  collision  with  train  at 
crossing. 

16  Pet.  336-341,  10  L.  985,  PROUTY  v.  EUGGLES. 

Syl.  1   (IV,  176).     Patent  for  combination — Infringement. 

Approved  in  Central  Foundry  Co.  v.  Coughlin,  141  Fed.  94,  holding 
Coughlin  patent  No.  553,055,  for  foundry  ladle,  not  infringed;  Brook- 
field  V.  Elmer  Glass  Works,  132  Fed.  313,  holding  Kribs  patent  No. 
542,565,  for  improvements  in  presses  for  making  screw  insulators, 
not  infringed  by  Duffield  patent  No.  723,589;  Bullock  etc.  Co.  v. 
Westinghouse  etc.  Co.,  129  Fed.  109,  63  C.  C.  A.  607,  where  defendant 
restrained  from  making,  using  or  selling  apparatus  embodying  in- 
ventions specified,  two  of  which  covered  mechanical  elements,  one 
element  of  each  being  motor  covered  by  method  of  third  patent,  he 
did  not  violate  injunction  by  making  and  selling  motor. 

16  Pet.  342-306,  10  L.  987,  WOOD  v.  UNITED  STATES. 

Syl.  3   (IV,  179).     Similar  acts  to  prove  fraudulent  intent. 

Approved  in  Exchange  Bank  v.  Moss,  149  Fed.  342,  where  petition, 
in  action  to  recover  money  by  means  of  conspiracy  between  defendant 
bank  and  others,  alleged  conspiracy  extended  over  long  period  both 
before  and  after  transaction  in  suit,  evidence  of  other  acts  of  cashier 
in  respect  to  similar  transactions  is  admissible ;  Dillard  v.  United 
States,  141  Fed.  308,  admitting  evidence  of  other  forged  Chinese  cer- 
tificates not  mentioned  in  indictment  but  shown  to  be  in  defendant's 
handwriting;  Olson  v.  United  States,  133  Fed.  854,  67  C.  C.  A.  21, 
under  indictment  charging  conspiracy  to  defraud  government  of  gov- 
ernment lands  by  causing  illegal  entry  of  a  tract  by  person  named 
for  benefit  of  defendants,  evidence  tending  to  show  defendants  in- 
duced others  to  enter  difi:erent  tracts  at  same  time  under  similar 
circumstances  is  admissible;  Bryan  v.  United  States,  133  Fed.  500, 
66  C.  C.  A.  369,  admitting  evidence  of  finding  molds  for  making  25- 
ccnt  pieces  in  chest  used  jointly  by  defendant  and  another,  in  prose- 
cution for  uttering  counterfeit  5-cent  pieces;  United  States  v.  Breese, 
131  Fed.  924,  admitting  evidence  of  other  similar  transactions  to 
show  knowledge  and  intent  of  accused  in  prosecution  for  embezzle- 
ment by  national  bank  officer;  Wright  v.  Stewart,  130  Fed.  918,  in 
civil  action  ior  conspiracy  to  swindle  by  means  of  fake  footrace,  evi- 
dence of  anterior  and  subsequent  acts  and  declarations  of  conspirators 
are  admissible;  Dodge  v.  Kuapp,  112  Mo.  App.  525,  87  S.  W.  51, 
where,  in  garnishment  proceedings,  garnisliee's  denial  of  indebted- 
ness was  in  issue,  and  plaintiff  claimed  garnishee  held  money  of  debtor 
to  defraud  creditors,  former  judgment  in  suit  by  plaintiff  against 
garnishee   determining   that   transfers  were   fraudulent  is  admissible. 


16  Pet.  367-512  Notes  on  U.  S.  Eeports.  198 

Sj^l.  9  (IV,  181).     States — Eepeals  by  implication. 

Approved  in  City  of  "Wichita  v.  Old  Colony  Trust  Co.,  132  Fed.  648, 
66  C.  C.  A.  19,  holding  Kansas  Gen.  St.  1808,  c.  23,  art.  8,  §  74,  giving 
telegraph  companies  right  to  put  poles  in  roads  and  streets,  by  act  of 
1881,  providing  for  .  incorporation  of  cities  of  first  class;  Tootle 
V.  Kent,  12  Okl,  699,  73  Pac.  318,  Code  Civ.  Proc,  §  56,  relating  to 
place  of  trial,  is  not  abrogated  by  28  U.  S.  Stat.  21,  c.  5,  §  3,  author- 
izing supreme  court  to  designate  judge  to  try  case  when  judge  of  dis- 
trict has  been  of  counsel  in  case. 

16  Pet.  367-434,  10  L.  997,  MAETIN  v.  WADDELL. 

Syl.  6  (IV,  185).    Title  to  lands  under  navigable  waters. 

Approved  in  Commonwealth  v.  Boston  Terminal  Co.,  185  Mass.  283, 
70  N.  E.  126,  under  Acts  1896,  p.  520,  c.  516,  creating  Boston  Terminal 
Company,  company  could  not  avoid  payment  of  lands  of  state  below 
tide  water,  condemned  by  it  and  embraced  within  street  extensions; 
Crawford  Co.  v.  Hathaway,  67  Neb.  351,  108  Am.  St.  Eep.  668,  93  N. 
W.  789,  discussing  riparian  rights;  Taylor  v.  Commonwealth,  102  Va. 
765,  102  Am.  St.  Eep.  865,  47  S.  E.  878,  under  Code  1887,  §  1338,  title 
to  bed  of  navigable  river  between  low-water  mark  and  line  of  navi- 
gation is  in  state  and  not  in  riparian  owner. 

(IV,  184.)  Miscellaneous.  Cited  in  City  of  Providence  v.  Com- 
stock,  27  E.  I.  556,  65  Atl.  314,  where  municipal  corporation  owns  land 
in  fee  and  has  been  ousted  from  possession,  ejectment  is  proper  to  es- 
tablish title  and  recover  possession,  though  land  is  covered  by  tide. 

16  Pet.   435-450,   10   L.   1022,   DOBBINS    v.    COMMISSIONEES    OF 
ERIE  COUNTY. 

Syl.  10   (IV,  192).     State  tax  on  federal  officer. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  452,  46G, 
50  L.  266,  272,  26  Sup.  Ct.  110,  United  States,  under  internal  revenue 
laws,  may  exact  liquor  license  from  dispensing  agents  of  state  which 
has  taken  charge  of  liquor  business;  Mosely  v.  State,  115  Tenn.  57, 
59,  86  S.  W.  716,  interest  on  United  States  bonds  is  not  taxable  by 
state  on  being  paid  into  hands  of  bondholder. 

16  Pet.  495-512,  10  L.  1044,  CAEPENTEE  v.  PEOVIDENCE-WASH- 
INGTON  INS.  CO. 

Syl.  3  (IV,  197).  Payment  of  mortgagee's  insurance — Assignment 
of  debt. 

Approved  in  Baker  v.  Monumental  Sav.  etc.  Assn.  58  \V.  Va.  413, 
112  Am.  St.  Eep.  1000,  52  S.  E.  405,  3  L.  E.  A.  (N.  S.)  79,  where 
owner  of  realty,  subject  to  trust  deed,  sells  same,  reserving  vendor's 
deed,  and  trust  creditor  insures  in  owner's  name  without  knowledge 
of  conveyance,  and  on  fire  occurring  insurer  pays  whole  trust  debt, 
it  is  entitled  to  assignment  thereof;  Dunbraek  v.  Neall,  55  W.  Va. 
575,  47  S.  E.  307,  where  creditor  secured  by  trust  deed  procured  in- 


199  Kotes  on  U.  S.  Eeporta.  16  Pet.  525-538 

surance  on  trust  property  for  own  benefit,  trust  debter  cannot  require 
creditor  to  account  to  him  for  insurance  moneys. 

Syl.  15  (IV,  201).     Misrepresentation  makes  policy  voidable  only. 

Approved  in  Mutual  etc.  Life  Assn.  v.  Austin,  142  Fed.  401,  where 
policy  provided  that  it  should  be  incontestable  after  three  years  and 
also  that  it  should  not  be  in  force  until  delivered  to  insured  while 
in  good  health,  it  was  valid  where  it  was  delivered  and  held  for  over 
three  years,  though  policy  not  delivered  when  insured  in  good  health. 

Syl.  18  (IV,  203).     Construction — Notice  of  other  insurance. 

Approved  in  Atlas  Eed.  Co.  v.  New  Zealand  Ins.  Co.,  138  Fed.  499, 
501,  holding  under  stipulation  in  policy  that  it  was  void  if  property 
encumbered  without  consent  of  insurer,  oral  evidence  is  admissible  to 
show  knowledge  at  time  of  indorsement  by  agents  of  payment  of  loss 
to  mortgagees. 

Distinguished  in  dissenting  opinion  in  Atlas  Red.  Co.  v.  New  Zealand 
Ins.  Co.,  138  Fed.  510,  majority  holding,  under  stipulation  in  policy, 
that  it  was  void  if  property  encumbered  without  consent  of  insurer, 
oral  evidence  is  admissible  to  show  knowledge  at  time  of  indorsement 
by  agents  of  payment  of  loss  to  mortgagees. 

Syl.  20   (IV,  204).     Parol  notice  of  other  insurance  insufficient. 

Distinguished  in  Medley  v.  German  etc.  Ins.  Co.,  55  W.  Va.  350, 
47  S.  E.  105,  holding  insurer  liable  where  no  written  application  made 
and  agent  is  given  correct  information  as  to  title  but  inserts  as 
warranties  facts  different  from  those  given. 

16  Pet.  52.3-527,  10  L.  1055,  MILLS  v.  BROWN, 

Syl.  2  (IV,  207).     Consent  gives  no  jurisdiction. 

Approved  in  Henrie  v.  Henderson,  145  Fed.  319,  denying  jurisdic- 
tion of  bankruptcy  court  of  proceeding  to  restrain  trustee  from  mak- 
ing deed  to  purchaser  at  bankruptcy  sale,  and  to  compel  execution 
of  deed  for  portion  of  property  to  petitioner  to  compel  specific  per- 
formance of  alleged  contract  relating  to  sale  of  land  between  petitioner 
and  purchaser;  Clark  v.  Doerr,  143  Fed.  961,  time  within  which  writ 
of  error  must  be  sued  out  under  26  Stat.  829,  §  11,  cannot  be  extended 
by  agreement. 

16  Pet.  528-538,  10  L.  1056,  MAUEAN  v.  BULLUS. 

Syl.  1  (IV,  207).     Construction  of  contracts — Intent. 

Approved  in  Ward  v.  Foley,  141  Fed.  365,  construing  contract  to 
sell  and  convey  all  first  party's  interest  in  three  hundred  and  twenty 
acres  of  land  at  rate  of  $14  per  acre  as  providing  for  sale  of  an 
interest  in  the  land  at  rate  of  $14  for  each  acre  in  entire  tract.  See 
105  Am.  St.  Rep.  520,  note. 


16  Pet.  539-674  Notes  on  U.  S.  Reports.  200 

Syl.   2    (IV;   207).      Surety   contracts   strictly   construed. 

Approved  in  Swift  v.  Jones,  135  Fed.  438,  where  contract  employing 
defendant's  son  as  plaintiff's  broker,  which  was  signed  by  defend- 
ant as  guarantor,  required  son  to  give  bond,  and  plaintiff  sent  son 
blank  application  for  bond,  which  latter  signed  and  returned  to 
plaintiff,  but  latter  failed  to  get  bond  until  after  son's  defalcation, 
defendant  not  liable.     See  98  Am.  St.  Rep.  844,  note. 

16   Pet.   539-674,   10    L.     1060,    PRIGG    v.    COMMONWEALTH    OF 
PENNSYLVANIA. 

Syl.  7   (IV,  209).     Construction  of  constitutional  provisions. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  380,  81  S.  W.  976, 
city  court  has  no  jurisdiction  to  try  accused  for  violation  of  state 
penal  statute. 

Syl.  19  (IV,  211).     Government  must  perform  constitutional  duties. 
Approved  in  Ex  parte  Riggins,  134  Fed.  415,  422,  upholding  indict- 
ment for  conspiracy  to  lynch  negro  citizen. 

Syl.  23   (IV,  212).     Federal  law  supersedes  state. 

Approved  in  Davis  v.  Cleveland  etc.  Ry.  Co.,  146  Fed.  409,  cars 
owned  by  railroad  and  delivered  by  it  loaded  to  other  companies  to 
be  used  in  transportation  to  other  states,  are,  until  returned,  instru- 
mentalities of  interstate  commerce,  and  not  subject  to  taxation  in 
state  where  carried  by  other  companies. 

Syl.   25    (IV,   213).     Means   to   accomplish   required    end   presumed. 
Approved  in  Ex  parte  Riggins,  134  Fed.  410,  upholding  indictment 
for  conspiracy  to  lynch  negro  citizen. 

Syl.  26   (IV,  213).     Contemporaneous  construction  of  statutes. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987,  city 
court  has  no  jurisdiction  to  try  accused  for  violation  of  state  penal 
statute. 

Syl.   28    (IV,   215).     Enforcement   of   federal   law  by  state   officers. 

Approved  in  Dallemagne  v.  Moisan,  197  U.  S.  174,  49  L.  711,  25 
Sup.  Ct.  422,  state  police  officer  may  make  arrest  on  requisition  of 
foreign  consul  charging  seaman  on  vessel  of.  consul's  nation  with 
insubordination,  conformably  with  treaty. 

Syl.  32  (IV,  215).     Limits  of  state  police  power. 

Approved  in  United  States  v.  ^loore,  129  Fed.  633,  denying  federal 
jurisdiction  to  punish  conspiracy  to  intimidate  citizen  of  United 
States  to  prevent  him  from  establishing  miners'  union  in  a  state,  in 
furtherance   of   which   defendants   assaulted   such   citizen. 

Distinguished  in  dissenting  opinion  in  Allen  v.  Reed,  10  Okl.  157,  63 
Pac.  877,  majority  holding  void  Stat.  1893,  c.  23,  relating  to  chang- 
ing of  county  seats  in  territory  as  inconsistent  with  act  of  Congress 
1893,  §§  10,  14,  providing  for  opening  of  Cherokee  Outlet  to  settle- 
ment. 


I  HOWARD. 


1  How.  28-36,  11  L.  35,  SMITH  v.  COUDEY. 

Syl.    1    (IV,    219).     Collisions — Law    governing    liability. 

Approved  in  Slater  v.  Mexican  National  K.  R.  Co.,  194  U.  S. 
126,  48  L.  903,  24  Sup.  Ct.  581,  federal  court  is  without  jurisdiction 
of  common-law  action  founded  on  liability  for  death  by  wrongful 
act,  created  by  Mexican  laws;  Dennis  v.  Atlantic  Coast  Line  R.  R. 
Co.,  70  S.  C.  258,  106  Am.  St.  Rep.  746,  49  S.  E.  870,  provision 
of  N.  C.  Code,  §  1498,  that  action  for  wrongful  death  barred  in 
one  year  applies  to  action  under  North  Carolina  statute  in  this 
state. 

Syl.    2    (IV,   220).     Collision— Measure   of    damages— Profits. 

Approved  in  Choctaw  etc.  R.  R.  Co.  v.  Jacobs,  15  Okl.  500,  82 
Pac.  504,  refusing  to  allow  loss  of  commissions  as  damages  for  loss 
of    drummer's   samples   sliipped. 

Distinguished  in  Tootle  v.  Kent,  12  Okl.  091,  73  Pac.  315,  allow- 
ing loss  of  profits  as  element  of  damages  to  merchant  by  wrongful 
anil  malicious  act  of  another  in  closing  his  store;  Chisholm  etc. 
Mfg.  Co.  v.  U.  S.  Canopy  Co.,  Ill  Ter.n.  210,  77  S.  W.  1064,  allow- 
ing lost  profits  for  breach  of  profits  on  patented  brackets  which 
were    not    delivered    as    per    contract. 

1   How.   37-55,   11   L.   ed.   38,  MERCER  v.   SELDEX. 
Syl.   4    (IV,   223).     Curtesy   in  wife's  property. 
See  112  Am.  St,  Rep.  580,  582,  note. 

1  How.  89-95,  11  L.  58,  STROUT  v.  FOSTER. 

Syl.    1    (IV,    224).     Collision — Apportionment    of   loss. 

Approved  in  The  City  of  Birmingham,  138  Fed.  560,  applying 
rule  where  steamer  passing  up  river  on  clear  night  struck  dredge 
anchored  near  center  of  narrow  channel. 

1  How.  104-118,  11  L.  64,  UNITED  STATES  v.  LINN. 

Syl.    2    (IV,    226).     Torts — Nolle    prosequi    as    to    one    defendant. 

Approved  in  Texas  &  P.  Ry.  Co.  v.  Sheftall,  133  Fed.  724,  66 
C.  C.  A.  552,  dismissal  of  suit  for  ]!crsonal  injuries  as  to  one  of 
two  joint  tort-feasors  on  grouml  that  it  was  not  necessary  party 
does    not    discharge    claim    against    other    defendant, 

[201] 


1  How.  118-197  Notes  on  U.  S.  Eeports.  202 

1   How.    118-134,   11   L.   69,   MORRIS   v.   NIXON. 

Syl.    2    (IV,    228).     Mortgages — Deed   absolute — Burden   of   proof. 

Approved  in  Liskey  v.  Snyder,  56  W.  Va.  623,  49  S.  E.  520, 
where  mortgagee  obtained  release  of  equity  of  redemption  from 
mortgagor,  burden  is  on  him  to  sJiow  good  faith  and  that  he  paid 
what   property   was   worth.  , 

1     How.     134-152,     11     L.     75,     BANK     OF     UNITED     STATES    T. 
BEVERLY. 

Syl.    1    (IV,   229).     Res   adjudicata. 

Approved  in  Georgia  R.  &  Banking  Co.  v.  Wright,  132  Fed. 
916,  decision  of  Georgia  supreme  court  in  suit  between  state  and 
corporation  that  charter  created  contract  limiting  tax  rate,  con- 
cludes that  state  in  subsequent  suit  involving  taxes  for  different 
year. 

1   How.    153-lGO,   11   L.   83,   LLOYD   v.   HOUGH. 

Syl.    1    (IV,   231).     Use   and   occupation   where   possession    adverse. 

Approved  in  Chicago  Term.  E.  R.  Co.  v.  Winslow,  216  111.  171, 
74  N.  E.  817,  where  defendant  was  in  possession  as  successor  under 
contract  with  plaintiff's  grantor  after  she  had  parted  with  title, 
action  of  assumpsit  by  plaintiff  for  use  and  occupation  under  li- 
cense which  was  dismissed  is  not  bar  to  ejectment. 

1   How.   161-169,   11   L.   86,   McKNIGHT   v.   TAYLOR. 

Syl.    1    (IV,   231).     Laches   as   bar    to    equitable    relief. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  18,  66  Pac.  556,  55 
L.  R.  A.  658,  refusing  to  enforce  rights  accruing  under  verbal  agree- 
ment  as   to   location   of   mining   claims   after  lapse   of   eight  years. 

1  How.  169-188,  11  L.  89,  BELL  v.  BRUEN. 

Syl.    1    (IV,   233).     Lex  loci   governs   letter   of   credit. 

Approved  in  Nashua  Sav.  Bank  v.  Sayles,  184  Mass.  522,  100 
Am.   St.  Rep.   573,  69  N.  E.  310,  argu&ndo. 

Syl.    6    (IV,    235).     Construction    of    letters    of    credit. 

Approved  in  Swift  v.  Jones,  135  Fed.  438,  where  contract  em- 
ploying defendant's  son  as  plaintiff's  broker,  signed  by  defend- 
ant as  guarantor,  required  son  to  give  bond  with  company  to  be 
selected  by  plaintiff,  and  latter  sent  son  application  for  bond,  which 
son  signed  but  plaintiff  failed  to  get  bond  until  after  defalcation, 
defendant   not   liable   as   guarantor. 

1   How.   189-197,   11  L.  97,  BOWMAN  v.   WATHEN. 

Syl.    1    (IV,    236).      Laches    not    dependable    on    limitation    statute. 

Approved  in  Griffin  v.  Caldwell,  72  Ark.  456,  81  S.  W.  613,  hold- 
ing   bill    by    heirs    to    vacate    sale   of    lands    of    decedent    barred   after 


203  Notes  on  U.  S.  Eeports.  1  IIow.  202-241 

lapse  of  thirty-two  years,  -where  purchaser's  interest  had  been  sold 
under   mortgage   foreclosure   and   land   conveyed   to    others. 

1  How.   202-211,   11   L.   102,  McCLURG  v.   KINGSLAND.      ' 
Syl.    3    (IV,   238).     Public   use    prior   to    patent. 
Distinguished  in  Bowers  v.   Lake   Superior   etc.   Co.,   149  Fed.   9S8, 

holding  purchaser  of  patented  dredge  from  one  holding  under  li- 
cense which  was  not  at  first  assignable  to  be  liable  for  royalties 
as  licensee;  Pressed  Steel  Car  Co.  v.  Hansen,  137  Fed.  409,  410,  412, 

2  L.  R.  A.  (N.  S.)  1172,  employer  not  vested  with  property  right 
in  invention  of  employee  and  to  patent  therefor,  but  only  to  ir- 
revocable license   to   use   invention. 

Syl.  4   (IV,  240).     Prior  use  avoiding  patent. 

Approved  in  Bradley  v.  Eccles,  138  Fed.  914,  where  different 
persons  are  permitted  to  use  device  publicly  as  nonpatented  article 
for  more  than  two  years  before  application  for  patent  therefor, 
use    is   prior   public    use. 

1   IIow.  219-234,  11  L.  108,  JEWELL  v.  JEWELL. 

Syl.   1    (IV,   242).     Declarations  of   decedent   as   to   pedigree. 

Approved  in  Imboden  v.  St.  Louis  etc.  Trust  Co.,  Ill  Mo.  App. 
237,  8G  S.  W.  267,  on  issue  of  common-law  marriage,  evidence  of 
alleged  husband's  declarations,  made  not  in  presence  of  wife,  that 
he  was  single  was  admissible,  but  evidence  that  he  conducted  him- 
self   toward    other    women    as    single    man    was    inadmissible. 

Syl.   2    (IV,   242).     Newspaper   articles   as   evidence   of   marriage. 

Approved  in  Topper  v.  Perry,  197  Mo.  543,  95  S.  W.  206,  on 
issue  as  to  common-law  marriage,  declarations  of  alleged  husband 
not   in    presence   of   wife   are   admissible    to    disprove   marriage. 

1  How.  234-241,  11  L.  115,  BANK  OF  THE  METROPOLIS  v.  NEW 
ENGLAND    BANK. 

Syl.   1    (IV,   243).     Lien — Current   accounts   between   banks. 

Approved  in  Winfield  Nat.  Bk.  v.  McWilliams,  9  Okl.  501,  60 
Pac.  231,  where  bank  receives  from  correspondent  check  indorsed 
in  blank,  and  in  good  faith  permits  existing  indebtedness  to  remain 
unpaid  by  reason  thereof,  it  is  entitled  to  proceeds  of  such  check 
against  real  owner,  though  check  not  actually  collected  until  after 
failure  of  transmitting  bank;  Garrison  v.  Union  Trust  Co.,  139 
Mich.  402,  403,  102  N.  \\\  982,  70  L.  R.  A.  615,  where  state  bank 
sent  to  savings  bank  a  draft  for  collection  and  latter  sent  it  to 
private  bank,  which  collected  it  and  credited  to  account  of  sav- 
ings bank  and  so  notified  savings  bank,  private  bank  had  lien  on 
proceeds  where  notification  did  not  reach  savings  bank  until  after 
its  insolvency;   Continental  Nat.  Bank  v.  First  Nat.   Bank,   84  Miss. 


1  How.  241-300  Notes  on  U.  S.  Eeports.  204 

110,  36  So.  190,  where  bank  forwards  checks  to  correspondent  for 
collection  under  general  indorsement  in  blank  and  correspondent 
sends  them  to  third  bank,  and  correspondent  applies  proceeds  to 
correspondent's  account  without  knowledge  of  latter 's  insolvency, 
it  need  not  again  account  to  initial  bank  for  proceeds;  dissenting 
opinion  in  Callaham  v.  Bank  of  Anderson,  69  S.  C.  384,  48  S.  E. 
296,  majority  holding  where  bank  refused  to  pay  depositor's  check 
to  third  person  in  absence  of  notice  to  depositor  that  bank  had 
applied  deposit  in  extinguishment  of  claims  held  against  him  by 
bank,  bank  liable  to  depositor  for  damages.  See  111  Am.  St.  Eep. 
426,  428,  note. 

1   How.   241-249,   11   L.   117,  McKENNA   v.   FISK. 

Syl.   2    (IV,   246).     Trespass   on  land— Venue. 

Approved  in  dissenting  opinion  in  Slater  v.  Mexican  National  R. 
R.  Co.,  194  U.  S.  134,  48  L.  906,  24  Sup.  Ct.  581,  majority  denying 
federal  court's  jurisdiction  over  common-law  action  founded  on  lia- 
bility for  death  by  wrongful  act,  created  by  Mexican  laws;  Peyton 
V.  Desmond,  129  Fed.  4,  63  C.  C.  A.  651,  where  facts  and  relief 
asked  show  that  gravamen  of  action  is  conversion  of  lumber  manu- 
factured out  of  trees  wrongfully  cut  and  removed  from  plaintiff's 
land  by  defendant,  and  that  purpose  of  action  is  to  recover  value 
of  lumber,  action  is   transitory. 

1  How.  250-2G4,  11  L.  120,  UNITED  STATES  v.  ECKFORD. 

Syl.   1    (IV,   247).     Sureties   on   official   bond — Several   terms. 

Approved  in  First  Nat.  Bank  v.  National  Surety  Co.,  130  Fed. 
406,  407,  409,  66  L.  E.  A.  777,  where  bank  employee  gave  bond 
for  one  year  and  had  falsified  accounts  for  over  four  years  so  as 
to  show  false  credit  on  depositor's  account,  but  overdraft  paid  after 
defendant's  entering  into  bond  exceeded  checks  drawn  during  such 
time,   surety   not   liable. 

i.   How.    277-281,    11    L.    130,    IN   RE    KLEIN. 

(IV,  249.)     Unqualified  discharge  of  bankrupt  is  valid. 

Approved  in  In  re  Schwaninger,  144  Fed.  556,  debtor  having  but 
one  debt  and  no  assets  may  become  voluntary  bankrupt. 

1   How.   290-300,   11   L.   135,   WILLIAMS   v.   UNITED    STATES. 

Syl.    2    (IV,    252).     Admissibility    of    secondary    evidence. 

Approved  in  Brown  v.  Harkins,  131  Fed.  67,  65  C.  C.  A.  301,  in 
action  by  distiller  to  recover  internal  revenue  taxes  wrongfully 
imposed,  evidence  that  plaintiff's  book  taken  from  him  and  taken 
to  revenue  agent's  office  and  was  lost  three  years  after  disposition 
of  criminal  case  against  plaintiff,  and  that  search  had  been  made 
in  revenue  agent's  oDiee,  does  not  justify  oral  evidence  of  ita 
contents. 


205  Notes  on  U.  S.  Eeports.  1  How.  311-322 

1   How.  311-322,  11  L.   143,   BROXSON  v.   KINZIE. 

Syl.  3    (IV,  254).     Obligation   of  contracts — Change   of  remedy. 

Approved  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  391,  392, 
holding  Laws  Kans.  1898,  c.  10,  p.  27,  repealing  Gen.  St.  1889, 
§§  1200,  1204,  relating  to  actions  on  stockholder's  individual  lia- 
bility, is  void  as  against  prior  contracts;  Myers  v.  Knickerbocker 
Trust  Co.,  139  Fed.  115,  holding  acts  Md.  Gen.  Assem.  1904,  p.  179, 
c.  101,  repealing  remedy  of  creditor  to  enforce  stockholder's  lia- 
bility and  substituting  remedy  in  equity,  is  void  as  against  creditors 
■who  had  sued  prior  to  its  passage;  Lamb  v.  Powder  Riv.  etc.  Co., 
132  Fed.  438,  440,  67  L.  R.  A.  558,  65  C.  C.  A.  570,  holding  void 
Colo.  Sess.  Laws,  ISC",  p.  239,  c.  106,  as  amended  in  1899,  pre- 
scribing three  month  limitations  on  actions  on  judgments  of  other 
states  based  on  causes  of  action  which  had  accrued  more  than  si.x 
years  jirior  to  commencement  of  action  on  judgment,  as  applied 
to  judgment  rendered  prior  to  its  passage;  Gaffney  v.  Jones,  39 
Wash.  589,  81  Pac.  1059,  Laws  1897,  -p.  52,  c.  39,  limiting  time  of 
continuance  of  judgment  lien,  is  valid  as  to  judgment  in  tort  ren- 
dered prior  to  its  passage;  Howard  v.  Ross,  38  Wash.  629,  631, 
80  Pac.  820,  Bal.  Code,  §§  5148-5150,  limiting  time  of  judgment 
lien,  docs  not  apply  to  judgment  recovered  after  its  passage  on  note 
executed  prior  to*  its  passage;  Harrigan  v.  Gilchrist,  121  Wis.  341, 
99  N.  W.  975,  receiver  is  not  guilty  of  wrongdoing  because  iio 
expends  monev  in  collection  of  liability  validly  hypothecated  by 
insolvent  as  security  for  debt  owing  by  him,  because  he  has  no 
reason    to    expect    hypothecation    will    yield    surplus    for    trust    fund. 

Syl.    8    (IV,    203).     Obligation    of   coutVacts — Changing    redemption. 

Approved  in  Bradley  v.  Lightcap,  195  U.  S.  19.  49  L.  73,  24 
Sup.  Ct.  748,  holding  void  lU.  Act  of  March  22,  1872,  §  30,  requiring 
master's  deed  on  foreclosure  sale  must  be  taken  out  within  speci- 
fied time  after  expiration  of  time  for  redemption,  as  applied  to 
sale  prior  to  passage  of  act;  Welch  v.  Cross,  146  Cal.  633,  106 
Am.  St.  Rep.  63,  SI  Pac.  233,  holding  Code  Civ.  Proc,  §  702, 
as  amended  in  1897,  extending  time  of  redemption  of  realty  from 
execution  sale,  does  not  apply  to  judguieurs  existing  at  time  of  its 
passage. 

Distinguished  in  Hooker  v.  Burr,  194  U.  S.  422,  425,  426,  48  L. 
1051,  1052,  24  Sup.  Ct.  706,  upholding  Cal.  Code  Civ.  Proc,  §  702, 
as  amended  in  1895,  changing  time  for  redemption  and  rate  of  in- 
terest payable  in  order  to  redeem,  as  applied  to  purchaser  at  fore- 
closure  after   amendment.     See   99   Am.   St.   Rep.   28,   29,   30,   note. 


II  HOWARD. 


2  How.  9-29,  11  L.  159,  McNUTT  v.  BLAND. 

Sy].   1   (IV,  268).     Federal  jurisdiction — Suit  in   name  of  officer. 

Approved  in  United  States  v.  Barrett,  135  Fed.  193,  194,  action 
on  bond  of  contractor  for  government  work  brought  under  28  Stat. 
278,  e.  280,  in  name  of  United  States,  is  not  within  federal  jurisdic- 
tion unless  requisite  citizenship  and  amount  in  controversy  shown; 
United  States  v.  Churchyard,  132  Fed.  83,  federal  court  has  juris- 
diction over  suit  by  United  States  on  bond  of  contractor  given 
pursuant  to  28  Stat.  278,  c.  280,  §  1,  irrespective  of  citizenship 
of  parties  or  amount  in  controversy.  See  101  Am.  St.  Eep.  171, 
note. 

2   How.  43-60,   11  L.   172,  SHEIVEE  v.  LYNN. 

Syl.   4    (IV,   276).     Judicial   sale — Application   of   interested   party. 

Approved  in  County  of  Logan  v.  McKinley  etc.  Trust  Co.,  70 
Neb.  405,  97  N.  W.  644,  where  decree  in  foreclosure  by  its  terms 
erroneously  denies  to  owner  of  equity  of  redemption  time  to  re- 
deem allowed  by  law,  he  cannot  attack  decree  by  objecting  to  con- 
firmation  of  sale. 

2   How.   66-72,   11   L.    181,  BURKE   v.   McKAY. 

Syl.   3    (IV,   278).     Notary — Notice   of   dishonor   of   note. 
Approved  in  Schofiekl  v.  Palmer,  134  Fed.  755,  arguendo. 

2  How.  127-202,  11  L.  205,  VIDAL  v.   GIRARD. 

Syl.    2    (IV,   282).     Corporation    may    take    trust. 

Approved  in  State  v.  Higby  Co.,  130  Iowa,  72,  106  N.  W.  383, 
corporation  organized  to  own,  buy,  sell  and  handle  realty  and 
to  act  as  trustee  for  shares  in  its  own  stock  for  any  person,  could 
hold  its  own  shares  as  trustee  for  beneficiaries  named  by  donor; 
Stearns  v.  Newport  Hospital,  27  R.  I.  316,  62  Atl.  135,  where 
under  special  act  of  incorporation,  hospital  authorized  to  take  and 
hold  realty  to  be  used  in  care  of  sick  could  accept  trust  devise 
to   ai)ply  property  for  that  purpose. 

Syl.    3    (IV,     283).     Corporations— Taking     trust     property. 
Approved   in   Dauforth   v.   Oshkosh,    119   Wis.   281,   97   N.    W.   265, 
argut:udo. 

[206] 


207  Notes  on  U.  S.  Eeports.  2  How.  202-209 

Syl.    8     (IV,    287).     Charitable    uses — Enforcement — Indefiniteness. 

Approved  in  Gidley  v.  Lovenberg,  35  Tex.  Civ.  211,  79  S.  W. 
836,  devise  of  fraud  to  be  used  in  organizing  and  maintaining  home 
for  bettering  condition  of  unfortunate  widows  and  orphans  of  cer- 
tain city  is  not  void  because  Class  is  too  indefinite;  dissenting 
opinion  in  Danforth  v.  Oshkosh,  119  Wis.  290,  97  N.  W.  268,  ma- 
jority holding  power  of  alienation  not  suspended  where  trustees  of 
property    are    given    authority    to    sell    and    convey    complete    title. 

Syl.    9    (IV,    289).     Equity    jurisdiction    inherent    in    charity    cases. 

Approved  in  Grant  v.  Saunders,  121  Iowa,  84,  100  Am.  St.  Rep. 
310,  95  N.  W.  412,  upholding  bequest  to  trustee  named  for  benefit 
of  poor  and  to  be  given  by  her  to  such  objects  and  persons  as  she 
deems  worthy  of  assistance;  Snider  v.  Snider,  70  S.  C.  561,  106 
Am.  St.  Rep.  754,  50  S.  E.  506,  bequest  to  institution  which  took 
effect  between  expiration  of  charter  and  renewal  not  invalid  be- 
cause at  such  time  it  was  unincorporated  society. 

Syl.  13  (IV,  294).     Charitable  uses— Inquiry  as  to  validity. 

Approved  in  Spead  v.  Tomlinson,  73  N.  H.  58,  59  Atl.  379, 
voluntary  consent  to  follow  advice  and  abide  by  result  of  prayers 
of  Christian  Science  healer  precludes  recovery  for  damages  for 
negligence;  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  341, 
majority  permitting  party  induced  to  enter  into  fraudulent  footrace 
to  recover  money  wagered  by  him, 

2   How.   202-209,   11   L.   236,   CHAPMAN   v.   FORSYTH. 

Syl.  2  (IV,  296).  Bankruptcy — Fiduciary  debts — Conversion  by 
broker. 

Approved  in  Crawford  v.  Burke,  195  U.  S.  189,  49  L.  152,  25 
Sup.  Ct.  9,  only  'debts  created  by  fraud  of  bankrupt  while  he  was 
acting  as  officer  or  in  fiduciary  capacity  are  excepted  from  opera- 
tion of  discharge  by  Act  of  189S,  c.  541,  §  17,  subd.  4;  Barrett 
V.  Prince,  143  Fed.  304,  discharging  bankrupt  arrested  in  action  to 
recover  embezzled  property  where  it  is  not  shown  embezzlement 
committed  while  acting  in  fiduciary  capacity  so  as  to  prevent  dis- 
charge in  bankruptcy  to  be  release  of  debt;  In  re  Harper.  133 
Fed.  973,  974,  Bankruptcy  Act  1898,  c.  541,  §  17,  cl.  4,  does  not 
discharge  officers  of  private  corporations  from  debts  created  by 
fraud  while  acting  in  fiduciary  capacity;  Boyd  v.  Agricultural  Ins. 
Co.,  20  Colo.  App.  42,  76  Pac.  990,  agent  who  owes  his  principal 
money  is  not  fiduciary  debtor  within  Bankruptcy  Act  1898,  c.  541, 
§  17,  subd.  4;  Reeves  v.  McCracken,  69  N.  J.  Eq.  205,  60  Atl.  833, 
debt  arising  from  implied  understanding  on  conveyance  of  land 
not    excepted    from    operation    of    bankruptcy    discharge. 


2  How.  210-284  Notes  on  U.  S.  Eeports.  208 

Syl.  5  (IV,  301).  Bankruptcy — Fiduciary  debt — Estoppel  by  pay- 
ment. 

Distinguished  in  Field  v.  Howey,  132  Mich.  694,  102  Am.  St.  Eep. 
436,  94  N.  W.  215,  successor  of  receiver  did  not,  by  proving  claim 
against  bankrupt's  estate,  elect  to  prove  it  as  ordinary,  rather 
than  fiduciary,  debt,  and  thereby  waive  right  to  question  discharge. 

2    How.    210-238,    11    L.    239,    UNITED    STATES    v.    BRIG    MALEK 
ADHEL. 

Syl.   2    (IV,   302).     Admiralty— Ship's   liability  for   master's   torts. 

Approved  in  United  States  v.  Evans,  195  U.  S.  367,  49  L.  237, 
25  Sup.  Ct.  46,  admiralty  jurisdiction  of  federal  courts  extends  to 
libel  in  rem  against  vessel  for  colliding  with  and  destroying  beacon 
standing  in  water  though  built  on  piles  driven  into  bottom;  Scow 
No.  36,  144  Fed.  934,  vessel  used  in  dumping  refuse  in  navigable 
waters  contrary  to  30  Stat.  1152  is  liable  to  penalty  therein  pro- 
vided, though  act  was  without  knowledge  and  contrary  to  general 
instructions  of  owner;  The  Oceanica,  144  Fed.  304,  towing  vessel 
is  liable  for  injury  to  her  tow  resulting  from  her  negligence  not- 
withstanding provision  of  contract  that  towing  should  be  at  risk 
of  tow;  The  W.  G.  Mason,  142  Fed.  917,  918,  where  two  tugs  be- 
longing to  same  owner  were  towing  steamer  under  contract  with 
such  owner  and  master  of  leading  tug  directed  movements  of  ship, 
but  as  to  own  movements  second  tug  was  under  control  of  own 
master,  rear  tug  not  liable  in  rem  for  stranding  of  tow  through 
fault  of  leading  tug;  The  Bulley,  138  Fed.  171,  vessel  liable  for 
tortious  acts  of  member  of  crew  by  which  another  vessel  is  injured, 
though   committed   without   authority  or   knowledge   of   owners. 

2    How.    238-241,    11    L.    251,   BROCKETT    v.    BROCKETT. 

Syl.   3    (IV,   305).     Rehearing   petition   stays   time   to   appeal. 

■  Approved  in  In  re  McCall,  145  Fed.  899,  filing  of  petition  for  re- 
hearing of  order  confirming  bankrupt's  composition  suspends  limit 
for  appeal  therefrom  until  disposition  of  motion  for  rehearing; 
Klein  v.  Southern  Pac.  Co.,  140  Fed.  214,  mere  filing  of  motion  for 
new  trial  in  circuit  court  does  not,  without  any  order  of  court, 
carry  matter  over  to  next  term,  so  as  to  give  court  jurisdiction 
to   then   hear   and   dispose   of   it. 

2   How.  263-284,  11   L.  261,  MURPHY  v.   STEWART. 

Syl.   2    (IV,   310).     Amendment   of   verdict   from  judge's   notes. 

Approved  in  Elliott  v.  Gilmore,  145  Fed.  965,  permitting  amend- 
ment of  verdict  by  court  by  addition  of  interest  where  it  is  shown 
by  affidavits  of  jurors  that  it  was  their  intention  that  interest 
should   be   computed   on   amount    awarded   from   prior   date. 


20y  Notes  on  U.  S.  Keports.  2  How.  284-344 

2   How.   284-318,   11   L.   269,   STODDARD   v.   CHAMBERS. 

Syl.   6    (IV,  314).     Ejectment   on   title   by   estoppel. 

Approved  in  South  Penn.  Oil  Co.  v.  Calf  Creek  Oil  etc.  Co.,  140 
Fed.  515,  upholding  equity  jurisdiction  over  suit  by  defendant 
in  two  actions  against  plaintiffs  therein  to  determine  entire  con- 
troversy, where  both  actions  were  for  damages  for  taking  oil  from 
land,  and  defense  in  both  actions  consisted  in  part  of  estoppel  in 
pais. 

2  How.  319-344,  11  L.  283,   GRIGNON  v.  ASTOR. 

Syl.   1    (IV,   320).     Jurisdiction   defined. 

Approved  in  White  v.  Martin,  2  Alaska,  498,  probate  court  has 
jurisdiction  to  appoint  guardian  of  projicrty  of  resident  realty 
owner  who  becomes  insane  and  wanders  away;  Franklin  Union  v. 
People,  220  HI.  36G,  110  Am.  St.  Rep.  248,  77  N.  E.  180,  defect 
of  parties  in  suit  for  injunction  does  not  deprive  court  of  jurisdic- 
tion nor  ins-ali<late  order  granting  injunction;  O'Brien  v.  People, 
216  111.  363,  108  Am.  St.  Rep.  219,  75  N.  E.  112,  that  terms  of  strike 
injunction  were  broader  than  allegations  of  petition  is  no  defense 
to  contempt   proceedings   for  violation  of   injunction. 

Syl.   6    (IV,   328).     Judgment   presumes  jurisdictional   facts   proven. 

Approved  in  Blue  Mt.  Iron  etc.  Co.  v.  Portner,  131  Fed.  59,  65 
C.  C.  A.  295,  appointment  of  receiver  for  corporation  by  state 
court  of  general  jurisdiction  is  not  collaterally  attackable  on  ground 
that  court  did  not  have  jurisdiction  of  corporation's  person;  Cobe 
V.  Ricketts,  111  Mo.  App.  113,  85  S.  W.  133,  where,  after  suit 
to  dissolve  loan  association  between  citizens  of  different  states 
brought  in  federal  court,  state  court  attempted  to  transfer  its  juris- 
diction in  similar  suit,  previously  attacked  to  federal  court,  which 
assumed  jurisdiction  and  ordered  sale  of  assets,  decree  not  col- 
laterally   assailable    in    action    on    note. 

Syl.   8    (IV,   334).     Impeachment   of   decree   only  for   fraud. 

Approved  in  Threadgill  v.  Colcord,  16  Okl.  469,  471,  85  Pac.  710, 
applying   principle   to    master's   sale. 

Syl.    9    (IV,    336).     Judgments — Collateral    attack — Inferior    courts. 

Approved  in  Edelstein  v.  United  States,  149  Fed.  639,  where', 
after  debtor  had  been  adjudged  bankrupt,  he  applied  for  dis- 
charge and  no  appeal  taken,  adjudication  is  not  collaterally  at- 
tackable, because  of  defect  in  petition  in  proceeding  against  bank- 
rupt for  taking  false  oath;  Clark  v.  Rossier,  10  Idaho,  358,  78  Pac. 
360,  refusing  to  sustain  action  to  declare  trust  in  lands  sold  at 
probate  sale. 
14 


2  How.  376-45d  Notes  on  U.  S.  Eeports.  210 

2  How.  376-383,  11  L.  306,  CATTS  v.  PHALEN. 

Syl.    1    (IV,    342).     Lottery — Eecovery   of   prize    fraudulently   won. 

Approved  in  Stewart  v.  Wright,  147  Fed.  332,  affirming  Wright 
V.  Stewart,  130  Fed.  925,  where  there  was  conspiracy  to  defraud 
plaintiff  by  means  of  fake  footrace,  and  plaintiff  bet  money  on 
understanding  that  race  was  fixed  for  him  to  win,  he  may  recover 
his   money. 

Denied  in  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  344, 
majority  holding  when  there  was  conspiracy  to  defraud  plaintiff 
by  means  of  fake  footrace  and  plaintiff  bet  money  on  understand- 
ing that  race  was  fixed  for  him  to  win,  he  may  recover  his  money. 

Syl.   1    (IV,   343).     Lotteries— Fraud  by  winner. 

Approved  in  In  re  Arnold,  133  Fed.  792,  creditors  of  bankrupts 
who  advanced  money  to  them  on  strength  of  fraudulent  represen- 
tations that  they  were  solvent  and  earning  enough  to  pay  stipulated 
weekly  interest,  may  prove  claims  in  bankruptcy  though  they  knew 
and  intended  that  money  was  to  be  used  in  gambling. 

2   How.  3S3-391,  11   L.  308,  DADE  v.  IRWIN. 

Syl.   2    (IV,   344).     Equity — Adequacy  of  remedy   at  law. 

Approved  in  Allen  v.  Myers,  1  Alaska,  117,  after  applicant  for 
patent  has  once  initiated  proceedings  in  land  office  under  Rev.  St., 
§§  2325,  2326,  suit  to  quiet  title,  not  in  any  way  connected  with 
patent    proceedings,    cannot    be    maintained. 

2  How.  392-395,  11  L.  312,  MINOR  v.  TILLOTSON. 

Syl.  1   (IV,  345).     Matters  reviewable  on  appeal  or  error. 

Approved  in  Coulter  v.  B.  F.  Thompson  L.  Co.,  142  Fed.  708, 
it  is  not  province  of  court  to  instruct  jury  as  to  which  class  of 
testimony  on  issue  of  fact  is  entitled  to  greater  weight;  J.  W. 
Bishop  Co.  V.  Shelhorse,  141  Fed.  648,  applying  principle  in  action 
against    master    for    wrongful    death. 

2    How.    426-454,    11    L.    326,    LAWRENCE    v.    McCALMOT. 

Syl.  1   (IV,  347).     Guaranty  liberally  construed. 

Approved  in  Swift  v.  Jones,  135  Fed.  438,  when  contract  of 
guarantor  employing  defendant's  son  as  plaintiff's  broker,  signed 
by  defendant  as  guarantor,  provided  for  bond  in  company  selected 
by  jjlaintiff,  and  latter  presented  application  for  bond,  which  son 
signed  but  plaintiff  did  not  get  bond  until  after  defalcation,  de- 
fendant not  liable  on  guaranty. 

Syl.    4    (IV,    349.)     Valuable    consideration    good    though    nominal. 
Approved   in   Driscoll   v.    Driscoll,    143    Cal.    533,    77   Pac.    473,   ap- 
plying principle  to   assignment  of  property  from  father  to   daughter; 


211  Notes  on  U.  S.  Kcports.  2  How.  497-581 

Fischer  v.  Union  Trust  Co.,  138  Mich.  616,  110  Am.  St.  Kep.  329, 
101  N.  W.  854,  68  L.  R.  A.  987,  since,  under  deed  from  father  to. 
daughter  based  on  love  and  affection,  daughter  could  not  enforce 
provision  in  deed  that  grantor  would  pay  off  encumbrance,  she 
could  not  be  subrogated  to  claim  of  mortgagee  as  against  father's 
estate,  on  father's  failure  to  pay;  Buhrer  v.  Baldwin,  137  Mich. 
270,  100  N.  W.  470,  where  contract  of  guaranty  recites  considera- 
tion, no  notice  of  acceptance  is  necessary  to  bind  guarantor;  Wat- 
kins  V.  Robertson,  105  Va.  285,  54  S.  E.  38,  5  L.  R.  A.  (N.  S.)  1194, 
where  owner  of  stock  for  recited  consideration  of  $1,  executed 
sealed  option  to  sell  such  stock  for  certain  price  within  certain 
time,  owner  is  estopped  to  deny  option  based  on  valuable  con- 
sideration.    See    105    Am.    St.    Rep.    508,    note. 

2   IIow.  497-559,   11   L.   353,  LOUISVILLE   ETC.  R.   R.   CO.   v.   LET- 
SON. 

Syl.  5  (IV,  355).  Jurisdiction — Corporation  citizen  of  state  of 
creation. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  586,  49  L.  609,  25 
Sup.  Ct.  355,  presumption  that  stockholders  of  corporations  are  citi- 
zens of  state  which  created  it  docs  not  preclude  them  from  assert- 
ing their  actual  citizenship  to  sustain  federal  jurisdiction  of  suit 
brought  by  them  as  such  stockholders;  Thomas  v.  Ohio  State  Uni- 
versity Trustees,  195  U.  S.  210,  49  L.  164,  25  Sup.  Ct.  24.  allega- 
tion that  defendant,  board  of  trustees,  is  citizen  of  and  domiciled  in 
Ohio,  and  was  created  by  laws  of  that  state  with  power  to  sue  and 
be  sued,  is  insufficient  to  show  body  is  Ohio  corporation;  United 
States  V.  Milwaukee  Refrigerator  etc.  Co.,  142  Fed.  253,  applying 
rule  in  suit  to  prevent  payment  of  rebates  where  one  corporation 
was  organized  and  is  owned  by  officers  and  stockholders  of  another; 
Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  117,  66  C.  C.  A.  179, 
fact  that  individual  is  president  of  corporation  creates  no  presump- 
tion that  he  is  citizen  of  same  state  as  corporation,  for  purpose 
of  determining  federal  court's  jurisdiction  in  suit  by  or  against 
him. 

(IV,  353.)  Miscellaneous.  Cited  in  Murray  v.  Farrell,  2  Alaska, 
363,  where  defendant  became  indebted  in  Montana  and  before  debt 
barred  in  that  state  he  removed  to  Alaska,  in  suit  in  latter  place, 
Alaska  statute  of  limitation  governs. 

2   How.  5G0-581,   11   L.   378,  BURWELL  v.   CAWOOD. 

Syl.  8  (IV,  265).  Decedent's  debts  created  in  business  after 
death. 

Approved  in  Roberts  v.  Hale,  124  Iowa,  300,  99  N.  W.  1076,  where 
testatrix  was  in  grain  business  and  will  provided  that  husband  was 
to    continue    business    as    trustee    and    distribution    to    be    postponed 


2  How.  608-619  Notes  on  U.  S.  Eeporta.  212 

until    his    death,    husband    could    mortgage    property    used    to    store 
grain  to   pay  money  borrowed  by  him  for   carrying   on   business. 

2  How.  608-619,  11  L.  397,  McCRACKEN  v.  HAYWAED. 

Syl.   1    (IV,  367).     Law  at  date   of   contract  governs. 

Approved  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  391, 
Laws  Kan.  1898,  c.  10,  p.  27,  repealing  Gen.  Stats.  1889,  §§  1200, 
1204,  giving  corporation  creditors  individual  action  against  stock- 
holders on  suspension  of  corporate  business  for  more  than  one  year, 
is  void  as  to  contracts  made   prior  to   its   passage. 

Syl.  3  (IV,  372).     Law  impairing  obligation  of  contractg. 

Approved  in  Hooker  v.  Burr,  194  U.  S.  423,  48  L.  1051,  24  Sup. 
Ct.  706.  amendment  of  1895  to  Cal.  Code  Civ.  Proc,  §  702,  chang- 
ing time  for  redemption  and  rate  of  interest  payable  on  redemption, 
is  valid  as  rights  of  purchaser  on  foreclosure,  where  amendment 
made  subsequent  to  execution  of  mortgage  but  prior  to  sale;  Harri- 
son V.  Remington  Paper  Co.,  140  Fed.  392,  Laws  Kan.  1898,  c.  10, 
p.  27,  repealing  Gen.  St.  1889,  §§  1200,  1204,  giving  corporation 
creditors  individual  action  against  stockholder  on  suspension  of 
corporate  business  for  more  than  one  year,  is  void  as  to  contracts 
made  prior  to  its  passage;  Myers  v.  Knickerbocker  Trust  Co.,  139 
Fed.  115,  Md.  Acts  Gen.  Assem.  1904,  c.  101,  p.  179,  repealing  pre- 
existing remedy  of  creditor  against  stockholder,  is  void  as  to  cred- 
itors who  became  such  and  had  brought  suit  prior  to  its  passage; 
Lamb  v.  Powder  River  etc.  Co.,  132  Fed.  440,  67  L.  K.  A.  558,  65 
C.  C.  A.  570,  Colo.  Sess.  Laws,  1895,  p.  239,  c.  106,  as  amended  in 
1899,  prescribing  limitation  on  actions  on  foreign  judgments  based 
on  cause  of  action  which  had  accrued  more  than  six  years  prior  to 
commencement  of  action  on  judgment,  is  void  as  to  action  on 
foreign  judgment  rendered  prior  to  passage  of  act;  Welsh  v.  Cross, 
146  Cal.  626,  106  Am.  St.  Rep.  63,  81  Pac.  230,  amendment  of  1897 
to  Code  Civ.  Proc,  §  702,  extending  time  for  redemption  from  execu- 
tion sale,  does  not  apply  to  judgments  existing  at  time  of  its 
passage;  Smith  v.  Jennings,  67  S.  C.  336,  45  S.  E.  826,  joint  resolu- 
tion requiring  state  treasurer  to  write  off  books,  as  obligations  of 
state,  certain  past  due  bonds  is  not  law  impairing  obligation  of  con- 
tracts; Gaffney  v.  Jones,  39  Wash.  589,  81  Pac.  1059,  Laws  1897, 
p.  52,  c.  39,  limiting  duration  of  judgment  lien,  is  valid  as  to 
judgment  in  tort  rendered  before  its  passage;  Howard  v.  Ross, 
38  Wash.  630,  80  Pac.  820;  Bal.  Code,  §§  5148-5150,  limiting  time 
to  sue  on  judgments,  is  void  as  to  judgment  recovered  after  its 
passage  on  note  executed  prior  to  [lassage.  See  99  Am.  St.  Rep.  28, 
note. 

Syl.    4    (IV,    379).     Validity    of    law    changing    foreclosure    sale. 
Approved   in   Welsh    v.    Cross,    146    Cal.    G33,    106    Am.    St.    Rep.   63, 
81  Pac.  233,  amendment  of  1897    to  Code  Civ.  Proc,  §  702,  extend- 


213  Notes  on  U.  S.  Kcports.  2  How.  619-653 

ing    time    for    redemption    from    execution    sale,    docs    not    apply    to 
judgments  existing  at  time  of  its  passage. 

2  How.   61 9-053,   11   L.   619,   GAINES  v.   CHEW. 

Syl.  1  (IV,  381).     Multifariousness  defined. 

Approved  in  Howe  &  Davidson  Co.  v.  Hangan.  140  Fed.  183, 
bill  alleging  water  rights  in  complainant  under  contract  with  water 
company  and  interference  with  such  rights  against  which  injunc- 
tion and  adjustment  of  rights  sought,  is  not  multifarious  because 
of  impleading  of  others  who  were  alleged  to  claim  interest  in  com- 
pany's bonds  and  who,  in  collusion  with  other  defendants,  were 
to  cause  default  on  bonds  and  foreclose  on  property;  United 
Cigarette  etc.  Co.  v.  Wright,  132  Fed.  197,  bill  to  require  accounting 
from  defendant  as  agent  is  not  multifarious  because  different 
transactions  set  out,  all  growing  out  of  agency,  and  discovery  and 
accounting  demanded  as  to  each;  Hosmer  v.  Wyoming  Ey.  etc. 
Co.,  129  Fed.  888,  65  L.  E.  A.  81,  refusing  to  reverse  decree  in 
specific  performance  of  sale  of  mine  for  multifariousness  where 
causes  of  action  joined  are  not  repugnant  or  inconsistent  and  only 
inconvenience  to  defendant  arises  from  his  having  to  pay  illegal 
costs. 

Syl.  2   (IV,  3S5).     Multifariousness — Suit  against  several  grantees. 

Approved  in  Fisher  v.  Trust  Co.,  138  N.  C.  231,  50  S.  E.  661, 
complaint  alleging  deceit  of  intestate  for  many  years  by  sys- 
tematic fraud  of  one  of  defendants,  numerous  fraudulent  steps 
being  stated,  and  fraudulent  connection  of  others  in  scheme  being 
set  out,  they  being  made  parties  and  asked  to  surrender  property 
they   had   received,   is   not   demurrable    for   misjoinder. 

Distinguished  in  dissenting  opinion  in  Fisher  v.  Trust  Co.,  138 
N.  C.  245,  50  S.  E.  666,  majority  holding  complaint  alleging  deceit 
of  intestate  for  many  years  by  systematic  fraud  of  one  of  de- 
fendants, numerous  fraudulent  steps  being  set  out,  and  fraudulent 
connection  of  others  in  scheme  being  stated,  they  being  made 
parties  and  asked  to  surrender  property  they  had  received,  is 
not  demurrable  for  misjoinder. 

Syl.  3    (IV,  385).     Jurisdiction   of  probate  of  wills. 

Approved  in  Ewing  v.  Mclntyre,  133  Mich.  462,  95  N.  W.  541, 
under  Comp.  Laws,  §§  650,  651,  probate  court  may  admit  lost  or 
destroyed  will  to  probate.     See  110  Am.  St.  Eep.  475,  note. 

Syl.    4    (IV,    386).     Fraud — Wills — Concurrent    equity    jurisdiction. 

Approved  in  Medill  v.  Snyder,  71  Kan.  598,  81  Pac.  219,  time 
limited  by  statute  of  wills  for  bringing  action  in  district  court  to 
contest  will  is  not  extended  by  Code  Civ.  Proc,  §  23. 


Ill  HOWARD. 


3   How.   9-32,   11  L.   469,   ALDRIDGE   v,   WILLIAMS. 

Syl.    2    (IV,    392).     Statutory    construction — Legislative    debates. 
Approved   in   Ex   parte   Helton,   117   Mo.   App.   621,   93   S.   W.   915, 
construing  Laws   1905,  pp.   168,   169,   relating   to   hunter's   licenses. 

Syl.    6    (IV,    393).     Departmental    regulations    as    law. 

Approved  in  Peters  v.  United  States,  2  Okl.  123,  33  Pac.  1033, 
false  swearing  before  United  States  land  receiver  in  pending  contest 
is  punishable  as  perjury  under  U.  S.  Eev.  St.,  §  5392. 

3  How.  87-103,  11  L.  506,  KENDALL  v.  STOKES. 

Syl.   5    (IV,  398).     Mandamus  as   suit. 

Approved  in  In  re  Epley,  10  Okl.  644,  64  Pac.  21,  judgment  grant- 
ing peremptory  mandamus  may  be  stayed  by  order  of  supreme  jus- 
tice after  appeal  taken;  dissenting  opinion  in  Henry  v.  State,  87 
Miss.    95,    39    So.    884,    arguendo.     See    98    Am.    St.    Rep.    874,    note. 

3  How.  133-150,  11  L.  529,  GORDON  v.  APPEAL  TAX  COURT. 

Syl.  2  (IV,  403).  Obligation  of  contracts — Corporations — Taxa- 
tion. 

Distinguished  in  New  York  v.  State  Board  of  Tax  Commrs., 
199  U.  S.  40,  41,  50  L.  76,  77,  105  Am.  St.  Rep.  701,  702,  25  Sup. 
Ct.  715,  N.  Y.  Laws  1899,  c.  712,  imposing  special  franchise  tax, 
does  not  impair  contract  by  which  state  or  city  gave  right  to  con- 
struct and  maintain  street  railways  in  New  York  in  consideration 
of  payment  of  fixed  annual  sum  or  percentage  of  earnings;  Ameri- 
can Smelting  etc.  Co.  v.  People,  34  Colo.  252,  253,  82  Pac.  535, 
upholding  Sess.  Laws  1902,  p.  73,  c.  3,  §  65,  imposing  license 
tax  on  foreign  corporations,  as  applied  to  foreign  corporations 
already  doing  business  in  state, 

Syl.   6    (IV,  406).     Taxation   of  capital   stock   of   corporation. 

Approved  in  Southwestern  Tel.  etc.  Co.  v.  San  Antonio,  32  Tex. 
Civ.  102,  73  S.  W.  860,  franchises  of  corporation  exercised  and  en- 
joyed by  it  in  a  city  are  property  within  meaning  of  charter  re- 
quiring  tax   on   all    property. 

3    How.    151-186,    11   L.   537,   SEARIGHT   v.   STOKES. 

Syl.  1  (IV,  406).     Contract  between  state  and  government. 

Cited  in  Wheeling  etc.  E.  R.  Co.  v.  Town  of  Triadelphia,  58 
W.   Va.   492,   52   S.   E.    501,   reciting   history   of   litigation. 

£214] 


215  Notes   on   U.   S.   Reports,  3  How.  197-26G 

3    How.    197-211,    11    L.    559,   TAYLOR    v.    UNITED   STATES. 

Syl.   9    (IV,   409).     Construction   of   revenue   laws. 

Approved  in  Johnson  v.  Southern  Pac.  Co.,  196  U.  S.  17,  49  L. 
3G9,  25  Sup.  Ct.  158,  equipment  of  locomotive  and  dining-car  with 
automatic  couplers  of  such  different  types  as  not  to  couple  with 
each  other  automatically  does  not  comply  with  27  Stat.  531,  c.  196, 
§  2;  Scow  No.  36,  144  Fed.  934,  under  30  Stat.  1152,  1153,  vessel 
used  in  depositing  refuse  in  navigable  waters  is  subject  to  penalty, 
though  act  was  without  knowledge  of  and  contrary  to  general  in- 
structions of  owner;  State  v.  Western  Union  Tel.  Co.,  96  Minn.  19, 
104  N.  W.  570,  construing  Laws  1891,  p.  70,  c.  8,  as  amended 
in  1901,  relating  to  taxation  of  property  of  telegraph  companies  as 
system. 

3    How.   212-235,   11    L.   565,   POLLARD'S   LESSEE   v.   HAGAN. 

Syl.  9  (IV,  412).     Land  under  navigable  water  is  state's. 

Approved  in  Crawford  Co.  v.  Hathaway,  67  Neb.  351,  108  Am. 
St.  Rep.  668,  93  N.  W.  789,  determining  water  rights  between 
riparian  owners  and  appropriators  under  irrigation  act;  Taylor  v. 
<'ommonwealth,  102  Va.  770,  102  Am.  St.  Rep.  865,  47  S.  E.  879, 
upholding  Acts  1899-1900,  p.  797,  c.  757,  leasing  tract  of  land  lying 
under    waters    of    York    river    below    low-water    mark. 

Syl.  12   (IV,  414).     Tide  lands  not  in  state. 

Approved  in  United  States  v.  Roth,  2  Alaska,  259,  holding  pos- 
session of  homestead  entryman  under  public  land  laws  coextensive 
with  boundaries  of  his  lands,  and  extends  over  shore  lands  of 
navigable   waters    abutting   thereon. 

3  How.  236-266,  11  L.  576,  CARY  v.  CURTIS. 

Syl.    1    (IV,   416).     Federal   jurisdiction    dependent   on    Congress. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  24,  50  L.  644,  26 
Sup.  Ct.  387,  denying  right  of  removal  of  criminal  prosecution 
because  of  denial,  in  summoning  or  impaneling  jurors,  of  any  equal 
civil   rights  secured  to   accused  by  federal   law. 

Syl.   4    (IV,   417).     Assumpsit    for   money    had. 

Approved  in  Henderson  v.  Koenig,  192  Mo.  709,  91  S.  W.  91, 
where  probate  judge  contended  that  act  of  1897,  providing  for 
salary  instead  of  fees  and  providing  for  election  of  clerk,  and 
permitted  clerk  to  collect  fees  and  pay  them  to  city,  he  could 
recover  fees  after  law  declared  void;  Baltimore  etc.  E.  R.  Co. 
V.  Burke,  102  Va.  647,  47  S.  E.  825,  where  bank  received  checks, 
property  of  plaintiff,  from  his  agent  for  collection,  and  checks 
were  not  properly  indorsed,  bank  aot  liable  to  plaintiff  though 
it   was   depository  of  plaintiff. 


3  How.  266-332  Notes  on  U.  S.  Eeports.  216 

(IV,  416.)  Miscellaneous.  Cited  in  dissenting  opinion  in  Tampa 
Waterworlvs  Co.  v.  Tampa,  199  U.  S.  247,  50  L.  175,  26  Sup.  Ct.  23, 
majority  upholding  ordinance  reducing  water  rates. 

3  How.  266-292,   11   L.  591,  WHITE   v.   NICHOLLS. 

Syl.  3  (IV,  419).  Communication  in  discbarge  of  duty  is  privi- 
leged. 

See  104  Am.  St.  Eep.  138,  note. 

Syl.    5    (IV,    420).     Libel — Words    used    in    judicial    proceedings. 

Approved  in  Lauder  v.  Jones,  13  N.  D.  554,  101  N.  W.  917,  affi- 
davit made  by  defendant  in  certain  court  proceeding  is  inadmissible 
to  show  malice  in  publishing  libel  sued  for.  See  104  Am.  St.  Kep. 
124,  127,  note. 

Syl.  8  (IV,  420).  Libel — Publication  making  one  odious  or 
ridiculous. 

Approved  in  Western  Union  Tel.  Co.  v.  Cashman,  149  Fed.  371, 
telegraph  company  not  liable  for  libel  in  transmitting  libelous 
message  received  in  ordinary  course  of  business;  Prewitt  v.  Wil- 
son, 128  Iowa,  203,  103  N.  W.  367,  where  publication  is  libelous  per 
se,  falsity  and  malice  are  presumed;  Morse  v.  Times  etc.  Printing 
Co.,  124  Iowa,  713,  719,  100  N.  W.  869,  871,  article  designed  and 
calculated  to  exhibit  plaintiff  as  shallow,  ridiculous  and  contemptible 
person,  dishonest  and  undeserving  of  confidence,  is  libelous  per  se; 
Evening  Post  Co.  v.  Eichardson,  113  Ky.  649,  68  S.  W.  668, 
in  action  for  libel  based  on  communication  published  in  defend- 
ant's newspaper  charging  plaintiff  with  corruption  as  election  offi- 
cer, fact  that  communication  sent  to  defendant  by  experienced  and 
prudent  journalist  furnishes  sufficient  basis  for  plea  of  qualified 
privilege;  Lescale  v.  Jos.  Schwartz  Co.,  116  La.  308,  40  So.  713, 
holding  litigant  who,  without  probable  cause,  makes  defamatory 
allegations  against  adversary  knowing  them  to  be  false,  is  liable 
in  damages. 

Syl.    9    (IV,    421).     Express    malice    makes    publication    libelous. 

See  104  Am.  St.  Eep.  116,  note. 

Syl.   10    (IV,   421).     Libel— Malice   is   for   jury. 

Approved  in  Prewitt  v.  Wilson,  128  Iowa,  206,  103  X.  W.  368, 
whether  privilege  relied  on  in  justification  of  alleged  libel  was 
not   exceeded  and  publication   made   with  actual  malice,  is  for  jury. 

3   How.   292-332,   11   L.   603,   EX  PARTE   CHRISTY. 

Syl.   13    (IV,  425).     Obiter   dicta   not   authority. 

Approved  in  Linstroth  Wagon  Co.  v.  Ballew,  149  Fed.  966,  fol- 
lowing rule. 


217  Notes  on  U.  S.  Keports.  3  How,  333-413 

Syl.    14    (IV,   425).     Probibition   by   supreme   court. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  955, 
67  L.  E.  A.  761,  66  C.  C.  A.  55,  upholding  jurisdiction  of  circuit 
court  of  appeals  to  naandanius  circuit  judge  to  vacate  order  stay- 
ing proceedings  in  circuit  court  pending  final  determination  in 
state  courts  of  appeals  in  actions  on  claims  against  city.  See  111 
Am.   St.   Eep.   934,   936,   note. 

3   How.   333-413,  11   L.   622,  OLIVER  v.  PIATT. 

Syl.    1    (IV,   426).     Following   trust    property. 

Approved  in  Harrigan  v.  Gilchrist,  121  Vvis.  252,  99  N.  W.  942, 
applying  rule  in  suit  to  compel  receiver  of  insolvent  corporation 
to    account. 

Syl.  6  (IV,  428).  Presumption  of  knowledge  of  trusts  by  co- 
tenant. 

Approved  in  Eunner  v.  Woitke,  2  Alaska,  395,  one  partner  can- 
not sell  realty  of  mercantile  firm  unless  authorized  to  do  so  in 
writing. 

Syl.    12    (IV,   429).     Quitclaim   deed— Bona   fide   purchaser. 
Approved  in   105   Am.   St.   Eep.   859,   note. 

Distinguished  in  Hosier  v.  Monisen,  13  Okl.  50,  74  Pac.  908,  where 
title  of  party  to  realty  is  evidenced  by  quitclaim  deed,  and  ad- 
verse claimant  claims  under  execution  against  debtor,  who  is  not 
shown  to  have  had  title,  quitclaim  title  is  paramount;  Martin  v. 
Eagsdale,  71  S.  C.  77,  50  S.  E.  674,  under  Civ.  Code,  §  2367, 
purchaser  under  quitclaim  deed  may  show  he  is  bona  fide  purchaser 
where   last   two   grantors   held   under   warranty   deeds. 

Syl.     14     (IV,    431).     Multifariousness — Complicated    transactions. 

Approved  in  Ilosraer  v.  "Wyoming  By.  etc.  Co.,  129  Fed.  888, 
65  C.  C.  A.  81,  refusing  to  reverse  judgment  because  bill  multi- 
farious where  only  inconvenience  arising  from  joinder  is  subjection 
of  defendant  to  payment  of  illegal  costs;  Fisher  v.  Southern  Loan 
&  Trust  Co.,  138  N.  C.  232,  50  S.  E.  662,  upholding  complaint  al- 
leging intestate  deceived  by  systematic  fraud  of  one  of  defend- 
ants  where   fraudulent   connection   of   other   defendants   shown. 

Syl.    15    (IV,   431).     Limitations   run   against   trust   when. 

Approved  in  Eddy  v.  San  Francisco,  148  Fed.  280,  suit  against 
city  to  enforce  tax  levy  for  Dupont  street  bonds  as  provided  by  Cali- 
fornia statute  is  barred  by  laches  of  bondholder  who  waited 
twenty  years  after  issuance  of  bonds  and  eight  years  after  their 
maturity   before   suing. 

Syl.   16    (IV,   432).     No   general   rule   as   to   multifariousness. 
Approved  in  South  Penn.  Oil  Co.  v.  Calf  Creek  etc.  Co.,   140  Fed. 
616,  bill  to  enjoin  further  prosecution  of  two  actions  at  law  against 


3  How.  413-534  Notes  on  U.  S.  Reports.  218 

• 

complainant,  which  involve  same  indivisible  subject  matter,  is  not 
multifarious  because  claims  of  two  plaintiffs  are  separate  and  dis- 
tinct; United  Cigarette  etc.  Co.  v.  Wright,  132  Fed.  197,  bill  to 
require  accounting  for  defendant  as  agent  is  not  multifarious  be- 
cause different  and  separate  transactions  are  set  out,  all  growing 
out  of  agency,  and  discovery  and  accounting  demanded   as  to   each. 

Syl.    17    (IV,   432).     Multifariousness,   how   objected   to. 

Approved  in  Emmons  v.  National  etc.  Assn.,  135  Fed.  692,  68  C.  C. 
A.  327,  applying  rule  to  bill  by  borrowing  stockholder  to  have  loan 
contract  canceled  for  fraud  and  usury;  Barber  v.  National  Carbon 
Co.,  129  Fed.  376,  64  C.  C.  A.  40,  applying  rule  in  suit  for  infringe- 
ment of  patent. 

3     How.     413-426,     11     L.     658,     WASHINGTON     BRIDGE     CO.     v. 

STEWART. 

Syl.  1    (IV,  433).     Questions  raised  on  second  appeal. 

Approved  in  Lorimer  v.  Fairchild,  68  Kan.  342,  75  Pac.  128, 
where  cause  was  remanded  for  new  trial  and  record  in  supreme 
court  presents  same  question  presented  to  court  of  appeals,  supreme 
court  will  re-examine  case  where  former  decision  was  erroneous 
and  in  conflict  with  other  opinion  of  supreme  court  and  of  another 
department  of  court  of  appeals;  United  States  v,  Denver  etc.  R.  R. 
Co.,  11  N.  M.  154,  66  Pac.  552,  applying  rule  in  action  involving 
right  of   railroad   to   cut   timber   on   public  lands   along  line. 

3    How.    441-463,    11    L.    671,    CARROLL    v.    SAFFORD. 

Syl.    4    (IV,   438).     Public    lands    sold   not    subsequently   salable. 

Approved  in  McMichael  v.  Murphy,  12  Okl.  161,  70  Pac.  191, 
one  making  settlement  on  tract  while  it  is  covered  by  homestead 
entry  of   another  is  mere   trespasser. 

Syl.   7    (IV,   438).     State   taxation   prior  to   patent. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
338,  50  L.  506,  26  Sup.  Ct.  282,  bona  fide  purchaser  of  standing 
timber  from  holder  of  receiver's  final  receipts  cannot,  on  avoidance 
of  patents,  for  fraud  of  entryman,  be  required  to  account  for  tim- 
ber cut;  McMichael  v.  Murphy,  12  Okl.  160,  70  Pac.  191,  one 
making  settlement  on  tract  while  it  is  covered  by  homestead  entry 
of  another  is  mere  trespasser;  Flanagan  v.  Forsythe,  6  Okl.  236,  50 
Pac.  155,  exemption  from  liability  for  debts  of  lands  entered  as 
homesteads  does  not  apply  after  final  proof  made  and  final  or  patent 
certificate   issued. 

3  How.  515-534,  11  L.  705,  CAMDEN  v.  DOREMUS. 

Syl.   1    (IV,   448).     Objections   to   evidence   must   be   specific. 

Approved  in  American  Car  etc.  Co.  v.  .Brinkman,  146  Fed.  716, 
applviug  rule  in  action  against  master  for  personal  injuries  to  ser- 
vant. 


219  Notes  on  U.  S.  Eeports.  3  How.  534-568 

3    How.    534-553,    11    L.    714,    MARYLAND    v.    BALTIMORE    ETC. 
R.  R.  CO. 

Syl.   1   (IV,  450).     Counties  are  state  divisions. 

Approved  in  Kittel  v.  'Trustees'  Internal  Improvement  Fund,  139 
Fed.  953,  construing  Florida  Laws  1854,  p.  9,  c.  610,  known  as  in- 
ternal improvement  fund  act;  dissenting  opinion  in  Battery  Park 
Bank  v.  Madison  Co.  Commissioners,  135  N.  C.  250,-  47  S.  E.  1021, 
majority  holding  Laws  1903,  p.  490,  c.  289,  declaring  that  for 
purpose  of  funding  floating  indebtedness  of  Madison  county,  com- 
missioners  are   authorized   to    issue   new    bonds,   is   not   mandatory. 

Syl.   2    (IV,   451).     Penalty  for  breach   of   duty   is   punishment. 

Approved  in  Atwood  v.  Buckingham,  78  Conn.  427,  62  Atl.  618, 
upholding  Pub.  Acts.  1905,  p.  413,  217,  limiting  recovery  of  penalty 
in   action   pending  for  failure  of   administrator   to   file   inventory. 

Syl.  3    (IV,  451).     Repeal   of  statute  remits  penalty. 

Approved  in  Atwood  v.  Buckingham,  78  Conn.  425,  62  Atl.  617, 
Gen.  St.  1902,  §  324,  providing  penalty  for  failure  of  administrator 
to  file  inventory  within  specified  time,  was  repealed,  and  Acts 
1905,  p.  413,  c.  217,  declaring  that  in  all  actions  pending  and 
brought  under  §  324,  recovery  should  be  $1  only  as  penalty,  was 
retroactive;  Pensacola  etc.  R.  R.  Co.  v.  State,  45  Fla.  89,  110 
Am.  St.  Rep.  69,  33  So.  986,  repeal  of  Laws  1887,  p.  123,  c.  3746, 
prescribing  penalty  for  charging  higher  passenger  rates  than  al- 
lowed,   pending    appeal,    authorizes    reversal. 

3    How.    556-568,    11   L.    724,   UNITED    STATES   v.   FREEMAN. 

Syl.   2    (IV,   453).     Thing  within  intent  of  statute. 

Approved  in  United  States  v.  American  Surety  Co.,  200  U.  S. 
203,  50  L.  440.  26  Sup.  Ct.  168,  labor  and  materials  used  in  prosecu- 
tion of  a  public  work,  whether  furnished  under  contract  directly  to 
contractor  or  to  subcontractor,  are  within  obligation  of  surety  under 
bond  pursuant  to  28  Stat.  278,  c.  280;  Russ  v.  Commonwealth,  210 
Pa.  St.  553,  105  Am.  St.  Rep.  825,  60  Atl.  172,  1  L.  R.  A.  (N.  S.) 
409,  under  resolution  of  1897,  relating  to  attendance  by  legislature 
at  dedication  of  Grant's  monument,  committee  to  which  matter  re- 
ferred   could    contract    for    meals    for    legislators. 

Syl.   4    (IV,   454).     Statutes   In   pari   materia. 

Approved  in  Wetmore  v.  Markoe,  196  U.  S.  77,  49  L.  394,  25  Sup. 
Ct.  172,  liability  for  alimony  due  under  divorce  decree  is  not  barred 
by  bankruptcy  discharge;  Johnson  v.  Southern  Pac.  Co.,  196  U.  S. 
21,  49  L.  371,  25  Sup.  Ct.  158,  construing  Comp.  St.  1901,  p.  3174, 
relating  to  automatic  couplers;  Mosle  v.  Bidwell,  130  Fed.  335,  336, 
65  C.  C.  A.  533,  customs  administrative  act  1890,  §  20,  relating  to 
withdrawal  of  merchandise  from  bonded  warehouses,  means  such 
payment   as    merchandise    would    be    subjected    to    at    time    of    with- 


3  How.  578-690  Notes  on  U.  S.  Keports.  220 

drawal;  State  v.  Frederickson,  101  Me.  42,  63  Atl.  537,  under  anti- 
liquor  law  (Eev.  St.,  c.  29,  §  40),  cider  is  intoxicating  liquor; 
Henry  v.  State,  87  Miss.  59,  39  So.  872,  Eev.  Code,  1892,  §  3201, 
providing  for  working  of  convicts  on  farm,  leased  for  that  purpose, 
is  not  repealed  by  act  1894,  providing  for  establishment  of  peni- 
tentiary  farm. 

Syl.  5  (IV,  455).  Statutory  construction — Statutes  in  pari  ma- 
teria. 

Approved  in  Territory  v.  Denver  etc.  E.  E.  Co.,  12  N.  M.  429, 
78  Pac.  74,  construing  Laws  1901,  p.  96,  c.  45,  §§  3,  4,  relating 
to   inspection   of   hides. 

3  How.  578-589,  11  L.  734,  UNITED  STATES  v.  PEESCOTT. 

Syl.   2    (IV,  460).     Theft  of  moneys  no   defense   on  bond. 

Approved  in  Van  Trees  v.  Territory,  7  Okl.  364,  365,  367,  54  Pac. 
497,  498,  500,  in  action  on  official  bond  of  county  treasurer,  fact 
that  moneys  were  deposited  in  solvent  bank,  which  thereafter  failed, 
resulting  in  loss,  without  fault  on  part  of  treasurer,  is  no  defense; 
Poole  V.  Burnet  Co.,  97  Tex.  84,  76  S.  W.  427,  county  treasurer  ia 
liable  for  school  fund  though  bank  in  which  he  kept  fund  turned 
out  to  be  insolvent. 

Distinguished  in  .Johnson  v.  Fleming,  116  Ky.  682,  50  S.  W.  855, 
under  Ky.  St.,  §  411,  relating  to  appointment  of  banks  for  deposits 
made  in  court,  where  court  failed  to  select  depositary  commissioner, 
is   not   insurer   of   solvency   of   bank   selected   by   him, 

3  How.   611-620,  11  L.  749,  CHAIEES  v.  UNITED  STATES. 

(IV,  464.)  Miscellaneous.  Cited  in  Wilson  v.  Knight,  48  Ela.  200, 
37  So.  187,  reciting  history  of  litigation. 

3  How.  636-649,  11  L.  760,  DAVIESS  v.  FAIEBAIEN. 

Syl.   1    (IV,  466).     Eepeals  by   implication. 

Approved  in  Johnson  v.  Southern  Ey.,  69  S.  C.  326,  48  S.  E.  262, 
holding  Code,  §  1711,  requiring  adjustment  by  carriers  of  losses 
or  damages  from  breakage  within  sixty  days  on  j)cualty  of  $50, 
repealed  by  Acts   1903,  p.  81. 

3  How.  074-690,  11  L.  778,  CLYMEE  v.  DAWKINS. 

Syl.  3   (IV,  471).     Partition  judgment  as  ouster  of  cotenant. 

See   109  Am.   St.   Eep.   613,  note. 

Syl.   4    (IV,   472).     Entry   by   one   cotenant. 

Approved  in  Scott  v.  Mineral  Dev.  Co.,  130  Fed.  501,  503,  64 
C.  C.  A.  659,  entry  into  possession  of  any  part  of  tract  under  deed 
containing  specific  metes  and  bounds  and  purporting  to  convey 
same,    and    continuation    thereof,    though    actually    of    only    part,    for 


221  Notes  on  U.  S.  Reports.  3  How.  693-771 

statutory   period   gives   occupant   adverse   possession    to    whole.     See 
109   Am.   St.   Eep.   610,   619,   note. 

3   How.   693-707,   11   L.   787,   McDOXOGH   v.   MILLAUDON. 

Syl.   2   (IV,  47-i).     Time   to  move  to  dismiss  error. 

Approved  in  Long  v.  Farmers'  State  Bank,  147  Fed.  362,  where 
motion  to  dismiss  writ  of  error  was  not  filed  until  within  two  days 
of  time  when  cause  was  set  down  for  hearing  and  after  defendant 
had  filed  brief  taking  issue  on  asBigament  of  errors  motion  was  too 
late. 

3   How.   707-717,   11  L.   794,   GAXTLY  v.   EWIXG. 

Syl.    3    (IV,   475).     Statutes   changing   execution   sales. 

Approved  in  Welsh  v.  Cross,  146  Gal.  633,  106  Am.  St.  Eep.  63,  81 
Pac.  233,  holding  void  Code  Civ.  Proc,  §  702,  as  amended  1897, 
extending  time  for  redemption,  as  to  judgments  existing  at  time 
of   amendment. 

Distinguished  in  Hooker  v.  Burr,  194  U.  S.  423,  99  Am.  St.  Eep. 
28,  48  L.  1051,  24  Sup.  Ct.  706,  upholding  Cal.  Code  Civ.  Proc, 
§  702,  as  amended  in  1895,  changing  time  for  redemption  and  rate 
of  interest  payable  in  order  to  redeem,  as  to  prior  mortgages. 

3  How.   720-750,   11  L.  800,  NEIL  v.   OHIO. 

Syl.  1  (IV,  477).  Contract  between  government  and  Ohio  con- 
strued. 

Approved  in  Wheeling  etc.  E.  E.  Co.  v.  Town  of  Triadelphia,  58 
W.  Va?  492,  52   S.  E.   501,  reciting  history  of  litigation. 

3  How.   750-763,  11  L.  814,  IIICKEY  v.   STEWAET. 

S}'!.   3    (lA'',   47S).     Judgments — Inquiry   into    jurisdiction. 

Aijproved  in  Southern  Pine  L.  Co.  v.  Ward,  16  Okl.  158,  85  Pac. 
467,  applying  principle  in  action  to  foreclose  trust  deed  where 
defendant    pleads    superior    title    uuder    prior    judgment. 

3  How.  763-771,   11   L.   820,  WILSON  v.   SMITH. 

Syl.   1   (IV,  480).     Eecovery  of   money  from   subagent. 

Approved  in  Morris  v.  Alabama  Carbon  Co.,  139  Ala.  623,  36 
So.  765,  where,  prior  to  collection  of  draft,  forwarding  bank  made 
an  assignment,  drawer  of  draft  was  entitled  to  recover  amount  sub- 
sequently collected  from  collecting  bank. 

Distinguished  in  Eced  Grocery  Co.  v.  Canton  Bank,  100  Md.  303, 
59  Atl.  717,  where  payee  of  draft,  deposited  it  with  bank  and  re- 
ceived credit  at  bank  as  depositor,  proceeds  could  not  be  mcovtM'cd 
by  drawer,  on  failure  of  consideration  as  between  drawer  and  payee. 


i  How.  16-251  Notes  on  U.  S.  Eeporta.  222 

Syl.   2    (IV,   482).     Application   of   sums   collected  by   subagent. 

Approved  in  Winfield  Nat.  Bk.  v.  McWilliams,  9  Old.  509,  60 
Pac.  233,  where  bank  in  due  course  receives  from  correspondent 
cheek  indorsed  in  blank  and  permits  existing  balance  to  remain 
unpaid  by  reason  thereof,  it  is  entitled  to  proceeds  of  such  check 
against  real  owner,  though  check  not  paid  until  after  failure  of 
transmitting    bank. 


IV  HOWARD. 


4  How.  16,  17,  11  L.  855,  TOMBIGBEE  E.  E.   CO.  v.  KNEELAND. 

Syl.   1    (IV,  487).     Suit  by  foreign   corj^oration. 

Cited  in  Kansas  City  etc.  Ky.  Co.  v.  Stevenson,  135  Fed.  554, 
arguendo. 

4  How.   17-19,  11  L.  856,  LEVI  v.   THOMPSON. 

Syl.    1    (IV,   487).     Execution — Holder   of   receiver's   certificate. 

Approved  in  Flanagan  v.  Forsythe,  6  Okl.  235,  50  Pac.  155,  ex- 
emption from  liability  for  debts  of  lands  entered  as  homestead 
does  not  apply  after  final  proof  made  and  final  or  patent  certificates 
issued. 

4  How.  80-121,  11  L.  884,  GEATIOT  v.  UNITED  STATES. 

Syl.  3  (IV,  492).     Departmental  regulations  as  law. 

Approved  in  Peters  v.  United  States,  2  Okl.  123,  33  Pac.  1033,  false 
swearing  before  land  office  receiver  in  contest  pending  before- him  is 
perjury  within  Eev.  St.  U.  S.,  §  5392. 

4  How.  242-251,  11  L.  957,  CLIFTON  v.  UNITED  STATES. 

Syl.  2  (IV,  499).     Presumptions  where  evidence  withheld. 

Approved  in  The  Degama,  150  Fed.  324,  applying  rule  in  damages 
for  collision  between  moving  and  moored  vessel;  Choctaw  &  M.  E.  Co. 
V.  Newton,  140  Fed.  238,  applying  rule  in  action  for  breach  of  rail- 
road construction  contract;  The  Georgetown,  135  Fed.  859,  where 
evidence  in  favor  of  one  of  two  vessels  in  collision  largely  pre- 
ponderates, including  evidence  of  disinterested  witnesses,  failure  of 
other  to  call  members  of  own  crew  in  circumstance  entitled  to  be 
considered  against  her;  Sullivan  v.  Sullivan,  188  Mass.  382,  74  N.  E. 
608,  where  maker  of  note  was  living  with  payee  at  time  of  latter 's 
death,  and  some  time  thereafter  burned  it,  it  is  presumed  that  at 
time  of  its  destruction  it  was  valid  and  could  be  enforced  by  admin- 
istrator of  payee;  Yarborough  v.  Hughes,  139  N.  C.  211,  51  S.  E. 
908,  applying  rule  in  suit  to  set  aside  sale  under  power  given  in  con- 
tract. 


223  Notes  on  U.  S.  Kcports.  4  How.  251-298 

4  How.  251-2G2,  11  L.  9G1,  BUCKLEY  v.  UNITED  STATES. 

Syl.  1  (IV,  502).  Customs  duties — Averments  to  show  probable 
cause. 

Approved  in  Mc'Tncrney  v.  United  States,  143  Fed.  737,  verified 
copy  of  ship's  nianircst  containing  list  of  alien  passengers,  delivered 
to  inspection  ofRccrs  as  report  under  requirement  of  26  Stat.  1085, 
§  8,  is  public  record  and  admissible  in  evidence;  Tucker  v.  Fire  Ins. 
Co.,  58  W.  Va.  43,  51  S.  E.  91,  one  having  sufficient  knowledge  of 
.value  of  property  destroyed  by  fire  to  speak  with  intelligence  on 
subject  may  testify  as  to  his  opinion  of  its  value. 

4  How.  262-286,  11  L.  967,  MUSSON  v.  LAKE, 

Syl.  4  (IV,  503).     Law  governing  performance  of  contracts. 

Approved  in  Sullivan  v.  German  Nat.  Bank,  18  Colo.  App.  103,  70 
Pac.  164,  one  indorsing  and  assigning  in  another  state  a  certificate  of 
deposit  in  payment  of  gambling  debt  cannot  defend  action  on  in- 
dorsement as  against  bona  fide  purchaser. 

4  How.  2S6-2S9,  11  L.  977,  UNITED  STATES  v.  McLEMORE. 

Syl.  1   (IV,  503).     Injunction  against  judgment  for  government. 

Approved  in  Kirk  v.  United  States,  131  Fed.  339,  bill  is  not  main- 
tainable against  United  States  and  marshal  jointly  to  restrain  seizure 
of  complainant's  property,  on  judgment  in  favor  of  United  States 
on  forfeited  recognizance;  Board  of  Education  v.  Volk,  72  Ohio  St. 
486,  74  N.  E.  650,  Rev.  St.,  §  2676,  creating  liability  against  "owner" 
or  "possessor"  of  premises  whereon  wrongful  excavation  is  made, 
does  not  apply  to  boards  of  education. 

Syl.  2  (IV,  504).     Inquiry  into  payment  of  judgment — Satisfaction. 

Approved  in  King  v.  Davis,  137  Fed.  233,  where  petitioner  apply- 
ing to  vacate  judgment  in  ejectment,  not  party  to  action,  is  in 
possession,  she  is  entitled  to  order  directing  marshal,  in  executing 
writ  of  possession,   to  leave   her  possession   undisturbed. 

4  How.  289-298,  11  L.  979,  ZELLER'S  LESSEE  v.  ECKERT. 

Syl.  1  (IV,  504).     Facts  not  considered  on  error. 

Approved  in  Coulter  v.  Thompson  Lumber  Co.,  142  Fed.  708,  it  is 
not  province  of  court  to  instruct  as  to  which  one  of  two  classes  of 
testimony  on  issue  of  fact  is  entitled  to  greater  weight;  J.  W.  Bishop 
Co.  V.  Shelhorse,  141  Fed.  648,  applying  rule  in  action  for  damages 
against  master  for  wrongful  death. 

Syl.  2   (IV,  505).     Possession   in   privity  with   owner — Limitations. 

Approved  in  Eddy  v.  San  Francisco,  148  Fed.  280,  under  Cal.  St. 
1875-76,  p.  433,  c.  326,  relating  to  Dupont  street  widening  bonds,  suit 
by  bondholder  to  enforce  levy  of  tax  to  pay  bonds,  is  barred  where 
suit  not  brought  until  lapse  of  twenty  years  from  issuance  and  eight 
years  after  maturity  of  bonds;  Rich  v.  Victoria  etc.  Min.  Co.,  147  Fed. 


4  How.  29S-420  Notes  on  U.  S.  Eeports.  224 

387,  where,  in  ejectment,  defendant,  who  was  tenant  in  ,conimon  with 
plaintiff,  claimed  title  by  adverse  possession,  instruction  that  de- 
fendant's possession  was  sufficient  if  neighbors  appreciated  his  claim 
to  exclusive  right,  is  erroneous;  Fountain  v.  Lewiston  Nat.  Bank, 
11  Idaho,  469,  83  Pac.  509,  where  A  owing  bank  on  mortgage  gave 
it  deed  and  took  option  to  purchase  for  amount  of  debt,  and  later 
released  option  and  bank  took  possession,  possession  waa  hostile  to 
A  and  heirs. 

4  How.  298-317,  11  L.  983,  KNOX  v.  SMITH. 

Syl.  2   (IV,  508).     Equitable  relief  dependent  on  bill. 

Approved  in  United  States  v.  Martindale,  146  Fed.  293,  under  indict- 
ment against  national  bank  officer  for  misapplication  of  funds  by 
drawing  checks  on  bank  when  he  had  no  deposit,  government  cannot 
impeach  apparent  credit  on  books  by  showing  deposit  previously  entered 
was  false. 

4  How.  317-327,  11  L.  992,  COOKENDOEFEE  v.  PEESTON. 

Syl.  3   (IV,  508).     Usage  as  law. 

Approved  in  Cudahy  Packing  Co.  v.  State  Nat.  Bank,  134  Fed.  545, 
67  C.  C.  A.  662,  provision  for  payment  of  attorney's  fees  in  case  note 
not   paid   at   maturity   does   not   destroy   negotiability, 

4  Hov.r.  327-335,  11  L.  996,  EANKIN  v.  HOYT. 

Syl.  1  (IV,  509).     Public  officers  presumed  to  do  duty. 

Approved  in  Pine  Tree  Lumber  Co.  v.  Fargo,  12  N.  D.  376,  96 
N.  W.  363,  in  action  against  city  because  it  had  diverted  moneys 
realized  by  assessments  for  special  fund,  plaintiff  shows  prima  facie 
case  by  proof  of  creation  of  fund  and  credit  of  money  to  pay  war- 
rants and  that  warrants  were  presented  but  not  paid ;  Board  of  Education 
V.  Boyer,  5  Okl.  233,  47  Pac.  1092,  where  petition  signed  by  electors  is 
presented  to  city  board  of  education  to  have  adjacent  territory  attached 
for  school  purposes  and  board  so  orders,  presumption  is  that  board 
acted  regularly. 

4  How.  336-352,  11  L.  1000,  HAEEIS  v.  EOBIXSON. 

Syl.  2   (IV,  510).     Notary  giving  notice  of  dishonor  of  note. 

Approved  in  Schofield  v.  Palmer,  134  Fed.  755,  certificate  of  notary 
that  he  gave  notice  of  dishonor  to  indorser  is  not  prima  facie  evi- 
dence of  that  fact. 

4   How.   404-420,   11   L.   1031,   SMYTH   v.   STEADEE. 

Syl.  2   (IV,  513).     Note  in  firm  name  payable  to  partner. 

Approved  in  In  re  Mclntire,  132  Fed.  298,  creditor  seeking  to  prove 
note  given  by  partner  in  firm  name  in  renewal  of  individual  debt 
against  firm  estate  in  bankruptcy  must  show  other  partner  assented 
to  transaction. 


225  Notes  on  U.  S.  Reports.  4  How.  421-566 

4  How.  421-448,  11  L.  1038,  MACKAY  v.  DILLON. 

Syl.  2  (IV,  514).     Private  survey  not  binding  on  government. 

Approved  in  United  States  v.  Montana  Lumber  etc.  Co.,  196  U.  S. 
578,  49  L.  605,  25  Sup.  Ct.  367,  private  survey  is  inadmissible  in  ac- 
tion by  government  to  recover  value  of  timber  cut  from  unsurveyed 
land  to  show  that  land  when  surveyed  will  be  included  in  railroad 
grant. 

4  How.  449-464,  11  L.  1051,  LES  BOIS  v.  BRAMELL. 

Syl.  2   (IV,  515).     Private  survey  not  binding. 

Approved  in  United  States  v.  Montana  Lumber  etc.  Co.,  196  U.  S. 
578,  49  L.  605,  25  Suj).  Ct.  367,  private  survey  is  inadmissible  in  ac- 
tion by  government  to  recover  value  of  timber  cut  from  unsurveyed 
land  to  show  that  land  when  surveyed  will  be  included  in  railroad 
grant. 

Syl.  4  (IV,  516).     Confirmation  and  survey  equivalent  to  patent. 

Approved  in  Catron  v.  Laughlin,  UN.  M.  633,  72  Pac.  32,  apply- 
ing principle  to  confirmation  of  claim  for  land  under  grant  from 
Mexico. 

4   How.  467-500,  11  L.   1059,  ASPDEN  v.  NIXON. 

Syl.  1  (IV,  517).     Judgment  against  foreign  executor  in  other  state. 

Approved  in  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  45, 
69  C.  C.  A.  22,  in  allowing  claims  against  estates  of  decedent  federal 
courts  are  governed  by  same  rules  as  local  tribunals;  Alice  E.  Min. 
Co.  V.  Blanden,  136  Fed.  254,  nonresident  creditor  may  establish 
claim  in  federal  courts  against  personal  representatives  of  decedent, 
where  requisite  amount  and  citizenship  appear,  though  state  of 
debtor's  residence  limits  right  to  establish  such  claims  to  proceedings 
in  probate  court. 

4  How.  503-566,  11  L.  1076,  MICHOUD  v.  GIROD. 

Syl.  1  (IV,  520).     Purchfxser  by  executor  at  own  sale. 

Approved  in  Haggart  v.  Wilczinski,  143  Fed.  27,  where  mortgage 
was  foreclosed  by  substituted  trustee,  w-hose  appointment  was  in- 
valid, sale  was  voidable  only  and  not  void;  Burns  v.  Cooper,  140  Fed. 
277,  setting  aside  sale  of  ward's  property  under  order  of  court  where 
guardian  procured  such  sale  for  sole  purpose  of  acquiring  title  him- 
self; Fincke  v.  Bundrick,  72  Kan.  188,  83  Pac.  405,  sale  of  decedent's 
realty  by  executor  to  surety  on  his  bond  on  order  procured  by 
executor's  fraud  may  be  set  aside  though  surety  innocent;  Hayes 
V.  Hall,  188  Mass.  511,  74  N.  E.  936,  where  one  of  debtor  trustees, 
without  consent  of  cotrustee,  procured  third  party  to  purchase  note 
for  less  than  face,  which  was  part  of  trust  fund,  after  which  pur- 
chaser conveyed  to  trustee's  wife,  beneficiary  could  not  compel  trustee 
to  account  for  deficiency;  Barnes  v.  Lynch,  9  Okl.  185,  187,  59  Pac. 
15 


4  How.  567-645  Notes  on  U.  S.  Eeports.  226 

1006,  1007,  applying  principles  -where  corporation's  officers  bought 
property  of  corporation;  Marquam  v.  Eoss,  47  Or.  405,  83  Pac.  859, 
trust  company  lending  on  encumbered  property  and  accepting  trust 
deed  as  security  could  purchase  on  foreclosure  of  first  mortgage; 
Scottish-American  Mtg.  Co.  v.  Clowney,  70  S.  C.  242,  49  S.  E.  573, 
where  trustee  with  power  of  sale  for  reinvestment  sells  to  wife,  sale 
is  voidable  by  beneficiaries. 

Syl.  2  (rV,  525).  Limitations  start  against  constructive  trust 
when. 

Approved  in  Stanwood  v.  Wishard,  134  Fed.  964,  suit  by  clients 
against  attorney  for  declaration  of  trust  in  property  purchased  by 
defendant  vhile  acting  in  their  behalf,  not  barred  in  six  years,  where 
complainants  resided  at  distance  and  had  no  knowledge  of  trans- 
action. 

4  How.  567-574,  11  L.  1105,  UNITED  STATES  v.  EOGEES. 

Syl.  1  (IV,  527).    Federal  laws  govern  Indian  country. 

Approved  in  Brown  v.  United  States,  146  Fed.  977,  larceny  com- 
mitted in  Indian  reservation  in  Oklahoma  by  one  not  an  Indian  is 
crime  against  United  States  laws  cognizable  by  territorial  courts. 

4  How.  589-591,  11  L.  1115,  HUNT  v.  PALAO. 

Syl.  2   (IV,  531).     No   error  where  lower  court   abolished. 

Distinguished  in  Cheney  v.  Alaska  etc.  Min.  Co.,  148  Fed.  810, 
under  31  Stat.  321,  requiring  district  judges  in  Alaska  to  divide  di- 
vision into  precincts,  where  judge  abolished  Douglass  Island  pre- 
cinct and  provided  that  its  territory  should  become  part  of  Juneau 
]irecinct,  commissioner  of  Juneau  could  remove  administrator  appointed 
by  Douglass  precinct  commissioner. 

4  How.  591-640,  11  L.  1116,  EIIODE  ISLAND  v.  MASSACHUSETTS. 

Syl.  1   (IV,  532).     Possession  as  evidence  of  state  boundary. 

Approved  in  Louisiana  v.  Mississippi,  202  U.  S.  54,  50  L.  932,  26 
Sup.  Ct.  408,  determining  disputed  boundary  between  Mississippi  and 
Louisiana  in  waters  of  Lake  Borgne  and  Mississippi  sound;  Moore 
V.  McGuire,  142  Fed.  798,  holding  Island  No.  76,  in  Mississippi  river, 
was  in  state  of  Mississippi.    See  101  Am.  St.  Eep.  154,  note. 

4  How.  640-645,  11  L.  1138,  HAEDEMAN  v.  ANDEESON. 

Syl.  1   (IV,  532).     When  supersedeas  issued. 

Approved  in  Boston  &  M.  E.  Co.  v.  Gokey,  150  Fed.  687,  where  dis- 
trict court  judgment  has  been  affirmed  by  court  of  appeals,  and  man- 
date sent  down,  but  defeated  party  has  applied  for  certiorari  from 
supreme  court  to  review  decision  of  court  of  appeals,  district  court 
will  stay  execution  pending  certiorari. 


227  Notes  on  XT.  S.  Reports.  5  How.  83-121 

4  How.  646-709,  11  L.   1141,  WILSON  v.  ROUSSEAU. 

Syl.  5  (IV,  534).     Effect  of  extension  of  patent  on  license. 

Approved  in  Wagner  Typewriter  Co.  v.  Webster  Co.,  144  Fed.  409, 
owner  of  typewriter  equipped  with  patented  ribbon  spool  may  re- 
place both  ribbon  and  spool  as  matter  of  repairs;  Bobbs-Merrill  Co. 
V.  Straus,  139  Fed.  187,  where  publisher  of  copyrighted  books  sold 
them  to  retailers,  resale  by  latter  is  not  infringement  though  books 
contained  notice  that  no  dealer  could  sell  them  at  less  than  price 
fixed  by  publisher;  New  York  Phone  Co.  v.  Edison,  136  Fed.  613,  con- 
struing exclusive  license  to  use  and  sell  phonographs. 

(IV,  533.)  Miscellaneous.  Cited  in  Cortelyou  v.  Chas.  Eneu  .John- 
son &  Co.,  138  Fed.  114,  owner  of  patent  for  rotary  neostyle  used  for 
stencil  duplication  may  sell  machines  under  license  restriction  that 
they  shall  be  used  only  with  paper  and  ink  made  by  licensor. 


V  HOWARD. 


5  How.  83  91,  12  L.  60,  ALEXANDRIA  CANAL  CO.  v.  SWANN. 

Syl.  6  (IV,  545).     Arbitration  by  consent  of  parties. 

Approved  in  Burrell  v.  United  States,  147  Fed.  49,  wherein  action 
in  federal  court  parties  agree  to  trial  before  arbitrators,  court  may 
enter  judgment  on  award;  Swift  v.  Jones,  145  Fed.  493,  where  action 
at  law  was  brought  in  circuit  court,  trial  judge  cannot,  even  on  stipu- 
lation of  parties,  order  trial  before  special  master  authorized  to  hear 
and  pass  on  issues  of  fact  and  report  findings  to  court. 

Syl.  8  (IV,  546).     Corporation  attorney's  acts  presumed  authorized. 

Approved  in  National  Bank  of  Guthrie  v.  Earl,  2  Okl.  623,  39  Pac. 
393,  national  banks  may,  through  president,  employ  attorneys  to  con- 
duct litigation,  and  are  liable  for  compensation  to  them  when  so 
employed. 

5  How.  103-121,  12  L.  70.  BARRY  v.  MERCEIN. 

Syl.  3  (IV,  549).     Circuit  court  appeals — Amount  in  dispute. 

Approved  in  Ah  Son  v.  United  States,  200  U.  S.  611,  50  L.  619, 
26  Sup.  Ct.  752.  following  rule;  Clifford  v.  Williams,  131  Fed.  102, 
circuit  court  has  no  jurisdiction  to  issue  habeas  corpus  to  determine 
controversy  between  persons  who  are  citizens  of  different  states, 
as  to  right  to  custody  of  their  child;  Gallagher  v.  Asphalt  Co.  of 
America,  65  N.  J.  Eq.  282,  55  Atl.  268,  denying  federal  jurisdiction 
because  of  diversity  of  citizenship  over  bill  by  creditor  under  insolvent 
corporation   act  to  enjoin  corporation  from   exercising  franchise. 


5  How.  127-294  Notes  on  U.  S.  Reports.  228 

5  How.  127-134,  12  L.  81,  NELSON  v.  HILL. 

Syl.  1    (IV,  550).     Multifariousness  must  be  raised  before  answer. 

Approved  in  Barber  v.  National  Carbon  Co.,  129  Fed.  377,  64  C. 
C.  A.  40,  applying  rule  in  suit  for  infringement  of  patent  by  licensee. 

5  How.  134-141,  12  L.  85,  EOWAN  v.  RUNNELS. 

Sj'l.   3    (IV,   552).     Following  state   constitutional   construction. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  where  at 
time  railroad  bonds  in  suit  were  issued  by  county  under  statutory 
authority  there  was  no  state  decision  construing  constitution,  which 
it  was  subsequently  claimed  was  violated  by  statute  under  which 
bonds  issued,  federal  court  will  give  its  own  construction  to  such 
constitution. 

5  How.  141-143,  12  L.  88,  TRULY  v.  WANZER. 

Syl.  4   (IV,  555).     Injunction,  when  issuable. 

Approved  in  True  v.  Mendenhall,  67  Kan.  504,  73  Pac.  70,  refusing 
equitable  relief  against  justice's  judgment  void  because  justice  after 
due  service  of  summons  failed  to  attend  at  time  to  which  continuance 
ordered,  but  afterward  made  another  continuance,  in  pursuance  of 
which  judgment  rendered  without  further  notice  to  defendant;  Calla- 
way V.  Mayor  etc.  of  Baltimore,  99  Md.  320,  57  Atl.  663,  where  pur- 
pnant  to  statute  city  passed  ordinance  of  estimates  authorizing  por- 
tion of  water  loan  for  purchase  of  reservoir  site,  and  city  subsequently 
repealed  such  ordinance,  owners  of  land  could  not  enjoin  enforcement 
of  repeal  pending  appeal  from  order  setting  aside  sale  of  land  to 
complainants. 

5  How.  176-192,  12  L.  104,  IN  RE  METZGER. 

Syl.  3  (IV,  556).     Habeas  corpus  in  supreme  court. 
See  112  Am.  St.  Rep.  107,  note. 

5  How.  233-278,  12  L.  130,  TAYLOR  v.  BENHAM. 

Syl.  13   (IV,  564).     Executor's  sale  of  testator's  trust  lands. 

Approved  in  Bay  State  Gas.  Co.  v.  Rogers,  147  Fed.  560,  where  sub- 
ject matter  of  suit  consisted  of  certain  gains  and  profits  arising  out 
of  trust,  fact  that  amount  claimed  could  be  liquidated  in  cash  did 
not  deprive  foileral  equity  court  of  jurisdiction. 

5  How.  278-294,  12  L.   152,  PHILLIPS  v.  PRESTON. 

Syl.   5    (IV,   566).     Parol   to  prove   collateral  agreement. 

Approved  in  Sutton  v.  Weber,  127  Iowa,  367,  101  N.  W.  778,  where 
agreement  reciting  delivery  of  goods  purports  to  be  an  agreement 
for  an  agency,  without  reference  therein  to  terms  of  agency,  parol 
evidence  of  contemporaneous  oral  agreement  by  which  goods  might 
be  returned  is  admissible. 


229  Notes  on  U.  S.  Reports.  5  How.  410-G33 

5  How.  410-440,  12  L.  213,  FOX  v.  OHIO. 

Syl.  2  (IV,  575).     State  counterfeiting  laws  valid. 
See  110  Am.  St.  Rep.  153,  note. 

Syl.  4   (IV,  576).     Amendments  restrict  federal  power  only. 

Approved  in  St.  Louis  etc.  Ry.  Co.  v.  Davis,  132  Fed.  632,  federal 
court  cannot  enjoin  officers  of  state  from  certifying  assessment  of 
railroad  property,  because  it  is  alleged  that  their  action  is  in  viola- 
tion of  fifth  amendment;  State  v.  Patterson,  134  N.  C.  618,  47  S.  E. 
810,  upholding  Laws  1903,  p.  472,  c.  349,  §  2,  providing  that  any  place  to 
which  any  person  shall  ship  any  liquor  for  purpose  of  delivery  to 
purchaser  shall  be  construed  to  be  place  of  sale;  Territory  v.  Stroud, 

6  Okl.  Ill,  50  Pac.  267,  upholding  power  of  legislature  to  provide  for 
prosecutions  by  information. 

5  How.  441-504,   12  L.   226,  WARING  v.  CLARKE. 

Syl.  6  (IV,  581).     Common-law  remedy  in  federal  court. 

Approved  in  Bradford  v.  Territory,  1  Okl.  370,  34  Pac.  67,  proceed- 
ing by  information  in  nature  of  quo  warranto  is  suit  at  common  law 
within  constitutional  provision  as  to  jury  trials. 

(IV,  580.)  Misf'plianoous.  Cited  in  The  Sue,  137  Fed.  135,  in  ab- 
sence of  local  law,  there  is  no  lien  for  repairs  or  supplies  furnished 
vessel  in  home  port  on  order  of  owners. 

5  How.  504-633,  12  L.  256,  LICENSE  CASES  (THURLOW  v. 
MASSACHUSETTS;  FLETCHER  v.  RHODE  ISLAND;  PIERCE 
V.  NEW  HAMPSHIRE). 

Syl.  8   (IV,  589).     Commerce — Regulation   of  liquor  trafQc. 

Approved  in  State  v.  Durein,  70  Kan.  25,  26,  27,  28,  29,  80  Pac. 
991,  992,  upholding  Laws  1881  p.  233  c.  128  prohibiting  sale  of  in- 
toxicating liquors. 

Syl.  10   (IV,  591).     Commerce  regulated  by  police  powers. 

Approved  in  State  v.  Hyman,  98  Md.  615,  57  Atl.  9,  64  L.  R.  A.  G37, 
upholding  act  of  1902,  regulating  sweating  system  of  workshops;  Hart 
V.  State,  87  Miss.  179,  39  So.  525,  upholding  Code  1892,  §  1604,  mak- 
ing it  misdemeanor  to  act  as  agent  of  either  seller  or  purchaser  in 
unlawful  sale  of  liquor,  as  applied  to  one  engaged  in  business  in 
Louisiana  who  took  orders  for  whisky  in  Mississippi;  Carty  v. 
Winooski,  78  Vt.  109,  62  Atl.  46,  2  L.  R.  A.  (N.  S.)  95,  municipality 
maintaining  jail  is  not  liable  for  negligence  to  one  committed  thereto 
to  await  examination. 

Syl.  11   (IV,  592).     License  law — Absence  of  congressional  action. 

Approved  in  Harrell  v.  Speed,  113  Tenn.  230,  106  Am.  St.  Rep.  814, 
81  S.  W.  841.  one  running  bar  on  vessel,  belonging  to  Arkansas 
corporation,  and  plying  between  Arkansas  and  Tennessee,  is  liable 
to  state  license  for  rumiiiig  bar  while  vessel  is  at  Tennessee  landing. 


6  How.  1-40  Notes  on  U.  S.  Koports.  230 

Syl.  15  (IV,  595).  Commerce — Validity  of  liquor  license  laws. 
Approved  in  In  re  Heff,  197  U.  S.  505,  49  L.  855,  25  Sup.  Ct.  506, 
holding  void  29  Stat.,  p.  506,  c.  109,  as  applied  to  sale  of  liquor  within 
a  state  to  Indian  to  whom  allotment  made;  State  v..rrederickson,  101 
Me.  46,  63  Atl.  539,  upholding  Rev.  St.,  §  40,  c.  29,  prohibiting  keeping 
and  sale  of  liquors  and  declaring  certain  liquors  to  be  intoxicating; 
Wallace  v.  Mayor  etc.  of  Eeno,  27  Nev.  82,  73  Pac.  531,  63  L.  K.  A. 
337,  upholding  Act  1903  §§  1,  3,  incorporating  city  of  Eeno,  empower- 
ing city  board  to  revoke  and  discontinue  business  licenses;  Burke  v. 
Collins,  18  S.  D.  194,  99  N.  W.  1113,  upholding  Pol.  Code,  §  2839,  pro- 
viding that  if  principal  of  liquor  license  bond  is  known  by 
commissioners  to  be  unfit  to  conduct  business  they  shall  refuse  to 
approve  bond;  Webster  v.  State,  110  Tenn.  505,  82  S.  W.  182,  up- 
holding act  prohibiting  sale  of  liquor  within  four  miles  of  institutions 
of  learning. 


VI  HOWARD. 


6  How.  1-6,  12  L.  319,  SIMS  v.  HUNDLEY. 

(IV,  601.)  Miscellaneous.  Cited  in  Toledo  Traction  Co.  v.  Cameron, 
137  Fed.  60,  69  C.  C.  A.  28,  admitting  testimony  given  on  former  trial 
where  witness  is  without  district  and  more  than  one  hundred  miles 
from  place  of  trial;  Schofield  v.  Palmer,  134  Fed.  755,  certificate  that 
notary  sent  notice  of  protest  to  indorser  is  not  prima  facie  evidence 
of  such  fact. 

6  How.  31-40,  12  L.  331,  BANK  OF  UNITED  STATES  v.  MOSS. 

Syl.  1  (IV,  603).     Federal  jurisdiction — Notes — Citizenship. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup.  Ct. 
220,  applying  principle  to  foreclosure  of  trust  deed  where  bill  also 
prayed  cancellation  of  release  of  trust  deeds  to  grantor,  as  in  fraud 
of  rights  of  complainant,  who  held  deeds  as  collateral;  Utah-Nevada 
Co.  V.  DeLamar,  133  Fed.  121,  66  C.  C.  A.  179,  suit  by  assignee  of 
oral  contract  to  recover  money  due  thereon  is  without  jurisdiction  of 
federal  court  unless  it  could  have  been  maintained  by  assignor. 

Syl.  4   (IV,  608).     Amendment  of  judgment  after  term. 

Approved  in  Ex  parte  Peeke,  144  Fed.  1020,  where  petitioner  was 
found  guilty  on  five  counts  of  indictment  under  Eev.  St.,  §  5440,  each 
charging  separate  conspiracy,  and  was  given  single  sentence  of  five 
years,  such  sentence  is  void  as  to  excess  over  two  years;  King  v. 
Davis,  137  Fed.  227,  federal  law  court  cannot  vacate  judgment  of 
former  term  founded  on  false  but  apparently  valid  return  of  service 
of  process;  United  States  v.  Four  Lorgnette  Holders,  132  Fed.  565, 
judgment    of    forfeiture    against    imported    merchandise    for    attempt 


231  Notes  on  U.  S.  Keports.  6  IIow.  44-190 

to  defraud  customs  laws  cannot  be  vacated  on  petition  filed  after 
term,  to  permit  importer  to  defend  on  account  of  irregularities  in 
procedure;  dissenting  opinion,  State  v.  Marsh,  134  N.  C.  201,  47  S.  E. 
12,  67  L.  R.  A.  179,  majority  holding  where,  on  appeal  from  convic- 
tion for  rape,  it  was  reversed  because  indictment  in  record  did  not 
allege  crime  was  committed  against  will,  but  it  appeared  such  al- 
legation was  omitted  by  misprision  of  clerk,  supreme  court,  could 
after  term  grant  certiorari  to  correct  record. 

Syl.  7   (IV,  609).     Circuit  court  is  of  limited  jurisdiction. 

Approved  in  Cobe  v.  Eicketts,  111  Mo.  App.  113,  85  S.  W.  133, 
where  after  suit  to  dissolve  loan  association  had  been  brought  in 
federal  court,  state  court  attempted  to  transfer  similar  suit  to  fed- 
eral court,  which  entered  decree  for  sale  of  assets,  such  decree  is 
not  collaterally  attackable  though  it  was  held  that  order  of  trans- 
ference was  void. 

6  How.  44-G2,  12  L.  337,  STACY  v.  THRASHER. 

Syl.  3    (IV,   611).     Privity   defined. 

Approved  in  Harper  v.  Building  Assn.,  55  W.  Va.  153,  40  S.  E. 
819,  purchase  of  realty  charged  with  usurious  debt  cauuot  defend 
against   usury   unless   debtor   unites   with   him  in   defense. 

Syl.  5  (IV,  612).     Administrators  from  differcMit  states  not  privy. 

Approved  in  Coram  v.  Ingersoll,  148  Fed.  174,  175,  where  ancillary 
administrator  brings  suit  on  chose  in  action  properly  deemed  assets 
of  estate  in  bis  jurisdiction,  judgment  against  him  is  conclusive 
against  action  by  administrator  of  estate  in  another  state. 

6  How.   lUfi-114,  12  L.  303,  UNITED  STATES  v.   CUKRY. 

Syl.  2   (IV,  CIS).     Service  on  withdrawn  attorney. 

Approved  in  Krieger  v.  Krieger,  221  111.  484,  77  N.  E.  911,  apply- 
ing rule  to  notice  of  dismissal  of  divorce  suit;  Mclnnes  v.  Sutton, 
35  Wash.  389,  77  Pac.  738,  where,  on  denial  of  continuance,  defend- 
ant's counsel  refused  to  participate  in  trial,  but  before  judgment  was 
entered  for  plaintiff  defendant  appeared  b}'  other  counsel,  and  filed 
protest  against  signing  or  entering  judgment,  protest  was  in  effect 
application  for  new  trial. 

6  How.   163-190,   12  L.  387,  SHELTON  v.  TIFFIN. 

Syl.  2    (IV,   623).      Citizenship — Change   of    domicile — Suffrage. 

Approved  in  Jones  v.  Subera,  150  Fed.  464,  one  who  left  Washington 
two  and  one-half  years  prior  to  commencement  of  suit  and  thereafter 
resided  in  South  Dakota,  where  suit  was  brought  and  described  him- 
self in  conveyances  as  resident  of  latter  state,  though  unmarried  and 
owning  house  in  Washington,  to  which  state  he  intended  returning, 
is  not  citizen  of  Washington;  In  re  Owings,  140  Fed.  740,  bankruptcy 
court  cannot  set  off  homestead  in  lands  in  another  state  to  bankrupt, 
who  is  resident  of  North  Carolina. 


6  How.  201-206  Notes  on  U.  S.  Ecports.  232 

Distinguished  in  Gaddie  v.  Mann,  147  Fed.  957,  one  who  is  native 
of  South  Carolina  and  votes  there  at  national  elections,  and  has  home 
and  family  there,  is  citizen  thereof,  though  he  has  business  in  Georgia 
and  voted  once  there  at  primary. 

Syl.  4  (IV,  624).     Equitable  relief  against  fraudulent  judgment. 

Approved  in  Spiker  v.  American  Relief  Society,  140  Mich.  226, 
103  N.  "W.  612,  foreign  judgment  may  be  attacked  for  want  of  juris- 
diction unless  transcript  thereof  affirmatively  shows  existence  of  court 
rendering  same;  Goldie  Const.  Co.  v.  Rich  Const.  Co.,  112  Mo.  App. 
155,  86  S.  W.  590,  where  justice's  judgment  against  complainant  was 
entered  on  stipulation  signed  by  attorney  purporting  to  appear  for 
it,  such  judgment  being  valid  on  face,  complainant  could  sue  to  re- 
strain its  enforcement  on  ground  that  it  was  void  in  fact. 

6   IIow.    201-206,    12   L.    404,   FORGAY   v.    CONRAD. 

Syl.  7  (IV,  633).     Final  decrees  only  appealable. 

Approved  in  Ex  parte  National  Enameling  etc.  Co.,  201  IT.  S.  IGO, 
50  L.  708,  26  Sup.  Ct.  404,  complainant  cannot  cross-appeal  from  de- 
cree in  patent  suit  where  after  granting  injunction  as  to  claims  held 
valid,  bill  was  dismissed  as  to  claims  held  void. 

Syl.  1  (IV,  62S).  Appeal — Joinder  of  defendants — Separate  judg- 
ments. 

Approved  in  Amadeo  v.  Northern  Assur.  Co.,  201  U.  S.  201,  50  L. 
726,  26  Sup.  Ct.  507,  refusing  to  dismiss  writ  of  error  on  death  of  in- 
sured, after  judgment,  where  caption  of  declaration  was  amended  to 
show  action  brought  for  use  of  specified  party,  and  averment  of 
assignment  to  such  party  was  incorporated  in  body. 

Syl.   3    (IV,    628).     Appeal — Final    decree — Account. 

Approved  in  Cassett  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  34,  order, 
in  action  against  railroad  for  violation  of  interstate  commerce  act, 
requiring  certain  officers  to  produce  before  trial  certain  books  con- 
taining information  relative  to  rebates,  is  final  and  appealable; 
Scriven  v.  North,  134  Fed.  368,  67  C.  C.  A.  348,  where  bill  in  circuit 
court  set  up  one  cause  of  action  for  infringment  of  patent,  another 
for  infringement  of  trademark,  and  two  for  unfair  competition,  de- 
cree of  dismissal  as  to  first  three  is  appealable;  Chicago  Wooden  Ware 
Co.  v.  Miller  Ladder  Co.,  133  Fed.  544,  66  C.  C.  A.  517,  decree  in  in- 
fringement suit  adjudgirg  validity  of  certain  claims  and  invalidity 
of  others,  and  awarding  injunction  and  damages,  is  final  in  sense 
that  comjdainant  may  prosecute  cross-appeal  as  to  part  adjudging 
claims  invalid;  Camp  Phosphate  Co.  v.  Anderson,  48  Fla.  236,  111 
Am.  St.  Rep.  82,  37  So.  726,  decree  in  partition  ordering  sale  by 
commissioners  based  on  report  that  partition  cannot  be  made  with- 
out  prejudice,  is  final. 

Distinguished  in  Ex  parte  National  Enameling  etc.  Co.,  201  U.  S. 
160,  163,  164,  50  L.  708,  709,  26  Sup.  Ct.  404,  complainant  cannot  cross- 


233  Notes  on  U.  S.  Reports.  6  How.  212-344 

appeal  from  decree  in  patent  suit  where,  after  granting  injunction  aa 
to  claims  held  valid,  bill  was  dismissed  as  to  claim,  held  void. 

Syl.  4  (IV,  631).     Appeal — When  decree  not  final. 

Approved  in  Norris  Safe  &  Lock  Co.  v.  Manganese  etc.  Co.,  150  Fed. 
577,  578,  order  requiring  party  to  pay  into  registry  of  court  money 
in  its  possession,  which  is  subject  of  litigation,  is  interlocutory  and 
nonappealable. 

6  How.  212-228,  12  L.  409,  BANK  OF  METROPOLIS  v.  NEW  ENG- 
LAND BANK. 

Syl.  1  (IV,  635).     Paper  sent  to  second  bank  for  collection. 

Approved  in  Winfield  Nat.  Bank  v.  McWillianis,  9  Okl.  502,  60  Pac. 
231,  following  rule;  Garrison  v.  Union  Trust  Co.,  139  Mich.  402, 
102  N.  W.  982,  70  L.  R.  A.  615,  applying  rule  to  draft  sent  for  collec- 
tion; Continental  Nat.  Bank  v.  First  Nat.  Bank,  84  Miss.  110,  36  So. 
190,  where  bank  forwards  cheek  to  correspondent  under  general  blank 
indorsement,  and  correspondent  in  turn  sends  it  to  third  bank,  which 
aj)plies  proceeds  to  correspondent's  account  without  knowledge  of 
latter 's  insolvency,  it  need  not  account  to  initial  bank.  See  111  Am. 
St.  Rep.  426,  428,  note. 

6  How.  24S-260,  12  L.  425,  BOWLING  v.  HARRISON. 

Syl.  5  (IV,  640).     Dishonor— Who  is  holder  of  bill. 

Approved  in  Welch  v.  Kinney,  46  Or.  409,  80  Pac.  649.  assigning 
note  to  committee  of  which  maker  is  member  does  not  discharge  it. 

Syl.   7   (IV,  641),     When  usage  binding. 

Approved  in  Chicago  etc.  Ry.  Co.  v.  Linderman,  143  Fed.  949,  where 
plaintiff's  witnesses  testify  as  to  custom  of  uncoupling  cars,  and  that 
they  followed  this  custom,  and  defendant's  witnesses  testify  that  they 
uncoupled  cars  at  same  place  during  same  time  in  another  Vv'ay, 
question  of  existence  of  custom  is  not  for  jury. 

6  How.  279-284,  12  L.  437,  UNITED  STATES  v.  HODGE. 

Syl.  4    (IV,  643).     Surety  not   discharged  by  mortgage. 

Approved  in  Providence  Machine  Co.  v.  Browning,  70  S.  C.  155, 
49  S.  E.  327,  guarantor  of  payment  of  debt  for  which  notes  were  to 
be  given  and  indorsed  by  guarantor  not  relieved  by  fact  that  time  of 
payment  extended,  because  notes  not  given  by  debtor  within  reason- 
able  time. 

6  How.  301-344,  12  L.  447,  PLANTERS'  BANK  v.  SHARP. 

Syl.    1    (IV,    647).     Corporate    charter   as    contract. 

Approved  in  Greenville  Nat.  Bk.  v.  Evans-Snyder-Buell  Co.,  9 
Okl.  365,  60  Pac.  253,  chattel  mortgage  duly  executed  and  filed  in 
conformity  to  laws  of  another  state  on  property  located  therein  is 
superior  to  creditor  attaching  here  after  projicrty  bought  here,  though 
mortgage   not  filed  in   the  county  wherein  property  situated. 


6  How.  344-437  Notes  on  U.  S.  Iveports.  234 

Syl.   5    (IV,   649.)     Contract   cannot   be   impaired   at   all. 

Approvea  in  Smith  v.  Jennings,  67  S.  C.  336,  45  S.  E.  826,  joint 
resolution  requiring  state  treasurer  to  write  off  books,  as  obligations 
of  state,  certain  past-due  bonds,  is  not  law  impairing  obligation  of  con- 
tracts, 

Syl.  8  (IV,  651).     Contracts — Laws  impairing  obligations. 

Approved  in  Welsh  v.  Cross,  146  Cal.  627,  106  Am.  St.  Eep.  63,  81 
Pac.  231,  holding  Code  Civ.  Proc,  §  702,  as  amended  in  1897,  so  as  to 
extend  time  of  redemption,  does  not  apply  to  judgments  existing  at 
time    of   amendment. 

6  How.   344-437,  12  L.  465,  NEW   JERSEY  STEAM   NAVIGATION 
CO.  V.  MERCHANTS'  BANK. 

Syl.  3  (IV,  652).     Action  by  principal  against  agent's  carrier. 

Approved  in  In  re  Weisenberg,  131  Fed.  521,  parol  evidence  is 
admissible  to  show  that  joint  notes  signed  by  members  of  partnership 
are  in  fact  firm  debts;  American  Express  Co.  v.  Ogles,  36  Tex.  Civ. 
410,  81  S.  W.  1025,  where  express  company  obtained  train  from  rail- 
road to  ship  stock,  no  passengers  being  carried,  except  owners  of 
stock,  and  employee's  shipment  being  in  charge  of  express  company, 
though  train  operated  by  railroad  men,  express  company  is  liable  for 
railroad's  negligence. 

Syl.  5  (IV,  655).     Carriers — Limitation  of  liability  by  contract. 

Approved  in  Baltimore  etc.  R.  R.  Co.  v.  Hubbard,  72  Ohio  St.  316,- 
74  X.  E.  218,  upholding  contract  for  shipment  of  stock  limiting  lia- 
bility   in    consideration    of    special    rate. 

Distinguished  in  Chesapeake  etc.  Ry.  Co.  v.  Beasley,  104  Va.  793, 
52  S.  E.  567,  3  L.  R.  A.  (N.  S.)  183,  Code  1887,  §  1296,  prohibits  car- 
rier  from   making   contracts   limiting   liability. 

Syl.  6   (IV,  657).     Carrier  must  perform  public  duties. 

Approved  in  Donovan  v.  Pennsylvania  Co.,  199  U.  S.  292,  50  L. 
199,  26  Sup.  Ct.  91,  railroad  may  exclude  all  hackmen,  excepting  those 
under  contract  to  it,  from  depot  grounds;  Olanta  Coal  Min.  Co.  v. 
Beech  Creek  R.  Co.,  144  Fed.  151,  owner  of  coal-mining  property  ad- 
joining railroad  right  of  way,  is  entitled  as  of  right  to  connect  switch- 
tracks  built  on  own  land  with  track  of  such  road  to  facilitate  shipping 
of  coal;  Russell  v.  Erie  R.  R.  Co.,  70  N.  J.  L.  816,  59  Atl.  153,  67  L. 
R.  A.  403,  where  owner  of  goods  held  in  storage  directed  storage 
company  to  send  them  to  him  by  railroad,  and  officer  of  storage  com- 
pany sent  goods  by  drayman  to  station,  accompanied  by  completed 
shipping  order,  railroad,  agent  could  not  assume  drayman  had  au- 
thority  to  alter  terms  of  order;  N.  Y.  Cement  Co.  v.  Consolidated  etc. 
Cement  Co.,  178  N.  Y.  177,  70  N.  E.  453,  construing  Laws  1899,  p. 
958,  c.  469,  authorizing  lease  of  canal,  and  holding  part  of  canal  to 
be  public  highway;  North  Carolina  Corp.  Com.  v.  Atlantic  Coast  Line 
E.  Co.   (Railroad  Connection  Case),  137  N.  C.  15,  49  S.  E.  196,  uphold- 


235  Notes  on  U.  S.  Reports.  6  How.  507-605 

ing  Acts  1899,  pp.  291,  304,  giving  corporation  commissioner  power  to 
require  railroad  to  make  reasonable  connection  with  trains  of  other 
companies. 

Syl.  8  (IV,  659).     Carrier's  stipulation  for  immunity  for  negligence. 

Approved  in  Cau  v.  Texas  etc.  Ry.  Co.,  194  U.  S.  431,  48  L.  1056, 
24  Sup.  Ct.  663,  exemption  of  carrier  from  liability  for  damages 
caused  by  fire,  expressed  in  bill  of  lading,  is  valid,  though  option  to 
ship  under  common-law  liability  not  presented  to  shipper;  Arthur  v. 
Texas  etc.  Ry.  Co.,  139  Fed.  130,  where  shipper  accepted  bill  of 
lading  for  transportation  of  cotton  containing  fire  exemption  clause, 
without  requesting  rate  at  which  carrier  would  ship  under  common- 
law  liability  contract,  carrier  not  liable  for  loss  by  fire  not  due  to  its 
negligence. 

6  How.  507-550,  12  L.  535,  WEST  RIVER  BRIDGE  CO.  v.  DIX. 

Syl.  1  (IV,  071).     Condemnation  of  corporation's  bridge. 

Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Wolcott,  162  Ind.  405,  69 
N.  S.  453,  upholding  Burns'  Rev.  St.,  1901,  §§  4404-4410,  relating  to 
opening  of  streets  on  notice  to  owner  of  property  appropriated,  and 
providing  hearing  and  requiring  report  to  certain  tribunal,  as  well 
as  assessment  and  tender  of  damages  to  owner. 

Syl.  2  (IV,  675).     Corporate  charter  is  contract. 
Cited  in  Town  of  Nahant  v.  United  States,  136  Fed.  280,  69  L.  R. 
A.  723,  70  C.  C.  A.  641,  arguendo. 

Syl.  3   (IV,  675).     Eminent  domain  paramount  to  private  rights. 

Approved  in  Spencer  v.  Seaboard  Air  Line  R.  Co.,  137  N.  C.  122, 
49  S.  E.  102,  upholding  Priv.  Laws  1901,  p.  463,  c.  168.  empowering 
majority  of  stockholders  of  certain  railways  to  consolidate  with  other 
companies,  and  providing  for  assessing  and  paying  value  of  dis- 
senting stock. 

6  How.  550-605,  12  L.  553,  PATTERSON  v.  GAINES. 

Syl.  8   (IV,  678).     Marriage  presumes  legitimacy  of  issue. 

Approved  in  Bowman  v.  Little,  101  Md.  2SS,  61  Atl.  225,  where 
establishment  of  plaintiff's  claim  to  be  widow  of  deceased  would  in- 
validate subsequent  marriage  and  bastardize  issue  thereof,  such  ante- 
cedent marriage  must  be  established  as  actual  fact  by  strict  proof; 
Bell  V.  Territory,  8  Okl.  82,  56  Pac.  855,  applying  rule  in  bastardy- 
proceeding. 

Syl.  13   (IV,  680).     Law  governing  right   to  sue. 
See  111  Am.  St.  Rep,  462,  note. 


VII  HOWARD. 


7  How.  1-88,  12  L.  581,  LUTHER  v.  BORDEN. 
Syl.  3  (IV,  683).  Political  questions  not  reviewable, 
A]3provcd  in  Moyer  v.  Peabody,  148  Fed.  875,  whether  or  not  state 
of  insurrection  exists  in  locality  requiring  use  of  military  of  state  is 
question  to  be  determined  by  executive,  whose  decision  is  not  re- 
viewable by  courts;  Anthony  v.  Burrow,  129  Fed.  790,  equity  court 
has  no  jurisdiction  to  enjoin  state  officers,  acting  under  state  statute, 
from  issuing  certificate  of  nomination  to  candidate  for  Congress; 
dissenting  opinion  in  Rice  v.  Palmer,  78  Ark.  463,  96  S.  W.  407, 
majority  holding  canvass  of  returns  on  constitutional  amendment  by 
legislature  is  reviewable  by  courts. 

Distinguished  in  Knight  v.  Shelton,  134  Fed.  440,  fact  that  speaker 
of  state  House  of  Representatives  declared  proposed  state  constitu- 
tional amendment  legally  adopted  on  canvass  of  vote  is  not  con- 
clusive on  federal  court  in  absence  of  state  statute;  Rice  v.  Palmer, 
78  Ark.  445,  96  S.  W.  400,  canvass  of  returns  on  constitutional 
amendment  by  legislature  is  reviewable  by  courts;  Kadderly  v.  Port- 
land, 44  Or.  134,  74  Pac.  716,  whether  amendment  to  constitution  has 
been  regularly  proposed,  adopted  and  ratified  is  question  for  courts 
and  not  political  department. 

Syl.  12  (IV,  687).     Republican  form  of  government  guaranteed. 

Approved  in  Territory  v.  Stroud,  6  Old.  110,  50  Pac.  266,  upholding 
enactments  providing  for  prosecution  of  misdemeanors  by  informa- 
tion without  preliminary  examination. 

Syl.    13    (IV,   687).     Suppression   of   insurrection   by    militia. 
See  98  Am.  St.  Rep.  773,  note. 

Syl.   15   (IV,  689).     Discretion  in  use  of  military  power. 
See  98  Am.  St.  Rep.  775,  note. 

7   How.   89-132,   12   L.   618,   WILKES  v.   DINSMAN, 

Syl.  3   (IV,  690).     Marines  are  in  navy. 

Distinguished  in  McCalla  v.  Facer,  144  Fed.  63,  enlistment  of 
minors  in  marine  corps  is  governed  by  statutory  provisions  relating  to 
army  enlistments. 

7  How.   132-160,   12  L.   637,  PATTON  v.   TAYLOE. 

Syl.  2   (IV,  692).     Vendee's  remedy   on   failure   of  title. 

Denied  in  Williams  v.  Neely,  134  Fed.  9,  69  L.  R.  A.  2.S2.  67  C.  C. 
A.  171,  partial  failure  of  consideration  which  results  from  defect  of 

[236] 


237  Notes  on  U.  S.  Reports.  7  How.  185-260 

title  is  good  defense  pro  tanto  to  action  by  vendor  on  note  given 
for  purchase  price  of  land  -wliich  vendor  has  conveyed  with  covenants 
against  encumbrances. 

7  How.   185-198,  12  L.  660,  UNITED  STATES  v.  CHICAGO. 

Syl.  7  (IV,  697).     Eminent  domain — Land  owned  by  government. 

Approved  in  llollister  v.  State,  9  Idaho,  15,  71  Pae.  543,  Idaho 
admission  act  does  not  prohibit  or  restrict  right  of  eminent  domain 
over   lands   granted    to    state   by   said   act. 

Syl.  8  (IV,  697),     Dedication  of  streets. 

Apjiroved  in  Evans  v.  Blankenship,  4  Ariz.  315,  39  Pac.  813,  where 
plaintiff's  grantor  platted  land,  and  on  map  thereof  tract  thereof  was 
laid  out  as  park  and  lots  sold  with  reference  to  map,  though  grantor 
afterward  offered  land  in  suit  to  state  for  capitol  site,  its  dedication 
to  city  as  public  square  was  complete;  Eiverside  v.  MacLain,  210 
111.  ;i2-t,  102  Am.  St.  Kcp.  164,  71  N.  E.  414,  66  L.  R.  A.  288,  where 
land  has  been  (.h^licated  a  [tark,  ami  accepted  as  such,  village  cannot 
ihercalter  use  portion  of  jiark  for  public  highway. 

7  Iluw.   198-220,  12  L.  6G6,  SMITH   v.  KERNOCHEN. 

Syl.  1   (IV,  698).     Federal  suit  by  assignee  of  mortgage. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  449,  50  L.  821,  26  Sup. 
Ct.  127,  motive  with  which  creditor  invokes  jurisdiction  of  federal 
court  is  immaterial,  if  he  has  a  justifiable  demand  and  requisite  diver- 
sity of  citizenship  exists. 

Syl.  4   (IV,  700).     Judgment  as  res  adjudicata. 

Approved  in  Kittel  v.  Trustees  etc.  Improvement  Fund,  139  Fed. 
956,  where  Florida  internal  improvement  trustees  have  been  joined 
in  foreclosure  of  mortgage  given  by  railroad,  and  among  other 
things  covered  by  mortgage  was  certificate  from  trustees  reciting 
congressional  act  relating  to  swamp  lands,  and  its  acceptance  by 
Florida,  act  creating  board  and  state  act  making  grant  in  aid  of 
railroad,  trustees  are  estopped  from  denying  title;  Georgia  etc.  Co.  v. 
Wright,  132  Fed.  917,  Georgia  supreme  court  decision  in  suit  between 
state  and  corporation  that  charter  precluded  tax  in  excess  of  certain 
rate,  decision  concludes  state  in  subsequent  suit  for  taxes  of  different 
year  or  under  different  statute;  Territory  v.  Hopkins,  9  Okl.  150,  59 
Pac.  981,  where  court  of  competent  jurisdiction  has  determined  valid- 
ity of  bonds  involved  in  proceeding  provided  by  statute,  decree  is  con- 
clusive. 

7   How.   234-260,   12   L.   681.     WAGNER  v.  BAIRD, 

Syl.   1    (IV,  703).     Laches — Equity   follows  limitation  statutes. 
Approved   in   Williams  v.   Neely,   134  Fed.    13,  69  L.   E.   A.   232,   67 
C.  C.  A.   171,   it  is   not  culpable   laches   for  one   who   has   defense   of 
reduction  to  note  which  is  in  litigation  in  another  court    to  wait  till 


7  How.  2S3-586  Notes  on  U.  S,  Eeports.  233 

an  affirmative  action  at  law  on  subject  of  defense  is  barred,  and 
until  equitable  defense  is  barred  in  action  on  note,  to  enjoin  prosecu- 
tion of  latter  action  until  his  defense  is  allowed;  Patterson  v.  Hewitt, 
11  N.  M.  42,  6G  Pac.  564,  55  L.  E.  A.  658,  applying  rule  to  bill  to 
enforce  rights  arising  under  verbal  agreement  relating  to  mining 
locations. 

7     How.     283-573,    12    L.    702,    PASSENGER    CASES     (SMITH     v. 
TUENER;   NOERIS   v.   BOSTON). 

Syl.  1  (IV,  709^).     State  tax  on  alien  passengers. 

Distinguished  in  dissenting  opinion  in  Pabst  Brewing  Co.  v.  Cren- 
shaw, 198  U.  S.  41,  49  L.  935,  25  Sup.  Ct.  552,  majority  upUolding 
Missouri  inspection  law,  subjecting  all  intoxicating  liquors  arriving 
in   state   to   operation   of   law. 

Syl.    3     (IV,    715).     State    control    of    interstate    traffic. 

Affirmed  in  Southern  Ry.  Co.  v.  Greensboro  etc.  Co.,  134  Fed.  91, 
carloads  of  coal  shipped  from  one  state  into  another  are  not  subject 
to  order  of  state  railroad  commission  directing  railroad  to  place 
cars   on   certain   track   for   unloading,   as   requested   by    consignee. 

Distinguished  in  dissenting  opinion,  Allen  v.  Eeed,  10,  Okl.  157, 
13  Pac.  877,  majority  holding  void  Stat.  1S93,  c.  23,  relating  to 
changing    of    county    seats. 

Syl.  4  (IV,  716).    Interstate  commerce  regulations  by  states. 

Approved  in  Old  Dominion  S.  S.  Co.  v.  Virginia,  198  U.  S.  306,  49  L. 
1062,  25  Sup.  Ct.  686,  vessels,  which  though  engaged  in  interstate 
commerce,  are  employed  in  such  commerce  wholly  within  limits  of 
state,  are  taxable  there  though  registered  under  United  States  stat- 
utes in  port  of  another  state;  Southern  Ey.  Co.  v.  Greensboro  etc. 
Co.,  134  Fed.  92,  carloads  of  coal  shipped  from  one  state  to  another 
are  not  subject  to  order  of  state  commission  directing  railroad  to 
place  cars  on  certain  track  for  unloading  as  requested  by  consignee; 
Louisville  v.  Wehml'.off,  116  Ky.  830,  76  S.  W.  881,  upholding  Louis- 
ville   anti-poolroom    ordinances. 

7  How.  573-586,  12  L.  824,  TYLEE  v.  HAND. 

Syl.  1   (IV,  717).     When  general  or  special  demurrer  proper. 

Approved  in  Emmons  v.  National  etc.  Assn.,  135  Fed.  692,  68  C.  C. 
A.  327,  applying  rule  to  defense  of  multifariousness  in  bill  by  bor- 
rowing stockholder  in   loan  association   to   cancel   contract   for   fraud. 

Syl.  3   (IV,  718).     Estoppel  to  deny  validity  of  voluntary  bonds. 

Approved  in  American  Sen.  Co.  v.  Campbell  &  Zell  Co.,  138  Fed. 
533,  where  attachment  bond  was  executed  to  receiver  of  corporation, 
his  successors  and  assigns,  corporation  could,  on  termination  of.  re- 
ceivership, prosecute   action   on  bond. 


239  Notes  on  U.  S.  Reports.  7  IIow.  5S3-C23 

Distinguished  in  Commissioners  of  Logan  Co.  v.  Harvey,  6  Okl. 
632,  52  Pac.  403,  official  bond  exacted  where  no  bond  is  required,  as 
condition  precedent  to  officers  being  allowed  to  enter  into  and  dis- 
charge duties  of  office,  is  void. 

7  How.  5S6-594,  12  L.  829,  KENNEDY  v.  HUNT. 

Syl.   1    (IV,   719).     Congressional   act   recognizing  land   grant. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  626,  72  Pac.  30,  where 
New  Mexico  had  declared  Mexican  grant  valid  and  recommended  its 
confirmation  without  limitation  as  to  quantity,  and  Congress  con- 
firmed grant  as  recommended,  confirmation  is  congressional  declara- 
tion as  to   validity  of  title. 

7  How.  612-626,  12  L.  841,  PECK  v.  JENNESS. 

Syl.  1  (IV,  721).     Federal  question — Decision  against  federal  right. 

Approved  in  Rector  v.  City  Deposit  Bank  Co.,  200  U.  S.  411,  50  L. 
529,  26  Sup.  Ct.  289,  judgment  dismissing  suit  brought  by  bankruptcy 
trustee  to  recover  alleged  asset  of  bankrupt  estate  presents  federal 
question. 

Syl,  5  (IV,  723).     Bankruptcy  as  bar  to  attachment  liens. 

Approved  in  Klipstein  v.  Allen-Miles  Co.,  136  Fed.  390,  69  C.  C.  A. 
229,  under  Georgia  code  no  judgment  will  be  rendered  against  de- 
fendant who  has  been  discharged  from  debt  sued  on  in  bankruptcy 
proceedings  pending  garnishment  for  purpose  of  charging  sureties  on 
bond  to   discharge  garnishment. 

Syl.  7   (IV,  724).     Collateral  attack  on  judgments. 

Approved  in  Linstroth  Wagon  Co.  v.  Ballew,  149  Fed.  966,  where, 
prior  to  involuntary  petition,  claimant  sued  in  state  court  to  recover 
specific  personalty,  and  obtained  sequestration,  and  on  bankruptcy 
proceedings  being  instituted  trustee  intervened  and  lost  suit,  decree 
therein  was  conclusive  on  trustee;  Miller  &  Lux  v.  Rickey,  146  Fed. 
587,  where  federal  court  has  first  acquired  jurisdiction  of  suit  to  de- 
termine respective  rights  of  appropriators  of  water,  it  will  enjoin  later 
Slate  suit  relating  to  same  subject  matter. 

Syl.   8   (IV,  725).     Interference  with  concurrent  jurisdiction. 

Approved  in  Tennessee  Produce  Marble  Co.  v.  Grant,  135  Fed.  323, 
67  C.  C.  A.  676,  bankruptcy  court  has  no  jurisdiction  to  stay  state 
suit  by  creditor  and  to  restrain  creditor  from  proceeding  to  enforce 
attachment  lieu  under  state  court  where  state  court  had  acquired  prior 
jurisdiction;  Hurlbutt  v.  Brown,  72  N.  H.  236,  55  Atl.  1047,  Bankr. 
Act,  c.  541,  §§  60a,  60b,  does  not  destroy  lien  of  attachment  obtained 
more  than  four  months  prior  to  filing  bankruptcy  petition,  though 
both  creditor  and  debtor  knew  at  time  of  attachment  that  debtor  was 
insolvent;  Beardslee  v.  Ingraham,  183  N.  Y.  417-424,  76  N.  E.  477- 
480,  where,  after  federal  court  attachment  on  corporate  property,  there 
ia  state  suit  brought  to  dissolve  corporation  and  receiver  appointed  to 


7  How.  627-693  Notes  on  U.  S.  Keports.  240 

Bell  property,  state  court  cannot  enjoin  marshal  from  selling  property 
under  execution. 

Distinguished  in  Shaw  v.  Frey,  69  N.  J.  Eq.  324,  59  Atl.  812,  state 
court  may  restrain  prosecution  of  action  in  federal  court  pending  dis- 
covery of  matters  necessary  to  fair  trial. 

Syl.  10   (IV,  728).     Injunction  against  state  court  suits. 

Approved  in  Security  Trust  Co.  v.  Union  Trust  Co.,  134  Fed.  302, 
where  state  court  has  appointed  receiver  in  railroad  foreclosure  and 
directed  sale,  and  had  power  to  grant  complainants'  relief  with  refer- 
ence to  rolling  stock  on  which  they  claimed  lien,  federal  court  cannot 
enforce  lien. 

7  How.  627-646,  12  L.  847,  SHAWAN  v.  WHERKITT. 

Syl.  3   (IV,  731).     Conclusiveness  of  bankruptcy  decree. 

Approved  in  Silvey  v.  Tift,  123  Ga.  808,  51  S.  E.  750,  1  L.  E.  A.  (N. 
S.)  386,  where  petition  for  involuntary  bankruptcy  alleged  fraudulent 
preference,  adjudication  does  not  estop  creditor  from  setting  up  in 
suit  by  trustee  that  on  sale  he  relied  on  representations  of  bankrupt 
but  that  on  discovering  their  falsity  they  rescinded  sale. 

7  How.  650-658,  12  L.  857,  BARNARD  v.  GIBSON. 

Syl.  2  (IV,  732).  Final  decree — Enjoining  infringement  and  refer- 
ence. 

Approved  in  Ex  parte  National  Enameling  etc.  Co.,  201  U.  S.  160, 
50  L.  708,  26  Sup.  Ct.  404,  denying  cross-appeal  by  complainant  from 
decree  in  patent  suit  which  granted  injunction  as  to  claims  held  valid 
and  sending  cause  to  master  for  accounting,  dismissed  bill  as  to 
claims  held  invalid;  Australian  Knitting  Co.  v.  Gormly,  138  Fed.  103, 
decree  of  circuit  court  sustaining  validity  of  patent  and  awarding 
injunction  and  referring  case  to  master  for  accounting  is  interlocutory 
and  not  conclusive  as  to  validity  of  patent  in  subsequent  suit  prior 
to  rendition  of  final  decree. 

7  How.  681-093,  12  L.  870,  JONES  v.  UNITED  STATES. 

Syl.   2    (IV,   735).     Direction  of   application   of  payments. 

Approved  in  Wardlaw  v.  Troy  Oil  Mill,  74  S.  C.  371,  54  S.  E.  659, 
where  manufiuturer  sells  brick  to  be  used  in  erection  of  building  and 
without  notice  to  manufacturer  part  of  brick  is  sold,  manufacturer 
may  apply  payments  made  on  account  by  purchaser  to  unsecured  part 
of  purchase  price. 

Syl.  3   (IV,   736).     Liability  on  official  bonds. 

Approved  in  First  Nat.  Bank  v.  National  Surety  Co.,  130  Fed.  406, 
408,  409,  66  L.  R.  A.  777,  applying  principle  where  surety  cor.ipany 
indemnified  bank  against  loss  through  dishonest  employees,  and  book- 
keeper falsified  accounts  of  depositor  but  prior  to  bookkeeper's  dis- 
charge deposits  exceeded  checks  drawn. 


241  Notes  on  U.  S.  Reports.  7  How.  729-812J 

7  How.  729-738,  12  L.  890,  CUTLEE  v.  EAE. 

Syl.  1  (IV,  740).     Consent  gives  no  jurisdiction. 

Approved  in  Henrie  v.  Henderson,  145  Fed.  319,  applying  rule  to 
appeal  from  decree  in  bankruptcy  proceedings  restraining  sale  by 
trustee. 

Syl.   2    (IV,   740).     Maritime   lien   follows   proceeds. 

Approved  in  Bank  of  British  N.  A.  v.  Freights  etc.  of  Hutton,  137 
Fed.  538,  70  C.  C.  A.  118,  where  bank  has  maritime  lien  on  freight  for 
advances,  it  could  enforce  same  in  rem  in  admiralty  though  it  had  lieu 
enforceable  in  equity. 

Syl.   4    (IV,   742).      Admiralty — Action   for   contribution. 

Approved  in  Portland  etc.  Mills  Co.  v.  Portland  etc.  S.  S.  Co.,  145 
Fed.  092,  where  shipper  of  flour  was  bound  for  freight  only  as  surety 
for  consignees  who  were  its  owners,  and  on  vessel  being  abandoned 
to  insurers  who  salved  part  of  cargo,  and  subsequently  insurer  of 
freight  recovered  same  from  shii)j)er,  latter  has  no  claim  to  proceeds 
of  salvage  by   right   of  subrogation. 

7  How.  760-768,  12  L.  903,  MASSING  ILL  v.  DOWNS. 

Syl.  4  (IV,  745).     Remedial  retrospective  laws  valid. 

Approved  in  King  v.  Davis,  137  Fed.  241,  Va.  Code  1904.  p.  1903, 
requiring  memoranda  of  lis  pendens  to-  be  recorded  to  bind  bona  fide 
purchaser  does  not  apply  to  federal   courts. 

7  How.  776-784,  12  L.  909,  LEWIS  v.  LEWIS. 

Syl.  1  (IV,  746).     Limitation  statutes — Repeal  of  saving  clause. 

Approved  in  Lamb  v.  Powder  Riv.  etc.  Co.,  132  Fed.  438,  67  L.  R. 
A.  558,  65  C.  C.  A.  570,  applying  rule  in  construing  Colo.  Act  of  1895, 
RS  amended  in  1899,  relating  to  limitation  of  actions  on  foreign  judg- 
ments; Huber  v.  Zimmerman,  8  Okl.  575,  58  Pac.  738,  construing 
statutes  of  limitation  and  holding  note  sued  on  not  barred.  See  111 
Am.  St.  Rep.  461,  note. 

7  How.  785-797,  12  L.  914,  LAWRENCE  v.  ALLEN. 

Syl.  3   (IV,  747).     Tariff— When  article  manufactured. 

Approved  in  Queen  Ins.  Co.  v.  Excelsior  Milling  Co.,  69  Kan.  118, 
76  Pac.  425,  mining  plant  is  not  "manufacturing  establishment" 
within  clause  of  policy  forfeiting  insurance  if  property  was  such; 
dissenting  opinion  in  Benedict  v.  Davidson  County,  110  Tenn.  193,  67 
S.  W.  809,  majority  holding  logs  grown  on  soil  of  state  when  in  hands 
of  millmen  are  articles  manufactured  from  produce  of  state  within 
constitutional  tax  exemption  clause. 

7  How.  798-812,  12  L.  919,  BACKUS  v.  GOULD. 

Syl.  1  (IV,  748).     Copyright— Penalty  for  each  sheet. 

Approved,  in  Walker  v.  Globe  Newspaper  Co.,  140  Fed.  308,  uphold- 
ing right  to  sue  at  law  for  damages  for  infringement  of  copyright. 
16 


8  llow.  41-83  Notes  on  U.  S.  Reports.  242 

Syl.  2   (IV,  748).     Copyriglit — Forfeiture  of  infringing  books. 
Approved  in  Walker  v.  Globe  Newspaper  Co.,  130  Fed.  595,  action 
at  law  for  damages  docs  not  lie  for  infringement  of  copyright. 

Distinguished  in  Walker  v.  Globe  Newspaper  Co.,  140  Fed.  313,  re- 
versing 130  Fed.  595,  upholding  right  to  sue  at  law  for  damages  for 
infringement  of  copyright. 

7  How.  819-832,  12  L.  928,  STEARNS  v.  PAGE. 

Syl.  3   (IV,  751).     Allegations  refuting  laches. 

Approved  in  Cole  v.  Birmingham  Union  Ry.  Co.,  143  Ala.  434,  39 
So'.  405,  suit  by  stockholder  of  street  railroad  to  set  aside,  on  ground 
of  ultra  vires,  sale  of  property  for  shares  of  stock  in  vendee,  is  barred 
when  brought  ten  years  after  sale  and  two  years  after  knowledge, 
property  having  been  sold  to  third  party. 

7  How.  833-894,  12  L.  934,  UNITED  STATES  v.  KING. 

Syl.  2   (IV,  752).     Error  brings  up  law  questions  only. 

Approved  in  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  131,  66 
C.  C.  A.  190,  on  trial  to  court  improper  admission  of  evidence  is  not 
of  itself  ground  for  reversal. 


VIII  HOWARD. 


8  How.  41-48,  12  L.  979,  UNITED  STATES  v.  STAATS. 

Syl.  2   (IV,  756).     Indictment — Intent  to  defraud  feloniously. 

Approved  in  Bridgeman  v.  United  States,  140  Fed.  586,  indictment 
under  Rev.  St.,  §  5438,  charging  that  defendant,  for  purpose  of  obtain- 
ing approval  of  claim  against  United  States,  used  false  voucher,  know- 
ing same  to  be  false,  need  not  allege  to  whom  voucher  was  presented  nor 
manner  of  its  use;  United  States  v.  Lake,  129  Fed.  501,  indictment 
against  president  of  bankrupt  corporation  for  making  false  oath  to 
its  schedules  need  not  expressly  aver  materiality  of  false  statements. 

Syl.  3  (IV,  757).     False  writing  to  defraud  government. 

Approved  in  Dolan  v.  United  States,  133  Fed.  451,  false  certificate 
of  citizenship  within  Rev.  St.,  §§  5425,  5427,  includes  one  which  is 
false  in  its  recital  of  facts. 

8  Hov^.  73-83,  12  L.  992,  NATHAN  v.  STATE  OF  LOUISIANA. 
Syl.  1   (IV,  758).     Traffic  in  foreign  drafts  not  commerce. 
See  112  Am.  St.  Rep.  651,  note. 


243  Notes  on  U.  S.  Reports.  8  How.  83-210 

8   How.   83-107,   12   L.   997,   UNITED    STATES   v.   BUCHANAN. 

Syl.   1   (IV,  761).     Binding  effect  of  custom. 

Approved  in  Chicago  etc.  Ey.  Co.  v.  Lindeman,  143  Fed.  949, 
holding  evidence  as  to  uniformity  of  custom  of  dropping  cars  at 
certain    point   insufficient. 

8    How.   113-123,   12   L.    1009,   UNITED    STATES   v.   B0ISD0RE3. 

Syl.  2    (IV,   7G5).     Jurisdiction   falls   with   repeal   of  statute. 

Approved  in  United  States  v.  Sena,  12  N.  M.  414,  78  Pac.  62, 
repeal  of  Laws  1901,  p.  190,  c.  99,  deprived  supreme  court  of  juris- 
diction over  criminal  appeals  not  applied  for  during  term  at  which 
final  judgment   rendered. 

8  How.  134-1G3,  12  L.  1018,  VEAZIE  v.  WILLIAMS. 

Syl.   2    (IV,   766).     Auctions — Puffing   avoids   sale. 

Approved  in  Rowley  v.  D'Arcy,  184  Mass.  554,  69  N.  E.  326,  64 
L.  R.  A.  190,  where  certain  creditors  attended  assignees'  sale  of 
debtor's  property  and  combined  to  puff  price  by  fictitious  bids, 
such  creditors,  as  between  themselves,  could  not  stipulate  for  im- 
munity from  any  risk  of  being  held  personally  liable  for  their 
offers   by   assignee. 

8    How.    163-169,    12   L.    1030.     PHALEN    v.    VIRGINIA. 

Syl.   1   (IV,  768).     Police  power — Suppression   of  nuisances. 

Approved  in  Reaves  v.  Territory,  13  Okl.  405,  74  Pac.  953,  en- 
joining maintenance  of  disorderly  and  disreputable  theater  where 
disreputable    characters    congregate. 

8    How.    170-183,    12   L.   1033,   McCLANAHAN   v.    DAVIS. 

Syl.    3    (IV,    769).     Discovery — Defendant    must    have    interest. 

Approved  in  Bowdish  v.  Metzger,  71  Kan.  754,  81  Pac.  484, 
where  petition  in  suit  to  quiet  title  is  sufficient,  except  that  it  does 
not  plead  defendant's  title,  but  states  that  nature  or  extent  of 
such  title  is  unknown  and  prays  defendant  be  required  to  dis- 
close it,  it  is  sufficient  for  discovery  and  relief. 

8   How.   183-210,   12   L.    1040,   TAYLOR   v.   TAYLOR. 

Syl.    1    (IV,    769).     Equity — Protection    against    undue    influence. 

Approved  in  Shevlin  v.  Shevlin,  96  Minn.  409,  413,  105  N.  W. 
261,  263,  applying  principle  in  suit  to  set  aside  transfer  of  stock 
made    to    brother. 

Syl.   2    (IV,   769).     Setting  aside   deed  for   child   to   parent. 

Approved  in  Shevlin  v.  Shevlin,  96  Minn.  413,  105  N.  W.  263, 
applying  principle  in  suit  to  set  aside  transfer  of  stock  made  to 
brother. 


8  How.  210-i02  Notes  on  U.  S.  EeiDorts,  814 

8  How.  210-223,  12  L.   1051,  MAXWELL  v.  KENNEDY. 

Syl.   2    (IV,   771).     Demurrer   to   bill   for  laches. 

Approved  in  Thurmond  v.  Chesapeake  etc.  Ky.  Co.,  140  Fed. 
699,  applying  rule  to  enforce  specific  performance  of  contract  by 
which  railroad  agreed  to  locate  station  on  land  of  complainant. 

8  How.  251-256,  12  L.  1067,  LOED  v.  VEAZIE. 

Syl.   2    (IV,   774).     Judgment   in   fictitious   suit   is   void. 

Approved  in  Eidge  v.  Manker,  132  Fed.  601,  67  C.  C.  A.  596, 
decree  against  receiver  of  another  court  canceling  mortgage  is  not 
nullity  which  may  be  so  declared  in  collateral  proceeding  merely 
because  record  did  not  show  affirmatively  that  permission  to  bring 
suit  obtained;  Kalbfell  v.  Wood,  193  Mo.  690,  92  S.  W.  234,  denying 
prohibition  to  prevent  election  commissioners  from  selecting  primary 
election  officers  where  primary  held  before  provisional  order  made 
returnable. 

Distinguished  in  Succession  of  Dauphin  (Choppin  v.  Dauphin), 
112  La.  134,  36  L.  298,  deciding  compromise  judgment  res  adjudicata 
on  question  of  succession. 

8   How.   293-316,   12  L.   1085,    MENAED'S   HEXES   v.   MASSEY. 

Syl.  7   (IV,  779).     Survey  necessary   to   validity  of   grant. 

Approved  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  172,  175, 
70  Pac.  317,  318,  title  to  imperfect  grant  does  not  pass  out  of 
United  States  on  decree  of  court  of  private  land  claims  and  land 
not  taxable  until  confirmation  by  that  court  of  survey. 

8  How.  366-384,  12  L.  1115,  CALDWELL  v.  UNITED  STATES. 

Syl.  3  (IV,  784).     Nature  of  forfeiture  under  revenue  laws. 

Approved  in  United  States  v.  One  Dark  Bay  Horse,  130  Fed. 
241,  where  horse  imported  without  payment  of  duty  had  been  owned 
by  claimant  for  more  than  five  years  without  suspicion  of  its  impor- 
tation,  proceedings   for   forfeiture   barred. 

8  How.  384-402,  12  L.  1123,  GIBSON  v.  STEVENS. 

Syl.    1    (IV,    785).     Sales — Symbolical    delivery    sufficient. 

Approved  in  National  Newark  Banking  Co.  v.  Delaware  etc.  E. 
Co.,  70  N.  J.  L.  777,  1U3  Am.  St.  Eep.  825,  58  Atl.  312,  66  L.  E.  A. 
595,  applying  rule  where  orders  for  delivery  of  grain  consigned 
were    delivered. 

Syl.   3    (IV,   786).     Assignment   of   warehouse   receipts — Title. 

Approved  in  Union  Trust  Co.  v.  Wilson,  198  U.  S.  539,  49  L.  1157, 
25  Sup.  Ct.  766,  indorsement  to  third  person,  as  security  of  ware- 
bouse  receipt  reciting  that  goods  are  deliverable  only  on  surrender 
of  receipt  properly  indorsed,  is  sufficient  delivery  as  against  at- 
tachment.    See    105   Am.   St.   Eep.    369,   note. 


245  Notes  on  U.  S.  Reports.  8  How.  441-494 

8  How.  441-450,  12  L.  1147,  SHELDON   v.  SILL. 

Syl.  1  (IV,  793).  Statutory  court's  jurisdiction  limited. 
Approved  in  Kentucky  v.  Powers,  201  U.  S.  24,  50  L.  644,  26  Sup. 
Ct.  387,  denial,  in  summoning  or  impaneling  jurors  in  criminal  case 
of  civil  rights  secured  by  federal  law,  docs  not  give  right  of  re- 
moval; United  States  v.  Barrett,  135  Fed.  194,  denying  federal  ju- 
risdiction of  action  in  bond  of  contractor  for  government  work 
under  28  Stat.  278,  c.  280,  in  name  of  United  States  for  use  of 
materialman. 

Syl.  2    (IV,   794).     Federal   jurisdiction — Suits  by   assignee. 

Approved  in  Gorman-Wright  Co.  v.  Wright,  134  Fed.  305,  67  C.  C. 
A.  345,  pledgee  of  stock  cannot,  on  account  of  diverse  citizenship  ex- 
isting between  himself  and  corporation,  sue  corporation  in  federal 
court  for  appointment  of  receiver  where  pledgor  is  resident  of  state 
of  which   corporation  is  citizen. 

Syl.   3    (IV,   794).     Citizenship — Federal   foreclosure   by   assignee. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup. 
Ct.  220,  applying  rule  to  suit  to  foreclose  trust  deed;  Utah-Nevada 
Co.  V.  De  Lamar,  133  Fed.  121,  66  C.  C.  A.  179,  suit  by  assignee  of 
oral  contract  to  recover  money  due  thereon  is  without  federal  juris- 
diction  unless   assignor   could   have    maintained   it. 

8   How.  451-470,  12   L.   1151,  LE   EOY  v.  BEARD. 

Syl.  1    (IV,   795).     Law  governing  procedure. 

Approved  in  Clark  v.  Eltinge,  38  Wash.  383,  107  Am.  St.  Rep.  858, 
80  Pac.  559,  married  woman  is  entitled  only  to  such  exemptions 
as  debtor  as  provided  by  state  where  she  is  sued  and  resides. 

8    How.    470-489,    12    L.    1160,    PRENTICE    v.    ZANE. 

Syl.  2   (IV,  797).     Appeal — Presumptions  as  to  facts. 

Approved  in  Coulter  v.  B.  F.  Thompson  Lumber  Co.,  142  Fed. 
708,  upholding  refusal  to  instruct  as  to  which  of  two  classes  of 
testimony  on  issue  of  fact  should  be  preferred;  J.  W.  Bishop  Co. 
V.  Shelhorse,  141  Fed.  648,  appellate  court  cannot  review  questions 
of  fact  or  determine  weight  to  be  given  to  evidence. 

8  How.   490-494,  12  L.   1168,  MAGER  v.   GRIMA. 

Syl.  1    (IV,   798).     State  tax  on  alien  heirs   or  legatees. 

Approved  in  Blair  v.  Herold,  150  Fed.  201,  where  testator,  his 
son  and  others  formed  partnership  which  was  not  to  be  dissolved 
as  long  as  three  survived,  and  it  was  stipulated  that  on  testator's 
death  his  interest  should  go  to  son  in  consideration  of  valuable 
considerations  received  from  others,  son's  interest  acquired  from 
father  not  taxable  under  War  Revenue  Act,  c.  448;  Humphreys  v. 
State,  70  Ohio  St.  83,  101  Am.  St.  Rep.  888,  70  N.  E.  961,  65  L.  R. 


8  How.  495-614  Notes  on  V.  S.  Eeports.  24G 

A.    776,    devise   to    incorporated   charitable   society   is   subject   to   col- 
lateral   inheritance    tax. 

Distinguished  in  Gilbcrtson  v.  Oliver,  129  Iowa,  573,  105  N.  W. 
1004,  indebtedness  to  nonresident  having  no  agent  in  state  is  not 
liable   to  inheritance  under  Code,   §   1467. 

8   How.    495-565,   12    L.    1170,   WILLIAMSON   v.   BERRY. 

Syl.  3  (IV,  799).  Inquiry  into  jurisdiction — Action  on  judgment. 
.  Approved  in  Southern  Pine  L.  Co.  v.  Ward,  16  Okl.  158,  85  Pac. 
467,  where  on  foreclosure  of  trust  deed  defendant  pleads  title 
under  prior  judgment  of  same  court,  codefendant  may,  by  cross- 
petition,  show  want  of  jurisdiction  over  suit  in  which  such  judg- 
ment rendered. 

Syl.   11    (IV,  802).     Judicial  sale   defined. 

Approved  in  Blitz  v.  Moran,  17  Colo.  App.  257,  67  Pac.  1021, 
sheriff  being  only  officer  authorized  to  sell  on  foreclosure,  appoint- 
ment of  commissioner  therefor  is   invalid. 

Syl.   13    (IV,   803).     Sale   by   trustee   under   special   power. 
Cited   in   dissenting   opinion   in   Metcalfe   v.   Union   Trust   Co.,    181 
N.  Y.  54,  73  N.  E.  503,  reciting  history  of  litigation. 

Syl.  16   (IV,  803).     Following  state  statutory  construction. 
Cited  in  Bramblet  v.  Davis,  141  Fed.   784,  arguendo. 

8    How.   569-586,   12   L.   1201,   MILLS   v.   ST.    CLAIR   COUNTY. 

Syl.   3    (IV,   804).     Ambiguous   grant   construed   against   grantee. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  34,  50 
L.  359,  note,  26  Sup.  Ct.  224,  municipal  grant  of  waterwork's  fran- 
chise does  not  impliedly  devest  city  of  power  to  construct  its  own 
system. 

Syl.  4  (IV,  805).  Establishment  of  ferries  controlled  by  govern- 
ment. 

Approved  in  Green  v.  Ivey,  45  Fla.  349,  33  So.  714,  refusing  to 
enjoin  attempt  to  acquire  ferry  privilege  near  same  point  as  com- 
plainant's. 

8    How.     586-614,    12     L.    1209,    KENNEDY    v.     GEORGIA     STATE 
BANK. 

Syl.   1   (IV,  805).     Scope  of  bill   of  review. 

Approved  in  Chicago  etc.  Door  Co.  v.  Chicago  etc.  E.  Co.,  137 
Fed.  103,  where  defendant,  pending  suit  for  infringement  of  patent, 
begins  use  of  another  infringing  device,  question  of  second  infringe- 
ment  may  be  brought  in  by  supplemental   bill. 

Syl.  2   (IV,  806).     Time  for  bill  of  review. 

Approved  in  .Jorgensen  v.  Young,  136  Fed.  381,  69  C.  C.  A.  222, 
bill    of    review   in   equity   not   filed    till   more    than    two   years    after 


247  Notes  on  U.  S.  Reports.  9  How.  10-54 

judgment   in    original    suit    entered,   and    until    after    time    to    appeal 
had  cxi:)ired,  is  too  late. 

Syl.  3   (IV,  806).     Supplemental  bill  to  bring  in  parties. 

Approved  in  Brown  v.  Fletcher,  140  Fed.  642,  where,  after  death 
of  complainant  in  equity  in  federal  court,  no  steps  are  taken  by 
representatives  within  reasonable  time  to  revive  suit,  court  may 
entertain   motion   by   defendant   to    dismiss  for   want   of   prosecution, 

Syl.  5   (IV,  806).     Amendment  of  record  in  supreme  court. 

Approved  in  Fred  Macey  Co.  v.  Macey,  135  Fed.  729,  68  C.  C.  A. 
363,  refusing  leave  to  amend  bill  to  show  citizenship  of  members 
of  complainant  association;  Kansas  City  etc.  Ey.  Co.  v.  Prunty,  133 
Fed.  17,  66  C.  C.  A.  163,  permitting  amendment  of  removal  peti- 
tion by  supplying  averment  of  citizejjship  where  omission  was  iu- 
adverment. 


IX  HOWARD. 


0   How.   10-34,  13  L.  25,  IRWIX  v.   DIXOX. 

Syl.   1    (IV,  808).     Public   nuisance — Remedy   of   individual. 

Approved  in  "West  &  Severns  v.  Ponca  City  Milling  Co.,  14  Okl. 
648,  79  Pac.  101,  refusing  injunction  at  instance  of  private  in- 
dividual from  completing  frame  building  within  fire  limits. 

Syl.  3    (IV,   810).     Injunction   against   public   nuisance — Individual. 

Approved  in  Chessman  v.  Hale,  31  Mont.  589,  79  Pac.  257,  plain- 
tiff in  action  for  damages  for  maintenance  of  nuisance  is  entitled 
to  jury  trial  of  right  to  damages,  though  he  also  asks  for  injunction. 

Syl.  7   (TV,  813).     Dedication  of  highway  by  prescription. 

Approved  in  Loomis  v.  Connecticut  etc.  Co.,  78  Conn.  162,  61 
Atl.  541,  where  owners  of  land  opened  same  to  public  as  approach 
to  their  place  of  business  and  stated  to  street  commissioner  that 
it  would  always  be  so  open,  and  that  for  such  privilege  city  should 
macadamize  strip,  there  was  dedication;  Columbia  etc.  R.  R.  Co. 
V,  Seattle,  33  Vash.  522,  74  Pac.  673,  where  plaintiff  occupied 
land  by  piles  and  planking  and  used  same  as  approach  to  its  depot, 
use  of  portion  of  track  by  public  by  plaintiff's  permission  to  gain 
access    to    depot    not    dedication. 

9   How.   34-54,   13   L.    36,   WALDEX   v.    BODLEY, 

Syl.   1    (IV,   814).     Purchasers   pundtnte   lite. 

Approved  in  Moulton  v.  Kolodzik,  97  Minn.  425.  107  X.  W.  155, 
vendee  under  unrecorded   contract   of   sale   of  land   may  recover   pay- 


9  How.  55-196  Notes  on  U.  S.  Keports.  248 

ments  -where  before   conveyance   lis  pendens   in   foreclosure    of   mort- 
gage  is   filed. 

Distinguished  in  King  v.  Davis,  137  Fed.  240,  Va.  Code  1904,  p. 
1903,   relating  to   lis  pendens,   does   not   apply   to   federal   courts. 

9   How.   55-83,   13   L.  44,  WHEELEE  v.   SMITH. 

Syl.  3  (IV,  816).  Charitable  bequests — Uncertainty  of  bene- 
ficiaries. 

Approved  in  Minot  v.  Attorney  General,  189  Mass.  181,  75  N. 
E.  151,  where  charitable  trust  of  residue  of  testator's  estate,  at- 
tempted to  be  created,  was  void  for  indefiniteness  of  beneficiaries, 
resulting  trust  of  residue  decreed  in  favor  of  next  of  kin. 

Syl.   4    (IV,   817).     Equitable   relief   against   duress. 
Approved   in   Morrison  v.  Morrison,   101   Me.   133,  63   Atl.   393,  ar- 
guendo. 

9  How.  83-109,  13  L.  50,  UNITED  STATES  v.  PRICE. 

Syl.  5   (IV,  821).     Joint  judgment  on  joint  and   several  bond. 

Approved  in  Blythe  v.  Cordingly,  20  Colo.  App.  515,  80  Pac.  498, 
judgment  rendered  on  firm  debt,  where  service  is  had  upon  less 
than  all  of  partners,  is  merger  of  obligation  and  bar  to  subsequent 
action  against  partners  not  served. 

9  How.   109,  12G,  13  L.   6G,  WILSON  v.  SIMPSON. 

Syl.  1  (IV,  821).     Patents— Eight  to  rebuild. 

Approved  in  Wagner  Typewriter  Co.  v.  Webster  Co.,  144  Fed. 
409,  owner  of  typewriter  equipped  with  patented  ribbon  mechanism 
may  replace  both  spool  and  ribbon  as  matter  of  repairs. 

Syl.   3    (IV,   822).     Eepair  of  patented   article. 

Approved  in  Wagner  Typewriter  Co.  v.  Webster  Co.,  144  Fed.  412, 
415,  owner  of  typewriter  equipped  with  patented  ribbon  mechanism 
may  replace  both  spool'  and  ribbon  as  matter  of  repairs;  Morrin 
V.  Eobcrt  etc.  Works,  138  Fed.  73,  77,  holding  refitting  new  tubes 
in  steam  generator  was  reconstruction  and  infringement;  American 
Bonding  Co.  v.  City  of  Ottumwa,  137  Fed.  579,  70  C.  C.  A.  270, 
construing  paving  contract  with  reference  to  clause  as  to  keeping 
in  repair. 

9   How.    172-196,   13   L.   92,   PEEEINE   v.   CHESAPEAKE    &   DELA- 
WAEE    CANAL    CO. 

Syl.    7    (IV,   830).     Construction   of   ambiguous   public    grants. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  472,  50  L.  831,  26  Sup 
Ct.  427,  construing  111.  Act  1805,  relating  to  Chicago  street  railway 
franchises;  dissenting  opinion  in  Canton  v.  Cotton  Warehouse  Co., 
84   Miss.   313,   105   Am.   St.   Eep.   428,   36   So.   279,   65   L.   E,   A.   561^ 


249  Notes  on  U.  S.  Eeports,  9  How.  213-248 

majority  holding  power  given  to  railroad  to  do  all  acts  incidental 
to  maintenance  of  road  includes  right  to  lay  conduits  in  right  of 
way  to  conduct  water  to  buildings,  though  right  of  way  traverse 
city   streets. 

9   How.   213-235,  13  L.   109,  WITHERS  v.   GREENE. 

Syl.   1    (IV,   833).     Failure   of  consideration   for   fraud. 

Approved  in  Richardson  v.  Lowe,  149  Fed.  632,  though  fraud  in- 
ducing purchase  of  mines  has  been  waived  by  laches  as  ground  for 
i-escission  of  contract,  purchaser  may  plead  resulting  damages  as 
failure  of  consideration  in  defense  of  purchase  money  note;  Williams 
V.  Neely,  134  Fed.  7,  69  L.  R.  A.  232,  67  C.  C.  A.  171,  partial  failure 
of  consideration  resulting  from  defect  of  title  is  good  defense  pro 
tanto  to  action  by  vendor  on  purchase  money  note  where  vendor 
had   covenanted   against   encumbrances. 

9   How.   235-248,   13   L.    119,   BENXER   v.    PORTER. 

Syl.    I    (IV,    836).     Jurisdiction    of    territorial    courts. 

Approved  in  United  States  v.  Winans,  198  U.  S.  383,  49  L.  1093, 
25  Sup.  Ct.  662,  fishing  rights  in  Columbia  river,  secured  to  Yakima 
Indians  by  treaty  of  1859,  which  provided  for  extinguishment  of  title 
to  lands  occupied  by  Indians  preparatory  to  opening  lands  for  set- 
tlement, are  not  subordinate  to  powers  acquired  by  Washington 
over  shore  lands  on  its  admission;  Ex  parte  Moran,  144  Fed.  59S, 
upholding  jurisdiction  of  circuit  court  of  appeals  to  issue  habeas 
corpus  to  inquire  into  power  of  Oklahoma  court's  power  to  im- 
prison person  convicted  of  capital  crime;  Wallace  v.  Adams,  143 
Fed.  725,  determining  jurisdiction  of  United  States  courts  in  Indian 
territory  over  ejectment  by  Indian  allottee  against  one  in  posses- 
sion of  allotment;  Haines  Wharf  Co.  v.  Dalton,  1  Alaska,  555,  up- 
holding 31  Stat.  321,  c.  786,  imposing  license  upon  transfer  com- 
panies and  other  businesses  carried  on  in  Alaska;  Welty  v.  United 
States,  14  Okl.  15,  76  Pac.  123,  territorial  court  in  trial  of  federal 
cases  is  governed  by  territorial  procedure;  Pitts  v.  Logan  County, 
3  Okl.  743,  41  Pac.  592,  clerks  of  territorial  district  courts  being 
required  to  account  to  Secretary  of  Treasury  for  fees,  territorial  leg- 
islative act  attempting  to  regulate  same  is  void;  Kneeland  v.  Koeter, 
40  Wash.  363,  82  Pac.  609,  1  L.  E.  A.  (X.  S.)  745,  where  tide  lands 
within  place  limits  of  Xorthern  Pacific  grant  in  Washington  had 
been  surveyed  and  defined  and  conditions  performed  prior  to  ad- 
mission of  state,  railroad  and  grantees  were  entitled  to  land,  though, 
patent   not   issued  till  after  adoption  of   constitution. 

Syl.   3    (IV,   837).     Territorial    court  "s   jurisdiction    on   admission. 
Cited  in  Allen  v.   Myers,   1   Alaska,   118,   arguendo. 
Syl.    4    (IV,    S3S).     Nature    of    territorial    court's    jurisdiction. 
Approved  in   Fuller   &   Fuller   Co.    v.   .Tolmson,   8   Okl.    605,   58   Pac. 
747,  United  States  court   of  Indian   territory  is  not   "United  States 


9  How.  248-351  Notes  on  U.  S.  Koports.  250 

court"  within    meaning  of  term  as  used  in  Okl.  St.  1890,  p.   930,   § 
2,  relating  to  limitation  of  actions. 

9  How.  248-261,  13  L.  125,  MASON  v.  FEAESON. 

Syl.  1   (IV,  839).     Public  officer  must  do  duty. 

Approved  in  dissenting  opinion  in  Battery  Park  Bank  v.  Madi- 
son Co.  Commrs.,  135  N,  C.  242,  47  S.  E.  1019,  majority  holding 
Laws  1903,  p.  490,  c.  289,  declaring  that  for  purpose  of  funding 
floating  debt  of  Madison  county  commissioners  are  authorized  and 
empowered  to  issue  new  bonds,  is  not  mandatory. 

9   How.   297-314,   13   L.    145,   HUMPHREYS   v.   LEGGETT. 

Syl.  1  (IV,  844).  Equitable  relief  against  judgment  against 
surety. 

Approved  in  King  v.  Davis,  137  Fed.  233,  235,  where  petitioner 
applying  to  vacate  judgment  in  ejectment,  not  party  to  action,  ia 
in  possession,  she  is  entitled  to  order  directing  marshal  in  executing 
writ  of  possession,  to  leave  possession  undisturbed. 

9  How.  314-335,  13  L.  153,  LYTLE  v.  STATE   OF  ARKANSAS. 

Syl.    2    (IV,    845).     Land    receiver's    decision    final. 

Approved  in  De  Laittre  v.  Board  of  Commrs.,  149  Fed.  804,  de- 
cision of  commissioners  for  sale  and  disposition  of  Oregon  school 
lauds  as  to  who  should  be  entitled  to  patent  prior  to  issuance  there- 
of  is   not   reviewable   by    courts. 

Syl.   3   (IV,  847).     Public  lands — Loss  by  officers — Negligence. 

Approved  in  Smith  v.  Bonifer,  132  Fed.  891,  where  selection  of 
lands  for  allotment  has  been  made  by  Indian  and  his  right  to  their 
allotment  to  him  has  attached,  act  of  commissioners  in  wrongfully 
allotting  them  to  another  cannot  cut  off  his  heirs;  Tegarden  v.  Le 
Marchel,  129  Fed.  490,  state  statute  giving  defendant  in  ejectment 
right  to  recover  value  of  improvements  made  by  him  in  good  faith 
under  color  of  title  does  not  apply  to  claim  under  government 
patent;  Smith  v.  Love,  49  Fla.  239,  38  So.  379,  upholding  power  of 
equity  to  convert  holder  of  legal  title  into  trustee  for  true  owner  of 
government  land. 

Distinguished  in  Russian-American  etc.  Co.  v.  United  States,  199 
U.  S.  578,  50  L.  316,  26  Sup.  Ct.  157,  value  of  improvements  made 
on  public  lands  in  Alaska  by  mere  trespasser  occupying  land  with- 
out shadow  of  title  cannot  be  recovered  from  United  States  upon 
selection   of  land  by  government  for  fish   culture   station. 

9  How.  336-351,  13  L.  164,  BOSWELL  v.  OTIS. 

Syl.    1    (IV,    851).     Jurisdiction,    how    acquired. 

A]ipr()ved  in  Colla  Com.  Co.  v.  Bohlinger,  147  Fed.  422,  holding 
void  Kirby's  Dig.,  §  835  (Ark.),  authorizing  personal  judgment 
against  foreign  corporation  on  cause  of  action  in  favor  of   resident 


251  Notes  on  U.  S.  Reports.  9  How.  35G-390 

on  service  of  summons  on  state  auditor;  Brand  v.  Brand,  116  Ky. 
791,  76  S.  W.  870,  63  L.  E.  A.  206,  where  nonresident  defendant 
had  property  within  state,  circuit  court  of  county  where  such  prop- 
erty was  located  acquired  jurisdiction  of  defendant  to  extent  of 
its  value  of  levy  of  attachment  therein;  Clapp  v.  Houg,  12  X.  D. 
606,  102  Am.  St.  Rep.  589,  98  N.  W.  712,  65  L.  R,  A.  757,  holding 
void  Rev.  Codes  1899,  §  632,  subd.  2,  relating  to  appointment  of 
special  administrator  where  death  of  person  is  not  satisfactorily 
proven,  when  applied   to  estate  of   living  person. 

Syl.  3    (IV,  854).     Service   of  publication. 

Approved  in  Hill  v.  Henry,  66  N.  J.  Eq.  156,  57  Atl.  556,  P.  L., 
p.  514,  providing  for  publication  against  unascertained  heirs,  dovisocs 
or  personal  representatives,  and  decree  against  them  by  their  class 
designation  only  does  not  apply  to   suits  to   quiet  title. 

9  How.   356-366,   13   L.   172,   GAIXES  v.  NICHOLSON. 

Syl.   2    (IV,  857).     Vesting  of  state   title   to  Indian  lands. 

Approved  in  Wallace  v.  Adams,  143  Fed.  722,  claimants  of  citizen- 
ship who  secured  judgments  in  their  favor,  which  were  final  under 
29  Stat.  339,  and  30  Stat.  591,  when  rendered,  and  took  possession 
of  lands  as  their  allotments,  before  judgments  were  made  review- 
able, acquired  no  vested  rights  against  subsequent  legislation  en- 
acted  prior   to   allotment. 

9   How.  372-385,   13  L.   179,  HARRISON  v.   VOSE. 

Syl.   3    (IV,   858).     Duties— Arrival  of  vessel. 

Approved  in  Stone  v.  Shallus,  143  Fed.  488.  wholly  decayed  fruit 
imported  in  packages  may  be  culled  out  and  duty  paid  on  mer- 
chantable quantity  remaining,  regardless  of  its  percentage;  United 
States  V.  Hartwell  Lumber  Co.,  142  Fed.  436,  where  merchandise 
was  imported  before  tariff  act  of  1897  became  operative  and  tender 
of  entry  before  importation  was  rejected  and  not  renewed  till  act 
went  into  effect,  it  was  subject  to  act  of  1897;  Franklin  Sug.  Ref.  Co. 
v.  United  States,  142  Fed.  378,  additional  duty  on  imported  mer- 
chandise upon  which  export  bounty  has  been  paid,  is  assessable  only 
on    quantity    entered  irrespective    of    cause    of   shrinkage. 

9   How.  38G-390,  13   L.   185,   HILL  v.   UNITED   STATES. 

Syl.  1   (IV,  859).     Government  not  liable  for  torts. 

Approved  in  Kirk  v.  United  States,  131  Fed.  339,  bill  not  main- 
tainable jointly  against  United  States  and  marshal  to  restrain 
seizure  of  complainant's  property  on  judgment  in  favor  of  United 
States  on  forfeited  recognizance;  Board  of  Education  v.  Volk,  72 
Ohio  St.  486,  74  N.  E.  650,  Rev.  St.,  §  2676,  creating  liability  against 
owner  or  possessor  of  premises  whereon  unlawful  wall  excavation 
is  made,  does  not  apply  to  board  of  education  holding  title  to  lot 
being   excavated. 


9  How.  390-450  Notes  oa  U.  S.  Kcports.  252 

9  How.  390-406,  13  L.  1S7,  TAYLOE  v.  MERCHANTS'  FIRE  INS. 
CO. 

Syl.    3    (IV,    862).     Acceptance    of   offer   by    mail — Time. 

Approved  in  Burton  v.  United  States,  202  U.  S.  385,  50  L.  1072, 
26  Sup.  Ct.  688,  applying  rule  where  offer  and  acceptance  of  con- 
tract made  by  letter  and  telegram.     See  110  Am.  St.  Eep.  747,  note. 

Syl.  6  (IV,  86G).  Insurance — Denial  of  contract  waives  proof  of 
loss. 

Approved  in  Phenix  Ins.  Co.  v.  Kerr,  129  Fed.  727,  64  C.  C.  A. 
251,  66  L.  R.  A.  569,  distinct  denial  of  liability  under  policy  after 
loss  and  within  time  prescribed  for  proofs,  on  ground  of  want  of 
contract,   waives  proof   of   loss. 

Syl.   7   (IV,   869).     Compelling  issuance   of   insurance  policy. 

Approved  in  Summers  v.  Mutual  Life  Ins.  Co.,  12  Wyo.  390,  109 
Am.  St.  Eep.  1005,  75  Pac.  942,  66  L.  E.  A.  812,  where  plaintifE 
executed  note  to  insurance  agent  in  consideration  of  agreement  that 
company  should  issue  policy  within  stated  time,  and  company  re- 
fused to  issue  policy,  proceeds  of  note  are  recoverable  in  assump- 
sit. 

Syl.  8   (IV,   872).     Eelief  vmder  general  prayer. 

Approved  in  United  Cigarette  Co.  v.  Wright,  132  Fed.  197,  bill 
to  require  accounting  from  defendant  as  agent  is  not  multifarious 
because  different  and  separate  transactions  are  set  out,  all  growing 
out  of  agency,  and  discovery  and  accounting  demanded;  In  re  Leeds 
Woolen  Mills,  129  Fed.  926,  bankruptcy  court  may  determine  ques- 
tion of  ownership  of  property  wrongfully  obtained  from  receiver  in 
same  proceeding  as  matter  affecting  propriety  of  entering  decree  for 
its  value;  Hardy  v.  La  Dow,  72  Kan.  178,  83  Pac.  403,  where  plain- 
tiff alleged  that  terms  of  lease  were  agreed  upon,  but  that  advantage 
taken  of  infirmities,  and  he  signed  lease  not  conforming  to  agree- 
ment, and  he  prayed  for  cancellation  and  general  relief,  court  could 
reform  lease. 

9  How.  407-420,   13  L.   194,  TOWNSEND  v.  JEMISON. 

Syl.    1  »(IV,   872).     Limitation    statute    affects   remedy. 

Approved  in  State  v.  Aberdeen,  34  Wash.  65,  74  Pac.  1023,  up- 
holding Laws  1903,  p.  26,  c.  24,  §  1,  prohibiting  plea  of  limitations 
in  suits  brought  by  state,  though  statute  had  run  prior  to  adoption 
of  act,  as  applied  to  action  by  state  to  recover  proportion  of  liquor 
license  fees. 

9  How.  421-450,  13  L.  200,  DOE  v.  ESLOVA, 

Syl.  2  (IV,  876).     Eegulation  of  land  grant  by  ceded  nation. 

Approved  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  65,  73 
Pac,    622,    lands    embraced    in    perfect    Mexican    grant    are    taxable, 


253  Notes  on  U.  S.  Reports.  9  How.  471-G37 

though   grant   submitted    for    confirmation   by   court    of   private   land 
claims   and   patent   not   yet   issued. 

9  How.  471-479,  13  L.  220,  GOODTITLE  v.  KIBBE. 

Syl.  1  (IV,  877).     Tide  lands  vest  in  state  on  admission. 

Approved  in  Kneeland  v.  Koeter,  40  Wash.  363,  82  Pac.  609,  1  L. 
E.  A.  (N.  S.)  745,  Congress  could  grant  tide  land  between  high  and 
low  water  within  territory. 

9  How.  522-529,  13  L.  242,  BANK  OF  ALABAMA  v.  DALTON. 

Syl.  2  (IV,  880).     Limitation  against  actions  on  foreign  judgments. 

Approved  in  Lamb  v.  Powder  Riv.  etc.  Co.,  132  Fed.  438,  442,  67 
L.  K.  A.  558,  65  C.  C.  A.  571,  holding  Colorado  Laws  1899,  p.  248,  c. 
113,  amending  act  of  1895,  relating  to  limitations  on  action  on  foreign 
judgments,  void  as  applied  to  foreign  judgment  rendered  prior  to 
passage  of  act;  Terry  v.  Heisen,  115  La.  1083,  40  So.  466,  upholding 
Const.  1898,  art.  233,  establishing  three  year  prescription  against 
actions  to  annul  tax  sales. 

Syl.  4.    (IV,  881).     Limitations  on  actions  on  foreign  judgments. 

Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Lightheiser,  163  Ind.  259, 
71  N.  E.  222,  under  Acts  1899,  p.  58,  complaint  for  personal  injuries 
under  employer's  liability  act  need  not  allege  that  plaintiff  was  in 
exercise  of  due  care ;  Atcliison  etc.  Ry.  Co.  v.  Grain  Co.,  68  Kan.  588, 
75  Pac.  1052,  Civil  Code,  §  18,  subd.  3,  providing  that  cause  of  action 
founded  on  fraud  shall  not  be  deemed  to  have  accrued  until  discovery 
of  fraud,  does  not  apply  to  action  founded  on  contract;  dissenting 
opinion,  Aja-es  v.  Cone,  138  Fed.  786,  majority  holding  where  validity 
of  claim  of  petitioning  creditor  in  bankruptcy  is  put  in  issue  by 
bankrupt's  answer  and  decided  in  creditor's  favor,  petitioning 
creditor's  claim  cannot  be  contested  when  filed  for  allowance  before 
the  referee. 

9  How.  603-619,  13  L.  276,  FLEMING  v.  PAGE. 

(IV,  890.)  Miscellaneous.  Cited  in  Cullins  v.  Overton,  7  Okl.  482, 
54  Pac.  705,  where  Texas  authorities  organized  disputed  territory 
into  county  government,  judgment  rendered  in  court  of  such  county 
is  valid  as  that  of  de  facto  court. 

9  How.  619-637,  13  L.  282,  MARRIOTT  v.  BRUNE. 

Syl.  1  (IV,  892).     Duty  on  weight  on  arrival. 

Approved  in  American  Cigar  Co.  v.  United  States,  146  Fed.  487, 
duty  on  tobacco  entered  for  warehouse  should  be  based  on  its  weight 
at  time  of  withdrawal  and  not  of  entry;  Stone  v.  Shallus,  143  Fed. 
488,  afl&rming  137  Fed.  637,  holding  wholly  decayed  fruit  imported  in 
packages  may  be  culled  out,  and  duty  paid  on  merchantable  quantity 
remaining  regardless  of  percentage;  Franklin  Sug.  Ref.  Co.  v.  United 
States,    142   Fed.   378,   380,   additional   duty   imposed   by   Act   of    1897, 


10  How.  72-102  Notes  on  U.  S.  Keports.  234 

c.  11,  §  5,  on  imported  merchandise  upon  which  export  bounty  paid 
by  producing  country,  is  assessable  only  on  quantity  entered,  irre- 
spective of  cause  of  shrinkage;  Shaw  v.  United  States,  141  Fed.  470, 
assessment  of  duty  on  wine  without  allowance  for  leakage  is  void. 

Distinguished  in  United  States  v.  Shaw,  144  Fed.  330,  (reversing 
Shaw  V,  United  States,  141  Fed.  470),  under  Tariff  Act  1897,  c.  11, 
§  1,  sched.  H,  par.  296,  there  can  be  no  allowance  for  leakage  of 
wine  while  in  transit  to  this  country;  Franklin  Sug.  Ref.  Co.  v.  United 
States,  137  Fed.  657  (reversed  142  Fed.  376),  additional  duty  imposed  by 
Act  of  1S97,  c.  11,  §  5,  on  imported  merchandise  upon  which  export 
bounty  paid  by  producing  country,  is  assessable  on  invoice  weight 
at  time  of  exportation  without  allowance  for  shrinkage. 

9  How.  637-647,  13  L.  290,  UNITED  STATES  v.  SOUTIIMAYD. 

Syl.  1  (IV,  895).     Duties — Effect  of  drainage  en  route. 

Approved  in  Franklin  Sug.  Ref.  Co.  v.  United  States,  142  Fed.  379, 
additional  duty  imposed  by  Act  of  1897,  c.  11,  §  5,  on  imported  mer- 
chandise upon  which  export  bounty  paid  by  producing  country,  is 
assessable  only  on  quantity  entered,  irrespective  of  cause  of  slirink- 
age. 


X  HOWARD. 


10  How.  72-81,  13  L.  333,  McNULTY  v.  BATTY. 

Syl.  1  (IV,  899).    Dismissal  of  appeal  pending  on  state's  admission. 

Approved  in  United  States  v.  Sena,  12  N.  M.  .414,  78  Pac.  62,  re- 
peal of  Laws  1901,  p.  190,  c.  99,  deprived  supreme  court  of  jurisdiction 
over  criminal  appeal  not  applied  for  during  term  at  which  final  judg- 
ment  rendered. 

10  How.  82-99,  13  L.  337,  STRADER  v.  GRAHAM. 

Syl.  1  (IV,  899).     Supreme  court — Questions  of  local  law. 

Approved  in  dissenting  opinion,  Haddock  v.  Haddock,  201  U.  S. 
611,  50  L.  887,  26  Sup.  Ct.  525,  mere  domicile  within  state  of  one 
party  to  marriage  does  not  give  courts  of  that  state  jurisdiction  to 
render  decree  of  divorce  enforceable  in  other  states  against  nouap- 
pearing  nonresident  only  constructively  served. 

10  How.  99-102,  13  L.  344,  WILSON  v.  STANFORD. 

Syl.  1  (IV,  900).     Supreme  court — .Setting  aside  assignment  of  patent. 

Distinguished  in  Harrington  v.  Atlantic  etc.  Tel.  Co.,  143  Fed.  336, 
upholding  federal  jurisdiction  over  suit  for  infringement  of  patent  by 
user  where    under   agreement   between  owner   of  patent  and   eoutrolliug 


255  Notes  on  U.  S.  Eeports.  10  How.  109-37G 

stockholtler  in  defencliint  patent  not  to  be  transferred  to  corporation  till 
owner  got  stock  and  defendant  violated  agreement. 

10  How.  109-144,  13  L.  348,  IIOYT  v.  UNITED  STATES. 

Syl.  1   (IV,  902).     Treasury  transcript  as  evidence. 

Approved  in  United  States  v.  Pierson,  145  Fed.  818,  819,  applying 
rule  in  action  on  bond  of  Indian  agent. 

Syl.  3   (IV,  902).     Compensation  of  collector  of  customs. 

Approved  in  Avery  v.  Pima  CoT,  7  Ariz.  34,  60  Pac.  704,  under  Ari- 
zona statute  defining  sherifT's  duties  and  prescribing  salary,  sheriff  can- 
not be  paid  extra  for  care  of  federal  prisoners  confined  in  county  jail. 

10  How.  174-187,  13  L.  376,  Hallett  v.  Collins. 

Syl.  1  (IV,  903).     Marriage  per  verba  de  praesenti. 

Approved  in  Keaves  v.  Reaves,  15  Okl.  252,  82  Pac.  494,  upholding 
marriage  -in  Oklahoma  per  verba  de  praesenti  followed  by  cohabita- 
tion. 

10  How.  225-242,  13  L.  397,  GREELY  v.  THOMPSOM. 

Syl.  2  (IV,  908).  Tariff — Appraisement — Personal  examination  nec- 
essary. 

Approved  in  United  States  v.  Shaw,  144  Fed.  331,  under  Tariff  Act 
1897,  c.  11,  §  1,  sched.  H,  par.  296,  there  can  be  no  allowance  for 
leakage  of  wine,  while  in  transit;  United  States  v.  Murphy,  136  Fed. 
812,  where  on  appeal  from  local  appraisement  general  appraiser  who 
made  reappraisement  did  not  have  goods  nor  samples  thereof  reap- 
praisement  was  void;  United  States  v.  Lahey,  132  Fed.  182,  in  finding 
invoice  value  of  goods  collector,  after  appraiser  had  appraised  goods 
and  marked  certain  item  as  nondutiable,  include  such  item  in  invoice 
value  and  assess  duty  thereon  upon  mere  inspection  of  invoice. 

10  How.  242-257,  13  L.  405,  MAXWELL  v.  GRISWOLD. 

Syl.  3   (IV,  909).     When  payment  involuntary. 

Approved  in  Knudsen  etc.  Co.  v.  Chicago  etc.  E.  Co.,  149  Fed.  974, 
consignee  of  shipment,  which,  after  delivery  to  him,  and  with  full 
knowledge  of  facts,  paid  charges  including  item  for  icing  in  transit,  in 
addition  to  published  tariff,  cannot  recover  item  for  icing. 

10  How.  348-376,  13  L.  449,  LANDES  v.  BRANT. 

Syl.  3  (IV,  914).     Perfected  Spanish  title  inures  to  purchaser. 

Approved  in  United  States  v.  Clark,  200  U.  S.  607,  50  L.  616,  26 
Sup.  Ct.  340,  purchaser  of  timber  lands  after  receiver's  final  receipts 
liave  issued,  is  entitled  to  protection  as  bona  fide  purchaser  against  can- 
cellation for  original  frauds  of  entryman,  of  patents  afterward  issued ; 
United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S.  335,  50  L.  505,  26 
Sup.  Ct.  282,  purchaser  from  patentee's  for  value  without  notice  of 
fraud  on  part  of  entryman  is  buna  fide  purchaser  within  timber  act  of 


10  How.  376-419  Notes  on  U.  S,  Eeports.  255 

1878,  though  he  acquired  interest  in  land  under  contract  for  standing 
timber  prior  to  issuance  of  patent;  United  States  v.  Anderson,  194  U. 
S.  399,  401,  48  L.  1039,  24  Sup.  Ct.  716,  United  States  cannot  retain 
as  against  its  grantees  of  lands  within  indemnity  limits  of  railroad 
grant  sum  collected  from  trespassers  thereon  for  removal  of  stone  from 
land  between  time  of  selection  to  supply  deficiency  and  approval  of 
selection  by  Interior  Department;  Peyton  v.  Desmond,  129  Fed.  11,  63 
C.  C.  A.  651,  patentee  under  homestead  laws  may  recover  value  of  tim- 
ber act  after  initiation  of  claim  and  prior  to  patent;  Emmons  v.  Hard- 
ing, 162  Ind.  160,  70  N.  E.  144,  applying  rule  where  deed  delivered  to 
third  person  for  delivery  at  grantor's  death;  Gilbert  v.  McDonald,  94 
Minn.  291,  110  Am.  St.  Rep.  369,  102  N.  W.  713,  equitable  interest  of- 
assignee  of  soldier's  additional  homestead  certificate  may  be  conveyed 
by  quitclaim  deed. 

Syl.  5   (IV,  916).     Notorious  adverse  possession  as  notice. 
See  104  Am.  St.  Rep.  345,  note. 

10  How.  376-394,  13  L.  461,  PHILADELPHIA  &  WILMINGTON  R. 
R.  CO.  V.  MARYLAND. 

Syl.  1  (IV,  917).     Consolidation  of  corporations — Immunities  of  one. 

Approved  in  Shaw  v.  Covington,  194  U.  S.  598,  48  L.  1133,  24  Sup. 
Ct.  754,  new  corporation  formed  by  consolidation  under  Kentucky  act 
of  1893  cannot  claim  exclusive  privilege  to  conduct  electric  light  and 
power  business  conferred  by  statute  on  one  of  constitutent  companies. 

10  How.  395-402,  13  L.  469,  BALTIMORE  &  SUSQUEHANNA  R.  R. 
CO.  V.  NESBIT. 

Syl.  1  (IV,  919).     Corporate  charter — Obligation  of  contracts. 

Approved  in  Whitlock  v.  Hawkins,  105  Va.  251,  53  S.  E.  404,  up- 
holding Act  of  1906,  amending  Code,  c.  23,  relating  to  assessment  of 
lands. 

Distinguished  in  Union  Ry.  Co.  v.  Standard  Wheel  Co.,  149  Fed.  703, 
under  Shannon's  Tenn.  Code,  relating  to  condemnation  proceedings, 
where  judgment  has  been  entered  assessing  damages  for  land  sought 
for  railroad  right  of  way  on  trial  of  appeal,  petitioner  cannot  dismiss 
as  to  portion  of  land  merely  because  damages  are  too  high. 

10  How.  402-419,  13  L.  472,  BUTLER  v.  PENNSYLVANIA. 

Syl.  1  (IV,  922).     Law  repealing  act  creating  office. 

Approved  in  Harwood  v.  Perrin,  7  Ariz.  117,  118,  60  Pac.  892,  up- 
holding act  providing  for  appointment  of  county  assessors  though  as- 
sessor elected  for  term  under  prior  act ;  MeGovcrn  v.  Mitchell,  78 
Conn.  553,  03  Atl.  439,  upholding  Laws  1905,  p.  410,  c.  213,  increasing 
salaries  of  judges  to  take  effect  on  passage  of  act;  Mial  v.  Ellington, 
134  N.  C.  141,  104,  46  S.  E.  964,  972,  65  L.  R.  A.  697,  upholding  stat- 
ute  changing   prior   act   relating   to   office    of   road   supervisor,    though 


257  Notes  on  U.  S.  Ivcports.  10  How.  442-540 

incumbent  appointed  for  definite  term  loses  office;  dissenting  opinion  in 
Territory  v.  Albright,  12  N.  M.  318,  319,  78  Pac.  212,  majority  holding 
assessor  appointed  on  March  23,  1903,  under  Laws  1903,  p.  38,  c.  27, 
as  amended  by  Laws  1903,  p.  80,  c.  49,  which  was  before  act  dividing 
Bernadillo  county  took  effect,  not  entitleil  to  office. 

10  How.  442-4G1,  13  L.  489,  UNITED  ST.\TES  v.  BROOKS. 

Syl.  1  (IV,  925).     Fee  simple— Indian  treaty. 

Approved  in  Conway  v.  United  States,  149  Fed.  2G6,  where,  under 
25  Stat.  892,  land  allotted  to  two  members  of  Ponca  tribe,  who  subse- 
quently intermarried  and  thereafter  each  separately  made  separate 
lieu  applications,  but  trust  patent  by  mistake  made  to  husband  for 
entire  land,  wife  not  thereby  deprived  of  her  land. 

Distinguished  in  Wallace  v.  Adams,  143  Fed.  722,  upholding  32  Stat. 
641,  creating  citizenship  court  empowered  to  review  final  judgments  of 
courts  under  29  Stat.  339. 

10  How.  477-509,  13  L.  504,  GAYLER  v.  WILDER. 

Syl.  2  (IV,  920).     Inventor  cannot  sue  before  patent. 

Apoioved  in  Ilartman  v.  Park  &  Sons  Co.,  145  Fed.  3G1,  368,  up- 
holding right  of  owner  of  proprietary  medicine  to  sell  to  wholesaler  on 
condition  that  they  sell  to  retailers  designated  by  him  only  and  at 
certain  price  and  agreement  with  retailers  to  sell  only  at  certain  price; 
In  re  Dann,  129  Fed.  497,  bankrupt's  incorporeal  interest  in  alleged 
invention  pending  ajDjilication  for  patent  does  not  pass  to  trustee. 

Syl.  4  (IV,  928).     Patents — Assignment  and  license  distinguished. 

Approved  in  Cortelyou  v.  Chas.  Encu  Johnson  &  Co.,  138  Fed.  117, 
upholding  right  of  owner  of  patent  for  rotary  neostyle  to  sell  ma- 
chines under  license  restriction  that  they  shall  be  used  only  with  paper 
and  ink  made  by  licensor;  Shepherd  v.  Deitsch,  138  Fed.  84,  since  per- 
sonal license  granted  by  patentee  to  make  and  vend  patented  article, 
reserving  right  to  license  another,  is  not  an  assignment,  licensee  is  not 
necessary  party  to  suit  for  infringement;  Empire  City  Amusement  Co. 
V.  Wilton,  134  Fed.  133,  where  bill  to  enjoin  infringement  of  copyright 
in  two  plays,  right  to  use  of  which  plaintiff  acquired  through  assign- 
ments from  owners,  demurrer  to  bill  because  assignor  of  one  of  plays 
not  made  party  is  not  good. 

10   How.   511-540,    13    L.    518,    EAST     HARTFORD     v.    HARTFORD 
BRIDGE  CO. 

Syl.  1   (IV,  931).     Obligation  of  contracts — Ferry  franchise. 

Approved  in  Worcester  v,  Worcester  etc.  St.  Ey.  Co.,  196  U.  S.  549, 
49  L.  595,  25  Sup.  Ct.  327,  upholding  Mass.  Laws  1898,  c,  578,  abrogat- 
ing provisions  of  contract  between  city  and  street  railway  with  reference 
to  repairing  of  streets;  Saginaw  County  Suprs.  v.  Hubinger,  137  Mich. 
76,  100  N.  W.  263,  upholding  Loc.  Acts  1901,  p.  114,  amending  town- 
17 


11  How.  33-177  Notes  on  U.  S.  Keports.  258 

sliip  roaci  act  and  exempting  such  townships  from  taxation  for  county 
roads. 

10  How.  557-586,  13  L.  537,  ST.  JOHN  v.  PAINE. 

Syl.  6  (IV,  935).     Collision — Necessity  for  and  location  of  lookout. 

Approved  in  Brigham  v.  Luckenbach,  140  Fed.  326,  holding  tug  leav- 
ing Portland  harbor  liable  for  collision  with  schooner  caused  by  inat- 
tention of  lookout. 

10  ITow.  586-G09,  13  L.  551,  NEWTON  v.  STEBBINS. 

Syl.  2  (IV,  936).     Collision — Meeting  of  steamer  and. ship. 

Approved  in  Quinette  v.  Bisso,  136  Fed.  831,  69  C.  C.  A.  825,  tug 
going  up  Mississippi  in  dense  fog  at  speed  of  nine  miles  per  hour  is 
liable  for  death  of  person  run  down  while  crossing  in  skiff. 


XI  HOWARD. 


11  How.  33-47,  13  L.  593,  OAKEY  v.  BENNETT. 

Syl.  2  (V,  9).  Bankruptcy  assignment  not  effective  in  other  coun- 
try. 

Cited  in  Hyde  v.  McFaddin,  140  Fed.  442,  arguendo. 

11  How.  154-163,  13  L.  643,  UNITED  STATES  v.  MORGAN. 

Syl.  6  (V,  14).     Receiver  of  public  moneys  is  insurer. 

Approved  in  Van  Trees  v.  Territory,  7  Okl.  363,  54  Pac.  498,  county 
treasurer  liable  on  bond  though  funds  deposited  in  solvent  bank  which 
afterward  failed,  and  funds  lost  without  his  fault. 

11  How.  165-177,  13  L.  647,  D'ARCY  v.  KETCHUM. 

Syl.  1  (V,  16).     Plea  of  nul  tiel  record. 

See  103  Am.  St.  Rep.  312,  note. 

S3'l.  2   (V,  16).     Foreign  judgments  without  service — Credit. 

Approved  in  Cella  Com.  Co.  v.  Bohlinger,  147  Fed.  422,  holding  void 
Arkansas  act  of  1901,  authorizing  personal  judgment  against  foreign 
corporation  on  cause  of  action  in  favor  of  resident  on  service  of  sum- 
mons on  state  auditor;  Murray  v.  Strong,  2  Alaska,  519,  judgment  in 
Yukon  Territory,  Canada,  against  resident  of  Alaska,  on  notice  served 
on  him  in  Alaska,  is  void ;  Cuykendall  v.  Doe,  129  Iowa,  457,  105  N. 
W.  700,  where  judgment  has  been  regularly  confessed  under  warrant 
of  attorney  and  entered  in  court  of  state  of  debtor's  residence  and 
in  accordance  with  its  laws,  judgment  is  enforceable  in  Iowa  though 
judgments  so  confessed  not  permitted  by  Iowa  law;  dissenting  opinion 
in  Haddock  v.  Haddock,  201  U.  S.  626,  50  L.  893,  26  Sup.  Ct.  525, 
majority  holding  mere  domicile  within  state  of  one  spouse  does  not  give 


Zo9  Notes  on  U.  S.  Reports.  11  How.  177-272 

state  court  jurisdiction  to  render  divorce  decree  enforceable  in  other 
states  against  nonappearing  nonresident  defendant  only  constructively 
served. 

11  How.  177-184,  13  L.  653.  HORSTMAN  v.  HENSHAW. 

Syl.  2  (V,  20).     Holder  guarantees  prior  indorsements — Drafts. 

Distinguished  in  La  Fayette  v.  Merchants  Bank,  73  Ark.  567,  108 
Am.  St.  Rep.  71,  84  S.  W.  702,  68  L.  R.  A.  231,  wbere  drawee  of 
forged  draft  paid  it  to  bank,  which  had  discounted  and  indorsed  it, 
fact  that  drawee  did  not  notify  bank  of  forgery  for  six  months  does 
not  preclude  recovery  by  drawee  where  he  had  had  no  suspicion  of 
forgery, 

11  How.  185,  13  L.  657,  BEVIXS  v.  RAMSAY. 

Syl.  1   (V,  21).     Error  not  appeal  lies  at  law. 

Approved  in  Conistock  v.  Eagleton,  196  U.  S.  100,  49  L.  403,  25  Sap. 
Ct.  210,  applying  rule  to  judgment  of  territorial  court  in  action  for 
false  iinprisoninent. 

11  How.  204-208,  13  L.  665.  BROOKS  v.  NORRTS. 

Syl.  1   (V,  23).     Error  not  brought  till  writ  filed. 

Approved  in  Rutan  v.  Johnson,  130  Fed.  110,  64  C.  C.  A.  443,  cir- 
cuit court  of  appeals  cannot  review  judgment  on  writ  of  error  not  is- 
sued until  after  six  months  from  entry  of  judgment. 

Syl.  2    (V,  24).     Limitation  to  writ  of  error  raised  by  motion. 

Approved  in  O'Donnell  v.  State,  126  Wis.  601,  106  N.  W.  19,  there 
is  no  waiver  by  state  of  statute  requiring  error  in  criminal  cases  to  be 
sued  out  in  two  years,  where  attorney  general  before  filing  of  briefs, 
moves  to  dismiss  because  of  lapse  of  time. 

11  How.  248  272,  13  L.  683,  HOTCHKISS  v.  GREENWOOD. 

Syl.  1  (V,  28).     Combination  of  known  parts  not  patentable. 

Approved  in  Cutler  etc.  Co.  v.  Union  Elee.  Mfg.  Co.,  147  Fed.  276, 
holding  void  Baker  patent  No.  368,  807,  for  electric  resistance  coil,  void 
for  lack  of  patentable  novelty;  Sloan  Filter  Co.  v.  Portland  Gold  Min. 
Co.,  139  Fed.  26.  holding  void  Sloan  patent  No.  587,  874,  for  barrel 
filter  for  use  in  filtration  of  precious  metal  solutions;  Thomson-Houston 
El.  Co.  V.  Ohio  Brass  Co.,  129  Fed.  379,  upholding  Van  Depoele  patent 
No.  394,039,  claim  18,  for  turn  buckle. 

Distinguished  in  New  York  Belting  etc.  Co.  v.  Sierer,  149  Fed.  770, 
holding  void  Furness  &  Watts  patent  No.  527,961,  for  tiled  floor  or  wall 
in  view  of  prior  art. 


11  How.  272-329  Notes  on  IT.  S.  Ecports.  260 

11  How.  272-292,  13  L.  693,  EEESIDE  v.  WALKER. 

Syl.  3  (V,  30).  Mandamus  to  compel  ministerial  or  discretionary 
act. 

Approved  in  Wilson  v.  Cox,  73  S.  C.  400,  53  S.  E.  613,  mandamus 
does  not  lie  to  compel  county  dispenser  to  open  and  operate  dispensary, 
where  in  order  to  do  so  court  would  have  to  set  aside  election  deciding 
against  dispensary. 

Syl.  5  (V,  31).     No  setoff  against  government. 

Approved  in  United  States  v.  Gillies,  144  Fed.  992,  following  rule; 
United  States  v.  Warren,  12  Okl.  364,  71  Pac.  690,  when  United  States 
is  plaintiff,  defendant  may  present  setoff,  but  no  judgment  can  be 
rendered  against  United  States  for  balance  due  defendant. 

11  How.  297-329,  13  L.  703,  VAN  RENSSELAER  v.  KEARNEY. 
Syl.  1   (V,  34).     Following  state  statutory  construction. 

Approved  in  Yocum  v.  Parker,  134  Fed.  212,  67  C.  C.  A.  227.  con- 
struing Missouri  statute  and  devise  thereunder  as  vesting  fee  simple 
subject  to  be  devested  on  death  of  devisee  without  living  issue. 

Syl.  3  (V,  34).     Estoppel  of  heirs. by  grantor's  deed. 

Approved  in  Ward  v.  Foley,  141  Fed.  366,  contract  to  sell  grantor's 
interest  in  three  hundred  and  twenty  acres  of  land  at  $14  per  acre  is 
sale  of  interest  in  land  at  rate  of  $14  for  each  acre  in  entire  tract ; 
Cooper  v.  Burns,  133  Fed.  404,  under  Neb.  Comp.  St.  1903,  c.  53,  §  2, 
relating  to  conveyances  as  contracts  of  married  women,  wife  joining 
with  husband  in  mortgage  of  land  in  which  .she  had  life  estate  cannot 
assert  that  after-acquired  title  to  fee  did  not  inure  to  mortgagee; 
Wheeler  v.  Young,  76  Conn.  48,  55  Atl.  672,  title  acquired  by  one  a 
year  after  giving  warranty  deed  without  title  in  fact  or  of  record  does 
not  inure  to  grantee  who  failed  to  examine  record,  as  against  bona  fide 
mortgagor  of  grantor;  Henderson  v.  Beatty,  124  Iowa,  166,  99  N.  W. 
717,  agreement  to  convey  right,  title  and  interest  is  not  agreement  to 
convey  fee  simple,  though  subsequent  clause  provides  for  execution  of 
warranty  deed  on  payment  of  price ;  Johnson  v.  Mutual  Life  Ins.  Co., 
113  Ky.  888,  69  S.  W.  756,  married  woman  is  estopped,  as  against 
bona  fide  jnirchaser,  from  denying  recital  in  deed  of  separate  property 
that  she  had  received  consideration;  Bradley  Estate  Co.  v.  Bradley,  97 
Minn.  166,  106  N.  W.  112,  holding  indenture  under  which  respond- 
ent claimed  was  conveyance  in  praesenti,  estopping  grantor  from 
taking  conveyance  and  asserting  title  against  prior  grantee;  Weeks 
V.  Wilkins,  139  N.  C.  218,  51  S.  E.  910,  bargain  and  sale  deed 
containing  warranty  clause  estops  infant  grantor  from  setting  up  after- 
acquired  title  where  he  failed  to  disaffirm  on  attaining  majority;  Flan- 
ary  v.  Kane,  102  Va.  566,  567,  46  S.  E.  681,  grantor  in  deed  of  bargain 
and  sale  cannot  acquire  existing  encumbrance  and  assert  it  against  hia 
grantee.     Sec   105   Am.   St.   Rep.   862,  note. 


261  Notes  on  U.  S.  Reports.  11  How.  329-461 

(V,  34.)  Miscellaneous.  Cited  in  Pratt  v.  Eatliff,  10  Okl.  174,  61 
Pac.  525.  as  to  what  judgments  are  res  adjudicata. 

11  How.  329-361,  13  L.  717,  WEATIIEPtJIEAD  v.  BASKERVILLE. 
Syl.  5   (V,  39).     Secondary  Evidence — Preliminary  proof. 

Approved  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  301,  in  ac- 
tion by  distiller  to  recover  revenue  taxes  wrongfully  imposed,  evidence 
that  plaintiff's  books  had  been  taken  from  him  and  carried  to  collector's 
office  and  later  to  revenue  agent's  office,  and  last  seen  three  years  after 
end  of  criminal  case  against  plaintiff,  and  search  made  in  agent's  office, 
is  insufficient  to  admit  oral  evidence  of  contents. 

11  How.  362-375,  13  L.  730,  PARKS  v.  ROSS. 
Syl.  2  (V,  40).     "When  verdict  directed. 

Approved  in  Gunn  v.  Union  R.  R.  Co.,  27  R.  I.  327.  62  Atl.  121,  up- 
holding Laws  1896,  c.  251,  §  11,  authorizing  supreme  court  to  direct 
judgment  without  any  further  trial  by  jury. 

Syl.  3  (V,  41).     Liability  of  agent  on  principal's  contract. 

Approved  in  Dunn  v.  Foley,  78  Conn.  673,  63  Atl.  123,  registrar  of 
voters  authorized  by  statute  to  appoint  assistant  for  each  voting  dis- 
trict to  be  paid  out  of  treasury  is  not  personally  liable  for  services  of 
assistant. 

11  How.  437-461,  13  L.  761,  WEBSTER  v.  REID. 

Syl.  2  (V,  45).     Judgment  in  personam  without  notice  is  void. 

Approved  in  Cella  Com.  Co.  v.  Bohlinger,  147  Fed.  422,  holding  Ar- 
kansas act  of  1901,  authorizing  personal  judgment  against  foreign  cor- 
poration on  cause  of  action  in  favor  of  resident  on  service  on  state 
auditor;  Hill  v.  Henry,  66  K  J.  Eq.  156,  57  Atl.  556,  Chancery  Act,  § 
10,  providing  for  publication  against  unascertained  heirs,  devisees,  or 
personal  representatives,  and  decree  against  them  by  class  designation 
only,  does  not  apply  to  suits  to  quiet  title. 

Syl.  3  (V,  47).     Deprivation  of  jury  in  legal  actions. 

Approved  in  Rasmussen  v.  United  States,  197  U.  S.  525,  528,  49  L. 
865,  866,  25  Sup.  Ct.  514,  holding  void  31  Stat.  358,  c.  786,  providing 
that  m  trials  for  misdemeanors  in  Alaska  six  jurors  shall  constitute 
legal  jury;  Carlson  v.  Sullivan,  146  Fed.  480,  party  in  possession  of 
land,  claiming  whole  title,  is  entitled  to  right  to  jury  trial  on  issue  of 
title;  Seliner  v.  McKay,  2  Alaska,  566,  in  action  to  quiet  title  issues 
of  title,  ouster  and  damages  raised  by  pleadings  are  triable  by  jury; 
Uhl  V.  Grissom,  12  Okl.  330,  331,  72  Pac.  375,  commenced  prior  to  1901, 
remanding  cause  to  give  parties  to  action  to  assess  value  of  improve- 
ments made  on  land  by  occupying  claimants  as  provided  by  act  of  1901. 


11  How.  461-G76  Notes  on  U.  S.  Reports.  262 

11  How.  461-4S0,  13  L.  771,  VAN  BUREN  v.  DIGGES. 

Syl.  1   (V,  50).     Setoff  of  damages  against  building  contract. 

Approved  in  Richardson  v.  Lowe,  149  Fed.  632,  though  fraud  inducing 
purchase  of  property  waived  by  laches  as  ground  for  rescission  of  con- 
tract, purchaser  may  plead  resulting  damages  as  failure  of  considera- 
tion in  defense  of  action  on  purchase  money  note;  Williams  v.  Neely, 
134  Fed.  7,  69  L.  R.  A.  232,  67  C.  C.  A.  171,  partial  failure  of  consid- 
eration resulting  from  defect  of  title  is  good  defense  pro  tanto  to 
action  on  purchase  money  note ;  dissenting  opinion  in  Dieckerhoff  v. 
United  States,  136  Fed.  549,  69  C.  C.  A.  255,  majority  holding  where 
importers  failed  to  return,  on  collector's  demand,  merchandise  delivered 
without  examination,  there  can  be  no  recovery  on  bond  given  under 
Rev.  St.,  §  2899,  without  proof  of  actual  damages. 

11  How.  480-492,  13  L.  779,  CONRAD  v.  GRIFFEY. 

Syl.  1  (V,  51).     Corroboration  of  impeached  witness  by  declarations. 

Approved  in  Burks  v.  State,  78  Ark.  274,  93  S.  W.  984,  following 
rule;  Legere  v.  State,  111  Tenn.  375,  77  S.  W.  1061,  where  witness  in 
murder  case  made  prior  statements  contradicting  those  made  on  trial, 
corroborative  statements  made  while  negotiating  for  immunity  are  inad- 
missible. 

11  How.  552-570,  13  L.  809,  UNITED  STATES  v.  HUGHES. 

Syl.  2   (V,  55).     Rights  and  remedies  of  government  as  land  owner. 

Approved  in  Lynch  v.  United  States,  13  Okl.  145,  73  Pac.  1096,  ap- 
plying rule  in  considering  sufficiency  of  petition  by  government  to  can- 
cel jiatent  for  fraud.     See  101  Am.  St.  Rep.  170,  note. 

11  How.  587-609,  13  L.  824,  HOGG  v.  EAIERSON. 

Syl.  4  (V,  58).     Patents — Specification  control  drawings. 

Approved  in  Robins  etc.  Belt  Co.  v.  American  Road  Mach.  Co.,  145 
Fed.  927,  upholding  Robins  patent  No.  571,604,  for  belt  conveyor,  valid 
and  infringed. 

11  How.  663-669,  13  L.  857,  UNITED  STATES  v.  TURNER. 
Syl.  2   (V,  59).     Juflieinl  notice  of  Spanish  titles  and  laws. 
See  113  Am.  St.  Rep.  869,  873,  note. 

11  How.  669  G76,  13  L.  859,  BENNETT  v.  BUTTERWORTH. 

Syl.  2   (V,  60).     Distinction  between  law  and  equity. 

Approved  in  Chapman  v.  Yellow  Poplar  etc.  Co.,  143  Fed.  206,  where 
bill  sought  reconveyance  and  damages  for  breach  of  contract  under  which 
conveyance  made,  court  could  compel  separation  by  filing  of  declaration 
at  law  for  damages;  Davidson  etc.  Imp.  Co.  v.  Parlin  etc.  Co.,  141  Fed. 
40,  simple  contract  creditor  who  has  rot  reduced  his  demand  to  judg- 
ment and  exhausted  remedy  at  law  cannot  have  claim  adjudicated  ia 
federal   equity   court;    Anglo-American   etc.   Co.   v.   Lombard,   132   Fed. 


2G3  Notes  on  U.  S.  Reports.  12  How.  24-87 

731,  68  C.  C.  A.  89,  in  action  at  law  to  enforce  stockholder's  liability, 
defendant  cannot  set  off  indebtedness  of  corporation  to  him. 

Syl.  5  (V,  62).     Revision  in  appellate  court  of  errors  apparent. 

Approved  in  Nichols  v.  Board  of  Cominrs.  Albany  County,  13  Wyo.  8, 
76  Pac.  682,  where  final  judgment  is  not  supported  by  pleadings  or 
findings,  it  may  be'  vacated  on  error  on  record  proper  without  bill  of 
exceptions,  though  no  exception  taken  to  proceedings  below. 


XII  HOWARD. 


12  How.  24-39,  13  L.  877,  THREDGILL  v.  PINTARD. 

Syl.  3  (V,  6G).     Purchase  money  lien  on  sale  by  pre-emptioner. 

Approved  in  Petroski  v.  Minzgohr,  144  Mich.  358,  108  N.  W.  78, 
defendant  entering  complainant's  land  and  cutting  timber  thereon 
under  bill  of  sale  of  all  timber  defendant  might  remove  prior  to  cer- 
tain date,  knowing  comjdainant  relied  on  tax  title,  could  not  acquire 
original  title  and  hold  adversely  to  complainant;  Nicliolson  v.  Cong- 
don,  95  Minn.  194,  103  N.  W.  1036,  where  application  to  locate  land 
under  Chippewa  treaty  of  1855  is  accepted  and  approved  by  land 
department,  equitable  title  vests  in  applicant  though  price  not  then 
paid. 

12    How.    51-59,    13    L.    889,    FARMERS'    BANK    OF    VIRGINIA    v. 
GROVES. 

Syl.  1  (V,  68).     Rescission  of  contest — Statu  quo. 

Approved  in  Buskirk  Bros.  v.  Peck,  57  W.  Va.  372,  50  S.  E.  437, 
applying  rule  in  construing  forfeiture  clause  in  contract  of  sale  of 
timber  on  tract  to  be  cut  and  removed  within  specified  time. 

Syl.  2   (V,   68).     Accord  and  satisfaction  as  defense  to  judgment. 
See  100  Am.  St.  Rep.  419,  note. 

12  How.  79-87,  13  L.  901,  HARRIS  v.  RUNNELS. 

Syl.  1  (V,  70).     Contracts  in  contravention  of  statute. 

Approved  in  Iowa  etc.  Mining  Co.  v.  United  States  etc.  Co.,  146 
Fed.  439,  where  foreign  corporation  was  acting  as  corporation  in 
Iowa  at  time  it  made  contract  sued  on,  it  is  no  defense  to  action 
thereon  that  it  had  not  complied  with  Code  Iowa,  §  1637,  relating 
to  filing  of  articles  of  incorporation  by  foreign  corporations;  State 
v.  American  Book  Co.,  69  Kan.  10,  76  Pac.  414,  1  L.  R.  A.  (N.  S.) 
1041,  contracts  made  with  foreign  corporation  before  it  has  obtained 
permission  to  do  business  in  state  are  not  subject  to  cancellation  for 
Buch  reason. 


12  How.  88-159  Notes  on  U.  S.  Reports.  2G4 

Syl.  2  (V,  72).     Contract  contravening  statute  imposing  penalty. 

Approved  in  Montgomery  v.  Wliitbeck,  12  N.  D.  393,  9G  N.  W. 
329,  where  all  policy-liolders  in  mutual  insurance  company  are  on 
same  footing,  no  estoppel  will  be  indulged  against  any  member  as- 
serting ultra  vires  nature  of  business  done;  Poling  v.  Board  of 
Education,  56  W.  Va.  256,  49  S.  E.  150,  contract  in  violation  of  stat- 
ute against  corruption  in  office  is  void  and  unenforceable. 

12  How.  88-97,  13  L.  905,  UNITED  STATES  v.  BROMLEY. 

Syl.  2   (V,  74).     Revenue  laws  within  appeals  act. 

Approved  in  Bryant  Bros.  Co.  v.  Robinson,  149  Fed.  325,  on  re- 
moval of  equity  suit  to  federal  court  it  must  conform  to  practice  in 
force  in  such  court. 

12  How.  139-159,  13  L.  927,  RUSSELL  v.  SOUTHARD. 

Syl.  1  (V,  77).     Equity  practice  not  variable  by  states. 

Approved  in  James  v.  Gray,  131  Fed.  408,  65  C.  C.  A.  385,  loan 
made  by  wife  to  husband  from  separate  estate  is  provable  as  debt 
against  his  estate  in  bankruptcy,  without  regard  to  its  enforce- 
ability under  state  laws. 

Syl.  2   (V,  77).     Parol  to  show  absolute  deed  mortgage. 

Approved  in  Weiseham  v.  Hocker,  7  Okl.  254,  54  Pac.  465,  and 
Welborn  v.  Dixon,  70  S.  C.  115,  49  S.  E.  234,  both  following  rule. 

Syl.  3  (V,  78).  Inadequacy  of  consideration  as  evidence  of  mort- 
gage. 

Approved  in  Collins  v.  Denny  Clay  Co.,  41  Wash.  143,  82  Pac.  1014, 
where  decedent,  being  insolvent  and  indebted  in  large  sum,  of  which 
he  owed  defendant  less  than  $8,000,  surrendered  $27,000  worth  of 
stock  in  satisfaction  of  $3,500  of  his  debt  to  them,  reserving  but 
four  months  to  pay  debt  and  reclaim  stock,  transaction  was  mort- 
gage and  right  of  redemption  not  lost;  Hursey  v.  Hursey,  56  W.  Va. 
157,  49  S.  E.  370,  where  at  time  of  execution  of  deed  grantee  paid 
debt  for  grantor  and  parties  intended  that  sum  so  paid  should  be 
debt  due  from  grantor  to  grantee  and  secured  by  deed,  payment  will 
be  so  treated. 

Syl.  5   (V,  79).     Release  to  mortgagee  in  possession. 

Approved  in  Carveth  v.  Winegar,  133  Mich.  38,  94  N.  W.  383, 
declaring  warranty  deed  accompanied  by  contract  to  return  to  vendor 
half  of  ijroceeds  of  sale  to  be  mortgage;  Liskey  v.  Snyder,  56  W. 
Va.  623,  49  S.  E.  520,  setting  aside  release  of  equity  of  redemption; 
dissenting  opinion  in  Stuart  v.  Hauser,  9  Idaho,  78,  72  Pac.  727, 
majority  holding  in  equity  suit  by  grantor  to  have  deed  absolute 
declared  mortgage  findings  of  trial  court  in  form  of  deed  not  dis- 
turbed where  evidence  conflicts. 


265  Notes  on  U.  S.  Keports.  12  How.  256-327 

12  How.  256-272,  13  L.  978,  DUNDAS  v.  HITCHCOCK. 

Syl.     2     (V,     87).     Substantial     compliance     with     acknowledgment 

statute. 

See  108  Am.  St.  Rep.  570,  note. 

12  How.  272-284,  13  L.  985,  CLARK  v.  BARNWELL. 

Syl.  2  (V,  89).     Bill  of  lading — Exception — Dangers  of  sea. 

Approved  in  The  Fohnina,  143  Fed.  639,  under  bill  of  lading  ex- 
empting vessel  from  liability  for  damage  from  sweating  or  sea  water, 
ship  not  liable  wliere  she  was  seaworthy  and  cargo  properly  stowed, 
and  shown  that  there  was  no  negligence  during  voyage  accountable 
for  entry  of  sea  water. 

Syl.  5  (V,  90).     Loss  where  damage  by  excepted  peril. 

Approved  in  Carr  v.  Texas  etc.  Ry.  Co.,  194  U.  S.  432,  48  L.  1057, 
24  Sup.  Ct.  GG3,  burden  of  showing  fire  caused  loss  of  shipment  of 
cotton  was  due  to  negligence  of  carrier  is  on  shipper  where  bill  of 
lading  contains  provision  exempting  carrier  from  liability  for  dam- 
ages caused  by  fire;  The  La  Kroma,  138  Fed.  938,  ship  is  relieved 
from  liability  for  shortage  in  weight  of  shipment  of  bales  of  fibre 
under  bill  of  lading  reciting  "not  responsible  for  weight  nor  qual- 
ity, nor  loose  bales,"  where  it  shows  all  bales  shipped  were  de- 
livered; Lazanes  v.  Barber,  136  Fed.  536,  69  C.  C.  A.  310,  upholding 
sufficiency  of  evidence  to  show  that  goat  skins  injured  by  brine 
leaking  from  citron  barrels  stowed  near  skins;  Nashville  etc.  Ry. 
Co.  V.  Stone,  112  Tenn.  371,  79  S.  W.  1036,  applying  rule  to  shipment 
of  hogs. 

Syl.  6   (V,  92).     Bill  of  lading — Burden  to  prove  condition. 
See  105  Am.  St.  Rep.  353,  note. 

12  How.  293-299,  13  L.  993,  ACHISON  v.  HUDDLESOX. 

Syl.  1   (V,  94).     Compact  between  Maryland  and  United  States. 

Cited  in  Wheeling  etc.  R.  R.  Co.  v.  Town  of  Triadelphia,  58  W.  Va. 
492,  52  S.  E.  501,  arguendo. 

12  How.  299-327,  13  L.  996,  COOLEY  v.  BOARD  OF  WARDENS  OF 
THE  PORT  OF  PHILADELPHIA. 

Syl.  3  (V,  95).     Contemporaneous  construction  of  constitution. 

Approved  in  State  v.  Northern  Pac.  Ry.  Co.,  95  Minn.  47,  103  N. 
W.  732,  foreign  railway  doing  business  here  and  paying  taxes  under 
gross  earnings  law,  upon  which  no  demand  made  for  listing  of  credits, 
is  not  prevented  by  failure  to  list  credits  from  deducting  debts  from 
credits;  Ex  parte  Anderson,  45  Tex.  Cr.  399,  81  S.  W.  987,  city  court 
has  no  jurisdiction  to  try  accused  for  alleged  violation  of  state  penal 
statute. 


12  How.  347-465  Notes  on  U.  S.  Eeports.  266 

Syl.  6    (V,  96).     Commerce — State  pilot  laws. 

Approved  in  Olsen  v.  Smith,  195  U.  S.  341,  49  L.  229,  25  Sup.  Ct. 
52,  upholding  Texas  pilotage  laws;  Allen  v.  Reed,  10  Okl.  124,  60 
Pac.  788,  holding  void  Stat.,  c.  23,  relating  to  changing  of  county 
seats  void  as  conflicting  with  act  of  Congress  of  1893,  relating  to 
oixMiing  of  Cherokee  Outlet. 

12  How.  347-360,  13  L.  1017,  EICH  v.  LAMBERT. 

Syl.  1   (V,  104).     Appeal — Amount  in  dispute — Separate  libels. 

Approved  in  The  Joseph  B.  Thomas,  148  Fed.  767,  where  number 
of  libelants  join  in  suit  in  admiralty  for  wages,  their  claims  cannot 
be  added  together  to  give  appellate  jurisdiction;  Feely  v.  Bryan, 
55  W.  Va.  591,  47  S.  E.  310,  where  several  creditors  with  separate 
demands  attack  mortgage  as  preference  and  decree  adjudges  prop- 
erty to  be  for  benefit  of  creditors  and  orders  particular  sums  to  sev- 
eral creditors,  such  sums  cannot  be  added  so  as  to  give  appellate 
jurisdiction. 

12  How.  361-367,  13  L.  1023,  UNITED  STATES  v.  REID. 

Sj^l.   1   (V,  106).     State  practice  does  not  govern  federal  crimes. 

Approved  in  Wiemer  v.  Louisville  Water  Co.,  130  Fed.  255,  deci- 
sion of  highest  state  court  denying  mandamus  to  compel  certain  ac- 
tion by  water  company  is  not  binding  on  federal  court  in  equity 
suit,  where  under  state  statutes  court  must  necessarily  have  held  that 
mandamus  did  not  lie  against  defendant;  Trafton  v.  United  States, 
147  Fed.  514,  arguendo. 

Syl.  3  (V,  107).  Admissibility  of  evidence  governed  by  state 
law. 

Approved  in  Virginia  v.  Felts,  133  Fed.  93,  competency  of  witness 
is  governed  by  state  law  on  trial  of  defendant  in  criminal  case  who 
has  removed  case  into  federal  court. 

12  How.  443-465,  13  L.  1058,  THE  PROPELLER  GENESEE  CHIEF 
V.  FITZHUGH. 

Syl.  2    (V,  114).     Limits  of  admiralty  jurisdiction. 

Approved  in  Arnold  v,  Eastin,  116  Ky.  699,  76  S.  W.  856,  where 
home  port  of  vessel  was  in  Indiana,  recording  of  mortgage  thereon 
in  Kentucky  is  not  constructive  notice  to  creditors. 

Distinguished  in  Cleveland  etc.  Ry.  Co.  v.  Druien,  118  Ky.  247.  80 
S.  W.  780,  where  carrier  contracted  in  Illinois  to  carry  freight  into 
Kentucky,  and  that  it  should  not  be  liable  for  loss  by  fire,  such 
limitation  being  valid  in  Illinois  but  void  here,  and  cargo  burned  in 
Illinois,  limitation  of  liability  in  contract  was  good  defense  in  suit 
in  Kentucky, 


267  Notes  on  U.  S.  Eexmrts.  12  How.  4GG-0y8 

Syl.  9  (V,  121).     Cpllisicn— Necessity  for  lookout. 

Apiiroved  iu  Klutt  v.  Philadelphia  etc.  Ry.  Co.,  142  Feci.  396, 
holding  tug  liable  for  running  down  decedent  who  was  in  rowboat 
in*  river,  where  tug  had  no  lookout;  Brigliam  v.  Luckenback,  140  Fed. 
32.5,  holding  tug  liable  for  collision  with  sailing  vessel  where  tug 
had  no  proper  lookout,  though  tug's  wheel  .-jammed;  The  Tarpon,  1.32 
Fed.  27S,  applying  rule  where  steamer  collided  with  drifting  scow; 
The  Dauntless,  129  Fed.  722,  64  C.  C.  A.  243,  holding  steamer  in 
fault  for  collision  in  river  with  two  launches  made  fast  together  in 
which  launches  sunk. 

JSyl.  11    (V,   123).     Collision — Duty  of  steamer  passing  ship. 

Approved  in  The  Dauntless,  129  Fed.  723,  64  C.  C.  A.  243,  holding 
steamer  in  fault  for  collision  in  river  wit-h  two  launches  made  fast 
together  in  whicli  launches  sunk. 

12  How.  4G6-472,  13  L.  1068,  FEETZ  v.  VA'hh. 

Syl.  3  (V,  125).     Admirajty— Who  must  be  libelant. 

Approved  in  The  Trader,  129  Fed.  472,  mere  volunteer  to  whom 
claims  for  damages  by  collision  have  been  assigned  solely  for  pur- 
pose  of  suit   cannot   prosecute  such   claims   in   admiralty. 

12  How.  472-598,  13  L.  1071,  GAIXES  v.  EELF. 

iSyl.  2   (V,  12G).     Confession  of  bigamy  to  show  marriage  void. 

Approved  in  Bowman  v.  Little,  101  Md.  293,  61  Atl.  227,  evidence 
that  plaintiff  auil  deceased  lived  together  at  house  of  plaintiff's 
mother  during  day,  and  at  hotel  at  night,  for  less  than  week,  and 
that  mother  visited  them  at  house  of  ill-fame,  where  they  were  liv- 
ing together,  is  inadmissible  to  impugn  validity  of  subsequent  mar- 
riage between  parties. 


XIII  HOWARD. 


13  How.  40-52,  14  L.  42,  UNITED  STATES  v.  FEEREIRA. 

Syl.  1  (V,  133).     Award  by  claims  commissioner — Judicial  powers. 

Approved  in  American  etc.  Min.  Co.  v.  Brennan,  20  Colo.  App.  447, 
79  Pac.  752,  Mills'  Ann.  St.,  §  3637,  authorizing  land  commissioners 
to  cancel  lease  obtained  by  fraud,  is  not  void  as  conferring  judicial 
power. 

13  How.  54-56,  14  L.  48,  BARROW  v.  HILL. 

(V,  136.)  Miscellaneous.  Cited  in  Barber  Asphalt  etc.  Co.  v.  Mor- 
ris, 132  Fed.  956,  67  L.  R.  A.  761,  66  C.  Q.  A.  55,  upholding  grant 
of  mandamus  by  circuit  court  of  appeals  commanding  circuit  judge 
to  vacate  order  staying  proceedings  in  suit  therein  or  claim  against 
city  pending  appeals  in  state  court. 

13   How.   57-70,  14  L.  49,  BRADFORD   v.   UNION  BANK  OF  TEN- 
NESSEE. 

Syl.  3  (V,  137).  Reformation  of  title  bond  to  conform  to  inten- 
tion. 

Approved  in  Marshall  v.  Homier,  13  Okl.  275,  74  Pac.  371,  action 
lies  by  grantor  to  reform  deed  where  by  agreement  growing  crops 
were  to  be  reserved  and  such  resevation  is  omitted  by  mutual  mis- 
take. 

13  How.  71-92,  14  L.  55,  RICHMOND  ETC.  R.  R.  CO.  v.  LOUISIANA 
R.  R.  CO.  . 

Syl.  3  (V,  140).     Public  grants  construed  in  public's  favor. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  35,  50 
L.  359,  26  Sup.  Ct.  224,  establishment  of  municipal  authority  under 
subsequent  legislative  authority  does  not  impair  prior  exclusive  fran- 
chise granted  to  water  company;  Wheelwright  v.  Commonwealth,  103 
Va.  517,  49  S.  E.  649,  reciting  history  of  litigation. 

13  How.  101-115,  14  L.  68,  WILLIAMSON  v.  BARRETT. 

Syl.  2  (V,  145).     Negligence  not  excused  by  other's  negligence. 

Approved  in  Metropolitan  etc.  Ry.  Co.  v.  Arnold,  67  Kan.  264,  72 
Pac.  858,  applying  rule  where,  though  decedent  was  negligent  in  go- 
ing on  tracks,  yet  motorman  could  have  avoided  accident  by  exejcise 
of  proper  care. 

[268] 


269  Notes  on  U.  S.  Reports.  13  How.  115-173 

Syl.  3  (V,  145).     Collision — Value  of  charter  as  damages. 

Approved  in  The  Loch  Trool,  150  Fed.  430,  denying  demurrage  where 
owners  had  two  other  seaworthy  vessels  laid  up  and  repairs  on  in- 
jured ship  not  commenced  until  seven  months  after  accident;  The 
North  Star,  140  Fed.  264,  allowing  demurrage  as  damages  for  col- 
lision; The  Cumberland,  135  Fed.  236,  where,  at  instance  of  claim- 
ant, cost  of  repairing  vessel  injured  in  collision  is  adopted  as  meas- 
ure of  damages  to  libelant,  claimant  may  recover  demurrage  for  loss 
of  use  to  time  of  sale  where  she  was  sold  before  repairs  could  have 
been  completed. 

13  How.  115-150,  14  L.  75,  MITCHELL  v.  HAEifONY. 

Syl.  1  (V,  147).     Federal  court  follows  state  practice. 

Approved  in  Pittsburgh  Ey.  Co.  v.  Bloomer,  146  Fed.  721,  uphold- 
ing instruction  in  action  against  street  railway  for  injury  to  passen- 
ger, by  being  thrown  by  sudden  starting  of  car. 

Syl.  6   (V,  150).     Superior's  order  no   defense  to   officer's  trespass. 

Approved  in  Saxlehner  v.  Eisner,  140  Fed.  941,  holding  executive 
officers  of  corporation  jointly  liable  with  it  for  infringement  of  trade- 
mark; O'Reilly  De  Camara  v.  Brooke,  135  Fed.  387,  holding  military 
governor  of  Cuba  personally  liable  for  deprivation  of  franchise  to 
conduct  slaughter-house  in  Havana,  granted  under  Spanish  law, 
See  108  Am.  St.  Eep.  727,  note. 

Distinguished  in  Glucose  etc.  Co.  v.  St.  Louis  etc.  Co.,  135  Fed. 
541,  president  of  solvent  corporation  cannot  be  joined  with  corpora- 
tion as  defendant  in  bill  for  injunction  and  accounting  for  infringe- 
ment of  patent  by  corporation. 

Syl.  7   (V,  151).     Jurisdiction  over  trespass  in  foreign   country. 

Approved  in  dissenting  opinion  in  Slater  v.  Mexican  Xational 
R.  R.  Co.,  194  U.  S.  134,  48  L.  906,  24  Sup.  Ct.  581,  majority  deny- 
ing federal  court's  jurisdiction  over  action  founded  on  liability  for 
death  by  wrongful  act  created  by  Mexican  laws. 

13  How.  150-173,  14  L.  91,  BLTKIXGHAM  v.  MoLEAN. 

Syl.  1  (V,  152).  General  appearance  waives  service  of  citation  on 
appeal. 

Approved  in  dissenting  opinion  in  Fisher  v.  Crowley,  57  "W.  Ya. 
329,  50  S.  E.  428,  majority  holding  material  defect  in  summons  in 
court  of  record  with  respect  to  time  or  place  of  return  is  not  waived 
by  pleading  to  merits  after  overruling  motion  to  quash,  to  which 
exception  taken. 

Syl.  5  (V,  153).     Insolvency  defined. 

Approved  in  Eegina  Music  Box  Co.  v.  Otto,  65  N.  J.  Eq.  5S7,  56 
Atl.  717,  where  corporation  borrows  money  on  mortgages  and  knows 
that  if  it  fails  to  secure  loan  it  may  suspend  business,  it  does  not 
contemplate  insolvency  within  meaning  of  P.  L.  1896,  p.  298,  §  64. 


13  How.   183-273  Notes  on  U.  S.  Eeports.  270 

13   How.    183-190,   14   L.    105,   COFFEE   v.   PLANTER'S   BANK    OF 
TENNESSEE. 

Syl.  1  (V,  157).     Federal  suit  by  assignee  of  note. 

Approved  in  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  122,  66  C. 
C.  A.  179,  federal  court  has  no  jurisdiction  over  suit  by  assignee  of 
oral  contract  to  recover  money  due  thereon  unless  record  shows  as- 
signor could  have  sued  therein. 

13  How.  190198,  14  L.  108,  WEEMS  v.  GEORGE. 

Syl.  4  (V,  158).     Erroneous  rulings  on  evidence — Trial  to  court. 

Approved  in  Streeter  v.  Sanitary  List,  of  Chicago,  133  Fed.  131, 
66  C.  C.  A.  190,  refusing  to  reverse  for  improper  admission  of  evi- 
dence where  ease  tried  to  the  court. 

13  How.  198-212,  14  L.  Ill,  LORD  v.  GODDARD. 

Syl.   1   (V,   158).     Deceit — Fraudulent   intent   necessary. 

Approved  in  Pittsburgh  Life  etc.  Co.  v.  Northern  etc.  Ins.  Co., 
148  Fed.  675,  affirming  140  Fed.  892,  holding  fact  that  written 
statement  of  officers  of  insurance  company  in  negotiating  sale  of 
business  were  incorrect  as  to  premiums  collected  and  sums  due  from 
agents,  does  not  support  action  for  deceit,  where  statements  prepared 
by  employees  for  company's  own  use;  Kimber  v.  Young,  137  Fed. 
748,  70  C.  C.  A.  178,  applying  rule  in  action  for  deceit  in  sale  of 
corporate  bonds  where  defendant  stated  he  knew  bonds  were  good 
and  would  be  paid  at  maturity;  Spead  v.  Tomlinson,  73  N.  H.  61, 
59  Atl.  380,  holding  patient  submitting  to  treatment  by  Christian 
Science  healer  cannot  recover  for  deceit  based  on  statements  that 
he  could  cure  her. 

13  How.  250-261,  14  L.  133,  GLENN  v.  UNITED  STATES. 
Syl.  1  (V,  163).     Private  survey  not  evidence. 

Approved  in  United  States  v.  Montana  Lumber  etc.  Co.,  196  IT.  S. 
578,  49  L.  605,  25  Sup.  Ct.  .''67,  private  survey  is  inadmissible  to 
show  that  land  from  which  timber  cut  will  be,  when  surveyed,  with- 
in railroad  grant. 

13  IIow.  268-273,  14  L.  140,  NEVES  v.  SCOTT. 

Syl.  1   (V,  165).     Federal  equity  independent  of  state  law. 

Approved  in  James  v.  Gray,  131  Fed.  408,  413,  65  C.  C.  A.  385, 
loan  made  by  wife  to  husband  from  separate  estate  is  provable 
against  his  bankrupt  estate,  irrespective  of  its  enforceability  under 
state  law. 


271  Notes  on  U.  S.  Eeports.  13  How.  274-341 

13  How.  274-283,  14  L.  143,  DE  FOREST  v.  LAWEEXCE. 

Syl.  1  (V,  166).     Tariff — Effect  of  commercial  designation. 

Approved  in  Brennan  -v.  United  States,  13G  Fed.  746,  747,  69  C. 
C.  A.  395,  limes  in  brine  are  not  dutiable  as  "limes"  under  tariff 
act  of  1897,  but  as  "fruits  in  brine." 

13   How.    307-344,    14   L.    157,   PHILADELPHIA    ETC.    Pt.   E.    Co.   v. 
HOWARD. 

Syl.  3    (V,  169).     Consolidation  of  corporations — Estoppel. 

Approved  in  Wisconsin  Lumber  Co.  v.  Greene  etc.  Tel.  Co.,  127 
Iowa,  355,  109  Am.  St.  Rep.  387,  101  N.  W.  744,  69  L.  E.  A.  968, 
corporation  which  in  return  for  stock  subscriptions  agreed  to  give 
stockholders  certain  privileges  is  estopped  to  deny  its  oflicers  au- 
thority to  make  contracts. 

Syl.  5  (V,  170).     Deposition  of  witness  at  former  trial. 

Approved  in  Toledo  Traction  Co.  v.  Cameron,  137  Fed.  60,  69  C. 
C.  A.  28,  admitting  testimony  of  witness  given  on  former  trial  where 
witness  is  without  district  and  more  than  one  hundred  miles  from 
place  of  trial. 

Syl.  9  (V,  170).  Estoppel  to  deny  covenant  maintained  in  prior 
suit. 

Approved  in  Long  v.  Lockman,  135  Fed.  199,  where  decedent  had 
filed  sworn  plea  to  jurisdiction  to  involuntary  bankruptcy  proceed- 
ings in  Arkansas,  alleging  residence  in  Colorado,  and  proceedings 
dismissed,  bankrupt's  administrators  are  estopped  in  bankruptcy 
proceedings  commenced  in  Colorado  from  denying  his  Colorado  resi- 
dence; Morrison  v.  Atkinson,  16  Okl.  575,  85  Pac.  473,  where  party 
on  appeal  to  district  court  asked  dismissal  because  of  failure  of  op- 
ponent to  comply  with  rule  as  to  deposit  for  costs,  he  cannot,  on 
appeal  from  district  court,  claim  invalidity  of  rule;  dissenting  opin- 
ion in  Jones  v.  Stoddart,  8  Idaho,  227,  67  Pac.  655,  majority  hold- 
ing it  is  not  error  to  refuse  evidence  of  assignment  of  mortgage  se- 
curing note,  where  answer  denies  title  to  owner. 

Syl.  18  (V,  174).     Damages  for  breach  of  contract — Profits. 

Approved  in  Hadley  Dean  Plate  Glass  Co.  v.  Highland  Glass  Co., 
143  Fed.  244,  applying  rule  in  action  for  breach  of  contract  for 
manufacture  and  delivery  of  glass;  In  re  Saxton  Furnace  Co.,  142 
Fed.  296,  where  bankrupt  repudiated  contract  for  purchase  of  ma- 
chinery, seller  could  prove  claim  against  bankrupt  estate  for  profit 
on  sale;  Choctaw  etc.  E.  E.  Co.  v.  Jacobs,  15  Okl.  500,  82  Pac.  504, 
denying  right  to  commissions  lost  by  reason  of  unreasonable  delay 
in  shipment  of  goods  where  carrier's  agent  had'  no  means  of  know- 
ing consequences;  Tootle  v.  Kent,  12  Okl.  692,  73  Pac.  315,  apply- 
ing rule  where  merchant's  store  closed  by  virtue  of  wrongful  and 
fraudulent  chattel  mortgage;  Chisholm  etc.  Mfg.  Co.  v.  U.  S.  Canopy 


13  How.  345-429  Notes  on  U.  S.  Keports.  272 

Co.,  11  Tenn.  211,  77  S.  W.  1064,  applying  rule  where  patent  brackets 
contracted  to  be  manufactured  were  improperly  made  and  were  use- 
less. 

13  How.  345-3G2,  14  L.  173,  VERY  v.  LEVY. 

Syl.  3  (V,  178).     Accord  and  satisfaction — Eeceipt  of  goods. 

Approved  in  San  Juan  v.  St.  John's  Gas  Co.,  195  IT.  S.  521,  49 
h.  305,  25  Sup.  Ct.  108,  accord  and  satisfaction  results  from  re- 
ceipt under  protest,  in  discharge  of  particular  payment,  of  different 
money  medium  from  that  which  was  required  by  contract. 

Syl.  5  (V,  178).     Fraud  must  be  alleged. 

Approved  in  Cella  v.  Brown,  144  Fed.  754,  mere  allegation  that  plan 
of  reorganization  between  street  railways  was  fraudulently  designed, 
without  charging  companies  participated  therein,  is  insufficient. 

13  How.  363-373,  14  L.  181,  DAY  v.  WOODWOETH. 

Syl.  3   (V,  179).     Exemplary  damages,  when  allowed. 

Approved  in  Otto  Kuehne  Pres.  Co.  v.  Allen,  148  Fed.  669,  exemplary 
damages  for  death  by  wrongful  act  are  allowable  to  heirs  under 
Rev.  St.  Mo.  1899,  §  2866,  only  where  deceased  could  have  recovered 
them  had  he  lived;  "Western  Union  Tel.  Co.  v.  Cashman,  132  Fed. 
806,  65  C.  C.  A.  607,  denying  punitive  damages  in  action  against 
telegraph  company  for  transmission  and  delivery  of  libelous  mes- 
sage; Murray  v.  Pannaci,  130  Fed.  531,  65  C.  C.  A.  153,  denying  right 
to  exemplary  damages  for  removing  sand  from  beach  in  front  of 
and  upon  plaintiff's  lot;  Louisville  etc.  R.  R.  Co.  v.  Satterwhite,  112 
Tenn.  211,  79  S.  W.  112,  in  action  for  negligent  death,  instruction 
that  if  negligence  was  given  jury  should  make  proper  additions  by 
way  of  punitive  damages,  is  erroneous.  See  101  Am.  St.  Rep.  736, 
note. 

Syl.  4  (V,  182).     Counsel  fees  as  damages. 

Approved  in  Lindeberg  v.  Howard,  146  Fed.  470,  in  action  on  in- 
junction bond,  attorney's  fees  expended  in  obtaining  dissolution  of 
injunction  not  proper  element  of  damage;  Hanna  v.  Sweeney,  78 
Conn.  493,  62  Atl.  785,  in  action  for  assault  it  is  error  to  instruct 
that  jury  may  assess  punitive  damages  in  favor  of  plaintiff  accord- 
ing to  their  discretion;  Frantz  v.  Saylor,  12  Okl.  43,  09  Pac.  796, 
in  action  on  injunction  bond  expense  of  removing  improvements, 
harvesting  crops,  and  injury  to  pasture  are  not  elements  of  dam- 
age. 

13  Hov.-.  381-429,  14  L.  189,  HOWARD  v.  INGERSOLL. 

(V,  184.)  Miscellaneous.  Cited  in  Dodge  Co.  v.  Saunders  Co.,  70 
Neb.  447,  97  N.  W.  619,  construing  Comp.  St.  1901,  e.  78,  §  87,  relat- 
ing to  streams  which  divide  counties. 


273  •  Notes  on  U.  S.  Beports.  13  How.  429-458 

Syl.  4  (V,  185).     Navigable  stream  as  boundary. 

Approved  in  Peoria  v.  Central  Nat.  Bank,  224  111.  54,  79  N.  E. 
298,  water's  edge,  and  not  surveyed  meander  line,  is  shore  line  from 
which  lines  should  be  drawn  to  show  water  on  accretion  rights  of 
adjacent  riparian  owners. 

Syl.  8   (V,  18G).     Eiparian  owners'  right  to  use  of  stream. 

Approved  in  Meng  v.  Coffee,  67  Neb.  503,  108  Am.  St.  Eep.  700, 
93  N.  W.  714,  riparian,  owner  cannot,  for  irrigation  purposes,  con- 
sume whole  of  water  of  stream  to  detriment  of  other  owners. 

Syl.  9   (V,  186).     Banks  and  bed  of  river  defined. 
Cited  in  Harrison  v.  Fite,  148  Fed.  783,  arguendo. 

13  How.  429-441,  14  L.  210,  NORRIS  v.  CROCKER. 
Syl.  2  (V,  187).  Statutes — Repeals  by  implication. 
Approved  in  Sena  v.  United  States,  147  Fed.  488,  repeal  of  New 
Mexico  statute  relating  to  appeals,  without  saving  clause,  before  hear- 
ing of  pending  appeal,  did  not  deprive  supreme  court  of  jurisdiction; 
Atwood  V.  Buckingham,  78  Conn.  425,  428,  62  Atl.  617,  618,  uphold- 
ing Act  1905,  fixing  penalty  at  $1,  in  all  pending  suits  under  prior 
statute,  for  penalty  for  administrator's  failure  to  file  inventory; 
Pensacola  etc.  R.  R.  Co.  v.  State,  45  Fla.  89,  110  Am.  St.  Rep.  69, 
33  So.  986,  where  pending  appeal  from  judgment  rendered  under 
statute  prescribing  penalty  for  charging  of  excessive  rates  by  car- 
rier, statute  was  repealed,  judgment  cannot  be  enforced;  State  v. 
Lee,  28  Nev.  390,  82  Pac.  230,  Comp.  Laws,  §  1542,  regulating  prac- 
tice of  medicine  and  authorizing  issuance  of  temporary  licenses,  was 
wholly  repealed  by  Stat.  1905,  p.  87,  c.  63;  Bray  v.  Williams,  137  N. 
C.  391,  49  S.  E.  888,  where  defendant  liable  to  penalty  under  statute 
for  failure  to  record  marriage  license,  subsequent  statute  releasing 
him  from  liability  is  valid. 

Syl.  3  (V,  189).  Repeals — Vested  rights  in  unenforced  penalty. 
Approved  in  Atwood  v.  Buckingham,  78  Conn.  427,  62  Atl.  618, 
act  of  1905,  fixing  penalty  in  pending  suits  for  penalty  for  ad- 
ministrator's failure  to  file  inventory  as  provided  by  prior  act,  is 
valid  though  retroactive;  United  States  v.  Sena,  12  N.  M.  414,  78 
Pac.  62,  repeal  of  Laws  1901,  p.  190,  c.  99,  deprived  supreme  court 
of  jurisdiction  over  criminal  appeals  not  taken  during  term  at  which 
judgment  rendered, 

13  How.  447-458,  14  L.  217,  McAFEE  v.  CROFFOED. 
Syl.  5   (V,  192).     Elements  of  damages  for  trespass. 
Approved  in  Enlow  v.   Hawkins,  71   Kan.  636,  81  Pac.   190,  where 
shocked    corn    is    purchased    to    feed    cattle    and    it    is    destroyed    by 
vendor    at    time    when    such    food    cannot    be    obtained    in    vicinity, 
wrongdoer    is    liable    for    loss    in    weight    sustained    by    cattle    through 

18 


13  How.  458-498  Notes  on  U.  S.  Eeports.  "  274 

change  of  food;  dissenting  opinion  in  Lesch  v.  Great  Northern  Ey. 
Co.,  97  Minn.  508,  106  N.  W.  957,  majority  upholding  damages  for 
fright   caused   by   wrongful    acts   of    defendant's    employees. 

13  How.  458-468,  14  L.  223,  HILL  v.  TUCKER. 

Syl.  2   (V,  194).     Judgment  against   executor  bars  coexecutor. 

Approved  in  Coram  v.  IngersoU,  148  Fed.  174,  judgment  against 
ancillary  administrator  on  chose  of  action  bars  suit  by  ancillary 
administrator  in  another  st^te  on  same  cause  of  action. 

13  How.  469-472,  14  L.  227,  GOODALL  v.  TUCKER. 

Syl,    1    (V,    195).     Judgment    against    executor    bars    coexecutor. 

Approved  in  Coram  v.  IngersoU,  148  Fed.  174,  judgment  against 
ancillary  administrator  on  chose  in  action  bars  suit  by  ancillary  ad- 
ministrator  in   another   state   on   same    cause   of   action. 

13  How.  472-478,  14  L.  228,  PILLOW  v.  ROBERTS. 

Syl.   3    (V,   195).     Statutes — Tax   deeds   presumptive    of  legal   sale. 

Approved  in  Low  Foon  Yin  v.  United  States  etc.  Commr.,  115 
Fed.  796,  upholding  Chinese  Exclusion  Act  authorizing  government 
to  secure  Chinese  as  witness  against  himself  in  proceedings  for  de- 
portation for  not  having  certificate;  O'Keefe  v.  Dillenbeck,  15  Okl. 
445,  83  Pac.  542,  upholding  title  held  under  tax  deeds.  See  108 
Am.   St.   Rep.   554,   note. 

Syl.   4    (V,   196).     Adverse   possession — Color   of   title. 

Approved  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  136  Fed.  128, 
69  C.  C.  A.  548,  while  title  to  public  land  was  in  United  States, 
there  is  no  disseisin  suf3Eicient  to  start  limitations  as  against  locator 
of  mining  claim,  prior  to  issuance  of  patent  to  him;  Corkran  Oil 
etc.  Co.  V.  Arnaudet,  111  La.  586,  35  So.  756,  determining  right  to 
land  by  one  holding  under  tax  deed  after  adoption  of  constitution; 
O'Keefe  v.  Dillenbeck,  15  Okl.  446,  83  Pac.  543,  upholding  title 
held  under  tax  deeds. 

13  How.  478-487,   14  L.   231,  UNITED  STATES  v.   HODGE. 

Syl.   1    (V,   200).     Treasury   transcripts   as    evitlence. 

Approved  in  L^uited  States  v.  Pierson,  145  Fed.  818.  admitting 
treasury  transcript  in  action  on  Indian  agent's  bond,  though  it 
contained  items   concerning  which  it  was  not   competent   evidence. 

13  How.  488-498,  14  L.  235,  LAWRENCE  v.  CASWELL. 

Sj-1.  1   (V,  201).     Tariff — Ad   valorem  not  charged  on  leakage. 

Approved  in  United  States  v.  Shaw,  144  Fed.  332,  under  Comp. 
St.  1901,  p.  1655,  no  allowance  can  be  made  for  leakage  of  wine 
in   transit. 


275  Notes  on  U.  S.  Reports.  13  How.  51S-G28 

13  How.  518-G28,  14  L.  249,  PENNSYLVANIA  v.  WHEELING  ETC. 
BEIDGE   CO. 

Syl.  2  (V,  204).  Supreme  court's  original  jurisdiction — State's 
suit. 

Approved  in  Louisiana  v.  ^Mississippi,  202  U.  S.  36,  50  L.  92."),  26 
Sup.  Ct.  408,  upholding  original  jifrisdiction  over  suit  between 
Louisiana  and  Mississippi  arising  out  of  enforcement  of  oyster  laws, 
involving  dispute  as  to  boundary;  Missouri  v.  Illinois,  200  U.  S. 
(518,  50  L.  578,  26  Sup.  Ct.  2G8,  refusing  to  enjoin  discharge  into 
Mississippi  river,  through  drainage  canal,  of  Chicago  sewage  on 
complaint  of  Missouri. 

Syl.    7    (V,    620).     Equity — Irreparable    injury. 

Approved  in  Sutter  v.  Hickman,  1  Alaska,  195,  protecting,  by  in- 
junction, riparian  owner's  right  to  erect  wharves  and  land  fish  nets 
on  tide  flats. 

Syl.   8    (V,   207).     Commerce — Ohio   river   is   navigable. 

Approved  in  State  v.  Faudre,  54  W.  Va.  127,  132,  102  Am.  St. 
Rep.  927,  46  S.  E.  271,  272,  63  L.  R.  A.  877,  West  Virginia  cannot 
permit  one  who,  under  Ohio  ferry  franchise,  charges  passenger  across 
Ohio  river  more  than  allowed  by  West  Virginia  laws. 

Distinguished  in  Kansas  City  etc.  R.  E.  Co.  v.  Wiygul,  82  Miss. 
227,  230,  33  So.  966,  967,  61  L.  R.  A.  578,  upholding  right  of  rail- 
road maintaining  bridge  over  navigable  stream  under  state  grant 
to  repair  it. 

Syl.  9    (V,   209).     States  cannot  hinder  federal  license. 

Approved  in  Missouri  v.  Illinois,  200  U.  S.  519,  50  L.  578,  26 
Sup.  Ct.  268,  refusing  to  enjoin  discharge  into  Mississippi  river, 
through  drainage  canal,  of  Chicago  sewage,  on  complaint  of  Mis- 
souri. 

Syl.    10    (V,   209).     When   public    nuisance    becomes    private. 

Approved  in  Crookston  Waterworks  etc.  Co.  v.  Sprague,  91  Minn. 
468,  98  N.  W.  349.  64  L.  R,  A.  977,  holding  dam  erected  over  nagi- 
gable  river  not  nuisance. 


XIV  HOWARD. 


i.f    How.   L'5-22,   14  L.   306,   MOORE   v.   ILLIXOIS. 

Syl.   1   (V,  213).     Police  powers — Fugitive  slave  laws. 

Approved  in  Louisville  v.  Wehmhoff,  76  S.  W.  881,  116  Ky.  830, 
under  Ky.  St.  1899,  §§  2742,  2782,  city  of  first  class  may  pass  or- 
dinance   prohibiting    poolrooms. 

Syl.  3    (V,  213).     Offenses  against   two  jurisdictions. 
See  110  Am.  St.  Rep.  153,  note. 

(V,  213.)  Miscellaneous.*  Cited  in  Crutlicrs  v.  State,  161  Ind.  147, 
67  N.  E.  933,  under  Burns'  Rev.  St.  1901,  §  1645,  punishing  abetting 
in  perpetration  of  offense  in  another  state,  information  charging  abet- 
ting offense  of  bunko  steering  is  insufficient  in  absence  of  allega- 
tion that  acts  constituted  offense  in  Illinois. 

14  How.  21-25,  14  L.  311,  EX  PARTE  MANY, 
Syl.    1    (V,    216).     Mandamus   to   compel   decision. 
See    9S    Am.    St.    Rep.    896,    note. 

li   How.   29-38,   14   L.   312,   HAGAN   v.   WALKER. 

Syl.    1    (V,   218).     Equity — Creditor's   bill    against    administrator. 

Approved  in  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  47, 
69  C.  ('.  A.  22,  upholding  federal  jurisdiction  over  suit  to  permit 
presentation  of  and  to  allow  claims  against  estates  of  decedents 
for  good  cause  shown,  after  time  limited  by  order  of  probate  court 
aad   within  eighteen  months  allowed  by  state  statute. 

Distinguished  in  Ganow  v.  Denny,  68  Neb.  709,  94  N.  W.  960, 
suit  in  equity  will  not  lie  to  restrain  solvent  party  from  trespassing 
on   personalty   or  from  mere   oral   assertion   of   title   thereto. 

Syl.  3   (V,  219).     Suit  against   administrator  and  debtor. 

Approved  in  Reagcr  v.  Chappelear,  104  Va.  17,  51  S.  E.  171,  up- 
holding suit  by  distributee  against  administrator  and  debtor  of 
estate  when  both  are  necessary  parties  for  settlement  of  estate  and 
each  was  indebted  to  estate,  and  administrator  had  not  charged  own 
debt  nor  attempted  to  collect  debtor's. 

Syl.  6   (V,  220).     Prior  encumbrance   as  party. 

Approved  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  660,  68  C.  C. 
A.  288,  determining  existence  of  separate  causes  of  action  in  bill, 
within  24  Stat.  552,  §  2,  and  25  Stat.  433,  c.  866. 

[276] 


277  Notes  on  U.  S.  Keports.  14  How.  52-76 

14   How.   52  69,   14  L.   322,  WISWALL  v.  SAMPSON. 

Syl.    1    ("V,    224).     Custodia    legis — Protection    of    prior    liens. 
Approved  in  Johnson  v.  Southern  B.  &  L.  Assn.,  132  Fed.  542,  543, 
tax  deed  executed  after  property  is  in  hands  of  receiver  for  mort- 
gagee is  void. 

Syl.  4   (V,  224).     Eoceivcr  represented  party  entitled  to  property. 

Approved  in  In  re  Jno.  L.  Nelson  &  Bro.  Co.,  149  Fed.  594,  where 
bankruptcy  proceedings  are  terminated  because  bankrupt  not  sub- 
ject to  bankruptcy  law,  attachments  levied  after  order  of  dismissal 
are  not  prior  to  those  levied  prior  to  such  order;  Detroit  etc.  R.  R. 
Co.  V.  Campbell,  140  Mich.  390,  103  N.  W.  859,  existence  of  receiver- 
ship under  creditor's  bill  does  not  devest  corporation  of  right  to 
condemn  land  for  right  of  way. 

Syl.  8   (V,  22G).     Purchaser  pendente  lite  buys  at  peril. 

Distinguished  in  Ingraham  v.  National  Salt  Co.,  139  Fed.  688,  689, 
where  realty  attached  in  federal  suit  and  under  subsequent  state 
insolvency  proceedings  receiver  took  and  sold  property,  and  there- 
after under  federal  judgment  marshal  advertised  sale  of  land,  fed- 
eral court  will  not  enjoin  receiver  from  proceeding  in  state  court 
injunction    proceedings    against    marshal. 

Syl.   12    (V,   227).     Property  in   receiver's  hands  not   executable. 

Approved  in  In  re  Jno.  L.  Nelson  &  Bro.  Co.,  149  Fed.  592,  where 
ancillary  receiver  properly  appointed  in  bankruptcy,  property  in 
his   hands  as  such   receiver  was  not  attachable. 

Distinguished  in  Ingraham  v.  National  Salt  Co.,  139  Fed.  687,  688, 
690,  where  realty  was  attached  in  federal  suit,  and  pending  suit 
insolvency  proceedings  commenced  in  state  court,  whose  receiver 
took  property  and  sold  it,  and  thereafter,  under  federal  judgment, 
marshal  advertised  sale  of  land,  which  sale,  was  enjoined  by  state 
court,  federal  court  would  not  enjoin  receiver  from  attacking  at- 
tachment; People  V.  Finch,  19  Colo.  519,  520,  76  Pac.  1123,  under 
Mills'  Ann.  Stats.,  §§  2583,  2585,  requiring  recording  of  levy  of 
execution  on  land  in  another  county,  no  lien  acquired  by  levy,  where 
certificate  was  filed  after  appointment  of  receiver  for  execution 
debtor;  Beardslee  v.  Ingraham,  183  N.  Y.  420,  421,  422,  76  N.  E.  478, 
479,  where,  after  federal  attachment,  state  suit  commenced  for  dis- 
solution of  defendant  corporation  and  receiver  appointed  to  sell  prop- 
erty, state  court  could  not  enjoin  United  States  marshal  from  sell- 
ing   property    under    execution. 

14   How.   70-76,   14  L.   330,   SAMPLE  v.  BARNES. 

Syl.  1   (V,  232).     Equitable  relief — Judgment  on  void  contract. 

Approved  in  Phelan  v.  Wilson,  114  La.  822,  38  So.  573,  where  gran- 
tor    deeded    land    to    trustee     for    him     to    sell    and    pay     grantor's 


14  How.  80-346  Notes  on  U.  S.  Eeports.  278 

debts,  and  property  was  sold,  and  later  grantor  sold  same  property 
to  another,  latter  cannot  attack  sale  to  first  vendee  on  ground  of 
illegality    of    consideration. 

14  How.  80-103,  14  L.  335,  EUNDLE  v.  DELAWAEE  ETC.  CANAL 
CO. 

Syl.  2  (V,  234).  Riparian  owner's  rights  in  river  forming  bound- 
ary. 

Approved  in  Franzini  v.  Layland,  120  Wis.  82,  97  N.  W.  503, 
where  river  separates  two  states,  title  of  riparian  owner  goes  to 
boundary  line   regardless   of  center   of   stream. 

14  How.  193-218,  14  L.  383,  TEOY  IRON  AND  NAIL  FACTORY  v. 
CORNING. 

Syl.   2   (V,  242).     Patents — License  not  assignable. 

Approved  in  Bowers  v.  Lake  Superior  etc.  Co.,  149  Fed.  986,  where 
licensee  of  right  to  use  patented  invention  in  connection  with  dredge 
sold  dredge  to  defendant,  latter  was  liable  for  royalties;  Shepherd 
v.  Deitsch,  138  Fed.  84,  licensee  of  right  to  manufacture  and  vend 
patented  article  is  not  necessary  party  complainant  to  infringe- 
ment suit. 

14  How.  2GS-282,  14  L.  416,  TRUSTEES  FOE  VINCENNES 
UNIVERSITY  V.  INDIANA. 

Syl.    7    (V,   248).     Incorporated   trustees   as   private    corporation. 

Cited  in  Ex  parte  Riggins,  134  Fed.  418,  arguendo. 

14   How.   2S2-296,   14  L.  422,   CHRISTY  v.   SCOTT. 

Syl.   2    (V,   249).     Ejectment — Plaintiff   recovers   on   own   title. 

Approved  in  Lasswell  v.  Kitt,  11  N.  M.  4G3,  70  Pac.  562,  and 
Rhule  V.  Seaboard  Air  Line  Ry.  Co.,  102  Va.  346,  46  S.  E.  331, 
both  following  rule;  Cullen  v.  Bowen,  36  Wash.  668,  79  Pac.  305, 
admitting  will  in  evidence  in  suit  for  damages  for  destruction  of 
property  where  plaintiff  claimed  title  under  will,  and  testator's 
children  had  never  contested  it;  McBride  v.  Steinweden,  72  Kan, 
511,   83   Pac.   823,   arguendo. 

14  How.  328-334,  14  L.  441,  PERKINS  v.  FOURNIQUET. 

Syl.    1     (V,    252).     Interlocutory    order    for    accounting — Release. 
See  98  Am.  St.   Rep.  905,  note. 

14  How.  334-346,  14  L.  444,  HARRIS   v.   HARDEMAN. 

Syl.   2   (V,  254).     Judgment  without  service  is  void. 

Approved  in  King  v.  Davis,  137  Fed.  208,  under  Code  Va.  1887, 
§  3207.  return  showing  service  by  leaving  copy  with  defendant's 
wife,  but  not  stating  that  she  v/as  member  of   his  family,  is  bad. 


279  Notes  on  U.  S.  Reports.  14  How.  3GS-446 

Syl.    3    (V,   256).     Correction    of   irregularities    by   motion. 

Approved   in   King   v.   Davis,    137   Fed.   230,   arguendo. 

Syl.  4  (V,  257).     Process — Constructive  service — Return. 

Approved  in  King  v.  Davis,  137  Fed.  206,  under  Code  Va.,  §  3207, 
return  showing  service  by  posting  up  and  leaving  on  "the  door"  in- 
stead of  on  the  "front  door"  of  defendant's  usual  dwelling,  is  void. 

14   How.   3G8-376,    14   L.   459,   PEALE   v.   PHIPPS. 

Syl.   2    (V,   261).     State   receiver   not   suable   in   federal   court. 

Approved  in  Johnson  v.  Southern  B.  &  L.  Assn.,  132  Fed.  543, 
deed  executed  after  property  has  passed  into  custody  of  court  by 
its  appointment  of  receiver  for  mortgagee  is  void;  Schwartz  v.  Ger- 
hardt,  44  Or.  428,  75  Pac.  699,  trustee  appointed  by  foreign  court 
cannot  be  compelled  to  account  by  court  of  another  jurisdiction 
though   he  reside  there. 

Distinguished  in  Isom  v.  Rex  Crude  Oil  Co.,  147  Cal.  6G7,  82  Pac. 
320,  where  federal  suit  brought  against  assignee  of  lease  alone  to 
cancel  same,  when  property  was  in  hands  of  state  court  receiver,  fed- 
eral court  had  jurisdiction  though  no  leave  to  sue  obtained  from 
state   court. 

14  How.  377-300,  14  L.  462,  CUNNINGHAM  v.  ASHLEY. 

Syl.  8  (Y,  205).  Land  department  controversy  as  federal  ques- 
tion. 

Approved  in  Le  Marohel  v.  Tccgarden,  133  Fed.  827,  party  at- 
tacking patent  for  mistake  of  fact  must  plead  and  prove  evidence 
before  department  from  which  mistake  resulted,  the  particular  mis- 
take  and   the   way  in   which  it   occurred. 

14  How.   400-434,  14  L.  472,  ENNIS  v.   SMITH. 
Syl.  12   (Y,  270).     Proof  of  foreign  law. 
See   113   Am.   St.  Rep.   881,   note. 

14  How.   434-4-lG,   14  L.   487,  WINDER  v.   CALDY'ELL. 

Syl.  1    (Y,  271).     Nature  of  scire  facias. 

Approved  in  Hollister  v.  United  States,  145  Fed.  779,  defendants 
on  scire  facias  on  forfeited  bond  in  which  government  sought  to  re- 
cover $1,0U0  were  entitled  to  jury;  Kirk  v.  United  States,  131  Fed. 
334,  where  scire  facias  is  issued  against  bail,  execution  cannot  be 
awarded  against  defendant  not  personally  served  until  after  two 
returns    nihil    to    writ. 

Syl.   3    (Y,   271).     Failure   of   consideration   as   defense   to   contract. 

Approved  in  Williams  v.  Neely,  134  Fed.  6,  69  L.  R.  A.  232,  67 
C.  C.  A.  171,  partial  failure  of  consideration  resulting  from  defect 
of    title   is   good   defense    to    action   on   purchase   money   note,   where 


14  How.  446-4S8  Notes  on  U.  S.  Eeports.  280 

vendor  covenanted  against  encumbrances;  Tenney  v.  Anderson  etc. 
Power  Co.,  69  S.  C.  433,  48  S.  E.  458,  in  proceeding  to  enforce  me- 
chanic's lien,  liquidated  damages  provided  for  in  contract  for  de- 
lay in  completion,  defects  in  work  and  damage  to  work  caused  by 
abandonment  by  builder,  may  be  set  off  against  builder's  claim. 

Syl.  4   (V,  272).     Mechanic's  lien  by  contractor. 

Approved  in  Evans  etc.  Co.  v.  International  etc.  Co.,  101  Md.  221, 
109  Am.  St.  Eep.  576,  60  Atl.  671,  subcontractor  under  contract  with 
principal  contractor  to  furnish  materials  and  labor  for  building 
for  lump  sum  cannot  enforce  lien  for  labor  given  by  Acts  1898, 
p.  1109,  c.  502;  Moore  v.  Industrial  Co.,  138  N.  C.  307,  50  S.  E.  688, 
superintendent  of   mill  is  not  laborer  within   mechanic's   lien  law. 

14  How.  446-4G3,  14  L.  493,  SALMON  FALLS  ETC.  CO.  v.  GOD- 
DAED. 

Syl.  3  (V,  273).     Contract  may  be  shown  to  be  as  agent. 

Approved  in  Ismon  v.  Loder,  135  Mich.  351,  97  N.  "W,  771,  signa- 
ture  of  president  and  secretary  having  appended  to  each,  respec- 
tively, words  "Pres.,"  "Sec,"  operates  as  conveyance  of  corpora- 
tion's realty;  Usher  v.  Daniels,  73  N.  H.  208,  60  Atl.  747,  where 
memorandum  of  sale  signed  by  plaintiff's  agent  in  own  name,  parol 
evidence  is   admissible   to   show  plaintiff  is  real  party  in  interest. 

Syl.  4   (V,  274).     Partner  may  charge  firm. 

Approved  in  Gardiner  v.  McDonogh,  147  Cal.  320,  81  Pac.  9G6, 
admitting  parol  to  show  that  terms  "Bayo"  and  "per  100"  in 
contract   meant  Bayou   beans   and   per   hundred   pounds. 

Syl.  5  (V,  274).  Statute  of  frauds — Parol  to  explain  memoran- 
dum. 

Approved'  in  Dunn  v.  Mayo  Mills,  134  Fed.  806,  67  C.  C.  A. 
450,  fact  tliat  writing  evidencing  sale  was  signed  by  surname  of 
buyer  so  as  to  render  necessary  parol  evidence  to  identify  buyer 
as  partner  in  defendant  firm  does  not  render  parol  evidence  admis- 
sible  to  vary   contract. 

14   How.   4CS-4S8,   14   L.   502,   PHILADELPHIA   ETC.    E.   E.   CO.    v. 
DERBy. 

Syl.  2   (V,  277).     Guest  entitled  to  safe  carriage. 

Approved  in  Indianapolis  etc.  Co.  v.  Lawson,  143  Fed.  836,  ap- 
plying principle  where  electric  railway  offered  free  use  of  three 
cars  to  take  members  of  convention  for  ride;  The  Oregon,  133 
Fed.  618,  68  C.  C.  A.  603,  whether  carrier  of  passengers  by  sea  was 
seaworthy  at  beginning  of  voyage  is  immaterial  in  suit  by  passenger 
for  injuries;  Indianapolis  St.  Ey.  Co.  v.  Schmidt,  163  Ind.  365,  71 
N.  E.  202,  complaint  alleging  that  defendant  ran  car  at  dangerous 
speed   into   switch,   off   track   and   against   p&le,   and   throwing   plain- 


281  Notes  on  U.  S.  Eeports.  14  How.  488-505 

tiff  against  stove,  shows  defendant's  negligence  was  proximate 
cause;  Goldsmith  v.  Holland  Building  Co.,  182  Mo.  606,  81  S.  W. 
1115,  applying  rule  to  elevator  passenger;  McNeill  v.  Eailroad  Co., 
135  N.  C.  694,  699,  700,  701,  47  S.  E.  770,  771,  772,  67  L.  R.  A. 
227,  holding  carrier  liable  for  negligence  causing  injuries  to  pas- 
senger riding  on  pass  irrespective  of  statutes  penalizing  carrier 
for  discrimination  in  rates;  Mannon  v.  Camden  etc.  Ey.  Co.,  56 
W.  Va.  556,  49  S.  E.  451,  frequent  breaking  of  old  trolley  wire 
near  given  point  justifies  finding  of  negligence  against  street  rail- 
way; Williams  v.  Spokane  Falls  etc.  Ey.  Co.,  39  Wash.  88,  89, 
80  Pac.  1102,  1103,  upholding  instruction  that  it  was  carrier's  duty 
to  carry  postal  clerk  safely  so  far  as  human  care  and  skill  would 
enable  it  to  be  done. 

Syl.  3   (V,  280).     Master's  liability  for  acts  of  employee. 

Approved  in  Slater  v.  Advance  Thresher  Co.,  97  Minn.  313,  107 
N.  W.  136,  where  master  furnished  state  agent  with  automobile 
for  use  in  business,  and  after  business  hours  agent  took  auto  into 
another  state  for  pleasure  trip,  master  not  liable  for  injuries  caused 
by  negligent  operation  of  machine  by  agent;  Barmore  v.  Vicks- 
burg  etc.  Ey.  Co.,  85  Miss.  452,  454,  38  So.  '215,  216,  70  L.  E.  A. 
627,  holding  where  railroad  employee,  using  tricycle  in  performance 
of  duties,  injured  plaintiff  on  returning  from  errand  for  friend  to 
employment,  railroad  is  liable;  Gillespie  v.  Brooklyn  Heights  E.  E. 
Co.,  178  N.  Y.  357,  102  Am.  St.  Eop.  503,  70  N.  E.  860,  66  L.  E.  A. 
618,  street  railway  is  liable  to  passenger  for  injury  to  feelings 
of  passenger  because  of  insulting  .language  used  by  conductor. 

Distinguished  in  Brenner  v.  Ford,  116  La.  553,  40  So.  895,  holding 
master  not  liable  for  killing  of  person  by  being  run  over  by  horse 
recklessly    driven    by    employee    contrary    to    private    orders. 

14  How.  488-505,  14  L.  510,     WEBSTER  v.   COOPEE. 
Syl.  1   (V,  284).     Devise   to  trustee  with  remainder  over. 

Approved  in  Lewis  v.  Curnutt,  130  Iowa,  432,  106  N.  W.  91S, 
under  conveyance  to  trustee  by  warranty  deed  in  consideration  of 
trust  created  under  instrument  providing  that  trustee  take  title 
from  and  after  grantor's  death,  trustee's  authority  not  limited. 

Syl.   7   (V,   285).     When   adverse   possession   starts. 

Approved  in  Lamb  v.  Powder  Eiver  etc.  Co.,  132  Fed.  436.  67 
L.  E.  A.  558,  65  C.  C.  A.  570,  construing  Colo.  Sess.  Laws,  p.  248, 
c.  113,  relating  to  limitation  of  actions  on  foreign  judgments  as  ap- 
plying to  judgments  rendered  prior  to  passage.  See  111  Am. 
8t.  Eep.  461,  note. 


14  How,  505-563  Notes  on  U.  S.  Eeports.  282 

14   How.   505-511,    14   L.   518,   SHEPPARD   v.    GRAVES. 

Syl.  3  (V,  287).  Objections  to  jurisdiction  pleadable  in  abate- 
ment. 

Approved  in  Stcigleder  v.  McQuesten,  198  U.  S.  142,  49  L.  987, 
25  Sup.  Ct.  616,  question  of  federal  jurisdiction  because  of  lack 
of  diverse  citizejislnp  may  be  raised  by  motion  to  dismiss  based  on 
proofs  taken  before  master. 

Distinguished  in  Yocum  v.  Parker,  130  Fed.  771,  66  C.  C.  A.  80, 
federal  court  lias  no  jurisdiction  of  action  at  law  where  answer 
contains  general  denial,  which  under  state  jiraetice  puts  in  issue 
jurisdictional   allegations. 

Syl.   4    (V,   2S8).     Federal   jurisdiction — Burden    of  proof. 

Approved  in  Daley  v.  Isclin,  212  Pa.  St.  285,  61  Atl.  920,  on  trial 
of  plea  to  jurisdiction,  burden  is  on  defendant  to  establish  defective 
service    of   summons   alleged. 

14  How.  512,  513,  14  L.  309,  SHEPPARD  v.  GRAVES. 

Syl.   2   (V,.  289).     General   issue  waives   plea  in  abatement. 

Approved  in  McFadden  v.  Heisen,  150  Fed.  570,  agreement  to 
dismiss  pending  suit  is  waived  by  answering  amended  bill  on  merits. 

]4  How.  528-532,  14  L.  528,  STEPHENS  v.  CADY. 

Syl.  1  (V,  291).     Eights  of  copyright  purchaser  of  copper  plate. 

Approved  in  Bobbs-Merrill  Co.  v.  Straus,  147  Fed.  18,  20,  notice  in 
copyrighted  book  as  to  retail  price  and  that  no  one  licensed  to  sell 
for  less  does  not  entitle  owner  of  copyright  to  injunction  against 
resale  at  less  price;  Werckmeister  v.  American  Lith.  Co.,  142  Fed. 
834,  copyright  of  painting  is  not  invalidated  by  fact  that  notice 
of  copyright  is  not  inscribed  on  original  painting;  Werchmeister  v. 
American  Lith.  Co.,  134  Fed.  324,  326,  68  L.  R.  A.  591,  exhibition 
of  copyrighted  painting  at  academy  at  which  no  one  was  permitted  to 
copy  same,  and  to  which  public  was  not  admitted  except  on  ]}ay- 
nient   of   fee,   was   not    publication   aa   to    avoid    copyright. 

Syl.    3    (V,   291).     Execution   sale   of   copper   plate   passes   title. 

Approved  in  In  re  Hurlbutt,  135  Fed.  507,  68  C.  C.  A.  216,  title 
to  seat  in  stock  exchange  held  by  firm  passes  to  its  trustee  in  bank- 
ruptcy. 

14   How.  539-563,  14  L.   532,  BLOOMER   v.   McQUEWAN. 

Syl.   3    (V,  294).     Assignment  of  patents — Extension   of  time. 

Approved  in  Paulus  v.  Buck  Mfg.  Co.,  129  Fed.  595,  64  C.  C.  A. 
162,  owner  of  undivided  part  of  all  rights  secured  by  patent  may, 
without  consent  of  co-owners,  grant  valid  license  to  use  monopoly 
secured   by   it.  * 


2S3  Notes  on  U.  S.  Keports.  14  How.  5G8-586 

Syl.  5  (V,  294).  Patents — Taxation  of  machine  in  purchaser's 
hands. 

Approved  in  Hartman  v.  Park  &  Sons  Co.,  145  Fed.  3G3,  determin- 
ing right  to   restrict  future   sales   of  Peruna. 

Syl.    6    (V,    295).     Extension    of    patent— Eights    of   licensee. 

Approved  in  Wagner  Typewriter  Co.  v.  Webster  Co.,  144  Fed. 
410,  hohling  use  of  word  "Underwood"  on  typewriter  ribbon  box 
above  name  of  brand  not  infringement  of  ribbons  manufactured  by 
Uudcrv/ood   typewriter   people. 

14   How.   568-575,   14   L.   545,   VEAZIE   v.   MOOR. 

Syl.   3    (V,   296).     Commerce    power   does   not   affect   locals. 

Approved  in  Howard  v.  Illinois  C.  E.  Co.,  148  Fed.  999,  holding 
void  act  of  Congress  of  1906,  relating  to  carrier's  liability  to  em- 
ployees;  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  883,  884,  holding 
void  Wis.  Laws.  1905,  p.  37,  c.  19,  as  amended  in  1905,  relating  to 
■weigliing  and  inspection  of  grain  at  Superior,  as  applied  to  interstate 
shipments. 

14  How.   584-586,   14  L.  552,  WALKER  v.  EOBBTXS. 

Syl.   1    (V,  298).     Equitable  relief  against  judgment. 

Approved  in  King  v.  Davis,  137  Fed.  228,  229,  federal  law  court 
cannot  vacate  judgment  of  former  term  founded  on  false  but  ap- 
parenty  valid  return  of  service  of  process;  Graham  v.  Loh,  32  Tnd. 
App.  187,  69  N.  E.  476,  action  to  vacate  judgment  because  of 
fraudulent  return  of  officer  serving  summons  cannot  be  maintained 
where  holder  of  judgment  not  implicated;  Smoot  v.  Judd,  184  Mo. 
520,  521,  536,  550,  552,  568,  83  S.  W.  485,  490,  495,  496,  501.  re- 
fusing to  set  aside  default  judgment  and  execution  sale  thereunder 
by  suit  in  equity  based  on  sheriff's  false  return  of  service  of  sum- 
mons. 

Distinguished  in  dissenting  opinion  in  Smoot  v.  Judd,  184  Mo. 
595,  602,  609,  83  S.  W.  512,  515,  517,  majority  refusing  to  set  aside 
default  judgment  and  execution  sale  thereunder  by  suit  in  equity 
based  on  sheriff's  false  return  of  service  of  summons. 


XV  HOV/ARD. 


15  How.  42-G2.  14  L.  592,  EYRE  v.  POTTER. 

Syl.  1  (V,  305).     Actiuil  fraud  not  proven  by  constructive  fraud. 

Approved  in  Burk  v.  Johnson,  146  Fed.  211,  bill  to  rescind  contract 
assigning  territory  for  promotion  of  burial  associations  under  copy- 
righted by-laws,  based  on  fraudulent  representations,  not  sustained 
by  proof  of  mutual  mistake. 

Sjd.  3  (V,  305).  Inadequacy  of  consideration  not  rclievable  in 
equity. 

Approved  in  Gocrz  v.  Barstow,  148  Fed.  575,  fact  that  woman  had 
dealt  in  suburban  realty  does  not  charge  her  with  notice  of  fraud 
afl'ccting  grantor's  title  of  similar  property  purchased  because  of  in- 
adequacy of  price,  where  price  was  four-fifths  of  value  of  laud. 

15  How.  62-137,  14  L.  601,  O'REILLY  v.  MORSE. 

Syl.  6   (V,  307).     American  patent — Date  different  from  foreign. 

Approved  in  Sawyer  Spindle  Co.  v.  Carpenter,  133  Fed.  239,  on 
expiration  of  foreign  patent,  specific  invention  therein  claimed  does 
not  infringe  broader  claim  of  American  patent,  where  patents  granted 
before  Comp.  St.  1901,  p.  3382. 

Syl.   7   (V,  307).     Patentable  invention — Abstract  principles. 

Approved  in  Bradford  v.  Expanded  Metal  Co.,  146  Fed.  987,  Gold- 
ing  patent  No.  527,242,  for  process  of  making  open  sheet  metal,  is 
void  for  want  of  patentable  invention;  Manhattan  etc.  Co.  v.  Helios- 
Upton  Co.,  135  Fed.  788,  holding  void  Baker  patent  No.  684,165,  for 
method  of  regulating  electric  circuits,  as  being  merely  for  operative 
theory. 

Distinguished  in  Marconi  W.  Tel.  Co.  v.  De  Forest  W.  Tel.  Co.,  138 
Fed.  675,  Marconi  reissue  No.  11,913,  for  wireless  telegraphy,  is  void 
as  to  claim  1  and  infringed  as  to  claims  3  and  5. 

Syl.  9   (V,  308).     Patents — New  results  by  means  specified. 

Approved  in  Bullock  Elec.  Mfg.  Co.  v.  Crocker,  141  Fed.  110, 
Leonard  patent  No.  478,344,  for  system  of  electrical  distribution,  is 
valid;  Fitch  v.  Spang  etc.  Co.,  140  Fed.  293,  Fitch  &  Shafer  reissue 
No.  6,404,  for  machine  for  forging  metallic  sockets,  not  infringed  by 
machine  made  under  Blakey  patent. 

Syl.  12  (V,  309).     Patents — No  costs  without  disclaimer. 

Distinguished  in  Johnson  v.  Foos  Mfg.  Co.,  141  Fed.  89,  90,  Rev.  St., 
§§  973,  4922,  relating  to  costs  in  patent  cases,  does  not  apply  to  costs 
in  appellate  court  where  decree  below  of  dismissal  is  found  erroneous. 

[284] 


285  Notes  on  U.  S.  Eeports.  15  How.  lG0-2ii 

Syl.   14   (V,  310).     Patents — Disclaimer   without   delay. 

Approved  in  Eawson  etc.  Co.  v.  Hunt  Co.,  147  Fed.  241,  where  draw- 
ings and  descriptions  of  reissue  are  identical  with  original,  validity  of 
claims  of  original  which  are  repeated  in  reissue  not  affected  by  in- 
validity of  other  claims. 

Syl.  16  (V,  310).     Patents — Change  of  form  in  nonessential  parts. 

Approved  in  O'Rourke  Eng.  etc.  Co.  v.  McMuIlen,  150  Fed.  354, 
holding  Barr  patent  No.  514,843,  for  air  lock  for  caissons,  void  for 
lack  of  invention. 

15  How.  IGO,  IGl,  14  L.  643,  PHELPS  v.  MAYER. 
Syl.  3  (V,  313).     Time  to  except  to  instructions. 

Approved  in  dissenting  opinion  in  Owens  v.  United  States,  130  Fed. 
280,  64  C.  C.  A.  525,  majority  holding  where  after  jury  retired  in 
criminal  case  defendant  on  following  day  (Sunday)  handed  motion 
for  new  trial,  with  exceptions,  to  judge  and  clerk  to  file  following  day, 
and  judge  overruled  exceptions,  appellate  court  will  consider  excep- 
tions. 

15  How.  162-179,  14  L.  644,  BISPHAM  v.  PRICE. 

Syl.  1  (V,  313).     Award  acquiesced  in  bars  action. 

Cited  in  Greer  Co.  v.  Texas,  197  U.  S.  241,  49  L,  738,  25  Sup.  Ct.  437, 
iirgucndo. 

15  How.  179,  189,  14  L.  652,  BEVINS  v.  RAMSEY. 

(V,  313.)  Miscellaneous.  Cited  in  Hixon  v.  Cupp,  5  Okl.  554,  49 
Pac.  930,  sureties  on  sheriff's  bond  not  liable  for  exemplary  damages 
for  assault  on  prisoner  by  other  prisoners. 

15  How.  198-211,  14  L.  660,  KANOUSE  v.  MARTIN. 

Syl.   1   (V,  314).     Federal  jurisdiction — Amount  in   dispute. 

Approved  in  Barber  v.  Boston  etc.  Co.,  145  Fed.  52,  action  on  case 
to  recover  $2,000  damages  for  negligence  is  not  removable  though 
actual  damages  are  alleged  to  be  greater;  Oppenheimer  v.  Regan,  32 
Mont.  119,  79  Pac.  698,  applying  principle  in  denying  jurisdiction  of 
justice  of  peace  over  action  against  sheriff  to  recover  damages, 
penalty   and   interest. 

Syl.  2   (V,  315).     Filing  removal  petition  ousts  state. 

Approved  in  Kirby  v.  American  Soda  etc.  Co.,  194  U.  S.  146,  48 
L.  913,  24  Sup.  (Jt.  619,  upholding  federal  jurisdiction  over  cross- 
bill seeking  to  recover  $1,700  due  on  contract  where  original  bill,  dis- 
missed on  complainant's  own  motion,  asked  for  cancellation  of  agree- 
ment to  pay  $2,025. 


15  How.  212-322  Notes  on  V.  S.  Keports.  286 

15  How.  212-232,  14  L.  665,  BROOKS  v.  FISKE. 

Syl.  2   (V,  317).     Patents — Combination  of  parts  to  produce  result. 

Approved  in  Cimiotte  Unhairing  Co.  v.  American  Fur  Eefining  Co., 
198  U.  S.  414,  49  L.  1107,  25  Sup.  Ct.  697,  Sutton  patent  No.  383,258, 
for  machine  for  plucking  furs,  not  infringed  by  machine  using  mov- 
able bar  for  fixed  stretcher  bar. 

15   How.   233-252,   14   L.   674,   NORTHEEN  INDIANA   R.   R.   CO.   v. 
MICHIGAN  CENT.  R.  R.   CO. 

Syl.  2  (V,  318).     Federal  jurisdiction — Local  controversy. 

Approved  in  American  etc.  Colony  Co.  v.  Schuler,  34  Tex.  Civ. 
566,  79  S.  W.  374,  Texas  courts  cannot  forfeit  charter  of  Indiana  cor- 
poration organized  to  operate  in  land  in  Texas. 

Syl.  3  (V,  319).     Equity  jurisdiction — Realty  in  foreign  state. 

Approved  in  Willey  v.  Decker,  11  Wyo.  540,  100  Am.  St.  Rep.  939, 
73  Pac.  223,  upholding  district  court's  jurisdiction  to  restrain  diver- 
sion of  water  by  means  of  ditch  in  Montana,  and  by  it  carrying 
water   to   land   in   Wyoming. 

15  How.   253-272,   14   L.   683,   CORNING  v.   BURDEN. 

Syl.  2  (V,  320).     Means  of  obtaining  result  patentable. 

Approved  in  Expanded  Metal  Co.  v.  Bradford,  136  Fed.  873,  up- 
holding Gelding  patent  No.  527,242,  for  process  of  making  open  metal 
work. 

Syl.  3  (V,  320),     Abstract  effect  not  patentable. 

Approved  in  Los  Angeles  Art  Organ  Co.  v.  Aeolian  Co.,  143  Fed. 
884,  Tremaine  &  Pain  patent  No.  552,796,  for  improvements  in  me- 
chanical musical  instruments  is  valid,  infringed  by  Fleming  patent 
No.  659,442;  Manhattan  etc.  Co.  v.  Helios-Upton  Co.,  135  Fed.  788, 
Baker  patent  No.  684,165,  for  method  of  regulating  electric  circuits, 
is  void;   Goss  Printing  Press  Co.  v.  Scott,  134  Fed.   884,  arguendo. 

(V,  320.)  Miscellaneous.  Cited  in  Green  v.  American  Car  etc.  Co., 
163  Ind.  139,  71  N.  E.  270,  heavy  steel  power  hammer  is  machine 
within  statute  requiring  guarding  of  machinery. 

15  How.  304-322,  14  L.  705,  CURRAN  v.  STATE  OF  ARKANSAS. 

Syl.  1   (V,  323).     Following  corporation's  property  for  creditors. 

Approved  in  City  Nat.  Bank  v.  Goshen  etc.  Mills  Co.,  35  Ind.  App. 
579,  580,  69  N.  E.  211,  212,  director  of  insolvent  corporation  who 
had  resigned  after  it  had  been  agreed  that  he  should  resign  and 
have  preference,  is  still  officer  for  purpose  of  determining  validity  of 
preference. 

Syl.  3  (V,  326).     State  stockholder  does  not  impart  sovereignty. 
Approved  in  Gilmore  v.  Schenck,  115  La.  4U0,  39  So.  45,  arguendo. 


287  Notes  on  U.  S.  Reports,  15  How.  330-415 

15  How.  330-348,  14  L.  717,  WINANS  v.  DENMEAD. 

Syl.  1   (V,  330).     Patents — Specifications  liberally  construed. 

Approved  in  Shepherd  v.  Deitsch,  138  Fed.  87,  upholding  Shep- 
herd patent  No.  601,405,  for  brush  with  reticulated  back. 

Syl.  3  (V,  331).  Patents — Substitution  of  equivalents. 
Approved  in  Universal  Brush  Co.  v.  Sonn,  14G  Fed.  531,  532,  Mor- 
rison patent  No.  717,014,  claim  1,  for  method  of  making  brushes,  is 
infringed  by  Sonn  patent  No.  791,510;  Nathan  v.  Howard,  143  Fed. 
893,  Howard  patent  No.  626,997,  for  improvement  in  heating  stoves, 
is  valid  and  infringed;  Columbia  Wire  Co.  v.  Kokomo  etc.  Co.,  143 
Fed.  122,  holding  Bates  patent  No.  365,723,  for  wire-barbing  machine, 
valid,  and  infringed  by  machine  of  Frederick  patent  No.  711,303; 
Eastern  etc.  Bag  Co.  v.  Continental  etc.  Bag  Co.,  142  Fed.  499,  holding 
Liddell  patent  No.  558,909,  for  paper  bag  machine  valid,  and  in- 
fringed by  machine  of  Claussen  patent  No.  598,497;  Ferry-Hallock 
Co.  V.  Hallock,  142  Fed.  176,  Ferry  patent  No.  523,833,  for  machine 
for  automatically  making  hat-packing  rings,  is  valid,  and  infringed; 
Brown  Bag  Fill.  Mach.  Co.  v.  Drohen,  140  Fed.  107,  holding  Cummings 
patent  No.  573,171,  for  bag-filling  machine,  and  Brown  patent  No. 
578,133,  for  folding  mechanism  for  use  with  former,  valid  and  in- 
fringed; Pettibone  v.  Pennsylvania  Steel  Co.,  133  Fed.  734,  holding 
Strom  patent  No.  498,196,  for  railroad  switch-stand,  valid  and  in- 
fringed; Benbow  etc.  Mfg.  Co.  v.  Simpson  Mfg.  Co.,  132  Fed.  616, 
holding  Schroeder  patent  No.  535,465,  for  means  for  operating  wash- 
ing machine,  infringed;  Oehrle  v.  Wm.  H.  Horstmann  &  Co.,  131 
Fed.  490,  holding  Oehrle  patent  No.  599,191,  for  improvement  in 
ornamental  cords,  not  infringed;  Albright  v.  Langfcld,  131  Fed.  476, 
upholding  Albright  patent   No.   439,086,   for   coin  purse. 

15  How.  348-354,  14  L.  724,  WALWORTH  v.  KNEELAND. 

Syl.  1  (V,  332).     Supreme  court — Federal  question. 

Approved  in  Allen  v.  Arguimbau,  198  U.  S.  155,  49  L.  993,  25 
Sup.  Ct.  622,  denying  jurisdiction  over  action  against  maker  of  note, 
defense  to  which  is  that  note  given  in  consideration  of  proifiise  to 
have  cigars  called  for  by  contract  made  in  Key  W^est  and  removed 
from  factory,  without  compliance  with  federal  statutes. 

15  How.  367-415,  14  L.  732,  McDONOGH  v.  MUPtDOCH. 

Syl.  1  (V,  333).     Unlawful  directions  do  not  affect  bequests. 

Approved  in  Tincher  v.  Arnold,  147  Fed.  674,  where  trust  provided 
that  school  for  needy  boys  be  erected  not  to  cost  more  than  certain 
amount,  and  income  of  balance  used  to  pay  teachers,  income  could  be 
used   to   i)ay   expense   of  maintenance    and   conduct    of   school. 

Syl.  8    (V,  335).     Exercise   of   corporate   powers   in  foreign   state. 
Cited    in    Kansas    City    etc.    Ey.    Co.    v.    Stevenson,    135    Fed.    554, 
arguendo. 


15  How.  415-494  Notes  on  U.  S.  Reports.  2S8 

15  How.  415-420,   14  L.   753,  WYLIE  v.  COXE. 

Syl.  1  (V,  336).     Contract  for  attorney's  fees  for  collecting  claim. 

Approved  in  Nutt  v.  Knutt,  200  U.  S.  21,  50  L.  353,  26  Sup.  Ct.  216, 
illegality  of  clause  in  contract  for  prosecution  of  claim  against  gov- 
ernment making  claim  lien  on  claim  does  not  invalidate  contract  in 
so  far  as  provides  for  j/ayment  of  percentage  allowed  on  claim;  Field 
V.  Sammis,  12  N.  M.  48,  73  Pac.  621,  third  party  may  intervene  in 
garnishment  proceedings  arising  under  execution  and  set  up  legal  or 
equitable   rights   in   funds  sought  to   be   recovered. 

Syl.  2  (V,  330).     Equity — Inadequacy  of  law  remedy. 

Api)roved  in  Fidelity  etc.  Co.  v.  Fidelity  Trust  Co.,  143  Fed.  159, 
upholding  bill  for  accounting  and  discovery  against  depositaries  of 
funds  of  insolvent  association  arising  out  of  embezzlements  by  as- 
sociation's  treasurer. 

Syl.  3  (V,  337).     Eecord  must  show  want  of  jurisdiction. 

Approved  in  Southern  Pac.  R.  R.  Co.  v.  United  States,  200  U.  S. 
349,  50  L.  510,  26  Sup.  Ct.  296,  upholding  jurisdiction  over  bill  by 
United  States  to  cancel  patent  erroneously  issued  for  lands  held  by 
railroad,  and  for  recovery  of  value  of  lands  sold  to  bona  fide  pur- 
chasers. 

15  How.  421-425,  14  L.  755,  MURRAY  v.  GIBSON. 

Syl.   1    (V,   337).     Retroactive   construction   of   statutes. 

Approved  in  Haverhill  v.  Marlborough,  187  Mass.  155,  72  N.  E.  945, 
Stat.  1902,  p.  156,  c.  213,  relating  to  expenses  incurred  by  board  of 
health  in  caring  for  contagious  diseases,  does  not  affect  mode  of 
procedure  in  case  of  obligation  existing  at  time  of  passage. 

Syl.   3    (V,   339).     Following   state   statutory   construction. 
Approved  in  Herman  v.  Texas,  198  U.  S.  579,  49  L.  1171,  25  Sup. 
Ct.    800,    following    rule. 

15  How.  426-433,  14  L.  757,  DEN  v.  ASSOCIATION  OF  JERSEY  CO. 
Syl.  1  (V,  339).     State  owns  tide  lands. 

Approved  in  City  of  Providence  v.  Comstock,  27  E.  I.  556,  65  Atl. 
314,  ejectment  lies  where  city  owns  tide  lands  and  has  been  ousted 
from   possession. 

15  How.  467-494,  14  L.  775,  UNITED  STATES  v.  DAWSON. 
Syl.  2  (V,  342).     Place  of  trial  of  criminal  cases. 

Approved  in  Mahaffey  v.  Territory,  11  Okl.  225,  226,  66  Pac.  346, 
upholding  removal  of  criminal  cause  on  application  of  territory  from 
one  county  to  another. 


289  Notes  on  U.  S.  Eeports.  IG  How.  1-81 

15  How.  54G-560,   14  L.  809.     LIVINGSTON  v.  WOODWORTH. 

Syl.  3  (V,  34G).  Patents — Infringer's  prospective  profits  as  dam- 
ages. 

Approved  in  Corbin  v.  Taussig,  137  Fed.  153,  where  party  has  ex- 
elusive  agency  for  sale  of  goods  manufactured  by  another,  within  cer- 
tain territory,  damages  in  equity  are  limited  to  profits  of  offender. 


XVI  HOWARD. 


16  How.  1-13,  14  L.  819,  LEWIS  v.  DARLING. 

Syl.  3   (V,  347).     When   realty  charged  with  legacies. 
Approved  in  Reynolds  v.*Reynolds,  27  R.  I.  523,  63  Atl.  806,  foltow- 
ing   rule. 

16  IIow.  14-20,  14  L.  824,  TURNER  v.  YATES. 

Syl.  2  (V,  349).    Secondary  evidence — Diligence  to  produce  original. 

Approved  in  Pringey  v.  Guss,  16  Okl.  85,  86  Pac.  293,  secondary 
evidence  of  written  contract  inadmissible,  though  it  is  in  hands  of  one 
not  party  to  suit,  living  in  another  state,  without  showing  loss  or 
that  it  is  beyond  control  of  party  wishing  to  prove  its  terms. 

16  How.  38-47,  14  L.  835,  CONRAD  v.  GRIFFEY. 

Syl.  1  (V,  351).  Witnesses — Impeachment  by  contradictory  state- 
ments. 

Approved  in  Joy  v.  Liverpool  etc.  Ins.  Co.,  32  Tex.  Civ.  438,  74  S. 
"W.  824,  deposition  which  had  been  quashed  not  admissible  in  action 
on  fire  policy  to  impeach  testimony  of  witness  as  contained  in  sub- 
sequent deposition,  where  no  foundation  laid  for  impeachment. 

16  How.  65-81,  14  L.  847,  PENNINGTON  v.  GIBSON. 

Syl.   2    (V,   354).     Law  action   on   equitable   decree. 

Approved  in  Israel  v.  Israel,  148  Fed.  578,  state  decree  for  alimony 
and  costs  supports  action  in  another  state  for  sum  absolutely 
awarded,  but  not  for  future  payments  provided  therein;  Wagner  v. 
Wagner,  26  R.  I.  27,  57  Atl,  1058,  65  L.  E.  A.  816,  action  at  law  lies 
on  decree  in  equity  from  another  state  for  payment  of  money, 

Syl.  3  (V,  354).     Judgment  ends  further  controversy  on  same  point. 

Approved  in"  Georgia  etc.  Banking  Co.  v.  Wright,  132  Fed.  917, 
judgment  of  Georgia  supreme  court  in  suit  between  state  and  cor- 
poration that  charter  precluded  state  from  taxing  company  in  excess 
of  certain  rate  concludes  state  in  subsequent  suit  for  taxes  for 
different   year   under   different    statute. 

19 


16  How.  16-1-288  Notes  on  U.  S.  Ecports.  290 

Syl.  5  (V,  355).     Judicial  notice  of  state  laws. 
See   113   Am.   St.  Kep.   873,   note. 

16  How.  164-202,  14  L.  889,  CROSS  v.  HARRISON. 

Syl.   1    (V,  363),     Ratification  of  treaty — Collection   of  duties. 

Approved  in  Lincoln  v.  United  States,  202  U.  S.  499,  50  L.  1119, 
26  Sup.  Ct.  728,  collection  of  duties  on  imports  to  Manila,  which  was 
not  authorized  by  President's  order  of  1898,  after  ratification  of 
Spanish  treaty,  w^as  not  ratified  by  Comp.  St.  1905,  p.  391;  In  re 
Minook,  2  Alaska,  209,  Russian  subjects  remaining  in  Alaska  after 
three  years  became  naturalized  by  virtue  of  Russian  treaty  of  1867, 
and    subsequent   law3   incorporating   Alaska   into    United    States. 

Syl.  3  (V,  364).     Congress  regulates  federal  territory. 

Approved  in  United  States  v.  Winans,  198  U.  S.  383,  49  L.  1093. 
25  Sup.  Ct.  662,  fishing  rights  in  Columlpia  river,  secured  to  Yakima, 
Indians  by  treaty  of  1859,  which  provided  for  extinguishment  of 
Indian  title,  are  not  subordinate  to  powers  acquired  by  Washington 
state  in  shore  lands  on  its  admission;  Knecland  v.  Korter,  40  Wash. 
.  363,  82  Pac.  609,  1  L.  R.  A.  (N.  S.)  745,  Congress  may  grant  tide 
lands  between  high  and  low  water  mark  within  a  territory  of  the 
United  States. 

16  How.  251-262,  14  L.  925,  MAILLARD  v.  LAWRENCE. 

Syl.  3  (V,  367).  Statutory  construction — Popular  meaning  of 
words. 

Approved  in  Darlington  v.  United  States,  136  Fed.  718,  dress  shields, 
composed  in  chief  of  rubber  and  in  part  of  cotton,  are  dutiable  as 
wearing  apparel  under  tariff  act  of  1890. 

16  How.  275-288,  14  L.  936,  CARROLL  v.  LESSEE  OP  CARROLL. 

Syl.   3    (V,  370).     Stare   decisis — State   decisions. 

Approved  in  Harriman  v.  Northern  Securities  Co.,  197  U.  S.  291, 
49  L.  761,  25  Sup.  Ct.  493,  determining  question  as  to  whether  cor- 
poration organized  pursuant  to  combination  of  stockholders  in  com- 
peting railroads  to  acquire  controlling  interest  in  their  capital  stock 
holds  same  as  owner  or  trustee;  Linstroth  Wagon  Co.  v.  Ballew,  149 
Ped.  966,  where,  prior  to  involuntary  bankruptcy,  claimant  under 
sequestration  from  state  court  seized  bankrupt's  property,  and  bank- 
ruptcy trustee  intervened  and  lost,  state  judgment  was  conclusive  on 
trustee;  In  re  Cosmopolitan  Power  Co.,  137  Fed.  861,  70  C.  C.  A.  388, 
bankruptcy  court  in  determining  whether  state  imposition  is  tax 
within  Bankruptcy  Act  1898,  c.  541,  §  64a,  is  not  bound  by  state 
decisions  not  passing  on  merits  of  question;  Ex  parte  Riggins,  134 
Fed.  423,  construing  fourteenth  amendment  with  reference  to  right 
to  equal  protection  at  hands  of  states;  Rodwell  v.  Rowland,  137  N. 
C.  637,  50  S.  E.  326,  determining  validity  of  election  to  fill  vacancy  in 
ofS.ce  of  clerk  of  superior  court;  dissenting  opinion  in  Ex  parte  Boyce, 


291  Notes  on  U.  S.  Keports.  16  How.  288-354 

27  Nev.  36G,  75  Pac.  17,   65  L.  E.   A.  47,  majority  upholding  act  of 
1903,    providing   eight   hour   day   for   employees   in   mines    or   smelters. 

16  How.  288-313,  14  L.  942,  SMITH  v.  SWOEMSTEDT. 

Syl.  1   (V,  371).     Bill   by  one  in  behalf  of  all. 

Approved  in  City  of  Grafton  v.  Holt,  58  "W.  Va.  186,  52  S.  E.  22, 
judge  who  is  consumer  of  water  supplied  by  city  waterworks  is  dis- 
qualified from  sitting  at  trial  of  suit  by  taxpayers  and  consumers 
to   determine  validity  of  water  rates. 

Distinguished  in  Methodist  etc.  Church  South  v.  Clifton,  34  Tex. 
Civ.  253,  78  S.  W.  735,  voluntary  association  cannot  be  subjected  to 
ordinary  judgment  for  debt. 

Syl.  3  (V,  372).     Division  of  church — Effect  on  property. 

Approved  in  Malone  v.  Lacroix,  143  Ala.  661,  144  Ala.  652,  41 
So.  725,  trustees  of  Methodist  Episcopal  Church  South  are  legal 
successors  of  Methodist  Episcopal  Church  in  the  United  States  of 
America,  in  execution  of  trust  for  erection  of  church. 

16  How  314-354,  14  L.  953,  MAESHALL  v.  BALTIMOEE   &  OHIO 
E.  E.   CO. 

Syl.  3   (V,  375).     Stockholders  act  by  representation. 

Approved  in  United  States  v.  Milwaukee  etc.  Transit  Co.,  142 
Fed.  254,  where  officers  and  controlling  stockholders  in  brewery  organ- 
ized corporation  and  on  behalf  of  brewery  contracted  for  shipments 
with   carriers  for  commission,  Elkins  anti-rebate  law  violated. 

Syl.  1   (V,  375).     Eesidence  of  corporations. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  587,  49  L.  609,  25  Sup. 
Gt.  355,  stockholders  may  assert  actual  citizenship  to  sustain  federal 
jurisdiction  of  suit  brought  by  them  as  stockholders;  Thomas  v.  Ohio 
University  Trustees,  195  U.  S.  210,  49  L.  164,  25  Sup.  Ct.  24,  where 
Ohio  state  supreme  court  has  held  that  university  trustees  have  no 
corporate  powers,  allegation  that  it  is  citizen  of  and  domiciled  in 
Ohio  does  not  aver  that  it  is  Ohio  corporation;  United  States  v.  Mil- 
waukee etc.  Transit  Co.,  142  Fed.  253,  where  officers  and  controlling 
stockholders  in  brewery  organized  corporation  and  on  behalf  of 
brewery  contracted  for  shipments  with  carriers  on  commission, 
Elkins  anti-rebate  law  violated;  Baltimore  etc.  E.  E.  Co.  v.  Allen, 
58  W.  Va.  398,  112  Am.  St.  Eep.  985,  52  S.  E.  469,  3  L.  E.  A.  (N  S.) 
608,  foreign  railroad  corporations  operating  roads  in  this  state  may  be 
garnished   here,  irrespective   of   situs   of    debt. 

Distinguished  in  Utah-Nevada  Co.  v.  De  Lamar.  133  Fed.  117,  6Q 
C.  C.  A.  179,  fact  that  person  is  president  of  corporation  creates  no 
presumption  that  he  is  citizen  of  same  state  as  corporation. 

Syl.   7    (V,  377).     No  specific  performance   of  immoral   contract. 
Approved  in  Hazelton  v.  Sheckels,  202  U.  S.  79,  50  L.  941,  26  Sup. 
Ct.  567,  holding  void  contract  to  sell  land  at  specified  price  if  offer 


16  How.  369-479  Notes  on  U.  S.  Eeports.  292 

accepted  within  certain  time,  where  made  partly  in  consideration  of 
services  rendered  in  negotiating  with  Congress  to  purchase  land  for 
public  building;  Sussman  v.  Porter,  137  Fed.  164,  argument  to  pro- 
cure consent  of  property  owners  for  construction  and  maintenance  of 
trolley  line  in  front  of  their  properties,  and  also  to  obtain  franchise 
therefor  for  contingent  fee,  is  void;  Baumhoff  v.  Oklahoma  City 
etc.  Co.,  14  Okl.  140,  77  Pac.  44,  upholding  contract  for  sale  of  fran- 
chise  after  its   amendment  by  council. 

13  How.  369-415,  14  L.  977,  PIQUA  BEANCH  OF  STATE  BANK 
OF   OHIO  V.   KNOOP. 

Syl.  2   (V,  384).     Municipality  chargeable  by  legislature. 

See   97  Am.  St.  Rep.  349,  note. 

Syl.  10   (V,  387).     Imposing  higher  tax  than  charter  stipulation. 

Distinguished  in  New  York  v.  State  Board  of  Tax  Commrs.,  199 
U.  S.  41,  105  Am.  St.  Rep.  702,  50  L.  77,  25  Sup.  Ct.  715,  N.  Y.  Law 
1899,  c.  712,  imposing  special  franchise  tax,  does  not  impair  obligation 
of  contract  granting  right  to  operate  street  railroad  in  consideration 
of  payment  of  part  earnings. 

16  How.  469-479,  14  L.  1019,  THE  STEAMBOAT  NEW  WORLD  v. 
KING. 

Syl.  1   (V,  397).     Carrier's  liability  for  injuries  to  deadhead. 

Approved  in  Indianapolis  etc.  Terminal  Co.  v.  Lawson,  143  Fed. 
ZZ'o,  free  passenger  on  electric  car  is  entitled  to  exercise  of  highest 
skill  on  part  of  carrier;  McNeill  v.  Durham  etc.  E.  Co.,  135  N.  C.  699, 
701,  47  S.  E.  771,  772,  67  L.  R.  A.  227,  holding  railroad  liable  for  in- 
juries to  passenger  riding   on  pass. 

Syl.   3   (V,  399).     Care   required  of   steam   passenger  carriers. 

Approved  in  Indianapolis  etc.  Co.  v.  Lawson,  143  Fed.  837,  applying 
rule  where  free  passenger  on  electric  road  injured;  Chicago  etc.  Ey. 
Co.  V.  Hamler,  215  111.  536,  106  Am.  St.  Eep.  187,  74  N.  E.  709,  rail- 
road not  liable  for  injuries  to  sleeping-car  porter,  where  his  contract 
with  sleeping-car  company  releases  railroad  from  liability;  Powers  etc. 
Co.  V.  Wells-Fargo  &  Co.,  93  Minn.  145,  100  N.  W.  736,  holding  ex- 
press company  liable  for  loss  of  goods  caused  by  derailment  of  train 
upon  which  they  were  shipped;  Williams  v.  Spokane  Falls  etc.  Ey. 
Co.,  39  Wash.  88,  89,  80  Pac.  1102,  1103,  holding  carrier  liable  for 
injury  to  passenger  caused  by  breaking  of  coupler,  where  servants 
knew  it  was  liable  to  come  apart;  Mannon  v.  Camden  etc.  Ey.  Co.,  56 
W.  Va.  556,  49  S.  E.  451,  holding  street-car  company  liable  for  in- 
juries to  passenger  who  leaped  from  car  in  apprehension  of  danger 
from   broken   wire. 

Syl.    5    (V,   401).     "Gross"   negligence   is   for   jury. 
Approved    in    Raymond    v.    Portland    R.    R.    Co.,    100    Me.    534,    62 
Atl.  604,  instruction  that  if  conductor  of  electric  car  could,  by  exer- 


293  Notes  on  U.  S.  Keports.  16  How.  480-619 

cise   of  great   care,   discover   who   wanted   to   get   off,   that   would   be 
equivalent  to  actual  knowledge,  is  erroneous. 

16  How.  480-491,  14  L.  1024,  SEYMOUR  v.  McCORMICK. 

Syl.  3   (V,  404).     Patents — Profits  as   damages  for  infringement. 

Approved  in  Brown  v.  Lanyon,  148  Fed.  839,  action  at  law  does  not 
lie  for  sole  purpose  of  recovering  profits  which  infringer  of  patent 
has   made. 

Syl.  4  (V,  405).  Infringement — Damages  where  patent  covers  im- 
provement. 

Approved  in  Baker  v.  Crane  Co.,  138  Fed.  60,  70  C.  C.  A.  486,  on 
accounting  for  profits  for  infringement  of  claim  of  patent  covering 
improvement,  complainant  must  show  how  much  profit  on  entire  article 
was   due   to   improvement. 

10  How.  524-534,  14  L.  1043,  FANNING  v.  GREGOIEE. 

Syl.    2    (V,   408).     Ferry   franchise    not    exclusive. 

Approved  in  Green  v.  Ivey,  45  Fla.  349,  33  So.  714,  refusing  to  en- 
join grantee  of  ferry  from  operating  ferry  at  or  near  point  on  river 
between  two  counties  at  suit  of  prior  licensee. 

16  How.  533-547,  14  L.  1047,  BARNEY  v.  SAUNDERS. 

Syl.  4  (V,  411).     Trustee's  unauthorized  profits  belong  to  fund. 

Approved  in  Thompson  v.  Territory,  10  Okl.  422,  62  Pac.  359,  in- 
terest on  territorial  moneys  deposited  in  bank  by  treasurer  belong  to 
territory. 

16  How.  547-571,  14  L.  1052,  SOUTHARD  v.  RUSSELL. 

Syl.  5  (V,  413),     Bill  of  review  for  newly  discovered  evidence. 

Denied  in  Safe  Deposit  etc.  Co.  v.  Gittings,  102  Md.  459,  461,  62  Atl. 
1032,  4  L.  R.  A.  (N.  S.)  865,  where  wife's  executor  filed  bill  for 
accouutiug  for  property  transferred  to  her  husband  and  his  contention 
that  it  was  gift  was  denied,  it  was  discretionary  to  refuse  leave  to 
file  bill  of  review  for  newly  discovered  evidence. 

16  How.  571-580,  14  L.  1063,  SLICER  v.  BANK  OF  PITTSBURG. 

Syl.  2  (V,  414).  Presumptions  as  to  judgment  after  long  acquies- 
cence. 

Approved  in  United  States  x.  Manthei,  2  Alaska,  465,  applying  rule 
in  action  on  bail  bond  where  accused  failed  to  appear  and  bail  forfeited. 

16  How.  610-619,  14  L.  1079,  EARLY  v.  DOE. 

Syl.  2   (V,  417).     Time  of  publication  of  tax  sales. 

Approved  in  Cadman  v.  Smith,  15  Okl.  638,  85  Pac.  348,  delinquent 
tax  sale  on  notice  of  less  than  twenty-one  days  is  void  where  statute 
requires  publication  ouce  a   week  for  three  consecutive  weeks. 


17  How.  3-30  Notes  on  U.  S.  Eeports.  294 

16  How.  622-635,  14  L.  10S4,  DESHLER  v.  DODGE. 

Syl.  2   (V,  419).     Federal  courts — Suits  by  assignee — Citizenship. 

Distinguished  in  Kolze  v.  Hoadley,  200  U.  S.  82,  85,  50  L.  380,  382, 
26  Sup.  Ct.  220,  federal  court  has  no  jurisdiction  over  bill  to  foreclose 
trust  deed  at  suit  of  assignee  where  assignor  could  not  sue  therein, 
though  bill  prayed  cancellation  of  release  as  in  fraud  of  complainant; 
Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  119,  121,  66  C.  C.  A.  179,  deny- 
ing federal  jurisdiction  over  suit  by  assignee  to  recover  money  due  on 
oral  contract  where  assignor  could  not  sue  therein. 

16  How.  635-659,  14  L.  1090,  DOE  v.  BRADEN. 

Syl.  2   (V.  421).     Judicial  questions — Annulment  of  treaties. 
See  112  Am.  St.  Eep.  108,  note. 


XVII  HOWARD. 


17  How.  3-6,  15  L.  93,  SHIELDS  v.  THOMAS. 

Syl.  1   (V,  422).     Amount  in  controversy — Appeal  by  several. 

Approved  in  McDaniel  v.  Traylor,  196  U.  S.  428,  430,  49  L.  539,  25 
Sup.  Ct.  369,  upholding  federal  jurisdiction  over  equity  suits  between 
diverse  citizens  to  set  aside  fraudulent  probate  judgment  when  aggregate 
claims  upon  which  judgment  i§  based  exceed  $2,000. 

Distinguished  in  The  Joseph  B.  Thomas,  148  Fed.  767,  claims  for 
wages  in  admiralty  cannot  be  added  together  to  give  jurisdiction  to  ap- 
pellate court;  Fecly  v.  Bryan,  55  W.  Va.  594,  47  S.  E.  311,  where  several 
creditors  with  separate  demands  attack  mortgage  as  preference,  these 
claims  cannot  be  added  to  give  appellate  jurisdiction. 

17  How.  17-19,  15  L.  42,  UDALL  v.  STEAMSHIP  OHIO. 

Syl.  4  (V,  425).     Amendment  of  libel  in  appellate  court. 

Approved  in  Fred  Macey  Co.  v.  Maeey,  135  Fed.  729,  68  C.  C.  A. 
363,  bill  by  partnership  cannot  be  amended  by  consent  after  removal 
to  show  citizenship  of  members  where  neither  removal,  petition  nor 
record  show  removal  case. 

17  How.  23-30,  15  L.  115,  HAYDEL  v.  DUFRESNE. 

Syl.    1    (V,    425).      Impeachment    of    government    survey. 

Approved  in  McBride  v.  Whitaker,  65  Xeb.  147,  90  N.  W.  970,  gov- 
ernment survey  cauuot  be  impeached   collaterally   in  suit  to  quiet  title. 


295  Notes  on  U.  S.  Eeports.  17  How.  30-1-16 

17  How.  30-41,  15  L.  27,  YORK  ETC.  R.  R.  CO.  v.  WIXANS. 

Syl.   1    (V,  426).     Transfer  of  powers  by  corporation. 

Ai)proved  in  Muntz  v.  Algiers  etc.  Ry.  Co.,  Ill  La.  428,  100  Am.  St. 
Rep.  495,  35  So.  627,  64  L.  R.  A.  222,  railroad  is  liable  for  injuries 
caused  by  negligence  of  itself  or  its  lessees  in  operation  of  road.  See 
103   Am.   St.   Rep.   552,   note. 

17  How.  43-46,  15  L.  34,  BARRIBEAN  v.  BRANT. 

Syl.  2   (V,  429).     Death  of  assignor  to  trustee  pending  appeal. 

Approved  in  Brown  v.  Fletcher,  140  Fed.  645,  648,  where  cause  of 
action  in  equity  has  passed  for  estate  of  deceased  complainant  by  as- 
signment, suit  cannot  be  revived. 

Syl.  3   (V,  429).     Abatement  where  no  revivor  after  death. 
Approved  in  Brown  v.  Fletcher,   140  Fed.   645,  after  death  of  com- 
plainant, defendant  cannot  revive  suit  in  equity. 

17  How.  53-71,  15  L.  47,  RAYMOND  v.  TYSON. 

Syl.  3    (V,  431).     Waiver  of  ship  owner's  lien  by  charter. 

Approved  in  Larsen  v.  150  Bales  of  Sisal  Grass,  147  Fed.  786,  where 
time  charter  gives  owner  of  vessel  lien  on  all  cargoes  for  charter  hiro, 
no  lien  on  cargo  can  be  asserted  by  vessel  owner  as  against  shipper  who 
has  jiaid  freight. 

17  How.  100-116,  15  L.  58,  LAWRENCE  v.  MINTURN. 

Syl.  1   (V,  436).     Libel  by  consignee  of  goods. 

Approved  in  Merchants'  etc.  Bank  v.  Baltimore  etc.  S.  B.  Co.,  102 
Md.  580,  63  Atl.  110,  where  bill  of  lading  provided  for  delivery  to 
consignee  or  order  only  on  surrender  of  bill,  carrier  is  liable  for  de- 
livery without  surrender  of  bill. 

Syl.  3   (V,  437).     Jettison,  when  lawful. 

Cited  in  Oceanic  Steam  Nav.  Co.  v.  Aitken,  196  U.  S.  596,  49  L.  613, 
25  Sup.  Ct.  317,  arguendo. 

17  How.  130-146,  15  L.  158,  SHIELDS  v.  BARROW, 

Syl.  3    (V,  441).     Indispensable  parties   defined. 

Approved  in  United  States  v.  Northern  Pac.  R.  Co.,  134  Fed.  719, 
67  C.  C.  A.  269,  in  suit  by  government  to  annul  contract  between  cor- 
porations, all  of  the  corporations  are  necessary  parties;  Florida  Land 
etc.  Co.  v.  Anderson,  50  Fla.  514,  39  So.  396,  in  suit  to  remove  cloud 
and  to  cancel  conveyance  as  fraudulent,  parties  executing  conveyance 
are  necessary  parties;  Tod  v.  Crisman,  123  Iowa,  699,  99  N.  W.  688. 
contractor  to  pay  when  supervisors  have  ordered  levy  of  tax  is  not 
necessary  party  to  certiorari  to  test  legality  of  order. 

Syl.  4  (V,  443).     Necessary  parties  defined. 

Approved  in  Railroad  Commission  v.  Palmer  Hardware  Co.,  134  Ga. 
637,  53  S.  E.  195,  arguendo. 


17  How.  152-178  Notes  on  U.  S.  Reports.  296 

Syl.  6    (V,  445).     No  decree  where  necessary  parties  not  present. 

Approved  in  Weidenfeld  v.  Northern  Pac.  Ey.  Co.,  129  Fed.  311,  63 
C.  C.  A.  537,  in  suit  by  stockholder  to  restrain  corporation  from  issuing 
common  stock  instead  of  preferred,  where  end  sought  was  destruction 
of  securities  company's  title  to  majority  of  stock,  latter  company  is 
indispensable  party;  Goldman  v.  Millay,  7  Ariz.  289,  64  Pac.  434,  where 
in  partition  by  administrator  of  mortgagee  of  undivided  half  of  library 
against  purchaser  of  other  half,  latter  had  possession  of  undivided  one- 
half  only,  other  half  being  in  possession  of  widow,  mortgagor  was 
necessary  party;  State  v.  Gormley,  40  Wash.  604,  82  Pac.  930,  3  L.  E.  A. 
(N.  S.)  256,  holders  of  county  warrants  are  necessary  parties  to  suit 
to  restrain  their  payment. 

Syl.  7  (V,  447).    Amendment  to  show  new  case. 

Distinguished  in  Trust  ,Co.  v.  Scottish  Union  Ins.  Co.,  119  Ga.  674, 
46  S.  E.  856,  mortgagee  may  sue  alone  for  loss  under  policy  payable 
to  him,  when  amount  of  his  debt  equals  value  of  insurance. 

Syl.  8  (V,  447).     Amendment  inserting  new  case. 

Approved  in  Huntt  v.  McNamee,  141  Fed.  298,  applying  rule  in  ac- 
tion for  personal  injuries  caused  by  negligence  of  independent  con- 
tractor. 

Syl.  11   (V,  450).     Cross-bill  to  make  new  parties. 

Approved  in  Doke  v.  Williams,  45  Fla.  251,  34  So.  570,  denying  right 
of  third  party  to  be  made  defendant  to  suit  for  injunction ;  Wightman 
v.  Evanston  Yaryan  Co.,  217  111.  377,  108  Am.  St.  Eep.  258,  75  N.  E. 
504,  on  foreclosure  of  trust  deed  securing  bonds  of  corporation,  parties 
holding    unexpired    contracts   with    corporation    cannot    intervene. 

Syl.  13  (V,  451).     Cross-bill  defined. 

Approved  in  Ames  etc.  Realty  Co.  v.  Big  Indian  etc.  Co.,  146  Fed. 
179,  federal  equity  court  in  suit  to  protect  water  rights  may  entertain 
cross-bill  by  any  of  defendants  setting  up  priority  of  right;  Emery  Co. 
V.  Tweedie  Trading  Co.,  143  Fed.  147,  applying  rule  in  admiralty. 

17  How.   152-156,  15  L.  68,  PROPELLER  MONTICELLO  v.  MOLLI- 
SON. 

Syl.  5    (V,  453).     Admiralty — Intervention  by  insurer. 

Approved  in  The  Nonpareil,  149  Fed.  525,  carrier  by  water  may  sue 
for  loss  of  goods  in  behalf  of  all  parties  in  interest,  though  loss  has 
been   paid   by   an   insurer. 

17  How.   170-178,   15  L.   233,  SCHOONER   CATHERINE   v.  DICKIN- 
SON. 

Syl.  2   (V,  457).     Collision — Damages  where  vessel  raised. 

Approved  in  The  Cumberland,  135  Fed.  236,  where  at  instance  of 
claimant  cost  of  repairing  injured  vessel  is  adopted  as  measure  of 
damages   to   libelant,  he  may   recover   demurrage  up   to    time    of    sale 


297  Notes  on  U.  S.  Eeports.  17  How.  204-314 

where  she  was  sold  without  repairing  but  before  repairs  could  have  been 
completed. 

Syl.  3    (V,  457).     Collision — Close-hauled  vessel  keeps  course. 

Approved  in  The  Eagle  Wing,  135  Fed.  830,  applying  rule  to  collision 
at  night  between  two  schooners. 

17  How.  204-212,  15  L.  219,  UNITED  STATES  v.  NICKERSON. 

Syl.  2  (V,  4G1).    Acquittal  by  erroneous  construction  of  statute  as  bar. 

Approved  in  State  v.  Price,  127  Iowa,  305,  103  N.  W.  197,  acquittal 
under  indictment  for  rape  on  female  under  age  of  consent  bars  prosecu- 
tion for  incest  with  same  female  at  same  time. 

Syl.    4    (V,   461).      Perjury — Facts    showing    materiality. 

Approved  in  Finch  v.  United  States,  1  Okl.  403,  33  Pac.  641,  perjury 
lies  against  juror  who  on  voir  dire  testifies  falsely. 

17  How.  225-231,  15  L.  226,  UNITED  STATES  v.  SEAMAN. 
Syl.    1    (V,   462).      Mauihinuis   to   control   executive    discretion. 

Approved  in  Hover  v.  People,  17  Colo.  App.  392,  68  Pac.  685,  denying 
mandamus  to  control  amount  of  appropriation  by  council  to  defray  ex- 
penses  of  fire  and  police  board. 

Syl.  2   (V,  463).     Mandamus  only  granted  where  act  ministerial. 

Approved  in  State  v.  Savage,  65  Neb.  772,  91  N.  W.  730,  denying 
mandamus  to  compel  board  of  equalization  to  reassess  property  ot  rail- 
road, telegraph  and  sleeping-car  companies. 

17  How.  232-239,   15  L.  132,  McBLAIR  v.  GIBBES. 

Syl.  1   (V,  464).     Assignment  of  interest  in  illegal  contract. 

Approved  in  Padilla  v.  Padilla,  11  N.  M.  553,  70  Pac.  566,  upholding 
agreement  made  prior  to  judgment  whereby  defendant  agreed  to  pay 
over  to  sister  her  share  of  Indian  depredation  claim  recovered  in  his 
own   name. 

Syl.  4  (V,  465).  Illegality  of  contract  no  defense  after  performance. 

Approved  in  Monahan  v.  Monahan,  77  Vt.  143,  59  Atl.  172,  70  L.  R. 
A.  935,  impressing  securities  with  trust  though  placed  in  name  of  defend- 
ant to  avoid  taxation. 

17   How.   284-314,   15  L.   102,  UNITED   STATES  v.   GUTHRIE. 
Syl.  4  (V,  470).     No  mandamus  to  control  discretion. 

Approved  in  State  v.  Savage  65  Neb.  772,  91  N.  W.  730,  denying 
mandamus  to  compel  board  of  equalization  to  reassess  property  of  rail- 
road, telegraph  and  sleeping-car  companies. 


17  How.  315-352  Notes  on  U.  S.  Eeports.  298 

17  How.  315-322,   15  L.   77,  CLAEK  v.   CLAEK. 

Syl.  4  (V,  472).     Effect  of  bankruptcy  discharge  on  property  rights. 

Approved  in  In  re  nome  Discount  Co.,  147  Fed.  548,  bankrupt's  dis- 
charge avoids  assignment  of  future  wages  given  to  secure  provable  debt 
earned  after  filing  of  petition. 

17  How.  322-340,  15  L.  164,  BOOTH  v.  CLAEK. 

Syl.  1   (V,  473).     Eeceiver's  powers  limited  by  order  of  appointment. 

Approved  in  Great  Western  Min.  etc.  Co.  v.  Harris,  198  U.  S.  577,  49 
L.  1169,  25  Sup.  Ct.  770,  receiver  of  corporation  cannot  be  empowered 
by  appointing  court  to  sue  in  foreign  jurisdiction  to  realize  its  assets; 
In  re  Builders'  Lumber  Co.,  148  Fed.  249,  denying  purchase  money  lien 
of  claimant  who  had  sold  property  to  receiver  under  conditional  sale; 
Detroit  etc.  E.  E.  Co.  v.  Campbell,  140  Mich.  391,  103  N.  W.  859,  ex- 
istence of  receiver  of  railroad  appointed  on  creditor's  bill  does  not  de- 
vest corporation  of  right  to  condemn  land  for  right  of  way. 

Syl.  8  (V,  475).     Eeceiver's  suit  in  foreign  court. 

Approved  in  Great  Western  Min.  etc.  Co.  v.  Harris,  198  U.  S.  574, 
578,  49  L.  1168,  1169,  25  Sup.  Ct.  770,  receiver  of  foreign  corporation 
cannot  be  empowered  by  appointing  court  to  sue  in  foreign  jurisdiction 
to  realize  its  assets;  Covell  v.  Fowler,  144  Fed.  539,  receiver  of  bank  in 
liquidation  cannot  sue  in  another  jurisdiction  to  enforce  stockholder's 
liability;  Fowler  v.  Osgood,  141  Fed.  21,  22,  23,  federal  court  receiver 
of  insolvent  corporation  cannot  sue  in  another  district  to  recover  fund 
alleged  to  be  held  in  trust  for  creditors,  though  appointing  court  au- 
thorized suit;  Edwards  v.  National  Window  Glass  etc.  Assn.,  139  Fed. 
797  798,  federal  receiver  for  corporation  cannot  sue  in  federal  court 
of  another  jurisdiction  on  cause  of  action  in  favor  of  corporation; 
Egan  v.  North  American  Loan  Co.,  45  Or.  136,  76  Pac.  775,  where  loan 
society  in  hands  of  receiver  has  loaned  money  on  property  in  another 
state,  borrower  may,  on  payment  of  loan,  sue  to  cancel  unsatisfied 
mortgage  given  as  security,  without  leave  of  appointing  court. 

Syl.  9    (V,  476).     Eeceiver  has  no  extraterritorial  power. 

Approved  in  Great  Western  Min.  etc.  Co.  v.  Harris,  198  U.  S.  575, 
576,  49  L.  1168,  25  Sup.  Ct.  770,  receiver  of  corporation  cannot  be  em- 
powered by  appointing  court  to  sue  in  foreign  jurisdiction  to  realize  its 
assets;  In  re  Benedict,  140  Fed.  56,  applying  rule  to  bankruptcy  re- 
ceiver. 

Distinguished  in  Childs  v.  Blethen,  40  Wash.  349,  82  Pac.  408,  where, 
pending  receivership  in  sister  state,  suit  against  insolvent  bank  creditor 
and  court  fixed  liability  of  each  stockholder  on  intervention  by  creditor, 
creditors  and  receiver  could  sue  on  judgment  in  this  state. 

17  How.  344-352,  15  L.  96,  BUECHELL  v.  MAESH. 

Syl.  1   (V,  478).     Arbitrator's  award  is  final. 

Ap])roved  in  Levin  v.  Northwestern  Nat.  Ins.  Co.,  146  Fed.  77,  award 
of  arbitrators  fixing  amount  of  insured's  loss,  made  in  accordance  with 


299  [Notes  on  U.  S.  Eeports.  17  How.  369-403 

provisions  of  policy,  cannot  be  impeached  for  fraud  in  federal  action  at 
law;  White  Star  Mining  Co.  v.  Hultberg,  220  111.  606,  77  N.  E.  337, 
applying  principle  where  corporation  agreed  to   arbitration. 

Syl.  2  (V,  478).     Setting  aside  award  for  fraud. 

Approved  in  Roberts  Bros.  v.  Consumers  Can  Co.,  102  ]\rd.  369,  111 
Am.  St.  Eep.  382,  62  Atl.  587,  fact  that  deposition  for  use  before  ar- 
bitrators was  by  notary's  mistake  sent  to  one  of  parties  instead  of 
directly  to  them  did  not  authorize  its  rejection  where  party  sent  it  to 
them   unopened. 

Syl.  5   (V,  479).  Setting  aside  award  for  error  of  law  or  fact. 
Approved  in  White  Star  Mining  Co.  v.  Hultberg,  220  111.  602,  77  N. 
E.  336,  applying  rule  where  corporation  agreed  to  arbitration. 

Syl.  7   (V,  479).     Setting  aside  award  for  mistake. 
Approved  in  Burrell  v.  United  States,  147  Fed.  48,  federal  court  may 
enter  judgment  on  award  of  arbitrators. 

Syl.  9   (V,  479).     Award  not  set  side  for  error  of  judgment. 

Approved  in  Burrell  v.  United  States,  147  Fed.  50,  where  arbitration 
agreement  provided  for  taking  of  proof  in  same  manner  as  in  trial 
of  court  cases,  and  that  judgment  entered  on  award  should  be  un- 
appealable; objections  to  introduction  of  evidence  cannot  be  urged 
against  judgment  entered  on  award. 

17  How.  3G9-399,  15  L.  80,  FONTAIN  v.  EAVEXEL. 

Syl.  4   (V,  481).     Federal  equity  powers. 

Approved  in  dissenting  opinion  in  James  v.  Gray,  131  Fed.  409,  65 
C.  C.  A.  385,  majority  holding  loan  made  by  wife  to  husband  from  her 
separate  estate  is  provable  as  debt  against  his  estate  irrespective  of  its 
enforceability  under  state  law. 

Syl.  5  (V,  481).     Sovereign  prerogatives  are  in  states. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed. 
519,  67  C.  C.  A.  393,  construing  charitable  bequest  to  trustees  who 
should,  after  accumulation  of  income  for  twenty-five  years,  procure 
formation  of  corporation  to  which  estate  should  be  transferred,  as  im- 
pressing  entire   estate   with  trust   from   testator's   death. 

17  How.  399-403,  15  L.  95,  BOGART  v.  STEAMBOAT  JOHN  JAY. 

Syl.  1   (V,  483).     Admiralty  cannot  sell  ship  to  pay  mortgage. 

Approved  in  The  Conveyor,  147  Fed.  5S9,  upholding  admiralty  juris- 
diction to  administer  fund  applicable  to  payment  of  maritime  liens 
with  reference  to  claims  based  on  mortgage;  the  Clifton,  143  Fed. 
463,  denying  jurisdiction  of  admiralty  over  suit  by  mortgagee  under 
mortgage  to  secure  money  borrowed  to  pay  purchase  price  of  vessel  to 
recover  possession  of  vessel;  The  Gordon  Campbell,  131  Fed.  965,  where 
admiralty  court  has  in  its  registry  for  distribution  fund  arising  from 


17  How.  403-455  Notes  on  U.  S.  Keporta.  200 

sale   of  vessel  and   maritime   liens  have  been  paid,   holder  of  recorded 
mortgage  may  prove  claim  against  fund. 

17   How.   403-416,   15   L,   110,   WEST   v.   COCHRAN. 

Syl.  5   (V,  485).     Survey  necessary  to  pass  title. 

Approved  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  175,  76 
Pac.  318,  until  confirmation  by  court  of  private  land  claims  of  survey 
of  imperfect  grant,  land  is  not  taxable. 

Syl.  7   (V,  485).     Survey  of  confirmed  lands. 

Approved  in  McBride  v.  Whitaker,  65  Neb.  146,  90  N.  W.  970,  plat 
of  survey  made  and  approved  by  land  department  cannot  be  collaterally 
impeached;  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  172,  76  Pac. 
317,  until  confirmation  by  court  of  private  land  claims  of  survey  of  im- 
perfect grant,  land  is  not  taxable. 

17  How.  437-443,  15  L.  129,  BEUCE  y,  UNITED  STATES. 

Syl.  1   (V,  489).     Treasury  transcript  as  evidence. 

Approved  in  United  States  v.  Pierson,  145  Fed.  817,  818,  introduction 
of  duly  certified  transcript  of  books  and  proceedings  of  treasury  depart- 
ment in  action  on  Indian  agent's  bond  establishes  prima  facie  case. 

Syl.   2    (V,   489).     Eeappointment   of   officer — Surety's   liability. 
Approved  in  Lake   Co.  v.  Neilon,   44  Or.   17,   74  Pae.   213,  applying 
principle  in  action  on  tax  collector's  bond. 

Syl.  3  (V,  490).  Eeappointcd  officer — Sureties'  burden  to  disprove 
liability. 

Approved  in  Lake  Co.  v.  Neilon,  44  Or.  21,  74  Pac.  214,  applying 
principle  in  action  on  tax  collector's  bond. 

17  How.  443-447,  15  L.  123,  HENDEICKSON  v.  HINCKLEY. 

Syl.  1   (V,  490).     Injunction  against  law  judgment. 

Approved  in  Nelson  v.  Mechan,  2  Alaska,  493,  vacating,  after  term, 
judgment  obtained  by  fraud  and  perjury,  after  its  affirmance  by  ap- 
pellate court;  Hockaday  v.  Jones,  8  Okl.  163,  56  Pac.  1056,  refusing  to 
enjoin  execution  on  default  judgment  upon  constructive  service; 
Farmers'  etc.  Warehouse  Co.  v.  Pridemore,  55  W.  Va.  463,  47  S.  E. 
263,  refusing  to  enjoin  judgment  at  law  where  fraud,  mistake  or  cir- 
cuins'tance  beyond  complainant's  control  not  alleged  as  cause  of  failure 
of   proof   at   trial. 

17   How.  447-455,  15  L.   155,  STEVENS  v.   GLADDING. 

Syl.  3   (V,  493).     Property  in  copyright  and  plates  distinguished. 

Approved  in  Bobbs-Merrill  Co.  v.  Straus,  147  Fed.  18,  20,  refusing  to 
enjoin  dealer  i'rom  selling  copyrighted  book  at  less  than  price  men- 
tioned in  notice  jiriuted  in  book  to  effect  that  no  dealer  was  licensed  to 
sell  at  less  price;  Werckmeister  v.  American  Lith.  Co.,  134  Fed.  324, 
326,  68  L.  E.  A.  591,  exhibition  of  original  copyrighted  painting  at 


301  Notes  on  U.  S.  Reports.  17  IIow.  478-576 

acaclomy  at  which  no  person  authorized  to  copy  same,  and  to  which  public 
other  than  members  not  admitted  except  on  payment  of  fee,  is  no  pub- 
lication. 

Syl.   4    (V,   493).   Mingling  of  ownership   in   plate   and   copyright. 
Approved  in  Werckmeistcr  v.  American  I^ith.  Co.,  142  Fed.  834,  notice 
of  copyright  need  not  be  put  on  original  painting. 

Syl.  .'5  (V,  494).  Equity — Enforcement  of  penalty  for  infringement 
of   copyright. 

Approved  in  Bobbs-Merrill  Co.  v.  Straus,  147  Fed.  21,  refusing  to 
enjoin  dealer  from  selling  copyrighted  book  at  less  than  price  mentioned 
in  notice  printed  in  book  to  effect  that  no  dealer  was  licensed  to  sell 
at  less  price;  United  States  v.  Berrigan,  2  Alaska,  446,  under  Russian 
treaty,  members  of  Athapascan  stock  are  uncivilized  tribes  entitled 
to  the  equal  protection  of  laws  afforded  to  similar  aboriginal  tribes. 

Syl.   6    (V,   494).      Copyright — Account  in  equity   for  profits. 

Approved  in  Social  Register  Assn.  v.  Murphy,  129  Fed.  148,  in  equity 
suit  for  infringement  of  copyright  there  can  be  no  damages  recovered 
beyond  profits  of  defendant;  Hardy  v.  LaDow,  72  Kan.  178,  83  Pac. 
403,  where  plaintiff  alleged  terms  of  lease  agreed  upon,  and  that  he  was 
fraudulently  induced  to  sign  lease  not  conforming  thereto,  and  he  praycil 
for  cancellation  and  general  relief,  court  could  reform  lease. 

17  How.  478-525,  15  L.  181,  FLORIDA  v.  GEORGIA. 

(V,  500.)  Miscellaneous.  Cited  in  Ex  parte  Cox,  44  Fla.  540,  33  So. 
510,  61  L.  R.  A.  734,  writ  of  error  does  not  lie  from  state  supreme  court 
to  review  judgment  of  individual  judges  thereof  on  habeas  corpus. 

17  How.  525-541,  15  L.  236,  UNITED  STATES  v.  RITCHIE. 

Syl.  ^  (V,  502).     Grant  to  Indian  by  California  governor  valid. 

Approved  in  Territory  v.  Delinquent  Taxpayers.  12  X.  M.  142,  143. 
144,  76  Pac.  308,  lauds  of  Pueblo  Indians  in  New  Mexico    are  taxable. 

17  How.  542-576,  15  L.  241,  FREMONT  v.  UNITED  STATES. 

Syl.   7   (V,  504).     Grant  by  California  governor  was  in   praesenti. 

Approved  in  Conway  v.  United  States,  149  Fed.  266,  determining  rights 
of  Indian  woman  allottee  whose  selection  was  approved  but  whose 
patent  was  by  mistake  made  out  to  husband;  Catron  v.  Laughlin,  11  N. 
M.  635,  72  Pac.  33,  where  Congress  has  confirmed  Mexican  grant  to 
such  grantees  as  had  not  forfeited  rights  by  noncompliance  with  con- 
ditions of  grant,  burden  of  showing  forfeiture  prior  to  cession  is  on 
party  alleging  it. 

Syl.  13  (V,  507).  Forfeiture  of  grant  for  sale  after  cession  of  terri- 
tory. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  623,  72  Pac.  29,  applying 
rule  as  to  grant  in  New  Mexico. 


17  IIow.  576-600  Notes  on  U.  S.  Reports.  S02 

17  How.  576-579,  15  L.  35,  WEBB  v.  DEN. 

Syl.  1  (V,  508).     Retrospective  statutes. 

Approved  in  Miners'  etc.  Bank  v.  Snyder,  100  Md.  65,  108  Am.  St. 
Eep.  390,  68  L.  R.  A.  312,  59  Atl.  708,  upholding  Acts  1904,  p.  597, 
substituting  equitable  remedy  to  enforce  stockholder's  liability,  as  ap- 
plied to  suit  in  which  judgment  has  not  been  rendered. 

(V,  508.)  Miscellaneous.  Cited  in  McPherson  v.  Julius,  17  S.  D. 
127,  95  N.  W.  436,  in  suit  to  quiet  title  to  mining  claim,  judgment 
in  prior  action  to  which  plaintiffs  not  parties  is  not  binding  on  plaintiffs, 
in  so  far  as  it  established  validity  of  defendant's  claim  including  con- 
flicting ground. 

17  How.   591-596,   15  L.  179,   AYRES  v.  CARVER. 

Syl.  1   (V,  510).     New  matter  not  allowed  in  cross-bill. 

Approved  in  Emery  Co.  v.  Tweedie  Trading  Co.,  143  Fed.  147,  apply- 
ing rule  in  action  in  admiralty  to  recover  balance  for  hire  of  steamer; 
Jackson  v.  Dutton,  46  Ela.  517,  35  So.  76,  where  no  decree  pro  confesso 
has  been  entered  on  cross-bill  on  foreclosure,  court  may  permit  answer 
not  properly  sworn  to  to  be   sworn  to. 

Distinguished  in  Ames  Realty  Co.  v.  Big  Indian  etc.  Co.,  146  Fed. 
177,  in  federal  equity  suit  to  establish  water  rights  against  separate  ap- 
propriators  of  diverse  citizenship  from  complainant,  court  has  juris- 
diction of  cross-bill  by  defendants  setting  up  priority,  irrespective  of 
citizenship. 

Syl.  2   (V,  511).  Decision  on  cross-bill  not  appealable. 

Approved  in  Blythe  Co.  v.  Bankers'  Ins.  Co.,  147  Cal.  93,  94,  81  Pac. 
285,  decree  pro  confesso  on  cross-bill  in  federal  court  may  be  vacated 
on  motion  after  adjournment  of  term. 

17  How.  596-600,  15  L^  254,  HAYS  v.  PACIFIC  MAIL  STEAMSHIP 
CO. 

Syl.  2  (V,  512).     State  tax— Situs  of  vessels. 

Approved  in  Ayer  etc.  Tie  Co.  v.  Kentucky,  202  IT.  S.  421,  422,  50 
L.  1087,  26  Sup.  Ct.  678,  holding  actual  situs  of  vessel  and  not  place  of 
enrollment  of  vessel  used  in  interstate  commerce  as  marked  on  stern  de- 
termines tax  sitvTS  of  vessel,  and  reversing,  Commonwealth  v.  Ayer  etc. 
Co.,  117  Ky.  169,  77  S.  W.  686,  holding  home  port  of  vessel  engaged 
in  interstate  commerce  as  marked  on  stern  is  its  situs  for  taxation, 
though  its  owner  resides  in  different  state;  Union  etc.  Transit  Co.  v. 
Kentucky,  199  U.  S.  205,  50  L.  154,  26  Sup.  Ct.  36,  due  process  of  law 
denied  Kentucky  corporation  by  tax  assessed  under  Ky.  Stat.,  §  4020, 
on  rolling  stock  permanently  located  in  other  states  and  employed  there 
in  prosecution  of  business;  Olson  v.  San  Francisco,  148  Cal.  83,  82  Pac. 
852,  vessel  engaged  in  commerce  on  high  seas  is  taxable  in  San  Fran- 
cisco where  owner  resided,  though  she  was  temporarily  registered  in 
Washington  and   had   never   been   in   California;    Flowerree   etc.   Co.   v. 


303  Notes  on  U.  S.  Eeports.  18  How.  16-60 

Le^-is  &  Clark  County,  33  Mont.  38,  81  Pac.  400,  where  corporation 
owning  cattle  in  certain  county  where  its  business  manager  resided  drove 
number  of  cattle  into  another  county  for  winter  feeding,  cattle  not  tax- 
able in  latter  county. 

Distinguished  in  Foppiano  v.  Speed,  199  U.  S.  520,  50  L.  292,  26 
Sup.  Ct.  138,  upholding  exaction  by  state  of  license  fee  from  person 
engaged  in  selling  liquor  within  state  over  bar  on  boat  employed  in 
interstate  commerce;  Old  Dominion  S.  S.  Co.  v.  Virginia,  198  U.  S.  306, 
307,  308,  49  L.  1062,  25  Sup.  Ct.  686,  vessels  which,  though  engaged  in 
interstate  commerce,  are  employed  in  such  commerce  wholly  within  limits 
of  state,  are  taxable  there  though  registered  in  another  state;  Prairie 
Cattle  Co.  V.  Williamson,  5  Okl.  494,  49  Pac.  939,  under  Sess.  Laws  1895, 
art.  5,  §§  1,  2,  where  cattle  owned  in  another  state  actually  ranged  in 
certain  county  here  during  entire  year,  they  were  taxable  in  such  county. 


XVIII  HOWARD. 


18  How.  16-19,  15  L.  277,  McLEAN  v.  MEEK. 

Syl.  1  (V,  519).  Foreign  judgment  against  administrator  as  evi- 
dence. 

Approved  in  Coram  v.  Ingersoll,  148  Fed.  175,  judgment  on  mowts 
against  ancillary  administrator  in  action  on  chose  in  action  bars 
second  suit  b-y  ancillary  administrator  in  another  jurisdiction. 

18  How.  43-50,  15  L.  285,  BARXAED  v.  ASHLEY. 

S}-!.  1  (V,  523).     Conclusiveness  of  land  officer's  decision. 

Approved  in  Le  Marchel  v.  Teegarden,  133  Fed.  827,  party  attack- 
ing patent  for  mistake  of  fact  must  plead  and  prove  evidence  before 
department  from  which  mistake  resulted,  the  particular  mistake  and 
the  way  in  which  it  occurred;  Smith  v.  Love,  49  Fla.  239,  38  So.  379, 
declaring  patentee  who  obtained  patent  by  fraud  a  trustee  for  party 
legally  entitled  to  patent. 

Syl.  2  (V,  525).     Eights  accruing  to  entryman  under  pre-emption. 

Distinguished  in  Estes  v.  Timmons,  199  U.  S.  395,  50  L.  244,  20 
Sup.  Ct.  85,  perjury  on  hearing  before  Land  Department  of  contest 
under  homestead  laws  is  not  relievable  in  equity. 

IS  How.  50-60,  15  L.  280,  WEIGHT  v.  MATTISOX. 

Syl.  1   (V,  526).     Adverse  possession — Color  of  title  defined. 

Approved  in  Tidwell  v.  Chiricahua  Cattle  Co.,  5  Ariz.  367,  53  Pac. 
196,  under  act  Cong.  1885,  prohibiting  inclosure  of  public  lands,  one 
could  not  enter  tract  of  less  than  one  hundred  and  sixty  acres,  which 


18  How.  60-89  Notes  on  U.  S.  Eeports.  304 

had  been  inclosed  by  original  settler  as  incident  to  settlement,  and 
was  held  by  plaintiff  under  record  conveyances  from  original  settler; 
Beasley  v.  Equitable  Securities  Co.,  72  Ark.  610,  84  S.  W.  228,  bond 
for  title  is  not  color  of  title  within  Acts  1883,  p.  106,  §  1,  providing 
for  compensation  for  improvements  made  by  occupant  of  land  be- 
longing to  another;  Johnson  v.  Hurst,  10  Idaho,  325,  77  Pac.  791, 
patentee  of  greater  acreage  than  government  receives  pay  for  may 
maintain  suit  to  quiet  title  against  trespasser;  "Woodruff  v.  Wallace, 
3  Old.  374,  41  Pac.  364,  homestead  filing  does  not  convey  color  of  title 
within  moaning  of  act  of  Congress  of  June  1,  1874. 

18   How.  60-63,  15  L.  265,  GRAHAM  v.   BAYNE. 

Syl.  1   (V,  528).     No  review  of  agreed  case. 

Approved  in  Swift  &  Co.  v.  Jones,  145  Fed.  494,  circuit  court  can- 
not, in  action  at  law,  order  trial  before  special  master  authorized  to 
hear  and  pass  on  issues  of  fact  and  report  findings;  Anglo-American 
Land  etc.  Co.  v.  Lombard,  132  Fed.  734,  68  C.  C.  A.  89,  where  special 
finding  in  action  at  law  tried  to  court  responds  only  to  part  of  issues 
and  facts  found  are  not  decisive  of  case,  new  trial  awarded. 

18  How.  71-76,  15  L.  269,  SMITH  v.  STATE  OF  MARYLAND. 

Syl.  1   (V,  531).     Tide  lands  belong  to  state. 

Approved  in  State  v.  Price,  71  N.  J.  L.  254,  58  Atl.  1017,  upholding 
oyster  and  clam  act  of  1902;  People  v.  Bootman,  ISO  N.  Y.  10,  72 
N.  E.  508,  upholding  game  laws  of  1900,  prohibiting  possession  of 
game  during  close  season;  Taylor  v.  Commonwealth,  102  Va.  766,  102 
Am.  St.  Rep.  865,  47  S.  E.  878,  upholding  title  of  state  in  bed  of 
navigable  river  as  against  riparian  owner. 

Svh   2    (V,  533).     Constitutional   restraints   on   federal   government. 

Approved  in  State  v.  MacQueen,  69  N.  J.  L.  527,  55  Atl.  lOOS, 
upholding  reading  of  newspaper  article  in  nature  of  confession  taken 
from  accused  at  time  of  arrest;  Territory  v.  Stroud,  6  Okl.  Ill,  50 
Pac.  267,  upholding  prosecution  by  information  without  preliminary 
examination. 

18  How.  82-86,  15  L.  273,  BUSH  v.  PERSON. 

Syl.  1  (V,  536).     Mortgagor's  after-acquired  title. 

Approved  in  United  States  v.  Clark,  200  U.  S.  607,  50  L.  616,  26 
Sup.  Ct.  340,  purchaser  of  timber  lands  after  receiver's  final  receipts 
have  issued  is  protected  as  bona  fide  j)urchaser  against  cancellation, 
for  frauds  of  entryman,  of  patent  afterward  issued. 

18  How.  87-89,  15  L.  279,  MINTER  v.  CROMMELIN. 

Syl.  1  (V,  537).     Land  patent  presumes  regularity  of  preliminaries. 

Approved  in  Bradshaw  v.  Edelen,  194  Mo.  661,  92  S.  W.  697,  where 
island  in  Missouri  river  surveyed  by  government  prior  to   admission 


305  Notes  on  U.  S.  Eeports.  18  How.  126-158 

of  Missouri  into  Union  belonged  to  United  States  and  passed  to  citizen 
by  patent. 

18  How.  126-134,  15  L.  334,  HAM  v.  STATE  OF  MISSOURI. 

Syl.  1  (V,  546).  Confirmation  of  imperfect  Spanish  grant  confers 
no  title. 

Distinguished  in  Hollister  v.  State,  9  Idalio,  15,  71  Pac.  543,  Idaho 
admission  act  does  not  restrict  right  of  eminent  domain  over  lands 
granted  to  state  by  that  act. 

18  How.  135,  15  L.  290,  GUILD  v.  FEONTIN, 

Syl.  1  (V,  546).     No  review  where  jury  waived  and  findings  general. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  734, 
68  C.  C.  A.  89,  where  special  finding  in  action  at  law  responds  only 
to  part  of  issues,  and  facts  found  are  not  decisive  of  case,  new  trial 
awarded. 

18  How.  137-143,  15  L.  318,  PARKER  v.  OVERMAN. 

Syl.  2  (V,  548).  Removal — Citizenship  and  residence  not  synony- 
mous. 

Approved  in  Steigleder  v.  McQucsten,  198  U.  S.  143,  49  L.  988,  25 
Sup.  Ct.  616,  passing  on  question  of  jurisdiction  though  motion  to 
dismiss  merely  charged  that  parties  were  residents  of  same  state; 
Irving  v.  Smith,  132  Fed.  207,  allegation  in  removal  petition  that 
defendant  is  citizen  of  state  other  than  that  in  which  suit  is  pending 
is  not  equivalent  to  allegation  that  he  is  nonresident  of  that  state. 

IS  How.  143-149,  15  L.  304,  RICHARDS  v.  HOLMES. 

Syl.  2  (V,  551).     Power  to  sell  includes  power  to  adjourn. 

See  97  Am.  St.  Rep.  654,  659,  note. 

Syl.  3   (V,  552).     Mortgage  creditor  may  bid. 

Approved  in  Anderson  v.  Messiuger,  146  Fed..  932,  933,  pledgee  may 
purcliase  wiicre  sale  conducted  by  master. 

18  How.  150-158,  15  L.  320,  JONES  v.  JOHNSTON. 

Syl.  1   (V,  552).     Deed  referring  to  recorded  plat  for  desrription. 

Approved  in  AVilson  v.  Chicago  etc.  Co.,  143  Fed.  712,  construing 
deed  referring  to  map  for  location  of  line  of  river-bed. 

Syl.  3   (V,  553).     Boundaries — Gradually  changing  water  line. 

Approved    in    Sherwin    v.    Bitzer,    97    Minn.    257,    106    N.    W.    1048. 
transfer  of  government  lot  abutting  on  lake  by  number  of  govornnient 
survev  without  restricting  words  conveys  all  land  which   has  become 
part  of  lot  by  recession  of  lake. 
20 


18  How.  173-217  Notes  on  U.  S.  Reports.  S06 

18  How.  173-182,  15  L.  338,  COOPER  v.  ROBERTS. 

Syl.  2  (V,  557).     Michigan's  title  to  lands  perfected  on  survey. 

Approved  in  State  v.  Jennings,  47  Fla.  320,  35  So.  993,  under  act  of 
Congress  of  1845,  granting  school  lands  to  Florida,  when  by«  survey- 
sixteenth  section  or  fractional  part  thereof  is  ascertained  to  exist  in 
any  township,  grant  immediately  attaches  without  patent. 

Syl.  3   (V,  558).     State's  control  over  school  lands. 

Approved  in  United  States  v.  Tully,  140  Fed.  904,  905,  determining 
federal  jurisdiction  over  crime  committed  on  lands  occupied  but  not 
legally  reserved  for  military  reservation. 

(V,  557.)  Miscellaneous.  Cited  in  Montana  Min.  Co.  v.  St.  Louis  etc. 
Co.,  147  Fed.  904,  reciting  history  of  litigation. 

18  How.  182-192,  15  L.  341,  THE  SCHOONER  FREEMAN  v.  BUCK- 
INGHAM. 

Syl.  3    (V,  559).     No  lien   until   cargo   delivered. 

Approved  in  Guffey  v.  Alaska  etc.  S.  S.  Co.,  130  Fed.  274,  64  C.  C. 
A.  517,  under  bill  of  lading  for  goods  to  be  shipped  on  defendants' 
vessel,  "now"  at  certain  port,  where  complainant  knew  vessel  was 
on  high  seas,  and  goods  never  delivered  to  master,  vessel  not  liable 
to  maritime  lien  for  breach  of  contract;  Henderson  v.  Louisville  etc. 
R.  Co.,  116  La.  1049,  41  So.  253,  and  Roy  v.  Northern  Pac.  Ry.  Co., 
42  "Wash.  579,  85  Pac.  55,  56,  both  holding  act  of  carrier's  agent  in 
delivering  bill  of  lading  for  goods  he  knew  had  not  been  delivered 
to  carrier  do  not  bind  carrier  even  as  against  innocent  transferee; 
Watkins  Nat.  Bank  v.  Cleveland  etc.  Ry.  Co.,  117  Mo.  App.  252,  93 
S.  \V.  846,  carrier's  liability  to  one  to  whom  bills  of  lading  have  been 
negotiated,  for  issuing  same  before  freight  received,  in  violation  of 
statute,  is  not  changed  by  subsequent  receipt  thereof.  See  105  Am. 
St.  Rep.  348,  350,  351,  note. 

Syl.  4  (V,  562).     Master's  contract  of  affreightment  binds  vessel. 

Approved  in  Golcar  etc.  Co.  v.  Tweedie  Trading  Co.,  146  Fed.  568, 
under  charter  of  vessel  whereby  captain  appointed  by  owners  was  to 
be  under  orders  of  charterers  who  agreed  to  indemnify  owners  for 
liabilities  arising  from  captain  signing  bills  of  lading,  charterer  can- 
not recover  from  owner  for  shortage  in  delivery;  The  Worthington, 
133  Fed.  726,  70  L.  R.  A.  353,  66  C.  C.  A.  555,  owner  of  vessel  who  bor- 
rowed money  in  foreign  port  on  credit  of  vessel,  upon  representation 
that  it  was  to  pay  for  loading,  is  estopped  to  deny  it  was  so  used. 

18  How.  202-217,  15  L.  352,  ABBOTT  v.  ESSEX  COMPANY. 

Syl.  1  (V,  565).  Devise  to  sons  or  to  another  on  death  without 
issue. 

Approved  in  Yoeum  v.  Parker,  134  Fed.  209,  67  C.  C.  A.  227.  devise 
to  son  provided  that  if  he  die  without  issue  lands  shall  pass  to  others 
vests  fee  simple  in  son  and  creates  no  estate  tail. 


207  Notes  on  U.  S,  Eeports.  18  How.  217-253 

Distinguished  in  Anderson  v.  Messinger,  146  Fed.  943,  944,  con- 
struing devise  to  sons  i)rovided  that  if  either  died  without  descend- 
ants, then  survivor  should  take,  and  if  latter  died  without  descend- 
ants, estate  should  go  to  brothers  and  sisters,  as  devising  life  estate 
to  sons. 

Syl.  2  (V,  566).     Fee  passes  without  words  of  inheritance. 

Approved  in  McCaffrey  v.  Manogue,  196  U.  S.  571,  49  L.  603,  25 
Sup.  Ct.  319,  under  will  making  all  heirs  devisees  without  words  of 
limitation,  and  charging  one  receiving  most  land  with  payment  of 
debts   and  funeral  expenses,  devisees   took  fee  simple. 

Syl.  6   (V,  566).     "Lawful  heirs  of  their  own,"  defined. 

Approved  in  Coleman  v.  Coleman,  69  Kan.  41,  44,  76  Pac.  440,  under 
devise  to  sons  conditioned  that  on  death  of  either  without  heirs  of 
his  own,  survivors  should  take,  on  death  of  infant  son,  his  mother  did 
not  inherit. 

Distinguished  in  Anderson  v.  Messinger,  146  Fed.  944.  under  devise 
to  sons  which  provided  that  if  either  died  without  issue  then  sur- 
vivor should  take,  and  if  latter  left  no  issue,  estate  should  go  to 
brothers  and  sisters,  sons  took  life  estate. 

18  How.  217-223,  15  L.  357,  McLAUGHLIN  v.  SWANN. 

Syl.  2  (V,  567).     Garnishee's  defenses. 

Approved  in  Field  v.  Sammis,  12  N.  M.  45,  73  Pac.  620,  following 
rule. 

18  How.  22;?-230,  15  L.  359,  THE  STEAMBOAT  NEW  YOEK  v.  EEA. 

Sj'l.  2   (V,  567).     Steamers  must  keep  competent  lookout. 

Approved  in  The  Idlewild,  129  Fed.  847,  holding  tug  towing  scow 
at  fault  for  collision  with  yacht  anchored  at  night  in  harbor. 

18  How.  246-253,   15  L.  380,  YORK  &  CUMBERLAND  E.   E.   CO.  v. 
MYEES. 

Syl.  1  (V,  569).     Bill  of  exceptions  showing  facts. 

Approved  in  Metropolitan  E.  E.  Co.  v.  Maefarland,  195  U.  S.  331, 
49  L.  223,  25  Sup.  Ct.  28,  errors  of  law  in  condemnation  proceedings  are 
not  reviewable  without  bill  of  exceptions. 

Syl.   6    (V,  570).     Award   on   arbitration   is   final   decision. 

Approved  in  Burrell  v.  United  States,  147  Fed.  49,  51,  where  arbitra- 
tion agreement  provided  that  proof  should  be  taken  before  arbitrators 
in  same  manner  as  in  trials,  and  judgment  awarded  should  be  unap- 
pealable, objections  against  introduction  of  evidence  cannot  be  urged 
against  judgment;  Swift  &  Co.  v.  .Tones,  145  Fed.  493,  in  action  at  law 
circuit  court  cannot,  even  by  consent,  order  trial  before  special  master 
authorized  to  pass  on  issues  of  fact  and  report  findings  to  court. 


18  How.  253-266  Notes  on  U.  S.  Keports.  •  30a 

18  How.  253-263,  15  L.  368,  SHIELDS  v.  THOMAS. 

Syl.  1   (V,  571).     Nonresident's  appearance  gives  jurisdiction. 

Approved  in  Succession  of  Caldwell,  114  La.  195,  108  Am.  St.  Eep. 
347,  38  So.  142,  giving  credit  to  Massachusetts  probate  decree  of 
adoption. 

Syl.  2  (V,  571).     Equity — Determination  of  multifariousness. 

Approved  in  Inman  v.  New  York  etc.  Co.,  131  Fed.  999,  bill,  in 
one  suit,  attempting  to  settle  right  of  ownership  of  stock  of  corpora- 
tion and  to  ask  relief  dependent  on  such  ownership,  is  multifarious. 

Syl.  4  (V,  571).     Equity  jurisdiction  not  defeated  by  jury. 

Approved  in  Bradford  v.  Territory,  1  Okl.  370,  34  Pac.  67,  quo 
warranto  proceeding  is  suit  at  common  law  within  seventh  amendment 
relating  to  juries. 

18  How.  263-26G,  15  L.  263,  ORTON  v.  SMITH. 

Syl.  1   (V,  572).     Equitable  title  and  possession  to  quiet  title. 

Approved  in  Davis  v.  Farmer,  141  Fed.  706,  upholding  suit  to  quiet 
title  based  on  state  patent  to  complainant's  predecessor;  First  Bap- 
tist Church  V.  Harper,  191  Mass.  209,  77  N.  E.  780,  allegation  that 
defendant's  ancestor,  in  taking  deed  in  own  name,  acted  on  behalf  of 
plaintiff's  grantor,  is  insufficient  to  maintain  suit  to  remove  cloud, 
though  plaintiff  in  actual  possession  under  inchoate  paper  title;  Glenn 
V.  West,  103  Va.  524,  49  S.  E.  672,  holder  of  equitable  title  out  of 
possession  cannot  quiet  title  against  possessor  under  tax  title;  Wallace 
V.  Elm  Grove  Coal  Co.,  58  W.  Va.  455,  52  S.  E,  487,  owner  of  surface, 
when  underlying  coal  has  been  conveyed  with  privilege  of  removal, 
acquired  no  title  to  coal  by  exclusive  and  continued  possession  of  sur- 
face; dissenting  opinion  in  Logan  v.  Ward,  58  W.  Va.  378,  52  S.  E. 
402,  majority  holding  owner. of  land  in  actual  possession  who  is  entered 
upon  by  an  adverse  claimant  cannot  sustain  bill  to  remove  cloud. 

Distinguished  in  Big  Six  etc.  Co.  v.  Mitchell,  138  Fed.  283,  where  bill 
was  maintainable  to  enjoin  lessee  of  mine  from  committing  waste, 
though  plaintiff  was  not  in  possession,  court  could  cancel  lease  as 
cloud  on  title. 

Syl.  4  (V,  574).  Attached  jurisdiction  cannot  be  devested  by  other 
court. 

Approved  in  Louisville  Trust  Co.  v.  Knott,  130  Fed.  825,  65  C.  C.  A. 
]58,  where  on  expiration  of  cor])oration 's  franchise  assets  delivered 
to  liquidator,  and  minority  stockholders  filed  bill  in  state  court  to 
ascertain  debts  and  sell  and  distribute  assets,  and  pending  suit  creditor 
obtained  collusive  federal  judgment  and  had  receiver  appointed  under 
creditor's  bill,  who  took  possession,  such  receiver  should  surrender 
jjossession  to  receiver  subsequently  appointed  by  state  court. 


309  Notes  on  U.  S.  Reports.  18  How.  272-295 

18  How.  272-286,  15  L.  372,  DEN  v.  HOBOKEN  LAND  &  IMP.  CO. 

Syl.  1  (V,  575).     Due  process  of  law  defined. 

Approved  in  New  York  etc.  E.  Co.  v.  Offield,  77  Conn.  422,  59  Atl. 
512,  upholding  Law  1895,  c.  232,  authorizing  railroad  acquiring  more 
than  three-fourths  of  stock  of  another  railroad  to  condemn  it;  Tilley  v. 
Cox,  119  Ga.  870,  47  S.  E.  221,  upholding  Civ.  Code,  1895,  §  5331, 
direction  of  verdict  where  there  is  no  conflict  in  evidence;  McKinster 
V.  Sager,  163  lud.  677,  106  Am.  St.  Eep.  268,  72  N.  E.  856,  68  L.  E.  A. 
273,  holding  void  Acts  1903,  p.  276,  c.  153,  relating  to  sales  by  mer- 
chants not  in  usual  course  of  trade;  Light  v.  Canadian  County  Bank, 
2  Okl.  549,  37  Pac.  1077,  upholding  Code  Civ.  Proc,  §§  148-154,  relating 
to  arrest  and  bail  of  persons  fraudulently  concealing  property  to  de- 
fraud creditors;  Gunn  v.  Union  E.  E.  Co.,  27  R.  L  323,  62  Atl.  119, 
upholding  Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supreme  court  to 
direct  judgment  without  further  jury  trial. 

Syl.  3  (V,  578).     Usage  determines  due  process  of  law. 

Approved  in  dissenting  opinion  in  Schick  v.  United  States,  195  U.  S. 
79,  49  L.  106,  24  Sup.  Ct.  826,  majority  holding  persons  prosecuted  by 
information  under  act  of  1886,  imposing  fine  for  purchasing  unmarked 
oleomargarine  may  waive  jury. 

Syl.  4  (V,  578).     Due  process — Distress  warrant  by  treasury  solicitor. 

Approved  in  United  States  v.  Ju  Toy,  198  U.  S.  263,  273,  49  L.  1044, 
1048,  25  Sup.  Ct.  644,  upholding  act  of  1894  making  departmental  de- 
cision on  right  of  Chinese  to  enter  conclusive  in  habeas  corpus;  Scottish 
Union  etc.  Ins.  Co.  v.  Bowland,  196  U.  S.  632.  49  L.  628,  25  Sup.  Ct. 
345,  upholding  Ohio  Rev.  St.,  §  1095,  as  applied  to  distraint  of  per- 
Bonal  property  of  foreign  insurance  company  for  personal  taxes;  Public 
Clearing  House  v.  Coyne,  194  U.  S.  509,  48  L.  1098,  24  Sup.  Ct.  789, 
upholding  statutes  relating  to  return  to  sender  of  mail  addressed  to 
persons  under  fraud  order;  Leigh  v.  Green,  193  U.  S.  88,  48  L.  627, 
24  Sup.  Ct.  390,  due  process  not  denied  holder  of  lien  on  realty  by 
lack  of  provision  in  Nebraska  statute,  for  personal  service  of  pendency 
of  proceedings  in  rem  by  tax  purchaser  to  enforce  lien,  where  notice 
is  given  by  publication;  McMillan  v.  Butte,  30  Mont.  227,  76  Pac.  205, 
upholding  act  1897,  providing  for  imposition  of  street  improvement 
expense  according  to  area.     See  101  Am.  St.  Eep.  606,  note. 

(V,  575.)  Miscellaneous.  Cited  in  United  States  v.  Yeung  Chu  Keng, 
140  Fed.  751,  decision  of  United  States  commissioner  on  regular  hearing 
that  Chinese  is  entitled  to  remain,  is  bar  to  comjilaint  in  district  court 
based  on  same  facts. 

18  How.  289-295,  15  L.  385,  KINSMAN  v.  PAEKHUEST. 

Syl.  5  (V,  583).     Appeal — Exceptions  to  master's  report. 

Approved  in  Western  Tel.  Mfg.  Co.  v.  American  Elec.  Tel.  Co.,  137 
Fed.  606,  arguendo. 


X8  How.  307-380  Notes  on  U.  S.  Keports,  810 

18  How.  307-331,  15  L.  421,  EX  PAKTE  WELLS. 

Syl.  1  (V,  585).     Acceptance  of  conditional  pardon. 

See  111  Am.  St.  Eep.  109,  note. 

Syl.  2  (V,  585).     Pardon  defined. 

Approved  in  Territory  v.  Ricliardson,  9  Okl.  584,  60  Pac.  245,  49 
L.  R.  A.  440,  upholding  motion  in  nature  of  plea  in  abatement  setting 
up  pardon  as  defense  to  indictment. 

Syl.  5   (V,  586).     Habeas  corpus  where  circuit  court  remanded. 

Approved  in  Ex  parte  Moran,  144  Fed.  601,  upholding  jurisdiction 
of  circuit  court  of  appeals  to  issue  habeas  corpus  to  inquire  into  power 
of  Oklahoma  territorial  court  to  imprison  one  convicted  of  capital  crime. 

18  How.  331-380,  15  L.  401,  DODGE  v.  WOOLSEY. 

Syl.  1  (V,  587).  Injunction  by  stockholder  against  violation  of  fran- 
chise. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  588.  49  L.  610,  25  Sup. 
Ct.  355,  upholding  suit  by  minority  stockholder  where  corporation  is 
controlled  by  owner  of  majority  stock  and  he  declines  to  redress 
wrongs  complained  of;  Macon  etc.  R.  Co.  v.  Shailer,  141  Fed.  591, 
denying  right  of  minority  stockholder  to  set  aside  sale  of  corporation's 
property  on  ground  of  fraud  by  directors  where  he  did  not  apph'  to 
stockholders  to  act  in  matter;  Columbia  etc.  Co.  v.  Washed  Bar  etc. 
«Jo.,  136  Fed.  712,  appointing  receiver  at  suit  of  minority  stockholders, 
though  corporation  solvent,  where  directors  are  diverting  earnings  to 
themselves;  Gibbs  v.  Morgan,  9  Idaho,  113,  72  Pac.  737,  upholding  ap- 
pointment pendente  lite  of  receiver  for  corporation,  under  Rev.  St., 
§  4329,  subd.  6;  Pittsburg  etc.  Ry.  Co.  v.  Dodd,  115  Ky.  196,  72  S.  W. 
828,  upholding  right  of  minority  stockholders  to  enforce  corporation's 
contract  with  another  corporation  where  majority  stockholders  were  its 
officers  and  also  of  defendant,  which  was  deriving  large  profits  from 
breach  of  contract.     See  97  Am.  St.  Rep.  41,  43,  44,  note. 

Syl.  4   (V,  593).     Federal  jurisdiction — Stockholder's  suit. 

Approved  in  Consumers'  Gas  Tr.  Co.  v.  Quimby,  137  Fed.  893,  70 
C.  C.  A.  220,  upholding  federal  jurisdiction  over  bill  by  nonresident 
stockholder  who  acquired  stock  from  resident  of  corporation's  dom- 
icile, to  restrain  directors  from  using  assets  for  ultra  vires  business; 
Southern  Ry.  Co.  v.  Greensboro  etc.  Co.,  134  Fed.  93,  upholding  federal 
jurisdiction  to  enjoin  North  Carolina  corporation  from  suing  for  pen- 
alties. 

Distinguished  in  Groel  v.  United  Elee.  Co.,  132  Fed.  254,  256.  261, 
denying  federal  jurisdiction  over  suit  by  stockholder  suing  on  behalf 
of  corporation  to  recover  secret  profits  received  by  another  corporation 
from  first  company  where  stockholder  and  his  corporation  were  citizens 
of  same  state. 


311  Notes  on  U.  S.  Reports.  18  How.  385-409 

Syl.  5  (V,  594).  Contracts — Statute  incorporating  bank  and  fixing 
tax. 

Approved  in  State  v.  Chicago  etc.  By.  Co.,  128  Wis.  504,  108  N.  W. 
609,  construing  street  railroad  franchise  with  reference  to  liability 
for  taxes  under  subsequent  law. 

18  How.  385-394,  15  L.  390,  WILKINS  v.  ALLEN. 

Syl.  3  (V,  600).     Wills — Evidence  to  explain  ambiguities. 

Approved  in  Pate  v.  Bushong,  161  Ind.  551,  100  Am.  St.  Rep.  287, 
69  N.  K.  297,  63  L.  R.  A.  593,  under  devise  of  thirty  acres  of  land 
of  east  half  of  south  quarter  of  section  29,  where  section  contained 
southeast  quarter  and  southwest  quarter,  and  testator  only  owned  in 
southwest  quarter,  title  passed  to  land  owned  by  testator. 

18  How.  396-403,  15  L.  433,  SOUTH  v.  STATE  OF  MARYLAND. 

Syl.  1   (V,  601).     Only  party  can  bring  error. 

Approved  in  Hixon  v.  Cupp,  5  Okl.  552,  49  Pac.  930,  sheriff  and 
sureties  are  suable  jointly  for  assault  on  prisoner  by  another  prisoner. 

18  IIow.  404-409,  15  L.  451,  LAFAYETTE  INS.  CO.  v.  FRENCH. 

Syl.  1  (V,  002).     Corporations^ — Averment  of  citizenship  insufficient. 

Apjiroved  in  Knight  v.  Lutcher  etc.  L.  Co.,  136  Fed.  406,  69  C.  C. 
A.  248,  following  rule;  Thomas  v.  Ohio  State  University  Trustees,  195 
U.  S.  210,  214,  49  L.  104,  165,  25  Sup.  Ct.  24,  allegation  that  board  of 
trustees  is  citizen  of  Ohio  is  insuflicient  to  show  it  is  Ohio  corporation 
where  state  court  has  held  that  statute  creating  board  did  not  confer 
corporate  powers;  Fred  Macey  Co.  v.  Macey,  135  Fed.  727,  68  C.  C.  A. 
363,  allegation  that  plaintiff  is  citizen  of  certain  state  is  insufficient 
for  federal  jurisdiction  where  elsewhere  plaintiff  is  styled  a  partner- 
ship; Kansas  City  etc.  Ry.  Co.  v.  Prunty,  133  Fed.  15,  66  C.  C.  A. 
163,  allegation  of  residence  in  petition  for  removal  is  insufficient. 

83-1.  5   (V,  603).     State  regulation  of  foreign  corporations. 

Approved  in  Groel  v.  United  Elec.  Co.,  69  N.  J.  Eq.  412,  417,  419, 
60  Atl.  828,  830,  following  rule;  Pennsj'lvania  etc.  Ins.  Co.  v.  Meyer, 
197  U.  S.  418,  49  L.  816,  25  Sup.  Ct.  483,  upholding  service  of  summons 
within  state  on  resident  direeto-r  of  foreign  insurance  as  provided  by 
N.  Y'.  Code  Civ.  Proc,  §  432,  subd.  3,  so  as  to  confer  federal  jurisdic- 
tion; Kibbler  v.  St.  Louis  etc.  R.  Co.,  147  Fed.  881,  foreign  corporation 
which  under  state  law  is  suable  in  state  courts  only  in  counties  in 
which  it  does  business,  is  not  suable  in  federal  court  in  state  unless  it 
does  business  in  some  county  in  district;  Old  Wayne  etc.  Assn.  v. 
McDonough,  164  Ind.  327,  328,  73  N.  E.  705,  upholding  Pennsylvania 
statute  providing  that  foreign  insurance  companies  shall  stipulate  for 
service  of  process  on  insurance  commissioner,  or  agent  designated  by 
company;  Bruning  v.  Brotherhood  Ace.  Co.,  191  Mass.  116,  77  N.  E. 
711,  upholding  statute  providing  for  service  of  summons  on  foreign 
insurance   companies   by   service    on   state   auditor;    United   States   v. 


18  How.  413-420  Notes  on  U.  S.  Reports.  312 

Griefen,  70  N.  J.  L.  124,  56  Atl.  120,  upholding  statute  providing  for 
service  of  summons  on  foreign  corporations  by  delivery  to  insurance 
commissioner;  Hunter  v.  Mutual  Reserve  etc.  Ins.  Co.,  184  N.  Y.  144, 
76  N.  E.  1074,  where  North  Carolina  statute  relating  to  foreign  insur- 
ance companies  provided  that  insurance  commissioner  should  be  its  at- 
torney to  receive  service  of  summons,  and  that  power  should  be  irrev- 
ocable so  long  as  liability  existed,  revocation  was  effective  where  New 
York  citizens  took  out  policies  after  revocation  and  who  thereafter  as- 
signed claims  to  citizens  of  North  Carolina;  Fisher  v.  Traders'  Mut. 
Life  Ins.  Co.,  136  N.  C.  223,  48  S.  E.  669,  upholding  Pub.  Laws  1901, 
p.  66,  e.  5,  requiring  foreign  corporations  doing  business  in  state  to 
have  agent  in  state  to  receive  service  of  summons,  or  if  no  agent  ap- 
pointed, process  to  be  served  on  secretary  of  corporation  commission; 
Standard  Oil  Co.  v.  Commonwealth,  104  Va.  685,  52  S.  E.  390,  applying 
principle  to  statute  imposing  license  fee  on  foreign  corporations  au- 
thorized to  exercise  powers  of  transportation  company;  dissenting  opin- 
ion in  Security  etc.  Ins.  Co.  v.  Prewitt,  202  U.  S.  261,  265,  50  L.  1020, 
1021,  26  Sup.  Ct.  619,  majority  upholding  Kentucky  statute  to  effect 
that  if  foreign  insurance  company  removes  suit  to  federal  court,  its 
license  to  do  business  in  state  shall  be  revoked,  and  affirming  Prewitt 
v.  Security  etc.  Ins.  Co.,  119  Ky.  327,  83  S.  W.  612. 

Syl.  6  (V,  608).     Corporations  do  not  pass  state  limits. 
Approved  in  Williams  v.  Metropolitan  etc.  Co.,  68  Kan.  22,  74  Pac. 
602,  64  L.  R.  A.  794,  foreign  corporation,  being  "out  of  the  state" 
within  meaning  of  Code,  §  21,  cannot  take   advantage  of  statute   of 
limitations. 

Syl.  7  (V,  609).     Judgment — Waiver  of  misnomer.  . 

Approved  in  Burlington  etc.  R.  R.  Co.  v.  Burch,  17  Colo.  App.  497, 
69  Pac.  7,  where  A  B  railroad  owned  and  operated  road  on  which 
damage  done,  and  it  was  called  the  B  road  in  state  where  damage 
done,  though  that  was  not  its  name,  and  it  was  sued  and  defended 
under  such  name,  judgment  against  B  was  binding  against  A  B  road. 
See  100  Am.  St.  Rep.  332,  note. 

18  How.  413-418,  15  L.  455,  CONVERSE  v.  BURGESS, 
Syl.  1  (V,  611).  Reappraisement  by  merchant  appraisers. 
Approved  in  United  States  v.  Curnen,  146  Fed.  48  (reversing  136 
Fed.  807),  where  reappraisement  is  void,  but  local  appraisement  valid, 
duty  assessed  on  value  found  by  local  appraiser;  United  States  v. 
Murphy,  1.36  Fed.  812,  and  Curnen  v.  United  States,  136  U.  S.  808, 
both  holding  reappraisement  by  general  appraisers  void  as  to  mer- 
chandise not  actually  present  nor  represented  by  samples. 

18  How.  418-420,  15  L.  395,  STOCKTON  v.  FORD. 

Syl.  1  (V,  612).     Res  adjudicata — Questions  necessarily  involved. 

Approved  in  Georgia  etc.  Banking  Co.  v.  Wright,  132  Fed.  917, 
state  court  decision  in  suit   between   state   and   corporation   to   effect 


313  Notes  on  U.   S.  Keports.  18  How.  421-470 

that  charter  was  contract  limiting  tax  on  corporation  concludes  state 
in  subsequent  suit  for  taxes  of  different  year  under  different  statute; 
Third  Nat.  Bank  v.  Atlantic  City,  130  Fed.  754,  65  C.  C.  A.  177, 
decree  pro  confcsso  in  action  to  establish  complainant's  right  to  a 
fund  where  grounds  of  right  set  out  is  conclusive  against  defaulting 
defendant  as  to  any  claim  which  might  have  been  set  up  in  answer, 
whether  or  not  bill  correctly  recited  claim. 

18  ITow.  421-459,  15  L.  435,  STATE  OF  PENNSYLVANIA  v.  WHEEL- 
ING AND  BELMONT  BEIDGE  CO. 

Syl.  1  (V,  613).  Congress  determines  what  obstructs  navigation. 
.  Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  380, 
387,  upholding  Comp.  St.  1901,  p.  3345,  requiring  alteration  of 
bridges  over  navigable  streams  whenever  Secretary  of  War  decides 
they  obstruct  navigation;  United  States  v.  Parkerburg  Branch  R. 
Co.,  143  Fed.  230,  railroad  bridge  over  navigable  stream  built  under 
congressional  act  which  contains  no  reservation  as  to  repeal  or 
modification  can  be  removed  only  in  accordance  with  30  Stat.   112L 

Syl,  3  (V,  616).  Commerce — Congressional  regulation  prohibits 
state. 

Cited  in  Missouri  v.  Illinois,  200  U.  S.  519,  50  L.  578,  26  Sup.  Ct. 
268,  arguendo. 

Syl.  8   (V,  619).     Legalizing  act  does  not  affect  decree. 

Approved  in  State  v.  Van  Huse,  120  Wis.  21,  97  N.  W.  506, 
Laws  1903,  p.  234,  c.  160,  legalizing  attempted  organization  of  school 
district  is  not  void  as  retroacting  upon  past  controversy  in  which 
no  judgment  rendered  prior  to  its  enactment. 

18    IIow.     460-463,    15    L.     449,    STATE    OF     PENNSYLVANIA    v. 
WHEELING  AND  BELMONT  BRIDGE  CO. 

Syl.   1    (V,   619).     Costs   in   supreme   court. 

Approved  in  Missouri  v.  Illinois,  202  U.  S.  599,  50  L.  llfi],  26 
Sup.  Ct.  713,  upholding  allowance  of  costs  to  defendants  on  dis- 
missal of  bill  in  action  between  states. 

18  How.  467-470,   15   L.  460,  WOOD  v.   DAVIS. 

Syl.    1    (V,   619),     Removal — Joinder   of   nominal   parties. 

Approved  in  Cella  v.  Brown,  136  Fed.  442,  following  rule;  Boat- 
men's Bank  v.  Fritzlin,  135  Fed.  658,  68  C,  C.  A.  288,  applying 
rule  in  controversy  involving  validity  of  mortgages;  Groel  v. 
United  Elec.  Co.,  132  Fed.  254,  in  determining  federal  jurisdiction 
over  suit  by  stockholder  on  right  of  action  in  corporation,  corpora- 
tion  aligned  with  complainant   or   defendant   according   to   facts. 


18  How.  473-507  Notes  on  U.  S.  Reports.  314 

18  How.  473-475,  15  L.  457,  LEDOUX  v.  BLACK. 

Syl.  1  (V,  621).  Imperfect  Spanish  title  inferior  to  subsequent 
survey. 

Approved  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  175, 
76  Pac.  318,  imperfect  grant  not  taxable  until  confirmation  of  sur- 
vey by  court  of  private  land  claims. 

18   How.   480-489,   15   L.   499,   BACON   v.   ROBERTSON. 

Syl.    1    (V,    622).     Dissolution   of   corporation — Right   to    funds. 

Approved  in  Hopkins  v.  Crossley,  138  Mich.  565,  101  N.  W.  823, 
where  volunteer  fire  department  incorporated,  funds  of  which  to  be 
used  for  relief  purposes,  and  funds  derived  principally  from  mem- 
bers and  on  dissolution  of  corporation  fund  put  in  trust  for  speci- 
fied purpose,  fund  did  not  escheat  on  failure  of  trust;  Lindemann 
v.  Rush,  125  Wis.  231,  232,  104  N.  W.  125,  126,  under  Rev.  St. 
1898,  §  1764,  providing  that  after  expiration  of  life  of  corporation, 
directors  may  continue  business  for  three  years  to  wind  up  business, 
action  to  wind  up  affairs  of  corporation  may  be  prosecuted  more 
than   three  years  after  termination  of  life   of  corporation. 

18  How.  497-503,  15  L.  469,  BEAUREGUARD  v.  CITY  OF  NEW 
ORLEANS. 

Syl.   1    (V,   625).     Federal   courts   follow   state   law. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry.  Co.,  144  Fed. 
179,  applying  rule  in  suit  to  determine  title  to  tide  lands  along 
Oakland  waterfront;  Succession  of  Hasling  (Hasling  v.  Martin), 
114  La.  296,  38  So.  174,  validity  of  will  made  in  Louisiana  by  citi- 
zen thereof  bequeathing  Mississippi  lauds,  depends  on  Mississippi 
law. 

Syl.   2    (V,   625).     .ludicial   sale   is   in   rem. 

Apjiroved  in  Clark  v.  Rossier,  10  Idaho,  359,  78  Pac.  360,  follow- 
ing    rule. 

18  How.  503-507,  15  L.  472,  UNION  BANK  OF  TENNESSEE  v. 
VAIDEN. 

Syl.    1     (V,    626).     State    laws    limiting    remedies — Federal    courts. 

Approved  in  Alice  E.  Min.  Co.  v.  Blanden,  136  Fed.  254,  upholding 
federal  jurisdiction  over  claim  against  estate  of  decedent,  though 
state  law  limits  right  to  establish  claims  to  probate  proceedings; 
Barber  etc.  Pav.  Co.  v.  Morris,  132  Fed.  949,  950,  67  L.  R.  A. 
761,  66  C.  C.  A.  55,  Duluth  charter  providing  for  appeals  from  allow- 
ance or  rejection  of  claims  to  district  court  and  prohibiting  pay- 
ment of  claims  pending  appeal,  does  not  affect  federal  jurisdiction 
over  such  claims  not  presented  to  council;  dissenting  opinion  in 
Moore  v.  Fidelity  Trust  Co.  (Memorandum),  138  Fed.  1009,  ma- 
jority   holding    where    surviving    partner    of    executor    of    deceased 


315  Notes   on  U.  S,  Reports.  18  How.  511-591 

I)artner's  estate  which  was  in  probate  in  state  court,  bill  by  dis- 
tributee to  compel  accounting  by  surviving  partner  not  maintainable 
in  federal  court;  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed. 
44,  69  C.  C.  A.  22,  arguendo. 

18  How.  511-517,  15  L.  506,  M.\XWELL  v.  NEWBOLD. 

Syl.   1    (V,   630).     Record   must  show   federal   questions  raised. 

Approved  in  Giles  v.  Teasley,  193  U.  S.  160,  48  L.  659,  24  Sup. 
Ct.  359,  denying  jurisdiction  to  review  state  court  judgment  sus- 
taining demurrer  to  petition  for  damages  for  refusal  to  register 
negro,  where  decision  rendered  on  nonfederal  ground;  Hutchinson  v. 
Morris,  190  Mo.  677,  89  S.  "W.  871,  where  record  showed  verdict 
"we,  the  jury,  find,  etc.,"  signed  "F.  Foreman  Jury,"  it  did  not 
present    constitutionality   of   majority   verdict   law. 

18  How.   521-530,  15  L.  474,  STAIRS  v.   PEASLEE. 

Syl.   1    (V,   633).     Tariff — Value   at   markets   of   importing   country. 

Approved  in  Myers  v.  United  States,  140  Fed.  652,  export  duty 
imposed  by  Quebec,  is  imposed  by  "country  or  dependency"  within 
Comp.  St.  1901,  p.  1671. 

18   How.   530-539,   15   L.   511,   HUDGIXS   v.    KEMP. 

Syl.   2    (V,   634).     Certiorari   to    correct   transcript. 

Approved  in  Flickinger  v.  First  Xat.  Bank,  145  Fed.  164,  fact 
tliat  transcript  does  not  contain  all  evidence  upon  which  order 
appealed    from    made    is    not    ground    for    striking    it    from    files. 

Syl.   6    (V,   636).     Appellate   practice   not   controlled   b}-   state   law. 

Approved  in  La  Conner  Trading  etc.  Co.  v.  "Widmer,  136  Fed. 
17S.  69  C.  C.  A.  193,  objection  that  appeal  bond  does  not  conform 
to  rules  and  that  it  only  binds  appellant  for  judgment  of  court  of 
appeals   is   not   ground   for  dismissal   of   appeal. 

18    How.   581-584,    15   L.   492,   CROCKETT    v.    STEAMBOAT    ISAAC 
NEWTON. 

Syl.  1   (V,  641).     Collision — Duties  of  steamer  and  ship  meeting. 

Approved  in  Brigham  v.  Luckenbach,  140  Fed.  332.  schooner 
sailing  close-hauled  not  in  fault  for  collision  with  tug  because  she 
kept  course  unless  change  required  by  special  circumstances. 

18  How.  5SS-591,   15  L.  495.  UNITED  STATES  v.  SHACKLEFORD. 

Syl.   1    (V,   644).     Challenges   to   jurors. 

Approved  in  Sawyer  v.  United  States,  202  U.  S.  161.  163,  164, 
50  L.  977,  978,  979,  26  Sup.  Ct.  575,  upholding  conditional  chal- 
lenge  of   jurors   by   government  in  criminal  case. 


XIX  HOWARD. 


19  How.  9-16,  15  L.  565,  EX  PARTE  SECOMBE. 

Syl.   1    (V,   649).     Court   fixes   qualifications   of   attorneys. 

Approved  in  In  re  Branch,  70  N.  J.  L.  548,  57  Atl.  431,  holding 
void  act  of  1903,  requiring  supreme  court  to  recommend  certain  law 
clerks  for  admission  to  bar, 

19  How.  22-56,  15  L.  534,  THOMAS  v.  OSBORN. 

Syl.  6   (V,  653).     Master's  right  to  bind  ship  for  supplies. 

Approved  in  The  Surprise,  129  Fed.  881,  882,  64  C.  C.  A.  309, 
holding  persons  furnishing  wharfage  to  vessel  in  foreign  port  on 
order  of  master  are  entitled  to  lien  though  vessel  operating  under 
charter. 

Syl.  7   (V,  653).     Maritime  lien  for  supplies — Necessity  for  credit. 

Approved  in  The  Alcalde,  132  Fed.  578,  denying  maritime  lien  for 
moneys  advanced  master  to  pay  crew  and  purchase  supplies,  where 
receiver  had  been  appointed  for  ship;  The  Surprise,  129  Fed.  875, 
879,  64  C.  C.  A.  309,  determining  right  to  lien  for  supplies  furnished 
in  foreign  port  on  order  of  master  of  vessel  navigated  under  charter. 

19  How.  69-72,  15  L.  533,  MOORE  v.  GREENE. 

Syl.  4  (V,  657).     Facts  constituting  fraud  must  be  alleged. 

Approved  in  "Williamson  v.  Beardslc}',  137  Fed.  469,  69  C.  C.  A. 
615,  in  suit  to  set  aside  probate  sale,  allegations  that  sale  fraudulent 
and  that  proceedings  fraudulently  conducted  without  averment  of 
substantive  facts  justifying  charge  of  fraud,  insufficient;  Succes- 
sion of  Dauphin  (Choppin  v.  Dauphin),  112  La.  140,  36  So.  300, 
mere  general  statement  that  discovery  of  fraud  made  within  year 
is  insufficient,  where  circumstances  show  probability  that  it  was 
made  sooner. 

19    How.    79-82,    15    L.   549,   WILLOT    v.    SANFORD. 

Syl.  1  (V,  660).     Unconfirmed  Spanish  grant  has  no  standing. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  633,  72  Pac.  32,  con- 
tirmation  by  Congress  of  Mexican  grant  is  adjudication  that  title 
is  valid. 

[316] 


317  Notes  on  U.  S.  Reports.  19  How.  82-182 

19     How.    82-92,     15     L.     554,    VANDEWATER     v.     MILLS     (THE 
YANKEE    BLADE). 

Syl.    1    (V,   660).     Nature   of   maritime   lien. 

Approved  in  The  San  Rafael,  141  Fed.  281,  applying  rule  to  mari- 
time tort;  Guffey  v.  Alaska  etc.  S.  S.  Co.,  130  Fed.  273,  64  C.  C.  A, 
517,  under  bill  of  lading  reciting  goods  were  to  be  shipped  on  de- 
fendant's vessel  "now"  at  certain  dock,  and  complainant  knew 
vessel  was  at  s,ea,  and  goods  never  delivered  to  master,  vessel  not 
subject  to  lien  for  breach  of  contract;  The  Mary  F.  Chisholm, 
129  Fed.  818,  sale  by  merchant  to  fisherman  about  to  enter  on  voy- 
age under  lay  contract  of  tobacco,  clothing  and  other  articles  for 
personal  use,  is  not  maritime  contract;  The  James  F.  Furber,  129 
Fed.  812,  lease  of  space  at  wharf  for  use  by  vessel  at  fixed  annual 
rental  is   not   admiralty  contract. 

Syl.  2   (V,  662).     Lien  between  ship  and  cargo. 

Approved  in  Guffey  v.  Alaska  etc.  S.  S.  Co.,  130  Fed.  274, 
64  C.  C.  A.  517,  under  bill  of  lading  reciting  goods  were  to  be 
shipped  on  defendant's  vessel  "now"  at  certain  dock  and  com- 
plainant  knew  vessel  was  at  sea,  and  goods  never  delivered  to  mas- 
ter, vessel  not  subject  to  maritime  lien  for  breach  of  contract. 
See   105  Am.  St.  Rep.   350,  note. 

Syl.   4    (V,   663).     Maritime   contract — Traffic   agreements. 

Approved  in  Graham  v.  Oregon  etc.  Nav.  Co.,  134  Fed.  463,  agree- 
ment between  railroad  and  owner  of  steamers  by  which  steamers 
were  to  be  used  as  part  of  through  line  and  parties  were  to  divide 
receipts    is    not    maritime    contract. 

19   How.   96-107,   15   L.   577,   SEYMOUR   v.   McCORMICK. 

Syl.   1    (V,   664).     Patents — Disclaimer   necessary   to   recover   costs. 

Distinguished  in  Johnson  v.  Foos  Mfg.  Co.,  141  Fed.  89,  90, 
though  no  disclaimer  filed  complainant  may  recover  costs  in  appel- 
late court  where  decree  of  dismissal  is  erroneous  and  complainant 
was  compelled  to  appeal  to  obtain  relief. 

Syl.   4    (V,   665).     Patents^Unreasouable    delay   in   disclaiming. 

Approved  in  Rawson  etc.  Mfg.  Co.  v.  Hunt  Co.,  147  Fed.  241, 
where  drawings  and  descriptions  of  reissue  are  identical  with  those 
of  original,  validity  of  original  not  affected  by  invalidity  of  re- 
issue. 

19  How.  150-162,  15  L.  618,  POST  v.  JONES. 

Syl.   5   (V,  672).     Amount  of  salvage  in  derelict  cases. 

Approved  in  The  Myrtle  Tunnel,  146  Fed.  331,  allowing  salvors 
of  derelict  half  of  proceeds  of  sale  of  vessel  and  cargo  where  salvage 
performed  with  great   skill   and   with   considerable   trouble   and  risk; 


19  How.  162-224  Notes  on  U.  S.  Reports.  318 

Parker  v.   Hill,   185  Mass.   16,   69   N.   E.   337,   determining   compensa- 
tion  of  trustees  under  will. 

19  How.  162-182,  15  L.  584,  DUPONT  DE  NEMOUES  v.  VANCE. 

Syl.   4   (V,   674).     Liability   of   ship   to   cargo   owner. 

Approved  in  The  Presque  Isle,  140  Fed.  205,  libelant,  a  lake 
carrier,  contracting  for  carriage  of  goods  from  New  York  to 
Chicago  and  afterward  chartering  canal  boat  to  carry  cargo  from 
New  York  to  Buffalo,  may  sue  in  rem  against  "canal  boat  for 
damages  to  cargo  during  shipment. 

Syl.   6   (V,  675).     Loss  of  lien  for  general  average  by  delivery. 

Approved  in  Portland  etc.  Mills  Co.  v.  Portland  etc.  S.  S.  Co.,  145 
Fed.  692,  provision  in  bill  of  lading  that  cargo  be  delivered  to  person 
named  on  payment  of  freight,  does  not  impose  on  owner  duty  of 
insisting   on   pavment   of   freight   before    delivery. 

Syl.    7    (V,    675).     Variance    in    admiralty    pleading. 

Approved  in  The  Saranac,  132  Fed.  939,  where  libel  alleged  gen- 
erally that  hatch  improperly  constructed,  it  may  be  amended  during 
trial  by  setting  out  particulars  in  which  hatch  was  defective. 

19  How.  183-199,  15  L.  595,  BEOWN  v.  DUCHESNE. 

Sj'l.   1    (V,   677).     Construction   of   statutes   as   whole. 

Approved  in  United  States  v.  Ninety-nine  Diamonds,  139  Fed. 
965,  2  L.  E.  A.  (N.  S.)  185,  one  declaring  himself  owner  of  im- 
ported goods  is  guilty  of  offense  under  Comp.  St.  1901,  p.  1895,  where 
he  had  lien  on  goods  and  option  to  purchase  and  government  not 
deprived    of    duties. 

19  How.  211-224,  15  L.  605,  HAETSHOEN  v.  DAY. 

Syl.   3    (V,   680).     Impeachment   of   contract   at   law   for   fraud. 

Approved  in  Heck  v.  Missouri  etc.  Ey.  Co.,  147  Fed.  781,  fact  that 
plaintiff  induced  to  sign  release  by  false  representations  as  to  its  con- 
tents does  not  avoid  its  effect  as  defense  at  law  where  it  was  signed 
knowingly  and  for  consideration;  Stej)henson  v.  Supreme  Council 
A.  L.  H.,  130  Fed.  492,  where  beneficiary  in  life  insurance  certificate 
after  death  of  insured  was  induced  by  false  statements  made  by 
representatives  of  association  to  settle  claim,  remedy  is  in  equit}-; 
Broyles  v.  Alsher,  107  Mo.  App.  177,  80  S.  W.  705,  under  plea  of 
non  est  factum  to  action  on  note,  defendant  may  show  that  owing 
to  his  illiteracy  by  misreading  paper  to  him,  he  signed  instrument  other 
than   one   intended.  t 

Syl.  5    (V,  681).     Fraud  as  defense  at  law  on  contract. 

Approved  in  Eogers  v.  Virginia-Carolina  etc.  Co.,  149  Fed.  13,  ap- 
plying rule  in  action  for  fraud  based  on  scheme  to  prevent  exercise 
hy   plaintiff  of   options    for   purchase   of   lands;    Levin   v.   Northwestern 


319  Notes   on   U.   S.   Reports.  19  How.  271-287 

Nat.  Ins.  Co.,  146  Fed.  77,  award  of  arbitrators  fixing  loss  on  fire 
policy   not   impeachable   at   law, 

19  How.  271-279,  15  L.  633,  HIPP  v.  BABIN. 

Sy\.    1    (V,   688).     Equity — Adequacy   of   law   remedy. 

Approved  in  Ames  Realty  Co.  v.  Big  Indian  Min.  Co.,  146  Fed. 
176,  federal  equity  court  will  enforce  Montana  statute  permitting 
all  persons  diverting  water  from  same  stream  to  be  made  parties  to 
action  for  protection  of  water  rights;  General  Elec.  Co.  v.  Westing- 
house  Elec.  &  Mfg.  Co.,  144  Fed.  466,  refusing  to  enjoin  violation 
of  contract  for  manufacture  and  sale  of  electric  equipment  which 
provided  for  payment  as  liquidated  damages  of  percentage  of  sales; 
Indian  Land  &  T.  Co.  v.  Shoenfelt,  135  Fed.  485,  68  C.  C.  A.  196, 
denying  jurisdiction  to  enjoin  single  trespass  on  agricultural  land 
where  probable  injury  not  shown  to  be  irremediable;  American  Light- 
ing Co.  V.  Public  Service  Corp.,  134  Fed.  131,  refusing  to  punish 
as  contempt  violation  of  injunction  granted  in  case  where  there  was 
adequate  remedy  at  law;  Kane  v.  Luckition,  131  Fed.  618,  denying 
jurisdiction  to  decree  specific  performance  of  contract  for  sale  to  plain- 
tiff of  certain  number  of  cows  at  certain  price,  where  cows  not  shown 
to  have  peculiar  value;  Allen  v.  Myers,  1  Alaska,  117,  dismissing 
suit  to  quiet  title  after  applicant  for  patent  has  initiated  proceedings 
in  land  office  under  Rev.  St.,  §§  2325,  2326;  Shields  v.  Johnson,  10 
Idaho,  482,  79  Pac.  393,  neither  party  to  suit  brought  by  possessor 
to  quiet  title  to  leasehold  estate  is  entitled  to  jury;  Glenn  v.  West, 
103  Ya.  524,  49  S.  E.  672,  holder  of  merely  equitable  title  out  of 
possession  cannot  quiet  title  against  party  in  possession  claiming  under 
tax   title;    dissenting   opinion   in   Barnes   v.   Newton,    5    Okl.    458,   460, 

49  Pac.  lOSO,  1081,  majority  holding  where  final  decision  is  rendered 
by  laud  department  in  favor  of  one  party,  he  may  enjoin  further 
occupancy  of  premises  by  defeated  party. 

Syl.    2    (V,    692).     Dismissal   of   equity   suit   on   legal   title. 

Approved  in  Indian  Land  &  T.  Co.  v.  Shoenfelt,  135  Fed.  486, 
68  C.  C.  A.  196,  denying  jurisdiction  to  enjoin  single  trespass  on 
agricultural  land  where  probable  injury  not  shown  to  be  irremediable; 
Kane  v.  Luckman.  131  Fed.  621,  objection  of  adequacy  of  remedy  at 
law   may  be  raised   by   demurrer  and   at   final   hearing. 

19   How.   283-287,   15  L.   668,  BEEBE   v.   RUSSELL. 
Syl.    1    (V,   693).     No   appeal   where   decree   not   final. 
Approved  in  Ex   parte  National   Enameling  etc.   Co.,   201   U.   S.   164, 

50  L.  709,  26  Sup.  Ct.  404,  decree  in  patent  infringement  suit  grant- 
ing injunction  as  to  claims  held  infringed  and  dismissing  case  as 
claims  held  void,  is  not  final  appealable  decree  as  to  latter. 


19  How.  289-633  Notes  on  U.  S.  Reports.  320 

Syl.   2    (V,  695).     Decree  disposing  of  whole   case  is  final. 

Approved  in  The  Chief,  142  Fed.  352,  order  in  admiralty  dismiss- 
ing petition  filed  by  claimant  of  vessel  libeled  for  salvage  and  which 
had  been  sold  in  such  proceedings,  where  petition  asked  to  with- 
draw fraud  on  substitution  of  bond,  is  not  final  appealable  judg- 
ment. 

19  How.  289-303,  15  L.  644,  BABCOCK  v.  WYMAN. 
Syl.  1   (V,  696).     Parol  to  show  deed  a  mortgage. 
Approved  in  Weisehani  v.  Hocker,  7   Okl.   254,   54  Pac.   465,   follow- 
ing rule;   James  v.  Gray,  131  Fed.  408,  65  C.  C.  A.  385,  arguendo. 

19  How.  318-323,  15  L.  636,  COMMERCIAL  MUT.  MARINE  INS. 
CO.   v.   UNION   MUT.   INS.   CO. 

Syl.    1    (V,   699).     Parol  agreement   for  insurance   is   valid. 

Approved  in  Whitman  v.  Milwaukee  Fire  Ins.  Co.,  128  Wis.  131, 
5  L.  R.  A.  (N.  S.)  407,  107  N.  W.  293,  oral  contract  of  fire  insur- 
ance is  valid.  • 

Distinguished  in  Delaware  Ins.  Co.  v.  Pennsylvania  Ins.  Co.,  126 
Ga.  3SG,  55  S.  E.  332,  contract  of  fire  insurance  must  be  in  writing 
and  signed  by  insurer  or  his  agent. 

Syl.  3  (V,  701).  Decree  in  specific  performance  of  contract  to  in- 
sure. 

Approved  in  Summers  v.  Mutual  Life  Ins.  Co.,  12  Wyo.  390,  lOJ 
Am.  St.  Rep.  1005,  75  Pac.  942,  66  L.  R.  A.  812,  arguendo. 

19  How.  355-359,  15  L.  658,  WALTON  v.  COTTON. 

Syl.  3    (V,   707).     Pensions  defined. 

Approved  in  Eddy  v.  Morgan,  216  111.  449,  75  N.  E.  178,  Lawy 
1899,  p.  101,  amending  act  of  1887,  giving  pension  to  policeman 
over  fifty  years  of  age  who  has  served  twenty  years,  is  not  retro- 
active. 

19  How.  366-373,  15  L.  684,  FELLOWS  V.  BLACKSMITH. 

(V,  710.)  Miscellaneous.  Cited  in  Keokuk  v.  Ulam,  4  Okl.  15,  38 
Pac.  1084,  where  Indian  tribe  is  located  on  reservation  which  is  after- 
ward included  in  organized  county,  Indians  are  ''persons"  whose  per- 
sonal projjerty  is  taxable, 

19  How.  393-633,  15  L.  691,  DRED  SCOTT  v.  SANFORD, 
Syl.  6  (V,  715),  Negro  descendants  of  slaves  not  citizens. 
Cited  in  disFenting  opinion  in  Booth  v.  Weigand,  28   Utah,  397,   79 

Pac.  376,  arguendo. 


321  Notes  on  U.  S.   Keports.  20  How.  6-8 

Syl.  13  (V,  718).  Effect  of  public  opinion  on  constitutional  con- 
struction. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  449,  50  L. 
264,  26  Sup.  Ct.  110,  upholding  federal  licgnse  tax  on  state  dispensers 
of   liquor. 

Syl.  15  (V,  718).     Decision  on  plea  in  abatement  as  bar. 

Approved  in  International  etc.  R.  Co.  v.  Hoyle,  149  Fed.  182,  where 
controversy  which  was  removed  by  one  of  two  joint  defendants  was 
not  reviewable  because  of  want  of  separable  controversy,  cause  is 
remandable   at   instance   of   any.  party. 

Syl.   16    (V,   718).     Congressional   control   over   territories.     . 

Approved  in  Allen  v.  Eeed,  10  Okl.  Ill,  60  Pac.  784,  holding  void 
act  1893,  relating  to  changing  of  county  seats  as  inconsistent  with 
act  of  Congress  relating  to  opening  of  Cherokee  outlet;  Ex  parte 
Anderson,  46  Tex.  Cr.  380,  81  S.  W.  976,  city  court  has  no  jurisdiction 
to   try  accused  for  violation  of  state  penal  offense. 

Syl.   32    (V,   721).     Congressional   regulation  of  territories. 

Approved  in  Dorr  v.  United  States,  195  U.  S.  142,  146,  49  L.  130, 
132,  24  Sup.  Ct.  808,  upholding  act  for  temporary  government  of 
Philippines  though  trial  by  jury  not  provided  therein. 

Syl.  34   (V,  722).     No  complaint  against  advantageous  error. 
Approved  in  Alexander  v.  Crollott,  199  U.  S.  581,  50  L.  317,  2<3  Sup. 
Ct.  IGl,  arguendo. 


XX  HOWARD. 


20  How.  6-S,  15  L.  801,  GARLAND  v.  WYNN. 

Syl.   1   (V,  726).     Fraudulent  land  patent  set  aside. 

Approved  in  Smith  v.  Love,  49  Fla.  239,  38  So.  379,  following 
rule;  Le  Marchel  v.  Teegarden,  133  Fed.  827,  one  attacking  land  pat- 
ent for  mistake  of  fact  must  plead  and  prove  evidence  before  the 
department  from  which  mistake  resulted,  particular  mistake  made, 
and  way  in  which  it  occurred. 

Distinguished  in  Estes  v.  Timmons,  199  U.  S.  395,  50  L.  244,  26 
Sup.  Ct.  85,  perjury  on  hearing  before  land  department  of  contest  over 
homestead  entry,  is  not  ground  for  equitable  relief;  Estes  v.  Tim- 
mons, 12  Okl.  543,  73  Pac.  305,  holding  insufficient  petition  to  declare 
trust  in  lands  where  facts  constituting  fraud  not  set  out;  Laramie 
Nat.  Bank  v.  Steinhoff,  11  Wyo.  310,  71  Pac.  995,  where  no  patent 
issued  court  cannot  determine  title. 

21 


:.'0  How.  8-S4  Notes   on  U.   S.  Eeports.  322 

Syl.  2  (V,  726).  Jurisdiction  where  Laud  Department  decides 
claims. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
339,  50  L.  506,  26  Sup.  (^t.  282,  bona  fide  purchaser  of  standing  tim- 
ber from  holders  of  receiver 's  receipts  for  purchase  of  lands  entered 
under  timber  act  need  not,  on  avoidance  of  patent  for  entrymen  's 
fraud,  account  to   government  for   cut. 

20  How.  8-22,  15  L.  805,  JONES  v.  McMASTERS. 

Syl.   3    (V,   728).     Titles   acquired   under   foreign   government. 

Approved  in  Louisville  Property  Co.  v.  Nashville,  114  Tenn.  221, 
84  S.  W.  812,  purchaser  of  realty  by  foreign  corporation  which  had 
not  complied  with  statute  relating  to  foreign  corporations  is  not  un- 
lawful. 

20  How.  29-34,  15  L.  824,  D0S\VT:LL  v.  DE  LA  LANZO. 

Syl.    2    (V,    730).     Adverse    possession — Privity    necessary. 

Approved  in  Zweibel  v.  Myers,  69  Neb.  298,  95  N.  W.  599,  follow- 
ing rule. 

20  How.  34-44,  15  L.  813,  WADE  v.  LEROY, 

SJ'l.    1    (V,    731).     Damages — Evidence    of    plaintiff's    business. 

Approved  in  Jordan  v.  Cedar  Rapids  etc.  Ey.  Co.,  124  Iowa,  182, 
99  N.  W.  695,  admitting  evidence  of  occupation  and  earnings  in  per- 
sonal injury  case;  Nichols  v.  Oregon  etc.  R.  R.  Co.,  28  Utah,  330, 
78  Pac.  868,  in  action  for  injuries  to  passenger,  loss  of  memory  and 
impairment   of   mental   faculties   is   proper   element   of   damages. 

20  How.  65-84,  15  L.  838,  DYNES  v.  HOOVER. 

Syl.  1   (V,  734).     Punishment  by  court-martial. 

Approved  in  United  States  v.  Praeger,  149  Fed.  484,  decision  of 
court-martial  that  questions  which  civilian  witness  refused  to  answer 
on  ground  that  answer  might  tend  to  incriminate  him,  were  proper, 
is  not  conclusive  on  civil  courts  of  question  of  witness'  contempt  in 
refusing  to  answer. 

Syl.  3  (V,  734).     Court-martial 's  sentence,  when  confirmed,  final. 

Approved  in  United  States  v.  Praeger,  149  Fed.  485,  decision  of 
court-martial  that  questions  which  civilian  witness  refused  to  answer 
on  ground  that  answers  might  tend  to  incriminate  him,  were  proper, 
is  not  conclusive  on  civil  courts  of  question  of  witness'  contempt  in 
refusing  to  answer. 

Syl.   4    (V,   735).     Requisites   of   valid    court-martial    sentence. 
Approved  in  Hamilton  v.  MeCIaughry,  136  Fed.  447,  following  rule. 

Syl.  5  (V,  735).  Court-martial  sentence  defense  to  false  imprison- 
ment. 

Cited  in  Thornton-Thomas  Co.  v.  Bretherton.  32  Mont.  96,  80  Pac. 
14,   arguendo.     See    111   Am.   St.   Rep.    936,   note. 


323  Notes  on  U.   S.  Reports.  20  How.  84-156 

20  How.  84-94,  15  L.  81G,  WITHERS  v.  BUCKLEY. 

Syl.  3   (V,  736).     State  may  improve  navigable  rivers. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  482,  50  L.  279,  26 
Sup.  Ct.  127,  upholding  South  Carolina  act  of  1903,  providing  for 
erection  of  dam  across  interior  stream  formerly  navigable,  for  pur- 
pose of  draining  low  lands;  Maine  "Water  Co.  v.  Knickerbocker  Steam 
Towage  Co.,  99  Me.  475,  59  Atl.  954,  water  pipe-line  laid  across 
Kennebec  river  by  authority  of  legislature  in  accordance  with  plans 
recommended  and  authorized  by  War  Department,  is  not  unlawful 
obstruction. 

20  How.  94-108,  15  L.  833,  SECOMBE  v.  STEELE. 

Syl.  2  (V,  737).     Agreement  to  pay  price  and  deliver  deed. 

Approved  in  Early  Times  Distil.  Co.  v.  Zeiger,  11  X.  M.  233,  67 
Pac.  737,  following  rule;  Miller  v.  Bronson,  26  R.  I.  63,  58  Atl.  257, 
■where  on  date  fixed  for  performance  vendee  refused  to  take  land 
because  of  existence  of  mortgage,  and  later  mortgage  released,  but  no 
notice  given  vendee  of  release  for  six  months,  specific  performance 
denied. 

Syl.  5  (V,  738).     Specific  performance — Decree  transferring  title. 

Approved  in  Bridger  v.  Exchange  Bank.  126  Ga.  827.  56  S.  E.  100. 
lis  pendens  affects  not  only  purchaser  from  one  of  parties  to  suit,  but 
also   those   who   hold  by  conveyances   under  him. 

20  How.  128-133,  15  L.  845,  MATTINGLY  v.  BOYD. 

Syl.   2    (V,  739).     Garnishment  against  agent   suspends   limitations. 

Approved  in  Barton  v.  Spencer,  3  Okl.  274,  41  Pac.  606,  608,  sub- 
sequent attaching  creditors  obtain  no  rights  in  garnished  property  as 
against  creditor  causing  garnishment  to  issue. 

20  How.   135-149,  15  L.  858,  SMITH  v.  CORPORATIOX  OF  WASH- 
INGTON. 

Syl.  2   (V,  741).     Citj^'s  liability  for  change  of  street  grade. 

Approved  in  Sauer  v.  New  York,  ISO  N.  Y.  33,  72  N.  E.  580,  70 
L.  R.  A.  717,  erection,  under  statutory  authority,  of  elevated  viaduct 
by  city  in  street  of  which  it  owns  fee,  does  not  entitle  abutting  owner 
to  damages. 

20  How.  149-156,  15  L.  847,  LYON  v.  BERTRAM. 

Syl.  1   (Y,  742).     Warranty — Remedy  on  breach. 

Approved  in  Thomas  China  Co.  v.  C.  W.  Raymond  Co.,  135  Fed. 
27,  67  C.  C.  A.  629,  upholding  counterclaim  for  breach  of  contract 
in  sale  of  machinery;  Williams  v.  Neely,  134  Fed.  6,  69  L.  R.  A. 
232,  67  C.  C.  A.  171,  enjoining  action  at  law  on  purchase  money  note 
until  defense  of  reduction  pro  tanto  because  of  defect  in  title,  ia 
allowed. 


20  How.  170-234  Notes  on  U.   S.  Eeports.  324 

Syl.  2  (V,  743).     Sale  not  repudiatable  after  part  performance. 

Approved  in  Henderson  Elev.  Co.  v.  North  Georgia  Milling  Co., 
126  Ga.  282,  55  S.  E.  52,  following  rule;  Harding  v.  York  Knitting 
Mills,  142  Fed.  232,  applying  rule  to  contract  for  purchase  of  yarn 
deliverable  in  weekly  installments. 

20  How.  170-176,  15  L.  874,  HYDE  v.  STONE. 

Syl.  1   (V,  745).     Jurisdiction — State  laws — Pending  state  suits. 

Approved  in  Slaughter  v.  Mallet  Land  etc.  Co.,  141  Eed.  290,  pend- 
ency of  state  suit  to  try  title  to  land  and  remove  cloud  is  not  ground 
for  abatement  of  subsequent  federal  suit  between  same  parties  to 
quiet  title;  Barber  Asphalt  Pav.  Co.  v.  Morris,  132  Fed.  950,  67  L.  E. 
A.  761,  66  C.  C.  A.  55,  Duluth  charter  providing  for  appeals  from 
allowance  or  rejection  of  claims  to  county  court  does  not  affect  fed- 
eral jurisdiction  over  claims. 

20  How.  176-186,  15  L.  891,  LEITENSDOEFEE  v.  WEBB. 

Syl.  4  (V,  748).     Final  appealable  order. 

Approved  in  Jung  v.  Myer,  11  N.  M.  391,  68  Pac.  937,  order  vacat- 
ing attachment  is  not  final  appealable  order. 

20  How.  19S-204,  15  L.  876,  DEAN  v.  MASON. 

Syl.   2    (V,  759).     Appeal — Answer  after  decree  pro   confesso. 

Approved  in  Vicksburg  v.  Vicksburg  Water  Works  Co.,  202  U.  S. 
462,  50  L.  1108,  26  Sup.  Ct.  660,  upholding  permission  to  withdraw 
bill  in  nature  of  supplemental  bill,  and  suppressing  testimony  on  issue 
raised  thereby. 

20  How.  221-227,   15  L.  884,  McGAYOCK  v.   WOODLIEF. 

Syl.  2    (V,  752).     Broker's  commissions — Finding  purchaser. 

Approved  in  Czarnowski  v.  Holland,  5  Ariz.  121,  78  Pac.  891,  in 
nction  by  real  estate  broker  for  commissions,  evidence  of  proposed 
purchaser's  financial  ability  to  perform  contract  is  admissible;  Colburn 
V.  Seymour,  32  Colo.  433,  76  Pac.  1059,  holding  erroneous  instruction 
that  if  vender  refused  to  consummate  sale  on  grounds  other  than  pur- 
chaser's ability  to  pay,  it  is  presumed  he  was  able  to  pay;  Ball  v. 
Dolan,  18  S.  D.  565,  101  N.  W.  721,  where  broker  employed  to  sell 
nineteen  tracts,  at  $9  per  acre,  at  $1  per  acre  commission,  instruction 
that  if  he  procured  purchaser  ready  and  able  to  buy  all  land,  he  was 
entitled  to  commissions,  though  owner  sold  sixteen  tracts  at  less 
price,  was   erroneous. 

20    How.    227-234,    15    L.    896,    COVINGTON    DEAWBEIDGE    CO.    v. 
SHEPHEED, 

Syl.  1   (Y,  754).     Federal  courts  judicially  notice  state  law. 
See  113  Am.  St.  Rep.  873,  note. 


325  Notes  on  U.   S.   Keports.  20  How.  235-280 

Syl.   2   (V,   754).     Federal   jurisdiction — Citizenship   of   corporation. 

Approved  in  Tliomas  v.  Ohio  State  University  Trustees,  195  II.  S. 
210,  49  L.  164,  25  Sup.  Ct.  24,  denying  federal  jurisdiction  over  suit 
by  Ohio  State  University  trustees,  where  Ohio  court  had  held  statute 
creating  board  did  not  confer  corporate  powers;  Davis  v.  Chesapeake 
etc.  Ey.  Co.,  116  Ky.  151,  75  S.  W.  277,  compliance  by  foreign  corpora- 
tion with  statutes  providing  that  such  corporations  cannot  exercise 
power  of  eminent  domain  until  they  become  domestic  does  not  deprive 
it  of  power  to  remove  suit  to  federal  courts. 

20  How.  235-251,  15  L.  886,  WHITE  v.  BARNLEY. 

Syl.  7   (V,  756).     Adverse  possession  of  conflicting  grants. 

Approved  in  Henry  v.  Brown,  143  Ala.  456,  39  So.  328,  where  vendor 
conveys  two  distinct  tracts,  to  only  one  of  which  he  has  title,  entry 
and  occupation  of  that  tract  by  grantee  is  not  disseisin  of  owner  of 
other;  Harriss  v.  Howard,  126  Ga.  329,  55  S.  E.  60,  where  two  adjacent 
owners  are  in  constructive  possession  of  same  land  under  conflicting 
descriptions,  rights  determined  according  to  superiority  of  title. 

20  How.  252-255,  15  L.  900,  UNITED  STATES  v.  BREITLTNG. 

Syl.  1   (V,  757).     Practice  relative  to  bill  of  exceptions. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  Min.  etc.  Co.,  147  Fed. 
909,  under  circuit  court  rule  relating  to  exceptions  to  instructions, 
where  court,  after  instructing  jury,  but  before  sending  them  out, 
heard  and  allowed  exceptions  in  chambers,  he  did  not  need  to  after- 
ward allow  further  exceptions. 

Syl.  2  (V,  757).     Exception  must  show  it  taken  at  trial. 
Approved  in  Vernon  v.  United  States,  146  Fed.  122,  assignments  of 
error  cannot  be  reviewed  where  no  exceptions  taken  at  trial. 

20   How.  255-260,   15  L.   799,  HEMMENWAY  v.  FISHER. 

Syl.  2   (V,  759).     Interest  in  admiralty. 

Approved  in  The  Riekmers,  142  Fed.  314,  upholding  allowance  of 
interest  on  damages  awarded  for  collision  from  time  vessel  repaired 
and  reloaded. 

Distinguished  in  Burrows  v.  Lownsdale,  133  Fed.  251,  66  C.  C.  A. 
650,  interest  not  allowable  on  damages  awarded  in  admiralty  for  per- 
sonal   injury. 

20  How.  264-2S0,  15  L.  902,  SPENCER  v.  LAPSLEY. 

Syl.  2   (V,  760).     Plea  in  abatement  waived  by  plea  to  merits. 

Approved  in  McFaddcu  v.  Heisen,  150  Fed.  570,  agreement  to  dis- 
miss pending  suit  made  out  of  court,  and  not  presented  to  court,  is 
waived  by  answering  amended  bill  on  merits;  Wetzel  etc.  Ey.  Co.  v. 
Tennis  Bros.  Co.,  145  Fed.  464,  where  in  action  by  foreign  corporation 
defendant    filed   answer   and    cross-bill    after   demurrer   overruled,    and 


20  How.  290-402  Notes  on  U.  S.  Eeports.  326 

also  replication  to  answer  to  cross-bill,  it  is  too  late  to  plead  plain- 
tiff's disability  to  sue  for  failure  to  comply  with  state  laws. 

20  How.  290-296,  15  L.  822,  SILSBY  v.  FOOTE, 

Syl.  1   (V,  762).     Appeal  as  supersedeas. 

Distinguished  in  In  re  McCall,  145  Fed.  901,  time  for  review  of 
order  confirming  bankrupt's  composition  begins  to  run  from  entry  of 
confirmation  order. 

Syl.  2   (V,  762).     Second  appeal  dismissed  where  first  regular. 
Approved  in  Northern  Pac.  Ey,  Co.  v,  Ely,  197  U.  S.  3,  49  L.  640, 
25   Sup.   Ct.   302,  following  rule. 

20  How.  343-372,  15  L.  934,  GOODMAN  v.  SIMONDS. 

Syl.  2  (V,  764).  Consideration — Surrender  of  collateral  and  exten- 
sion of  time. 

Approved  in  Chesapeake  S.  S.  Co.  v.  Merchants'  Nat.  Bank,  102 
Md.  593,  63  Atl.  115,  where  consignee  of  cotton  pledged  bills  of  lading 
to  bank,  in  exchange  for  other  bills  previously  pledged  and  held  by 
bank  as  collateral  security,  pledge  based   on  sufficient   consideration. 

Syl.  4  (V,  765).  Notes — Bona  fide  purchaser — Suspicion  of  de- 
fects. 

Approved  in  First  Nat.  Bank  v.  Moore,  148  Fed.  957,  following 
rule;  Union  Nat.  Bank  v.  Neill,  149  Fed.  714,  applying  rule  where 
member  of  trading  partnership  signed  firm  name  as  accommodation 
indorser;  Massachusetts  National  Bank  v.  Snow,  187  Mass.  163,  72  N. 
E.  960,  note  which  is  complete  and  payable  to  bearer,  taken  from 
thief,  is  valid  in  hands  of  holder  in  due  course;  Hallock  v.  Young,  72 
N.  H.  420,  57  Atl.  237,  fact  that  indorsee  of  notes  knew  nothing  of 
malcers  or  of  financial  ability  of  indorser,  and  very  little  of  his  char- 
acter, does  not  affect  his  bona  fides;  Merchants'  etc.  Nat.  Bank  v. 
Ohio  Valley  Furniture  Co.,  57  W.  Va.  629,  630,  50  S.  E.  881,  882,  70 
L.  E.  A.  312,  applying  rule  where  bank  discounted  negotiable  paper 
with  knowledge  that  person  discounting  it  was  mere  agent. 

20  How.  393-402,  15  L.  96,  PEOPLE'S  FEEEY  CO.  v.  BEEES. 

Syl.  1   (V.  772).     Admiralty  jurisdiction  over  contracts. 

Approved  in  The  Mary  F.  Chisholm,  129  Fed.  817,  denying  admiralty 
jurisdiction  over  sale  to  fisherman  about  to  go  on  voyage  on  lay 
contract  of  tobacco,  clothing  and  other  articles  for  personal  use. 

Syl.  2  (V,  773).  Admiralty — Contract  for  construction  of  vessel 
not  maritime. 

Approved  in  The  Winnebago,  141  Fed.  949,  upholding  Michigan 
Comp.  Law,  c.  298,  giving  lien  to  contractors  and  persons  furnishing 
labor  and  materials  in  construction  of  vessels;  Arnold  v.  Eastin,  11 6 
Ky.  708,  76  S.  W.  859,  contract  for  material  for  construction  of 
dock,    reserving    lien    thereon    to    seller,    is    not    maritime    contract; 


327  Kotes  on  U.   !S.   lleports.  20  JIow.  102-442 

Delaney  etc.  Co.  v.  The  Wiimebago,  142  Mich.  8S,  105  N.  W.  529, 
upholdiiig  Comp.  Laws  1897,  §  10,789,  creating  lien  for  materials  fur- 
nished for  original  construction  of  vessel. 

20  How.  402-412,  15  L.  930,  McCOEMICK  v.  TALCOTT. 

Hyl.  1   (V,  775).     Patent  infringement — Use  of  equivalents. 

Approved  in  MarcOni  Wireless  Tel.  Co.  v.  De  Forest  Wireless  Tel. 
Co.,  138  Fed.  678,  Marconi  reissue  No.  11,913,  for  wireless  telegraphy 
apparatus,  infringed  as  to  claims  3  and  5  by  De  Forest  patent,  but  not 
as  to  claims   8,  10  and  24. 

Syl.  2   (V,  776).     Patents — Improvement — Combination  of  parts. 

Approved  in  Standard  etc.  Co.  v.  Eamsay,  143  Fed.  975,  construing 
Muckle  and  Teamer  patent  No.  555,825,  for  locking  device  for  ele- 
vators; Mallon  V.  Wm.  C.  Gregg  &  Co.,  137  Fed.  80,-69  C.  C.  A.  48, 
Mallon  ])atent  No.  583,408,  for  automatic  mechanism  for  unloading 
and  feeding  sugar  cane  valid,  but  not  infringed  by  machine  described 
in  Gregg  patent  No.  670,176;  Greene  v.  Buckley,  135  Fed.  531,  68  C. 
C.  A.  70,  construing  Buckley  patent  No.  590,297,  for  force-feed 
lubricator;  Raymond  v.  Keystone  Lantern  Co.,  134  Fed.  868,  67  C.  C. 
A.  492,  construing  Wright  patent  No.  476,506,  for  improvement  in 
wick-raiser  attacliments  for  lanterns;  Cook  v.  Ileywood  Bros.  etc. 
Co.,  131  Fed.  762,  Bowen  patents  No.  667,162,  for  improvement  in 
chairs,  and  No.  678,219,  for  improvement  in  chairs,  not  infringed  by 
device  of  LuOino  reissue  No.  11,919. 

20  How.  427-442,   15  L.  978,   SUYDAM  v.  WILLIAMSON, 
Syl.  3  (V,  778).     Scope  of  review  on  bill  of  exceptions. 
Approved  in  Nichols  v.  Board  of  Comnirs.  of  Weston  Co.,  13  Wyo. 
8,   76  Pac.   682,   where  final  judgment   not   supported   by  pleadings  or 
findings,  it  is  reversible  on  error  without  bill  of  exceptions. 

Syl.  4  (V,  779).     Bill  of  exceptions  necessary  to  review  evidence. 

Approved  in  Metropolitan  R.  E.  Co.  v.  Maefarland.  195  IT.  S.  331, 
49  L.  223,  25  Sup.  Ct.  28,  errors  in  refusal  of  instructions  are  not  re- 
viewable in  absence  of  bill  of  exceptions. 

Syl.    8    (V,    789).     Nature    of    demurrer    to    evidence. 

Approved  in  Nashville  etc.  Ry.  Co.  v.  Sansom,  113  Tenn.  690,  84 
S.  W.  617,  under  Shannon's  Code,  §§  4689,  4691,  where  issue  is  joined 
on  demurrer  to  plaintiff's  evidence,  it  is  too  late  after  argument  of 
demurrer  for  plaintiff  to  take  nonsuit. 

Syl.   12   (V,  781).     Writ  of  error  only  operates  on  record. 

Approved  in  Cassett  v.  ^Mitchell  Coal  &  Coke  Co.,  150  Fed.  42, 
Eev.  St.,  §  724,  does  not  autiiorize  order  requiring  party  to  pruduce 
books  and  papers  before  trial. 


20  How.  442-530  Notes   on  U.   S.   Reports.  328 

20  How.  442-448,  15  L.  965,  BROWN  v.  WILEY. 

Syl.  2    (V,   782).     Parol  to  vary  writing. 

ApprovecT  in  Payne  v.  Mutual  Life  Ins.  Co.,  141  Fed.  345,  admitting 
parol  evidence  of  agent's  declarations  to  show  bona  fides  of  contract 
of  life  insurance. 

20  How.  448-461,  15  L.  950,  WARNER  v.  NORTON. 

Syl.  2   (V,  783).     Fraud — Failure  to  change  possession  on  sale. 

Approved  in  Heisch  v.  Bell,  11  N.  M,  529,  70  Pac.  572,  bill  of  sale 
given  by  debtor  to  creditor  of  personalty  of  which  there  is  change  of 
possession,  is  valid  between  parties  whether  same  is  acknowledged  and 
recorded  or  not. 

20  How.  461-467,  15  L.  966,  STINSON  v.  DOUSMAN. 

Syl.  3   (V,  783).     Amount  in  dispute  on  rescission  of  sale. 

Approved  in  Kirby  v.  American  Soda  etc.  Co.,  194  U.  S.  144,  48 
L.  912,  24  Sup.  Ct.  619,  upholding  federal  jurisdiction  where  cross- 
bill seeks  to  recover  balance  of  $1,700  due  on  contract  of  exchange 
where  original  bill  dismissed  on  complainant's  own  motion  asked 
cancellation  of  agreement  to  pay  $2,025;  Morris  v.  Bean,  146  Fed.  429, 
in  suit  concerning  water  rights,  where  right  to  use  of  water  exceeds 
in  value  $2,000,  circuit  court  has  jurisdiction;  Greenfield  v.  United 
States  etc.  Co.,  133  Fed.  787,  where  plaintiff  sued  to  quiet  title  and 
to  set  aside  trust  deed  and  to  vacate  deed  to  purchaser  under  fore- 
closure of  such  trust  deed,  but  asked  in  alternative  that  if  deeds  be 
not  set  aside,  she  be  permitted  to  redeem,  value  of  land  was  juris- 
dictional amount. 

20  How.  467-486,  15  L.  969,  ROBERTS  v.  COOPER. 

Syl.  1   (V,  784).     Matters  reviewable  on  second  appeal. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  Min.  etc.  Co.,  147  Fed. 
904,  and  Leicher  v.  Keeney,  110  Mo.  App.  297,  85  S.  W.  921,  both 
following  rule;  Southern  Illinois  etc.  Co.  v.  Stone,  194  Mo.  185,  92 
S.    W.    477,   applying   rule   in    condemnation   proceedings. 

S}-].  3  (V,  785).     Conveyance  to  one  of  lands  possessed  b}^  another. 

Approved  in  Chesapeake  Beach  Ry.  Co.  v.  Washington  etc.  R.  R. 
Co.,  199  U.  S.  252,  50  L.  178,  26  Sup.  Ct.  25,  conveyance  by  disseisin 
is  valid  in  District  of  Columbia. 

(V,  784.)  i\Iisecllaneous.  Cited  in  State  v.  Jennings,  47  Fla.  321, 
35  So.  993,  reciting  history  of  case. 

20  How.  527-530,  15  L.  091,  BEERS  v.  STATE  OF  ARKANSAS. 

Syl.  2  (Y,  789).     Contracts — Law  permitting  suit  against  state. 

Approved  in  Wheeler  v.  Public  School  Board  of  Control,  137  Mich. 
292.  109  Am.  St.  Rep.  681,  100  N.  W.  394,  upholding  act  of  1903, 
repealing    authorization    of    school    board    of    control    to    sue    and    be 


320  Notes  on  U.   S.  Eeports.  20  How.  532-571 

sued,  as  applied  to  contract  entered  into  prior  to  repeal;  Matter  of 
Hoople,  179  N.  Y.  312,  72  N.  E.  230,  under  Laws  1900,  p.  916,  re- 
quiring application  for  refund  of  tax  to  be  made  in  two  years,  appli- 
cation by  executor  in  October  1903,  for  vacation  of  order  of  November 
29,  1895,  assessing  transfer  tax,  is  barred. 

20   How.   532-534,   15  L.   1012,  BARTON  v.  FOESYTH. 

Syl.  1  (V,  790).     Exceptions  must  be  taken  at  trial. 

Approved  in  dissenting  opinion  in  Owens  v.  United  States,  130  Fed. 
286,  64  C.  C.  A.  525,  majority  considering,  on  appeal  in  criminal  case, 
exceptions  to  instructions  handed  to  clerk  after  jury  sent  out. 

20  How.  535-541,  15  L.  1013,  WILLIAMS  v.  GIBBES. 

Syl.  1  (V,  790).     Reimbursement  of  trustee  for  expenses. 

Approved  in  Hunter  v.  Coe,  12  N.  D.  517,  97  N.  W.  873,  decreeing 
specific  performance  of  contract  for  sale  of  realty  on  reimbursement 
of  purchaser  from  vendor  for  improvements  made  in  good  faith j 
Sunter  v.  Sunter,  190  Mass.  457,  77  N.  E.  498,  arguendo. 

20  How.  555-557,  15  L.  1021,  McCARGO  v.  CHAPMAN. 

Syl.  1    (V,  792).     Order  quashing  execution  not  final   order. 

Approved  in  Anglo-American  etc.  Co.  v.  Cheshire  Prov.  Inst.,  134 
Fed.  155,  arguendo. 

(Y,  792.)  Miscellaneous.  Cited  in  King  v.  Davis,  137  Fed.  233,  as 
recognizing  power  of  federal  courts  to  vacate  judgments  of  former  term. 

20  How.  558-571,  15  L.  994,  IRVINE  v.  MARSHALL. 

Syl.  2  (V,  792).     Resulting  trust — Purchaser  with  another's  money. 

Approved  in  Copper  River  Min.  Co.  v.  McClellan,  2  Alaska,  144, 
applying  rule  to  location  of  mining  claims;  Thompson  v.  Burk,  2 
Alaska,  252,  where  defendant  located  placer  claim  but  made  no  dis- 
covery, and  plaintiff  made  subsequent  relocation,  and  thereafter,  with- 
out notifying  defendant  of  fact,  contracted  with  him  to  dig  discovery 
shaft  on  claim  in  which  gold  discovered,  discovery  inured  to  perfect 
defendant's  senior  claim. 

Syl.  3  (V,  792).     States  cannot  regulate  public  lands. 

Approved  in  Peyton  v.  Desmond,  129  Fed.  10.  G3  C.  C.  A.  651, 
state  statute  purporting  to  regulate  effect  of  land  department  "s  final 
receipts  does  not  affect  rights  of  grantees  from  United  States. 

Syl.  7  (V,  793).     Equity  cases  defined. 

Approved  in  In  re  E.  T.  Kenney  Co.,  136  Fed.  454,  beneficial  in- 
terest of  assignors  in  net  proceeds  of  claims  against  insolvent  cor- 
porntion,  assigned  to  committee  after  admiuistration  of  trust  by  com- 
mittee, not  provable  in   bankruptcy. 


21  How.  35-S5  Notes  on  U.   S.  Reports.  330 

Syl.  9  (V,  793).     Land  office  practice  does  not  control  courts. 

Approved  in  Paine  v.  Foster,  9  Okl.  275,  60  Pac.  29,  setting  aside 
rejection  of  homesteader's  claim  by  Interior  Department  because 
of  fraud. 

20  How.  583-617,  15  L.  1028,  TAYLOE  v.  CAEEYL. 

Syl.  2   (V,  795).     Property  in  custodia  legis  not  seizable. 

Approved  in  Fountain  v.  624  Pieces  of  Timber,  140  Fed.  382,  where 
deputy  sheriff  having  writ  of  attachment  went  to  raft  in  boat  but 
did  not  take  possession,  no  valid  levy  made  as  against  subsequent 
seizure  by  marshal  under  admiralty  process;  In  re  Porterfield,  138 
Fed.  197,  where  deed  of  trust  executed  by  bankrupt  to  wife  was 
recorded  less  than  four  months  prior  to  state  suit,  but  more  than 
four  months  prior  to  bankruptcy  proceedings  petitioning  creditors  not 
entitled  to  distribution  of  fund  under  state  law  declaring  prefer- 
ences void;  French  v.  White,  78  Vt.  96,  62  Atl.  36,  2  L.  R.  A.  (N. 
S.)  804,  property  vesting  in  bankruptcy  trustee  under  federal  law  is 
not  subject  to  state  attachment. 


XXI  HOWARD. 


21  How.  35-66,  16  L.  61,  UNION  INS.  CO.  v.  HOGE. 

Syl.  1  (V,  808).     Contemporary  construction  of  statutes. 

Approved  in  Westerman  v.  Supreme  Lodge  K.  of  P.,  196  Mo.  709, 
94  S.  W.  479,  Eev.  St.  1899,  §  7897,  prohibiting  forfeiture  of  life 
policy  for  nonpayment  of  premiums  after  payment  for  three  years 
does  not  apply  to  beneficial  associations  doing  business  ot  assess- 
ment plan;  State  v.  Smith,  71  Ohio  St.  40,  72  N.  E.  306,  construing 
Eev.  St.  1S92,  §  2855,  relating  to  entry  by  auditor  of  dfil'uquent  tax 
duplicate. 

21  How.  66-80,  16  L.  50,  LEGGETT  v.  HUMPHEEYS. 

Syl.  1    (V,  810).     Surety's  responsibility  strictly  limited  by  bond. 

Approved  in  Swift  v.  Jones,  135  Fed.  439,  where  ''inder  contract 
employing  defendant's  son  as  plaintiff's  broker,  signc'i  by  defendant 
as  guarantor,  son  required  to  give  fidelity  bond  for  which  plaintiff 
to  pay  premium,  and  son  signed  application  but  bond  .not  obtained 
until  after  defalcation,  defendant  not  liable  on  g''  aranty. 

21  How.  82-85,  16  L.  31,  EICE  v.  MINNESOTA  ETC.  R.  E.  CO. 

Syl.  1  (V,  811).     Appeal — Amendment  of  record  after  term. 

Approved  in  dissenting  opinion  in  State  v.  Marsh,  134  N.  C.  200,  47 
S.  E.  12,  67  L.  E.  A.  179,  majority  grant' ng  certiorari  to  correct  record 


331  Notes  on  U.   S.   Reports.  21  How.  85-193 

whore  conviction  reversed  for  omission  of  material  allegation  in 
indictment  where  allegation  in  fact  contained  but  omitted  from  record 
by  misprision  of  clerk. 

21  How.  85-88,  16  L.  32,  KELSEY  v.  FORSYTH. 

Syl.  2   (V,  812).     Consent  does  not  give  jurisdiction. 

Approved  in  Swift  v.  Jones,  145  Fed.  494,  circuit  .iudge  in  action  at 
law,  cannot,  though  parties  consent  order  trial  before  special  mas- 
ter; Clark  V.  Doerr,  143  Fed.  961,  time  for  suing  out  writ  of  error 
under  Comp.  St.  1901,  p.  547,  cannot  be  extended  by  agreement;  Wedd 
v.  Gates,  15  Okl.  605,  82  Pae.  809,  supreme  court  cannot  review  or- 
der of  district  court,  where  suit  for  review  not  commenced  until  after 
expiration  of  one  year  notwithstanding  agreement  of  parties  or  gen- 
eral apj)oarance  of  defendant  in  error. 

21  How.  103-112,  16  L.  33,  PENNSYLVANIA  v.  RAVENEL. 

Syl.  2  (V,  814).     Evidence  of  intention  to  change  domicilo. 

Approved  in  McCord  v.  Rosene,  39  Wash.  2,  80  Pac.  793,  fact  that 
man  lives  in  hotel  while  family  resides  in  another  state  does  not  af- 
fect residence  for  purpose  of  limitation  of  action  on  foreign  judg- 
ment. 

21  How.  140-] 70,  16  L.  86,  BARREDA  v.  STLSBEE. 

Syl.  1   (V,  816).     Contracts — Intention — Surrounding  circumstances. 

Approved  in  Cleveland-Cliffs  Iron  Co.  v.  East  Itasca  etc.  Co.,  146 
Fed.  23."),  236,  construing  contract  for  assignment  of  mining  leases 
on  royalty. 

21  How.  170- 184,  16  L.  119,  UNITED  STATES  v.  SUTTER. 

Syl.    (V,    820).     Mexican    grant— Nonconformity   with    law. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  634,  72  Pae.  33,  where 
Congress  has  confirmed  Mexican  grant  to  grantees  who  had  not  forfeited 
rights,  forfeiture  must  have  taken  place  prior  to  cession. 

21    How.    184-195,    15   L.    106,   THE    JAMES    GRAY   v.    THE    JOHN 
FRASER. 

Syl.  1  (V,  820).     City  ordinances  regulating  shipping. 

Approved  in  Hagan  v.  City  of  Richmond,  104  Va.  731,  3  L.  R.  A. 
(N.  S.)  1120,  52  S.  E.  388,  where  Secretary  of  War  neglects  to  act 
in  keeping  navigable  waters  unobstructed,  local  authorities  may  re- 
move   obstructions. 

Syl.  6  (V,  822).     Collision  must  be  fault  of  colliding  vessel. 

Approved  in  The  W.  G.  Mason,  142  Fed.  918,  where  two  tugs  be- 
longing to  same  owner  were  towing  steamer,  and  master  of  leading 
tug  directed  steamer's  movements,  but  second  tug  was  under  own 
master's  control,  as  to  own  movements,  rear  tug  not  liable  for 
stranding  of  tow  through  fault  of  leader. 


21  How.  202-241  Notes  on  U.   S.  Eeports.  332 

Distinguished  in  The  Violetta,  141  Fed.  693,  694,  tow  in  control  of 
tug  not  liable  with  tug  for  collision  with  another  vessel. 

Syl.  7   (V,  823).     Collision — Damages  where  both  at  fault. 

Approved  in  Steam  Dredge  No.  1,  134  Fed.  168,  69  L.  E.  A.  292, 
67  C.  C.  A.  67,  dividing  damages  were  government  inspector  con- 
tributorily  negligent  was  injured  by  breaking  of  bitt. 

21    How.    202-223,    16    L.    73,   PHILADELPHIA    ETC.    E.    E.    CO.    v. 
QUIGLEY. 

Syl.  2  (V,  825).     Corporation's  liability  for  acts  of  agent. 

Approved  in  Stewart  v.  Wright,  147  Fed.  327,  328,  holding  bank 
liable  as  party  to  scheme  to  defraud  by  means  of  fake  footrace; 
Oklahoma  City  v.  Hill,  6  Okl.  140,  50  Pac.  250,  holding  city  liable  for 
trespass  committed  by  officers  in  acquiring  possession  of  realty  which 
city  might  acquire  in  lawful  manner  and  by  lawful  means,  and  to 
which  city  was  claiming  title  under  void  deed. 

Distinguished  in  Brenner  v.  Ford,  116  La.  553,  40  So.  896,  holding 
master  not  liable  for  death  caused  by  negligence  of  servant  in  driv- 
ing team  where  he  had  been  positively  ordered  not  to  drive. 

Syl.  6  (V,  829).     When  exemplary  damages  awarded. 

Approved  in  Otto  Kuehne  Pres.  Co.  v.  Allen,  148  Fed.  669,  where 
allegation  that  defendants '  negligence  causing  death  was  gross  does 
not  authorize  exemplary  damages  under  Eev.  St.  Mo.  1899,  §  2866; 
Western  Union  Tel.  Co.  v.  Cashman,  132  Fed.  806,  65  C.  C.  A.  607,  re- 
fusing punitive  damages  for  transmission  of  libelous  message  by  tele- 
graph company;  Murray  v.  Pannaci,  130  Fed.  531,  65  C.  C.  A.  153, 
denying  exemplary  damages  where  defendants  removed  sand  from 
beach  in  front  of  plaintiff's  lot  in  belief  that  it  was  their  right; 
Ickenroth  v.  St.  Louis  Transit  Co.,  102  Mo.  App.  616,  77  S.  W.  168, 
applying  principle  in  action  for  assault  and  battery;  Baxter  v. 
Campbell,  17  S.  D.  480,  97  N.  W.  387,  in  action  against  surgeon  for 
malpractice,  where  compensatory  damages  alone  claimed,  error  to  in- 
struct that  punitive  damages  might  be  awarded  where  no  malice 
shown.     See    101  Am.  St.  Eep.  76U,  note. 

21   How.   223-228,   16  L.   96,   CAMPBELL  v.   BOYEEAU. 
Syl.  1  (V,  832).     Appeal — Eeview  where  no  finding. 
Cited  in  Cassett  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  43,  arguendo. 

21   How.  228-241,  16  L.  97,  FEENCH  v.  SPENCEE. 

Syl.    5    (V,    S36).     Land    patent    relates   to    entry. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
335,  50  L.  505,  2(5  Sup.  Ct.  282,  bona  fide  purcliaser  from  patentee  of 
timber  lands  is  entitled  to  protection  though  he  acquired  interest  in 
lands  under  contract  for  standing  timber  before  patent  issued;  United 
States  V.  Anderson,  194  U.  S.  399,  48  L.  1039,  24  Sup.  Ct.  716,  govern- 


333  Notes  on  U.   S.   Eeporta.  21  How.  248-331 

nient  cannot  retain,  as  against  its  grantees  of  lands  within  indemnity 
limits  of  railroad  grant,  sum  collected  from  trespassers  for  removal  of 
Btone  from  land  between  selection  and  approval  of  selection;  Miocene 
Ditch  Co.  V.  Jacobscn,  146  Fed.  683,  where  complainant  appropriated 
water  rights  and  commenced  construction  of  ditch  in  19U1,  right  to 
acquire  right  of  way  over  mining  claims  located  in  1902,  not  affected 
by  failure  to  complete  diteh  over  claims  until  after  their  location; 
Peyton  v.  Desmond,  129  Fed.  11,  63  C.  C.  A.  651,  patentee  may  re- 
cover value  of  timber  wrongfully  cut  and  removed  after  initiation  of 
claim  and  prior  to  issuance  of  patent;  Nicholson  v.  Congdon,  95  Minn. 
193,  103  N.  W.  1035,  subsequent  payment  and  issuance  of  patent  to 
land  protects  title  as  of  date  of  application;  Gilbert  v.  McDonald,  94 
Minn.  291,  110  Am.  St.  Eep.  370,  102  N.  W.  713,  applying  principle 
to  application  for  tract  under  soldier's  additional  homestead  certifi- 
cate; Washington  Eock  Co.  v.  Young,  110  Am.  St.  Rep.  666,  29 
Utali,  121,  80  Pae.  387,  applying  rule  where  entry  made  on  faith 
of  original   survey   and   retracing  changed   lines. 

21  How.  248-251,  16  L.  118,  MAGUIRE  v.  CARD. 

Syl.  1   (V,  841).     Admiralty — Su[iplies  furnislud  to  domestic  vessel. 
Approved   in  The  Sue,  137  Fed.  135,  arguendo. 

21  How.  287-290,  16  L.  36,  FORD  v.  WILLIAMS. 

Syl.  1   (V,  344).     Principal's  suit  on  contract  in  agent's  name. 

Approved  in  Dennis  v.  First  Xat.  Bank,  33  Wash.  165,  73  Pae.  1126, 
applying  rule  where  client  dealt  with  only  one  member  of  firm  of  at- 
torneys. 

Syl.   4    (V,   845).     Principal   may   show   agency   by   parol. 

Approved  in  In  re  Weiseuberg,  131  Fed.  521,  parol  evidence  is  ad- 
missible to  show  that  joint  notes  signed  by  members  of  bankrupt 
partnership    are   in   fact   firm    debts. 

21  How.  305-322,  16  L.  125,  BROWN  v.  HUGER. 

Sj-l.  1  (V,  849).     Removal  of  suit  against  government  official. 

Approved  in  Wadsworth  v.  Boysen,  148  Fed.  780,  denying  federal 
jurisdiction  over  suit  to  enjoin  Indian  agent  from  obstructing  com- 
plainant in  prospecting  on  Indian  reservation. 

Syl.  2   (V,  849).     Boundaries — Calls  for  natural  objects  control. 
Approved    in    Klcven    v.    Gunderson,    95    Minn.    254,    104    N.    W.    7, 
following  rule. 

21  How.  322-331,  16  L.  165,  KENDALL  v.  WINSOR. 

Syl.  4   (V,  851).     Equity  protects  inventor  against  piracy. 

Distinguished  in  Jenner  v.  Bowen,  139  Fed.  563,  where  inventor 
made  and  set  up  machine  for  customer  who  paid  for  it  and  sold  its 
product  as  intended,  use  was  public;  Eastman  v.  Mayor  etc.  of  New 


21  How.  343-390  Notes  on  U,   S.  Eeports.  33-i 

York,  134  Fed.  852,  69  C.  C.  A.  628,  where  inventor  of  improvement  in 
fire  engine  pumps  had  device  placed  on  engine  of  which  he  was  en- 
gineer and  showed  it  to  manufacturers,  placing  device  by  latter  on 
other  engines    does  not  efifect  public  use. 

21  How.  343-356,  16  L.  100,  McKINXiAY  v.  MORRTSH. 

Syl.  1   (V,  852).     Admiralty — Irrelevant  evidence  not  part  of  case. 

Approved  in  Barber  v.  Lockwood,  134  Fed.  986,  applying  principle 
in  action  to  recover  damages  to  barge  caused  by  unsafe  condition  of 
wharf  at  which  she  was  moored. 

21  How.   356-3G6,  16  L.   130,  UNITED  STATES  v.   CITY  BANK  OF 
COLUMBUS. 

Syl.  1   (V,  854).     Bank  cashier's  acts  bind  bank. 

Approved  in  Hier  v.  Miller,  68  Kan.  268,  75  Pac.  80,  63  L.  R.  A. 
952,  bank  cashier  cannot  pay  individual  debts  by  entering  their 
amount  as  credit  on  passbook  of  creditor  who  keeps  account  with 
bank;  Bank  v.  Wetzel,  58  W.  Va.  5,  50  S.  E.  888,  7  L.  R.  A.  (N.  S.) 
305,  cashier  of  bank  has  no  implied  power  to  receive  monej'  for  in- 
terest in  advance  on  note  owned  by  bank  and  agree  to  extend  time 
of  payment  and  thus   discharge  indorser. 

Syl.  2   (V,  855).     Scope  of  bank  cashier's  duties. 

Approved  in  Commercial  Nat.  Bank  v.  First  Nat.  Bank,  97  Tex. 
543,  80  S.  W.  604,  statement  by  president  of  national  bank  that  note 
which  was  in  fact  forged  was  properly  signed  by  purported  signer  does 
not  bind  bank. 

Syl.  4   (V,  856).     Validity  of  contracts  by  corporate   officers. 

Approved  in  Harrison  Co.  v.  State  Sav.  Bank,  127  Iowa,  245,  103 
N.  "W.  122,  admissious  of  bank  cashier  as  witness  in  action  to  which 
bank  not  party  are  inadmissible  against  bank  in  action  against  it. 

21   How.  372-385,   16   L.   144,   NEW  YORK  ETC.   MILL   S.   S.   CO.  v. 
RUMBALL. 

Syl.  3   (V,  858).     Collision — Change  of  course  by  schooner  in  peril. 

Approved  in  Brigham  v.  Luckenback,  140  Fed.  332,  schooner  sailing 
close-hauled  and  privileged  over  tug  approaching  on  crossing  course 
not  in  fault  for  cotlision  though  she  keeps  course. 

21  How.  389-390,  16  L.  143,  BALLANCE  v.  FORSYTH, 
S^'l.  1  (V,  862).  Consent  cannot  give  jurisdiction. 
Approved  in  Clark  v.  Doerr,  143  Fed.  961,  time  within  which  writ 
of  error  must  be  sued  out  under  Comp.  St.  1901,  p.  547,  cannot  be  ex- 
tended by  agreement;  Wedd  v.  Gates,  15  Okl.  606,  82  Pac.  809,  agree- 
ment of  parties  in  general  appearance  of  defendant  does  not  confer 
jurisdiction  on  supreme  court  over  action  to  review  district  judg- 
ment commenced  after  expiration  of  statutory  time. 


335  Notes  on  U.  S.  Reports.  21  How.  390-445 

21  How.  390-391,  16  L.  81,  MASON  v.  GAMBLE. 

Syl.  1   (V,  862).     Writ  of  error  in  revenue  cases. 

Approved  in  Thomas  v.  Lincoln  County,  41  Wash.  152,  83  Pac.  19, 
recovery  of  judgment  against  county  in  suit  to  recover  $64.56  taxes 
paid  on  alleged  erroneous  assessment  of  tract  mistakingly  assessed 
as  containing  more  lancV  than  it  in  fact  contained,  is  not  suit  involv- 
ing legality  of  tax  within  statute  permitting  appeal  to  supreme  court. 

21  How.  414-426,  16  L.  1.54,  WHITE  WATER  VALLEY  CANAL  CO. 
V.  VALLETTE. 

Syl.  1  (V,  865).     Agreement  for  mortgage  is  binding. 
Approved  in  Harrigan  v.  Gilchrist,  121  Wis.  361,  99  N.  W.  981,  im- 
perfect attempt  to  make  mortgage  gives  priority  in  creditors'  suit. 
Syl.  4   (V,  866).     Corporation  may  sell  property. 
See  notes,  111  Am.  St.  Rep.  328;  103  Am.  St.  Rep.  551. 

21  How.  441-445,  16  L.  184,  PEARCE  v.  MADISON  ETC.  R.  R.   CO. 

Syl.  1  (V,  870).     Railroad  cannot  run  steamers. 

Approved  in  State  v.  Canadian  Pac.  Ry.  Co.,  100  Me.  206,  60  At). 
902,  construing  Pub.  Laws  1901,  c.  145,  p.  160,  relating  mileage  ap- 
portionment for  purposes  of  taxing  railroads;  West  etc.  R.  R.  Co.  v. 
Blue  Ridge  etc.  Co.,  102  Md.  329,  111  Am.  St.  Rep.  371,  62  Atl.  355. 
3  L.  R.  A.  (N.  S.)  887,  holding  void  contract  whereby  railroad  guar- 
antees payment  of  interest  and  dividends  on  bonds  and  stock  of  hotel 
company  along  its  line. 

Syl.  2   (V,  871).     Corporation   cannot   vary  from  charter  objects. 

Approved  in  Anglo-American  Land  etc.  Co.  v.  Lombard,  132  Fed. 
742,  68  C.  C.  A.  89,  under  Missouri  statutes  trust  company  cannot 
purchase  all  stock  of  another  corporation  for  purpose  of  controlling 
its  management;  In  re  S.  P.  Smith  Lumber  Co.,  132  Fed.  622,  corpora- 
tion chartered  for  purpose  of  buying  and  selling  building  materials 
cannot  bind  itself  as  guarantor  for  performance  of  building  contract 
by  another;  Sturdevant  Bros.  &  Co.  v.  Farmers'  etc.  Bank,  69  Neb. 
225,  95  N.  W.  821,  banking  corporation  not  liable  on  replevin  bond 
executed  in  its  name  by  cashier;  Hugenot  Mills  v.  Jempson,  68  S.  C. 
366,  102  Am.  St.  Rep.  673.  47  S.  E.  688,  where  corporation  which 
formed  partnership  with  individual  contracted  to  sell  defendant  goods 
purchased  in  part  with  its  funds,  defendant  in  suit  by  corporation  in 
own  right  and  as  assignee  of  partner  for  breach  of  contract  cannot 
plead  partnership  as  ultra  vires.     See  111  Am.  St.  Rep.  312,  note. 

Syl.  3  (V,  874).  Corporations  cannot  consolidate  without  charter 
power. 

Approved  in  Jones  v.  Missouri-Edison  Electric  Co.,  135  Fed.  156, 
consolidation  of  corporations  under  Mo.  Rev.  St.  1S99,  §  1334,  not  in- 
validated by  fact  that  one  of  corporations  was  itself  created  by  prior 
eonsolidatiou. 


21  How.  463-506  Notes   on  U.  S,  Reports.  33G 

Syl.  4   (V,  874).     Eailroacl's  liability  for  ultra  vires  notes. 
Approved  in  Anderson  v.  War  Eagle  etc.  Min.  Co.,  8  Idaho,  803,  72 
Pac.  674,  applying  rule.     See  111  Am.  St.  Eep.  317,  note. 

21  How.  463-481,  16  L.  192,  CONVERSE  v.  UNITED  STATES. 

Syl.  3   (V,  879).     Compensation  of  officer  acting  for  other  district. 

Approved  in  State  v.  Grant,  12  Wyo.  11,  73  Pac.  473,  on  death  of 
governor  during  term  of  office  Secretary  of  State  is  entitled  to 
gubernatorial  salary  as  well  as  his  own,  for  acting  as  governor. 

Distinguished  in  Finley  v.  Territory,  12  Okl.  644,  73  Pac.  280, 
probate  judges  cannot  keep  fees  received  for  services  as  such  judges. 

21  How.  481-488,  16  L.  198,  FENN  v.  HOLME. 

Syl.  2  (V,  881).     Proceedings  at  law  and  in  equity. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Blair,  130  Fed.  974,  upholding 
suit  by  insurer  to  cancel  life  policy  for  fraud,  where  policy  provided 
for  settlement  by  issuance  of  annuity  contract  by  terms  of  which 
\Vidow  was  to  receive  payments  for  twenty  years  and  if  she  died 
prior  to  that  time  her  children  to  receive  balance;  Anthony  v.  Bur- 
row, 129  Fed.  790,  denying  federal  equity  jurisdiction  to  restrain  state 
officer  from  certifying  nomination  of  candidate  for  Congress. 

Syl.  3   (V,  881).     Equity — Following  state  practice. 

Approved  in  Illinois  Life  Ins.  Co.  v.  Newman,  141  Fed.  453,  denying 
federal  jurisdiction  to  enjoin  collection  of  state  tax;  In  re  E.  T. 
Kenney  Co.,  136  Fed.  456,  creditors  of  bankrupt,  who  before  bank- 
ruptcy assigned  claims  to  committee  in  trust  to  purchase  and  sell 
bankrupt's  property  for  benefit  of  assignors,  cannot  prove  their 
equitable  interest  as  claims  against  bankrupt  estate. 

Syl.  4   (V,  882).     No  ejectment  till  patent  issues.     . 

Approved'  in  Day  v.  Mountin,  137  Fed.  764,  70  C.  C.  A.  190,  contract 
for  sale  of  land  requiring  vendor  to  furnish  abstract  showing  clear 
title  cannot  be  specifically  enforced  by  vendor  where  only  title  shown 
is  government  entry  without  final  proofs;  Surghenor  v.  Ranger,  133 
Fed.  457,  determining  rights  under  conveyance  by  purchaser  of  con- 
cession of  land  under  Mexican  colonization  law  before  selection  of 
land. 

21  How.  493-506,  16  L.  203,  LEA  v.  POLK  CO.  COPPER  CO. 

Syl.  2   (V,  883).     Bona  fide  purchaser  from  patentee  protected. 
Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  131  Fed.  678, 
following  rule. 

Syl.  3  (V,  884).     Adverse  possession  as  notice. 
See  104  Am.  St.  Rep.  345,  note. 


337  Notes  on  U.  S.  Reports.  21  How.  500-578 

Syl.  5   (V,  884).     Evidence — Declarations  by  person  since  deceased. 

Approved  in  "Williams  v.  Miles,  68  Neb.  478,  110  Am.  St.  Rep.  445, 
94  N.  W.  711,  applying  rule  to  show  that  prior  will  was  revoked  by 
subsequent   lost   will. 

21  How.  506-526,  16  L.  109,  ABLEMAX  v.  BOOTH. 

Syl.  9  (V,  890).     Process  not  efifective  extraterritorially. 

Approved  in  Kibbler  v.  St.  Louis  etc.  R.  Co.,  147  Fed.  880, 
foreign  corporation,  which  under  state  laws  can  be  sued  in  state 
courts  only  in  counties  in  which  it  does  business,  is  not  suable  in 
federal  court  in  state  unless  it  does  business  in  one  of  counties  of 
district;  In  re  Bailey,  10  Okl.  297,  61  Pac.  923,  denying  habeas  corpus 
to  warden  of  Kansas  penitentiary. 

21   How.   539-546,   16   L.   208,   COMMISSIONERS   OF   KNOX   CO.   v. 
ASPINWALL. 

Syl.  2  (V,  895).     Recitals  in  municipal  bonds. 

Distinguished  in  Knight  v.  Shelton,  134  Fed.  438,  fact  that  speaker 
of  house  of  Arkansas  legislature  declaring  constitutional  amendment 
legally  adopted  on  canvass  of  vote  of  electorate  is  not  conclusive. 

Syl.  3  (V,  897).     County  aid  bonds — Conclusiveness  of  recitals. 

Approved  in  Northwestern  Sav.  Bank  v.  Centreville  Station,  143 
Fed.  85,  applying  rule  where  town  bonds  recited  issuance  under 
Illinois  statute  authorizing  towns  to  borrow  money  for  highway  im- 
provements, and  that  supervisors  and  clerk  were  acting  under  author- 
ity of  highway  commissioners,  pursuant  to  popular  vote  authorizing 
bonds;  Marion  Water  Co.  v.  City  of  Marion,  121  Iowa,  322,  96  N.  W. 
888,  where  city,  authorized  to  construct  waterworks,  adopted  ordinance 
granting  company  right  to  lay  mains  in  street,  providing  for  hydrant 
rentals  and  giving  company  right  to  collect  rents  from  consumers,  and 
company  constructed  works,  city  cannot  defeat  hydrant  rentals  by 
showing  ordinance   irregularly  drawn. 

21  How.  548-572,  16  L.  211,  CHAMBERLAIN  v.  WARD. 

Syl.  10   (V,  909).     Steamers  must  have  vigilant  lookouts. 

Approved  in  The  Sitka,  132  Fed.  864,  holding  steamer  not  having 
vigilant  lookout  liable  for  collision  with  tug  and  tow  in  channel  of 
river;  The  Dauntless,  129  Fed.  722,  64  C.  C.  A.  243,  holding  steamer 
in  fault  for  collision  in  river  with  two  launches  made  fast  together, 
where  she  had  no  proper  lookout. 

21  How.  575-578,  16  L.  221,  WHITE  v.  VERMONT   ETC.  R.  R.   CO. 

Syl.  2  (V,  913).     Holder  may  fill  in  blank  in  bond. 

Approved    in    Gamble    v.    Rural    Ind.    School    Dist.,    132    Fed.    521, 
municipal    bonds    are    negotiable    where    name    of    payee    and    word 
"order"  or  "bearer"  are  left  blank. 
22 


21  How.  582-605  Notes  on  U.   S.   Eeports.  333 

21  How.  582-605,  16  L.  226,  BARBER  v.  BARBER. 

Syl.   1    (V,  944).     Federal  jurisdiction — Enforcement  of  alimony. 

Modified  in  Israel  v.  Israel,  148  Fed.  580,  decree  for  alimony  and 
costs  supports  action  in  another  in  so  far  as  it  is  for  sum  due  at  time 
of  rendition  and  which  is  absolutely  awarded  but  not  with  respect  to 
future  payments  provided  therein. 

Distinguished  in  De  La  Rama  v.  De  La  Rama,  201  U.  S.  307,  308,  50 
L.  767,  26  Sup.  Ct.  485,  upholding  appellate  jurisdiction  to  review 
Philippine  divorce  decree  awarding  alimony  and  property  in  excess  of 
jurisdictional  amount. 

Syl.  3  (V,  915).     Establishment  of  new  domicile  by  wife. 

Approved  in  Haddock  v.  Haddock,  201  IT.  S.  571,  583,  50  L.  870, 
875,  26  Sup.  Ct.  525,  mere  domicile  within  state  of  one  party  to 
marriage  does  not  give  courts  of  that  state  jurisdiction  to  render 
divorce  decree  enforceable  in  other  states  against  nonajipearing,  non- 
resident defendant  served  by  publicatioujToledo  Traction  Co.  v.  Cam- 
eron, 137  Fed.  56,  69  C.  C.  A.  28,  where  father  and  mother  of  infant 
plaintiff  are  divorced  and  his  custody  awarded  to  mother,  her  domicile 
and  place  of  citizenship  govern  federal  jurisdiction  of  action  by  in- 
fant.    See   109  Am.   St.  Rep.   259,  267,  note. 

Syl.  4  (V,  916).     Suit  on  foreign  alimony  decree. 

Approved  in  Harding  v.  Harding,  198  U.  S.  339,  49  L.  1076,  25 
Sup.  Ct.  679,  decree  in  favor  of  wife  in  suit  for  separate  maintenance 
under  Illinois  statute  is  conclusive  on  husband  in  California  courts  on 
issue  whether  same  separation  constitutes  desertion  on  her  part;  Israel 
v.  Israel,  130  Fed.  240,  upholding  federal  jurisdiction  over  action  on 
decree  for  weekly  alimony  as  to  amount  due  thereon  at  time  of  ac- 
tion; Wagner  v.  Wagner,  26  R.  I.  27,  57  Atl.  1059,  65  L.  R.  A.  81G, 
upholding  action  of  debt  based  on  decree  for  alimony  rendered  by 
court  of  another  state.     See   102   Am.  St.  Rep.   704,  note. 

Distinguished  in  Leyland  v.  Leylaiid,  186  Mass.  422,  71  N.  E.  795, 
where  wife  of  minor  under  guardianship  has  obtained  decree  of 
divorce  and  alimony  prior  to  settlement  of  guardian's  account  on 
husband's  attaining  majority,  she  cannot  appeal  from  settleniont  of 
account;  dissenting  opinion  in  Haddock  v.  Haddock,  2U1  U.  S. 
611,  50  L.  887,  26  Sup.  Ct.  525,  majority  holding  mere  domicile  within 
one  state  of  one  party  to  marriage  does  not  give  courts  of  that  state 
jurisdiction  to  render  divorce  decree  enforceable  in  other  states 
against   nonappearing    nonresident   defendant   served   by   publication. 


XXII  HOWARD. 


22  How.  28-45,  16  L.  360,  EMEESOX  v.  SLATER. 

Syl.  1   (V,  919).     Changing  written  contract  by  parol  agreement. 

Api)rovcd  in  McConathy  v.  Lanham,  116  Ky.  740,  76  S.  W.  536, 
parol  agreement  for  extension  of  time  for  payment  under  written 
contract  for  sale  of  mineral  rights  is  void;  Taylor  v.  Finnigan,  189 
Mass.  574,  76  X.  E.  205,  2  L.  R.  A.  (X'.  S.)  973,  oral  modification  of 
lease,  consisting  of  promise  by  landlord  to  provide  additional  means 
of  egress  from  demised  premises  so  as  to  make  them  comply  with 
statute,  is  valid  if  founded  on  good  consideration. 

Syl.  2   (V,  919).     Statute  of  frauds — Answering  for  other's  debt. 

Ai>i>roved  in  Pratt  v.  Fishwild,  121  Iowa,  649,  96  N.  W.  1092,  fol- 
lowing rule;  Taylor  v.  Finnigan,  189  Mass.  575,  76  X.  E.  205,  2  L. 
E.  A.  (X'^.  S.)  973,  oral  modification  of  lease,  consisting  of  promise  by 
landlord  to  provide  additional  means  of  egress  from  demised  prem- 
ises so  as  to  make  them  comply  with  statute,  is  valid  if  founded  on 
good  consideration;  McCormick  v.  Johnson,  31  Mont.  270,  78  Pac.  502, 
promise  by  partners  to  pay  existing  debt  of  corporation  to  another 
in  consideration  of  such  other  giving  them  agency  for  sale  of  his 
coal,  need  not  be  in  writing;  Chicago  etc.  E.  Co.  v.  Brown,  70  X'eb. 
700,  97  X^.  W.  1040,  uncertainty  as  to  which  of  two  persons,  both 
denying  liability,  is  liable  for  fixed  debt,  is  sufficient  consideration 
for   compromise   between   one   of   parties   and   creditor. 

22   How.   46-48,   16   L.   285,   OYERTOX   v.    CHEEK. 

Syl.   1    (V,   920).     Seal  necessary  to   writ  of   error. 

Distinguished  in  Kipp  v.  Burton,  29  Mont.  102,  101  Am.  St.  Rep. 
544,  74  Pac.  87,  63  L.  E.  A.  325,  under  Act  1899,  p.  145,  §  2,  sale 
under  execution  defective  by  reason  of  absence  of  seal  was  validated 
by   act   without   amendment. 

22  How.  48-56,  16  L.  269,  XELSON  v.  LELAXD. 

Syl.    1    (Y,   921).     Supreme   court — District    court's   jurisdiction. 

Approved  in  Miltimore  v.  Hoffman,  125  Wis.  563,  1U4  X.  W.  842, 
under  Eev.  St.  1898,  §  3769,  where  appeal  was  properly  perfected 
from  justice's  judgment,  on  which  justice  bad  no  jurisdiction,  it  is 
duty   of    circuit   court   to    dismiss   action. 

22  How  96-111,  16  L.   323,  BAXK   OF  PITTSBUEG   v.   XEAL. 

Syl.  1  (V,  825).     Authority  to  fill  blanks  in  note. 
Approved    in    ^Mechanics'    Bank    v.    Chardavoyne,    69    X.    J.    L.    259, 
101  Am.  St.   Rep.    7Ul,  55   Atl.    lOSl,   following   rule;    Thread   v.    Guer- 

L33yj 


22  How.  129-214  Notes  on  U.   S.   Kcports.  340 

niger,  115  La.  246,  38  So.  981,  where  holder  of  note  secured  by  mort- 
gage left  for  safekeeping  with  notary  who  sold  it  ^nd  mortgaged 
property  was  sold  by  owner  who  deposited  in  court  amount  sufficient 
to  pay  note,  purchaser  from  notary  was  entitled  to  judgment  on  note; 
Merchants'  etc.  Bank  v.  Ohio  Valley  etc.  Co.,  57  W.  Va.  630,  50 
S.  E.  882,  70  L.  E.  A.  312,  bank  discounting  note  in  hands  of  agent 
with  knowledge  of  agency  and  with  notice  that  agent  was  to  use 
l)roceods  for  personal  use  cannot  recover  of  principal. 

(Y.  925.)  Miscellaneous.  Cited  in  Gilmore  v.  Meeker,  115  La.  866, 
'10  So.  244. 

22  Eow.  129-132,  16  L.  294,  KOACH  v.  CHAPMAN. 

Syl.   1    (V,   928).     Shipbuilding  contract   not   maritime. 

Approved  in  The  Winnebago,  141  Fed.  949,  fact  that  vessel  sub- 
ject to  statutory  lien  for  labor  or  materials  under  state  statute  has 
been  enrolled  and  engaged  in  interstate  commerce,  does  not  affect 
jurisdiction  of  state  court  over  suit  to  enforce  statutory  liens; 
Delaney  etc.  Co.  v.  The  Winnebago,  142  Mich.  88,  105  N.  W.  529,  up- 
holding Comp.  Laws  1897,  §  10,789,  creating  lien  for  materials 
furnished  for  original  construction  of  ships  and  providing  for  en- 
forcement   of    lien. 

Syl.   2    (V,   930).     Federal    courts— State   law   giving  lien. 

Approved  in  The  San  Eafael,  141  Fed.  280,  state  statute  limiting 
time  within  which  liens  on  vessels  given  thereby  must  be  enforced 
does  not  affect  admiralty  jurisdiction  to  enforce  lien  given  by  general 
jtiaritime  law. 

22  How.   193-214,  16  L.  306,  LYTLE  v.  ARKANSAS. 

Syl.  3    (V,  934).     Fraud — Eeview  of  land  office  decisions. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  TJ.  S. 
339,  50  L.  506,  26  Sup.  Ct.  282,  bona  fide  holder  of  standing  timber 
from  holders  of  receiver's  final  receipts  for  land  entered  under  timber 
act  cannot  on  avoidance  of  patents  for  fraud  of  entryman,  be  re- 
quired to  account  to  government  for  timber  cut  in  reliance  on  pur- 
chase; Kstcs  v.  Timmons,  199  U.  S.  395,  50  L.  244,  26  Sup.  Ct.  85, 
perjury  on  hearing  before  Land  Department  of  contest  over  entry 
under  homestead  laws  is  not  ground  for  equitable  relief  against 
department  decision;  Le  Marchel  v.  Teegarden,  133  Fed.  827,  party 
attacking  patent  for  mistake  of  fact  must  plead  and  prove  evidence 
before  department  from  which  mistake  resulted,  particular  mistake 
made   and   the   way   in   which  it   occurred. 

Distinguislied  in  Estes  v.  Timmons,  12  Okl.  543,  73  Pac.  305,  refus- 
ing to  review  determination  of  land  department  and  declare  trust 
where  only  allegation  touching  fraud  is  that  some  of  witnessea 
before    department    testified   falsely. 


341  Notes  on   U.   S.  Eeports.  22  How.  214-269 

22  How.  214-216,  16  L.  238,  BONDIES  v.  SHEEWOOD. 

Syl.  1   (V,  935).     Salvage — Eepudiation  of   contract. 

Approved  in  The  Myrtle  Tunnel,  146  Fed.  326,  tug  contracting  to 
float  and  deliver  stranded  ship  at  certain  port,  which  fails  to  do  so, 
cannot  recover  salvage  for  its  efforts  as  result  of  which  ship  floated 
by   tide  and   rescued  by   other   vessels. 

22  How.  217-225,  16  L.  240,  CHAFFEE  v.  BOSTON  BELTING  CO. 

Syl.   1    (V,   936).     Eepair   of   patented   machine   by   purchaser. 

Approved  in  National  Cash  Reg.  Co.  v.  Grobet,  148  Fed.  387, 
where  complainant  sold  two  cash  registers  which  were  alike  except 
that  one  contained  printing  device  not  attached  to  other,  and  defend- 
ant took  off  printing  device  and  attached  it  to  other,  there  was  no 
infringement;  Wagner  Typewriter  Co.  v.  Webster  Co.,  144  Fed.  410, 
415,  determining  right  to  replace  ribbon  and  spool  for  typewriters. 

Distinguished  in  Morrin  v.  Eobert  etc.  Works,  138  Fed.  73,  holding 
reconstruction  of  generating  tubes  in  steam  generator  to  be  infringe- 
ment. 

22   How.   227-244,  16  L.   243,  SINNOT  v.  DAVENPOET. 

Syl.   1    (V,  937).     State  navigation  acts  conflicting  with  federal. 

Approved  in  Jacobson  v.  Massachusetts,  197  U.  S.  25,  49  L.  649,  25 
Sup.  Ct.  358,  upholding  Mass.  Eev.  Laws,  c.  75,  §  137,  authorizing 
compulsory  vaccination;  Dobbins  v.  Los  Angeles,  195  U.  S.  237,  49 
L.  175,  25  Sup.  Ct.  18,  holding  void  city  ordinance  narrowing  limits 
within  which  gasworks  may  be  erected  where  it  included  works  in 
process  of  erection  under  prior  ordinance,  where  change  in  limits  not 
demanded  by  public  welfare;  Northern  Securities  Co.  v.  United  States, 
193  U.  S.  336,  348,  48  L.  700,  704,  24  Sup.  Ct.  436,  combination 
by  stockholders  in  two  competing  interstate  railroads  to  form  stock- 
holding coi'poration  to  acquire,  in  exchange  for  own  stock  controlling 
interest  in  stock  of  each  road,  violates  anti-trust  act  of  1890 ;  Crescent 
Liquor  Co.  v.  Piatt,  148  Fed.  898,  holding  Acts  W.  Va.  1903,  p.  130, 
c.  40,  prohibiting  delivery  of  liquor  by  agent  to  unlicensed  person 
void  as  applied  to  interstate  shipments;  Hagan  v.  City  of  Eichmond, 
104  Va.  732,  3  L.  R.  A.  (N.  S.)  1120,  52  S.  E.  389,  local  authorities 
may  keep  navigable  waters  unobstructed,  where  war  department  does 
not  remove  obstructions.     See  103  Am.  St.  Rep.  869,  note. 

22  How.  256-269,  16  L.  313,  KIMBO  v.  BULLITT. 

Syl.    2    (V,    940).     Trading   partnership's    bill    of    exchange. 

Approved  in  Marsh  v,  Wheeler.  77  Conn.  453,  454,  59  Atl.  411,  firm 
engaged  in  making  plumbing  contracts  and  purchasing  and  selling  fix- 
tures, though  it  has  no  store,  is  trading  partnership,  partners  of  which 
may  bind  firm  by  note. 


22  How.  270-334  Notes  on  U.  S.  Reports.  342 

Syl.  3  (V,  941).  Accommodation  acceptors  of  partnership  paper  for 
partner. 

Approved  in  Union  Nat.  Bank  v.  Neill,  149  Fed.  714,  717,  where 
note  wlien  presented  for  discount  was  signed  on  face  by  three  persons, 
fact  that  name  of  partnership  subsequently  adjudged  banlcrupt  ap- 
peared as  second  signer  not  notice  that  firm  signed  only  as  surety. 

22  How.  270-273,   16  L.   337,  CLARK  v.   BOWEN. 
Syl.  1  (V,  941).     Effect  of  annulment  of  compromise. 
See  100  Am.  St.  Rep.  429,  note. 

22  How.  200-293,  16  L.  342,  YTURBIDE'S  EXECUTORS  v.  UNITED 
STATES. 

Syl.  1   (V,  943).     Notice  of  appeal  mandatory. 

Approved  in  Todd  v.  Peterson,  13  Wyo.  522,  81  Pac.  881,  where  mo- 
tion for  new  trial  was  not  filed  with  clerk  within  time  required,  by 
mere  inadvertence,  court  could  not  at  subsequent  term  direct  filing  of 
motion  nunc  pro  tunc. 

(V,  943.)  Miscellaneous.  Cited  in  Meyers  v.  United  States,  5  Okl. 
185,  48  Pac.  189,  to  point  that  land  department  may  prescribe  rules 
governing  proceedings  instituted  to  obtain  title  to  public  land. 

22  How.  318-330,  16  L.  370,  REFELD  v.  WOODFOLK. 

Syl.  2   (V,  944).     Conveyance  and  payment  of  price   correlative. 

Ai)proved  in  Williams  v.  Neely,  134  Fed.  8,  69  L.  R.  A.  232,  67  C. 
C.  A.  171,  partial  failure  of  consideration  resulting  from  defect  of 
title  is  good  defense  pro  tauto  to  action  by  vendor  on  purchase  money 
note    where    vendor    covenanted    against    encumbrances. 

Syl.  3    (V,   945).     Agreement  for  warranty   deed — Remedy. 

Distinguished  in  Williams  v.  Neely,  134  Fed.  10,  69  L.  R.  A.  232, 
67  C.  C.  A.  171,  enjoining  action  at  law  on  purchase  money  note  where 
vendor  covenanted  against  encumbrances  and  there  was  defect  in  title. 

22  IIuw.  330-334,  10  L.  249,  WARD  v.  THOMPSON. 

Syl.    1    (V,    945).     Admiralty — Accounting   for    profits    of   vessel. 
Cited   in   The   Clifton,    143    Fed.    463,   arguendo. 

Distinguished  in  The  Emma  B.,  140  Fed.  771,  upholding  admiralty 
jurisdiction  to  decree  accounting  as  incidental  to  suit  for  partition  of 
vessel. 

Syl.  2    (V,  940).     Who  are  partnors. 

Approved  in  Burton  v.  United  States,  142  Fed.  62,  where  in  execu- 
tion of  joint  enterprise  one  partner  deposits  nonmailable  circular  in 
mail  with  knowledge  of  other,  latter  causes  circular  to  be  so  deposited 
witliin  moaning  of  Rev.  St.,  §  ."jSOo  ;  Rector  v.  Rollins,  74  Ark.  442,  S6 
S.  W.  069,  holding  erroneous  instructions  that  if  defendant  agreed  to 


343  Kotes  on  U.   S.   Eeports.  '  22  How.  3-11-435 

perform  services  for  firm  and  to  receive  one-third  of  x'rL>flts^  but   to 
contribute  nothing  to   firm,  he   was   not   partner. 

22   How.   341-352,   16   L.   260,   REY   v.   SIMPSOX. 

Syl.    1    (V,    946).     Tndorser    before    delivery. 

Approved  in  Keyser  v.  Warfield,  100  Md.  80,  59  Atl.  190.  and  Keyser 
V.  Warfield,  103  Md.  167,  63  Atl.  218,  both  holding  where  plaintiff 
and  intestate,  prior  to  delivery  of  note  executed  by  corporation  to  bank 
for  discount,  and  before  name  of  payee  had  been  written  therein  in- 
dorsed note,  they  became  joint  makers. 

22  How.  352-364,  16  L.  345,  JETER  v.  HEWITT. 

Syl.  2   (V,  949).     Following  state  law. 

Approved  in  City  of  Defiance  v.  McGonigale,  150  Fed.  697,  following 
state  decision  to  effect  that  city  by  accepting  performance  and  itself 
performing   water   contract   for   several   years   estopped   to   question   its  * 
validity. 

22   How.  364-380,   16  L.  296,  ASPIXWALL  v.   COMMISSIONERS  OF 
DAVIESS  COUNTY. 

Syl.    1    (V,    949).     Contracts— Railroad    aid    subscription. 

Approved  in  Farmers'  Loan  etc.  Co.  v.  Siou.K  Falls,  131  Fed.  912, 
under  South  Dakota  constitution  as  amended  in  191 12.  city  could  not 
issue  water  bonds  on  note  taken  before  aniendment  under  statute  pro- 
viding that  majority  of  electors  should  be  determined  by  vote  for 
mayor    at    preceding    city    election. 

22    How.   392-406,   16   L.   353,   UNITED   STATES   v.    TESCHMAKER. 

Syl.   1    (V,  954).     Mexican  archives  as   evidence. 

Approved  in  Sjirinkle  v.  United  States.  141  Fed.  820.  admitting  rules 
of  Internal  Revenue  Department  in  prosecution  for  defrauding  gov- 
ernment   of    tax    on    distilled    liquors. 

22  How.  422-435,  16  L.  387,  THOMFSON  v.  LESSEE  OF  CARROLL. 

Svl.   1    (V,  956).     Tax   sale  of  lands — Exhaustion   of   personalty. 

Approved  in  Hadloy  v.  Iladley,  114  Tenn.  171,  87  S.  W.  254,  up- 
holding Acts  1897,  c.  1,  p.  5,  as  enacted  in  1899,  1901.  190:5,  under 
whirh  lieu  for  taxes  assessed  to  life  tenant  attaches  to  interest  of  re- 
mainderman. 


XXIII  HOWARD. 


23   How.   14-28,   16   L.   474,   LAWRENCE   v.   TUCKER. 

Syl.   14    (V,   9G2).     Parol  to   explain   mortgage. 

Approved  in  Holley  v.  Curry,  58  W.  Va.  75,  112  Am.  St.  Rep.  948,  51 
S.  E.  137,  equitable  mortgage  containing  clause  that  it  is  to  secure  to 
person  named  payment  of  whatever  sum  may  be  due  on  settlement, 
sufEciently   describes   debt. 

23   How.   28-45,   16  L.   412,  RICHARDSON  v.  GODDARD. 

Syl.   2    (V,   964).     Shipping — Delivery   to   consignee. 

Approved  in  Vaughn  v.  New  York  etc.  R.  R.  Co.,  27  R.  I.  237,  61 
Atl.  696,  where  carrier  permits  consignee  to  open  cars  after  they  are 
on  spur  track  and  remove  part  of  contents  and  put  own  locks  on  ears, 
carrier's   liability   is    terminated.     See   97   Am.    St.    Rep.    99,   note. 

23  How.  49-65,  16  L.  534,  OELRICH  v.  FORD. 

Syl.    2    (V,    966).     Custom    to    vary    written    contract. 

Approved  in  Moore  v.  United  States,  196  U.  S.  166,  49  L.  433,  25 
Sup.  Ct.  202,  custom  between  shippers  and  ship  owners  at  San  Fran- 
cisco requiring  consignee  to  designate  berth  for  discharge^  of  cargo 
does  not  prevail  over  contract  for  delivery  at  wharf  in  Honolulu;  Knit- 
ting Mills  V.  Guaranty  Co.,  137  N.  C.  570,  50  S.  E.  306,  70  L.  R.  A. 
167,  indemnity  bond  cannot  be  modified  by  extrinsic  evidence  of  pre- 
liminary   negotiations. 

Syl.   3    (V,    967).     When    parol   admissible   to   explain    writing. 

Approved  in  Lillard  v.  Kentucky  Distilleries  etc.  Co.,  134  Fed.  182, 
67  C.  C.  A.  74,  applying  rule  to  evidence  of  usage  in  reference  to  feed- 
ing cattle  with  distillery  slop;  Kalamazoo  Corset  Co.  v.  Simon,  129 
Fed.  145,  146,  usage  that  in  sales  of  job  lots  of  goods,  buyer  is  not 
obligated  if  variation  in  quantity  delivered  is  considerable,  not  ap- 
plicable where  contract  recited  that  proportion  in  sizes  was  nearly  per- 
fect. 

Syl.   5    (V,   967).     Principal's   suit   on   agent's   contract. 

Approved  in  In  re  Weisenberg,  131  Fed.  521,  parol  evidence  if?  ad- 
missible to  show  that  joint  notes  signed  by  members  of  bankrupt  firm 
are  in   fact  firm  debts. 

[344] 


345  Notes  on  U.   S.  Eeports.  23  How.  66-132 

23   How.   «6-90,   16  L.   500,   DUBUQUE   AND   PACIFIC  E.   E.   CO.   v. 
LITCHFIELD. 

Syl.  3   (V,  909).     Public  grants  construed  against  grantee. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  35,  50  L. 
359,  26  Sup.  Ct.  224,  municipal  grant  of  waterworks  francliise  does 
not  devest  municipality  of  power  to  construct  its  own  system ;  Story 
V.  Woolverton,  31  Mont.  354,  355,  78  Pac.  590,  construing  26  Stat. 
748,  granting  to  Montana  section  of  land  of  former  military  reserva- 
tion with  reference  to  water  rights. 

23    How.     90-108,     16    L.    419,     GEEEN'S     ADXIINISTEATRIX     v. 
CEEIGHTON. 

Syl.   2    (V,   971).     Equity  jurisdiction   over   executors   as   trustee. 

Approved  in  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  47, 
69  C.  C.  A.  22,  upholding  federJil  jurisdiction  over  equity  suit  to  per- 
mit presentation  of  and  allow  claim  against  estate  of  decedent  after 
time  limited  by  order  of  Minnesota  court  and  within  eighteen  months 
provided  by  statute;  dissenting  opinion  in  Moore  v.  Fidelity  Trust 
Co.,  138  Fed.  1009,  majority  holding  where  surviving  partner  was  one 
of  executors  of  estate  of  deceased  partner,  which  was  being  adminis- 
tered upon,  bill  by  distributee  under  will  to  compel  accounting  by 
surviving  partner  not  maintainable  in   federal  court. 

Syl.   3    (V,   972).     Insolvency   court's   jurisdiction,   when   exclusive. 

Distinguished  in  United  States  v.  Bitter  Eoot  Development  Co.,  200 
U.  S.  475,  50  L.  562,  26  Sup.  Ct.  318,  denying  equitable  relief  for 
wrongful  conversion  of  timber  from  public  domain  where  one  of  de- 
fendants is  executrix  of  principal  wrongdoer  whose  estate  is  insolvent. 

Syl.  4  (V,  973).  Discovery  of  assets  of  insolvent  surety  for  ex- 
ecutor. 

Approved  in  Fineke  v.  Bundrick,  72  Kan.  187,  83  Pac.  405,  sale  of 
testator's  realty  to  surety  on  executor's  bond  under  probate  order  pro- 
cured through  executor's  fraud  set  aside  at  suit  of  devisee  though 
surety  innocent. 

23  How.   117-132,  16  L.  436,  PENNOCK  v.   COE. 

Syl.    1    (V,   973).     Mortgage   of  after-acquired   property   valid. 

Approved  in  Fisher  v.  Zollinger,  149  Fed.  57,  taking  possession  of 
after-acquired  property  by  mortgagee  within  four  months  of  mort- 
gagor's bankruptcy  does  not  create  lien  nor  operate  as  preferential 
transfer  within  Bankr.  Act,  1898,  §  60a;  Johnson  v.  Donohue,  11.1 
Tenn.  450,  83  S.  W.  361,  where  insolvent  prior  to  bankruptcy  assigned 
right  to  receive  certain  funds  from  railroad  accruing  under  contract 
together  with  after-accruing  funds,  in  consideration  of  pre-existing 
debt,  assignee  entitled  to  accruing  funds,  though  at  time  of  assignment 
debtor's  right  thereto  .was  contingent.  See  99  Am.  St.  Eep.  253,  259, 
note. 


123  How.  149-190  Notes   on  U.   S.  Keports,  346 

23  How.  149-167,  16  L.  518,  BENJAMIN  v.  HH^LAED. 

Syl.  3   (V,  978).     Change  of  contract  discharging  surety. 

Approved  in  Groendyke  v.  Musgrave,  123  Iowa,  539,  99  N.  W.  145, 
where  defendant  guaranteed  payment  under  contract  whereby  plain- 
tiff sold  twine  for  which  notes  given  payable  in  October  and  November, 
and  part  of  twine  being  inferior  was  returned  and  credit  given  there- 
for, guarantor  not  relieved;  Segari  v.  Mazzei,  116  La.  1031,  41  So.  247, 
mere  change  in  site  of  dwelling-hi)us:e  from  one  place  to  another  in 
same  square  does  not  discharge  sunjty. 

Syl.  5  (V,  979).     Damages  for  deficiency  in  machinery. 

Approved  in  American  China  Dev.  Co.  v.  Boyd,  148  Fed.  271,  allow- 
ing prospective  damages  consisting  of  unpaid  contract  price  for  dis- 
charge of  servant  before  expiration  of  term;  Thomas  China  Co.  v. 
C.  W.  Eaymond  Co.,  135  Fed.  28,  67  C.  C.  A.  629,  under  contract 
for  sale  of  machinery  whereby  seller  agreed  to  replace  parts  breaking 
through  defects,  buyer  could  remedy  defects  or  procure  new  parts  from 
others  and   charge   seller  with  cost  under   general   warranty. 

23  How.  167-170,   16  L.   410,  OGDEN  v.   PARSONS. 

Syl.  1   (V,  979).     Subjects  of  expert  evidence. 

Approved  in  Hamann  v.  Milwaukee  Bridge  Co.,  127  Wis.  565,  106 
N.  W.  1086,  opinion  evidence  as  to  whether  particular  manner  of 
moving  heavy  machine  from  car  to  building  was  proper,  is  incompetent. 

23  How.   172-190,   16  L.  424,  CASTLE  v.   BULLARD. 

Syl.    1    (V,    979).     Peremptory    nonsuit    by    circuit    court. 

Distinguished  in  Parks  v.  Southern  Ry.  Co.,  143  Fed.  278,  and  Huntt 
v.  McNamee,  141  Fed.  294,  both  holding  where  voluntary  nonsuit  Y>er- 
mitted  by  state  practice,  it  is  discretionary  with  federal  court  to  re- 
fuse nonsuit  after  conclusion  of  plaintiff's  testimony  and  after  di- 
recting verdict   for   defendant. 

Syl.    3    (V,   980).     Evidence   of    other   similar    fraudulent   acts. 

Approved  in  Exchange  Bank  v.  Moss,  149  Fed.  344,  where  conspirac} 
to  defraud  covered  long  period  of  time,  evidence  of  acts  of  defendant's 
cashier  as  to  similar  transactions  tending  to  show  defendant's  com- 
plicity is  admissible;  Brooks  v.  United  States,  146  Fed.  231,  in 
jjrosecution  for  using  mails  to  defraud  letters  other  than  those  in  in- 
dictment purported  to  be  by  defendant 's  company  are  admissible ; 
Olson  v.  United  States,  133  Fed.  854,  67  C.  C.  A.  21,  under  indict- 
ment to  swindle  government  out  of  land  by  means  of  illegal  entry, 
evidence  of  other  similar  entries  is  admissible. 

Syl.  5    (V,  981).     Circumstantial  evidence  never  irrelevant. 
Approved  in  Bryan  v.  United  States,.  133  Fed.  500,  66  C.  C.  A.  369, 
in    prosecution    for    uttering    counterfeit    live-cent    pieces,    where    it    is 


347  Notes  on  U.   S.   Reports.  23  How.  190-235 

shown  that   defendant  passed  such  pieces,   evidence   of  finding  of  mold 
for   making   twenty-five-cent   pieces   in   his   possession  is  admissible. 

Syl.   6    (V,  982).     Liability   of  partners   for  firm's   fraud. 

Approved  in  In  re  Hardie,  143  Fed.  608,  materially  false  state- 
ment in  writing  made  by  partner  in  course  of  buying  goods  for  pur- 
pose of  obtaining  credit,  debars  other  partner  from  discharge  in  bank- 
ruptcy. 

23  How.  190-209,  16  L.  484,  BEAUBIEN  v.  BEAUBIEN. 

Syl.  4  (V,  983).     Time  of  discovery  of  fraud  must  be  alleged. 

Approved  in  Succession  of  Dauphin  (Choppin  v.  Dauphin),  112  La. 
140,  36  So.  300,  mere  general  statement  that  discovery  of  fraud  made 
within  year  is  insufficient  to  annul  judgment. 

23  How.  209-220,  16  L.  433,  PHILADELPHL\  ETC.  R.  R.  v.  PHIL- 
ADELPHIA ETC.   TOWBOAT  CO. 

Syl.    1    (V,   984).     Admiralty   jurisdiction   in   tort. 

Approved  in  United  States  v.  Evans,  195  U.  S.  365,  49  L.  237,  25 
Sup.  Ct.  46,  upholding  admiralty  jurisdiction  over  libel  in  rem  against 
vessel  for  colliding  with  beacon  standing  in  water  though  built  on 
piles  driven  into  bottom;  Bowers  Hyd.  Dredging  Co.  v.  Federal  Con- 
tracting Co.,  148  Fed.  294,  upholding  admiralty  jurisdiction  over  suit 
to  recover  hire  of  dredge  intended  to  operate  afloat,  though  dredge 
temporarily  used  for  a  partly  land  transaction. 

(V,  984.)     Miscellaneous.     Cited  in  The  Cumberland,  135  Fed.  236. 

23  How.  220-235,  16  L.  442,  DERMOLT  v.  JONES. 

Syl.    2    (V,    987).     Contracts — Dependent    promises. 

Cited  in  Schaffer  Piano  Mfg.  Co.  v.  National  Fire  Ext.  Co.,  148  Fed. 
165,  arguendo. 

Syl.  4  (V,  987).  Assumpsit — Acceptance — Xoucomformity  with  con- 
tract. 

Approved  in  United  States  v.  Molloy,  144  Fed.  323,  where  plain- 
tiff's delivery  of  stone  was  not  in  accordance  with  contract  but  de- 
fendant accepted  it  with  knowledge,  plaintiff  could  recover  value  of  stone 
delivered  less  loss  sustained  by  breach  of  contract;  Clough  v.  Still- 
well  Meat  Co.,  112  Mo.  App.  189,  190,  86  S.  W.  584,  where  warehouse- 
man agreed  to  store  goods  till  certain  date  and  prior  to  such  time 
goods  burned,  warehouseman  could  recover  value  of  his  services. 

Distinguished  in  Tussey  v.  Owen,  139  N.  C.  461,  52  S.  E.  129,  where 
child  contracted  to  serve  father  till  his  death  in  consi<loration  of  liis 
willing  her  quarter  of  pruperty,  gives  no  right  to  pay  for  her  part 
performance. 


23  How.  287-433  Notes  on  U.   S.   Reports.  348 

23  How.  287-309,  16  L.  5G2,  HANEY  v.  BALTIMOEE  S.  PACKETT 
CO. 

Syl.  1   (V,  990).     Collision — Change  of  course. 

Approved  in  The  Job  H.  Jackson,  144  Fed.  898,  holding  steamer 
solely  in  fault  for  collision  with  schooner  where  she  saw  schooner  two 
miles  away;  The  Eagle  Wing,  135  Fed.  832,  collision  at  night  between 
two  schooners  held  to  be  due  to  fault  of  privileged  vessel  in  changing 
course;  The  Dauntless,  129  Fed.  721,  64  C.  C.  A.  243,  in  suit  to  recover 
for  death  of  person  on  launch  sunk  in  collision  with  steamer  where 
only  persons  on  launch  were  drowned,  court  may  disbelieve  uncon- 
tradicted testimony  of  pilot,  though  uncontradicted  as  to  launch  chang- 
ing course. 

Syl.  4   (V,  991).     Collision — Necessity  for  lookout. 

Approved  in  Brigham  v.  Luckenbach,  140  Fed.  326,  following  rule ; 
The  Dauntless,  129  Fed.  722,  64  C.  C.  A.  243,  holding  steamer  liable 
for  collision  with  launch  where  proper  lookout  not  kept. 

23   How.   326-341,   16  L.   552,  UNITED   STATES   v.   GOMEZ. 

Syl.  2   (V,  993).     Appeal — Dismissal  for  failure  to  file  record. 

Approved  in  Sullivan  v.  Gage,  145  Cal.  771,  79  Pac.  542,  applying 
rule  to  dismissal  of  appeal  from  order  allowing  attorney 's  fees  to 
receiver  in  suit  by  state  to  wind  up  corporation. 

23  How.  353-368,   16  L.  539,  ADAMS  v.   NOREIS. 

Syl.   2    (V,   994).     Wills— Attestation  of   foreign  will. 

Approved  in  Keely  v.  Moore,  196  U.  S.  43,  49  L.  379,  25  Sup.  Ct. 
169,  unofficial  certificate  of  vice-consul  appearing  at  foot  of  will  ex- 
ecuted abroad,  if  otherwise  sufiicient  as  attestation,  treated  as  such 
and   designation   of  consul   disregarded. 

23  How.  381-401,  16  L.  488,  ZABRISKIE  v.  CLEVELAND  ETC.  R.  R. 
Syl.   1    (V,   995).     Estoppel   of   corporation   guarantor   of   bonds. 
See   105   Am.   St.   Rep.   508,   note. 

23  How.  401-412,  16  L.  524,  ORIENTAL  MUT.  INS.  CO.  v.  WRIGHT. 

Syl.     1     (V,     1001).     Insurance — Open    policy — Additional    premium. 

Approved  in  Whitman  v.  Milwaukee  Fire  Ins.  Co.,  128  Wis.  131,  5 
L.  R.  A.  (N.  S.)  407,  107  N.  W,  293,  oral  contract  of  insurance  is 
valid. 

23  How.  420-433,  16  L.  510,  BLIVEN  v.  -NEW  ENGLAND  SCREW 
CO. 

Syl.   2    (V,   ]002).     Custom   to   vary   written   contract. 

Approved  in  Lillard  v.  Kentucky  Distilleries  Co.,  134  Fed.  174,  67 
C.  <''.  A.  74,  applying  rule  in  construiug  contract  to  sell  distillery  slop 
deliverable  at  certain  cattle-feeding  lot. 


349  Notes  on  U.   S.   Eeports.  23  How.  435-543 

23  How.  435-438,   16  L.  574,  MINTURX  v.  LAEUE. 

Syl.   2    ("V,   1007).     Public   grants   construed   in   public's   favor. 

Approved  in  Water  etc.  Co.  v.  City  of  Hutchinson,  144  Fed.  2G3, 
under  Kansas  constitution,  city  of  second  class  cannot  grant  exclusive 
right  for  terms,  to  company  to  use  streets  for  supplying  water,  gag 
or  electricity;  Commissioners  of  Cambridge  v.  Cambridge  Water  Co., 
99  Md.  504,  58  Atl.  443,  under  Cambridge  charter  ordinance  requir- 
ing water  companies  to  pay  fee  for  each  plug  and  imposing  penalty 
for  failure  to  comply  therewith  is  void;  State  v.  Butler,  178  Mo.  313, 
77  S.  W.  570,  under  St.  Louis  charter  ordinance  placing  power  in 
board  of  lioalth  to  contract  for  removal  and  disposal  of  city  garbage  is 
void.     See    101    Am.    St.    Rep.    167,    ante. 

P.3   How.   457-464,   16  L.   584,   DOE   r.   WILSOX. 

Syl.  1  (V,  1010).     Indian  treaty— Title  of  reservees. 

Apjirovcd  in  Conway  v.  United  States,  149  Fed.  267,  where,  tinder 
25  Stat.  892,  Ponca  girl  was  allotted  land  and  prior  to  selection  she 
married  Indian  to  whom  other  land  allotted,  and  thereafter  they  made 
separate  applications  in  lieu  thereof,  where  by  mistake  all  land  pat- 
ented to  husband,  she  was  entitled  to  half. 

Distinguished  in  Wallace  v.  Adams,  143  Fed.  722,  claimants  of 
citizenship  securing  judgments  in  their  favor,  which  were  final  under 
29  Stats.  339,  340,  and  30  Stat.  591,  when  rendered,  and  took  posses- 
sion of  and  demanded  lands  as  allotments,  before  judgments  made 
revipwa1)le.  acquired  no  vested  rights  against  subsequent  legislation 
enacted  prior  to  allotment. 

23   How.   50.-515,   16  L.   556,   STATE   OF  ALABAMA   v.   STATE   OF 
GEORGIA. 

Syl.   1    (V,   1017).     River  as  boundary. 

Approved  in  Peoria  v.  Central  Nat.  Bank.  224  HI.  54.  79  X.  E.  299. 
water 's  edge  and  not  surveyed  meander  line  is  shore  line  from  which 
lines  should  be  drawn  to  show  accretion  rights  of  riparian  owners ; 
Dodge  Co.  v.  Saunders  Co.,  70  Xeb.  446,  97  X.  W.  619.  construing 
Comp.  St.  1901,  c.  78,  §  87,  referring  to  "streams  which  divide  coun- 
ties." 

23  How.   515-543,   16  L.   545,  LUCO  v.  UNITED   STATES. 

Syl.   1    (V,   1017).     Photographic   copies   of   records   as   evidence. 

Cited  in  State  v.  Matheson,  130  Iowa.  444.  103  X.  W.  139,  admitting 
X-ray  photograph  in  prosecution  for  homicide  to  show  position  of 
buUet. 


XXIV  HOWARD. 


24  now.  41-fi5,  16  L.  604,  JONES  v.  SOULARD. 

Syl.    1    (VI,    9).     Stream    as    boundary — Accretions. 

Approved  in  Franzini  v.  Layland,  120  Wis.  81,  97  N.  W.  502,  where 
river  separates  two  states  riparian  owner  owns  unsurveyed  island  in 
stream  on  his  side  of  boundary  line. 

24  How.  66-110,  16  L.  717,  KENTUCKY  v.  DENNISON. 

Syl.  2    (VI,  11).     Service  of  process  against  state. 

Approved  in  Henry  v.  State,  87  Miss.  34,  39  So.  803,  governor  can- 
not sue  in  name  of  state. 

Distinguished  in  dissenting  opinion  in  Henry  v.  State,  27  Miss.  92,  94, 
97,  39  So.  883,  884,  885,  majority  holding  governor  cannot  sue  in 
name  of  state. 

Syl.   3    (VI,    11).     IMandamus   not  prerogative   writ. 

Approved  in  West  Virginia  etc.  R.  R.  Co.  v.  United  States,  134  Fed. 
203,  67  C.  C.  A.  220,  permitting  amendment  of  alternative  writ  of 
mandamus  to  conform  to  findings;  Mystic  Milling  Co.  v.  Chicago  etc. 
Ry.  Co.,  132  Fed.  291,  circuit  court  has  no  jurisdiction  of  action  for 
mandamus  which  is  not  necessary  for  exercise  of  jurisdiction  otherwise 
previously  acquired;  Woodworth  v.  Old  Second  Nat.  Bank,  14i  Mich. 
339,  107  N.  W.  905,  mandamus  proceedings  are  "civil  actions"  within 
statute  relating  to  change  of  venue;  In  re  Epley,  10  Okl.  644,  64  Pac. 
21,  where  grant  of  peremptory  mandamus  is  appealed  from,  super- 
sedeas may  be  granted,  and  lower  court  cannot  then  punish  disobedience 
to  mandamus  as  contempt;  Rider  v.  Brown,  1  Okl.  247,  32  Pac.  342, 
mandamus  may  issue  in  name  of  party  interested.  See  105  Am.  St. 
Rep.   122,  note. 

Syl.    7    (VI,    13).      Extradition— Crimes   included. 

Approved  in  Knox  v.  State,  164  Ind.  234,  108  Am.  St.  Rep.  297,  73 
N.  E.  258,  fugitive  extradited  for  specific  crime  may  be  tried  for 
different  crime  without  being  afforded  opportunity  to  return  to  asylum 
state.     See  112  Am.  St.  Rep.  129,  note. 

Syl.  7   (VI,  14).     Extradition  prior  to  formation  of  union. 

Approved  in  Barriere  v.  State,  142  Ala.  77,  39  So.  57,  wliere  appli- 
cation for  discharge  on  habeas  corpus  from  arrest  in  extradition  pro- 
ceedings   is  denied,  petitioner  may  appeal  to  supreme  court. 

L35UJ 


351  Notes  on   U.   S.  Eeports.  24  How.  110-175 

Syl.  8   (VI,  14).     Extradition — Executive  demanci — Complaint. 

Approved  in  State  v.  White,  40  Wash.  565,  82  Pac.  909,  2  L.  R.  A. 
(N.  S.)  563,  under  2  Bal.  Codes,  §  7017,  complaint  must  show  accused 
legally  charged  with  crime  in  demanding  state. 

Syl.  11  (VI,  15).  Extradition — Sufficiency  of  indictment  judicial 
question. 

Approved  in  In  re  Renshaw,  18  S.  D.  37,  99  N.  W.  84,  following  rule. 
See  112  Am.  St.  Rep.  132,  note. 

Syl.   12    (VI,   15).     Extradition   act  not  mandatory. 
See  112  Am.  St.  Rep.  110,  note. 

Syl.   13    (VI,  16).     Congressional  authorization  of  state  officer. 
See  112  Am.  St.  Rep.  106,  note. 

24  How.  110-125,  16  L.  591,  STURGIS  v.  BOYER. 

Syl.  2  (VI,  17).     Collision— Tow  in  charge  of  tug. 

Approved  in  In  re  Walsh,  136  Fed.  558,  559,  69  C.  C.  A.  ?67,  affirm- 
ing The  Echo,  131  Fed.  623,  holding  where  tug  is  towing  two  barges, 
one  of  which  is  alongside  and  has  own  crew  and  pilot  employed  by 
owners  of  barges  is  on  first  barge,  tug  not  liable  for  collision  between 
first  barge  and  steamer  caused  by  failure  of  barges  to  carry  lights;  The 
W.  G.  Mason,  142  Fed.  918,  where  two  tugs  bek)uging  to  same  owner 
were  towing  steamer,  master  of  leader  controlling  ship's  movements, 
but  not  those  of  rear  tug,  latter  not  liable  in  rem  for  stranding  of  two 
through  fault  of  leading  tug. 

Distinguished  in  The  Degama,  150  Fed.  324,  moving  vessel  colliding 
with  moored  vessel  is  liable  though  she  is  handled  by  tugs  which  con- 
trol her  movements,  where  such  defense  not  pleaded  nor  proved. 

Syl.  3  (VI,  IS).     Collision — Tow  in  exclusive  charge  of  tug. 

Approved  in  Monongahela  River  etc.  Co.  v.  O'Neil,  144  Fed.  79,  hold- 
ing tug  towing  dredge  liable  for  capsizing  of  latter  through  want  of 
care  and  excessive  speed  of  former  in  rough  weather;  The  Violetta,  141 
Fed.  692,  barge  in  tow  of  tug  not  liable  with  tug  for  eolli.siou  where 
it  was  not  chargeable  with  negligence;  The  De  Gama,  140  Fed.  755, 
towed  vessel  not  liable  for  collision  unless  negligence  shown  on  part 
of  tow  and  navigation  of  both  tug  and  tow  was  under  direction  of  tow  's 
crew. 

24  How.  169-175,  16  L.  644,  ALMY  v.  STATE  OF  CALIFORNIA. 

Syl.  1  (VI,  24).     Duty  on  bill  of  lading  as  duty  on  exports. 

Approved  in  Mosely  v.  State,  115  Tenn.  57,  80  S.  W.  716,  interest  on 
government  bonds  is  not  taxable  immediately  on  being  paid  into  hands 
of  bondholder. 


24  How.  18S-242  Notes  on  U.  S.  Reports.  352 

24  How.  18S-195,  16  L.  625,  RICHARDSON  v.  CITY  OP  BOSTON. 

Syl.  2  (VI,  29).     City — Power  below  low-water  mark. 

Distinguished  in  Georgetown  v.  Commonwealth,  115  Ky.  390,  73  S. 
"W.  1013,  61  L.  R.  A.  673,  city  not  liable  for  indictment  for  permitting 
nuisance,  to  which  it  had  not  contributed,  to  continue  on  private  prop- 
erty. 

Syl.  5  (VI,  29).     Evidence  of  former  judgment  founded  on  error. 

Approved  in  Board  of  County  Commrs.  v.  Cross,  12  N.  M.  77,  73  Pac. 
616,  where  in  former  case  demurrer  sustained  in  determination  of  which 
material  issues  of  suit  had  to  be  passed  on,  and  dismissal  entered  therein, 
dismissal  is  res  adjudicata. 

24  How.  195-207,  16  L.  628,  NATIONS  v.  .lOHNSON. 
Syl.  1   (VI,  30).     Judgment  as  res  adjudicata. 

See  103  Am.  St.  Rep.  312,  note. 

Syl.  4  (VI,  31).     Notice  is  essential  to  jurisdiction. 

Approved  in  Clapp  v.  Houg.  12  N.  D.  606,  102  Am.  St.  Rep.  589,  98 
N.  W.  712,  65  L.  R.  A.  757,  holding  void  Rev.  Codes  1899,  §  6325.  subd. 
2,  providing  for  appointment  of  special  administrator  where  death  of 
person  not  satisfactorily  proved,  but  he  has  disappeared. 

Syl.  5  (VI,  31).     Service  by  publication — Absence  from  state. 

Approved  in  ^Yhite  v.  White,  65  N.  J.  Eq.  747,  55  Atl.  741.  upholding 
service  outside  of  state  of  notice  for  increase  of  allowance  for  mainte- 
nance of  children  of  divorced  parents. 

Syl.  8   (VI,  32).     Writ  of  error  not  new  action. 

Approved  in  Bradford  v.  Southern  Ry.  Co.,  195  U.  S.  248,  49  L.  181, 

25  Sup.  Ct.  55,  writ  of  error  from  circuit  court  of  appeals  without  giv- 
ing security  for  costs  not  allowed ;  Bristol  v.  United  States,  129  Fed. 
89.  63  C.  C.  A.  529,  defendant  in  criminal  case  cannot  prosecute  writ 
of  error  out  of  circuit  court  of  appeals  in  forma  pauperis;  dissenting 
opinion  in  Ritehey  v.  Seeley,  68  Neb.  136,  97  N.  W.  820,  majority  hold- 
ing where  A  obtained  judgment  in  district  court  and  after  his  death 
petition  in  error  filed  and  A's  attorney  below  filed  waiver  of  summons 
and  voluntary  appearance,  appellate  court  acquired  no  jurisdiction. 

24  How.  233-242,  16  L.  648,  THOMPSON  v.  ROBERTS. 

Syl.  1   (VI,  35).     Judgment  as  bar  in  subsequent  suit. 

Approved  in  Territory  v.  Hopkins,  9  Okl.  150,  59  Pac.  981,  applying 
rule  to  decision  upholding  issuance  and  validity  of  county  funding 
bonds. 

Syl.  3    (VI,  35).     Judgment  as  bar  though  others  included. 

Approved  in  In  re  Butrick,  185  Mass.  114,  69  N.  E.  1048,  former 
judgment  concerning  title  in  action  in  which  one  of  petitioners  had  not 
been  party,  is  conclusive  in  partition,  in  favor  of  other  petitioners  ouly. 


353  Kotes  ou  U.   S.    Reports.  24  IIow.  257-31-4 

24  How.  257-264,  16  L.  635,  GUE  v.  TmE  WATEE  CANAL  CO. 

Syl.  1  (VI,  38).     Seizure  of  franchise  on  execution. 

Approved  in  Stockton  Gas  etc.  Co.  v.  San  .Joaquin  Co.,  148  Cal.  320, 
S3  Pac.  57,  franchise  to  lay  pipes  or  erect  poles  and  supply  city  with 
light  is  assessable  only  in  county,  in  which  city  is  located;  Dobbins  v. 
Colorado  etc.  Ry.  Co.,  19  Colo.  App.  261,  75  Pac.  157,  whore  railroad 
runs  through  two  connties  one  county  cannot  sell  part  in  that  county 
to  enforce  payment  of  taxes;  New  York  Cement  Co.  v.  Consolidated  etc. 
Cement  Co.,  178  N.  Y.  177,  70  N.  E.  454,  where  corporation,  authorized 
to  sell  or  discontinue  its  canal,  sold  canal  to  another  who  conveyed  part 
of  it  to  another,  and  rest  of  canal  abandoned,  part  used  is  public  high- 
way.    See  103  Am.  St.  Eep.  555,  note. 

24  IIow.  278-284,  16  L.  637,  FEOST  v.  FROSTBUEG  COAL  CO. 

Syl.  3  (VI,  43).  Irregularities  in  incorporation — Estoppel  of  con- 
tractor. 

Approved  in  Murphy  v.  Wheatley,  102  Md.  507,  508,  63  Atl.  64,  G5, 
under  act  of  1900  imposing  franchise  tax  on  corporations,  where  trust 
company  did  not  actually  organize  within  two  years  of  granting  of 
charter,  but  no  franchise  tax  assessed  against  it,  failure  to  pay  same 
did  not  ipso  facto  terminate  corporate  existence;  Lusk  v.  Kiggs,  70 
Neb.  721,  102  N.  W.  89,  denying  right  to  collaterally  a-ttack  existence 
of  de  facto  corporation. 

24  How.  300-303,  16  L.  602,  RECTOR  ETC.  OF  CHRIST  CHURCH  v. 
COUNTY  OF  PHILADELPHIA. 

Syl.  1   (VI,  49).     Repeal  of  tax  eaemptions. 

Approved  in  Powers  v.  Detroit  etc.  Ry.  Co.,  201  U.  S.  557,  50  L.  863. 
26  Sup.  Ct.  556,  Mich.  Laws  1855,  p.  305,  §  9,  providing  for  annual 
payment  by  railway  of  percentage  of  capital  stock  in  lieu  of  other 
taxes  created  contract;  Prewitt  v.  Security  etc.  Ins.  Co.,  119  Ky.  328, 
83  S.  W.  613,  upholding  Ky.  St.  1903,  §  631,  providing  for  forfeiture 
of  license  to  do  business  in  state  by  foreign  insurance  company  removing 
suit  to  federal  court;  Baltimore  etc.  Ry.  Co.  v.  Wicomico  Co.,  103  Md. 
289,  63  Atl.  682,  under  Code  1888,  §§  187,  188,  providing  that  foreclos- 
ure purchaser  of  railroad  may  organize  corporation  which  shall  have 
all  privileges  of  old  company,  such  corporation  not  entitled  to  tax  im- 
munity enjoyed  by  mortgagor;  Rochester  v.  Rochester  Ry.  Co.,  182  N. 
Y.  116,  74  N.  E.  958,  70  L.  R.  A.  773,  Laws  1869,  p.  54,  c.  34,  granting 
immunity  from  contribution  for  new  pavements  to  street  railroad  was 
revocable  at  pleasure  of  legislature. 

24  How.  307-314,  16  L.  699,  UNION  S.  S.  CO.  v.  NEW  YORK  &  VA. 
S.  S.  CO. 

Syl.  3  (VI,  52).     Collision — Inevitable  accident  defined. 
Approved  in  Bleakley  v.  New  York,  139  Fed.  808,  charter  of  scow  is 
liable  for  its  loss  by  being  crushed  by  floating  ice  where  it  was  left  on 
23 


24  How.  315-357  Notes  on  U.   S.  Eeports.  354 

dangerous  side  of  pier;  The  Drum  Craig,  133  Fed.  804,  breaking  of  ship 
from  moorings  at  dock  during  storm  and  her  collision  with  another 
moored  vessel  not  due  to  inevitable  accident,  where  master  had  warning 
of  storm;  The  Surf,  132  Fed.  881,  yacht  proceeding  through  Hell  Gate 
80  near  shore  that  she  was  compelled  to  sheer  out  in  order  to  pass  other 
vessels  when  bow  was  caught  by  tide  and  she  collided  with  tug  proceed- 
ing on  course  pursuant  to  signal,  is  liable  for  injuries. 

24  How.  315-317,  16  L.  689,  MARTIN  v.  THOMAS. 

Syl.    1    (VI,    53).     Surety's   liability   not   impliedly   extended. 

Approved  in  Stern  v.  Sawyer,  78  Vt.  12,  112  Am.  St.  Rep.  894,  61 
Atl.  38,  where,  pending  term  of  lease,  lessor  sold  portion  of  property 
with  consent  of  lessee,  but  without  consent  of  latter 's  sureties,  latter 
were  discharged. 

24  How.  333-346,  16  L.  650,  WASHINGTON  R.  &  G.  PACKETT  CO. 
V.  SICKLES. 

Syl.  2  (VI,  55).     Requisites  of  res  adjudicata. 

Approved  in  Georgia  R-.  etc.  Co.  v.  Wright,  132  Fed.  917,  where 
Georgia  supreme  court  decided  in  suit  between  state  and  corporation 
that  charter  precluded  imposition  of  tax  in  excess  of  one-half  of  one 
per  cent  of  earnings,  state  is  concluded  in  subsequent  suit  for  taxes  for 
different  year  under  another  statute. 

Syl.  3  (VI,  56).     Conclusiveness  of  former  judgment. 
Approved  in  Territory  v.  Hopkins,  9  Okl.  150,  59  Pac.  981,  judgment 
upholding  validity  of  county  bonds  is  conclusive  of  question. 

Syl.  4  (VI,  56).     Res  adjudicata — Extrinsic  evidence. 

Approved  in  Fayerwcather  v.  Ritch,  195  U.  S.  306,  49  L.  213,  25  Sup. 
C't.  58,  effect  as  res  adjudicata  of  decree  in  case  in  which  validity  of 
releases  put  in  issue  by  pleadings  not  limited  by  testimony  of  trial 
judge  that  validity  of  releases  not  considered;  Halford  v.  James,  13G 
Fed.  555,  556,  69  C.  C.  A.  263,  establishing  issues  of  former  case  by 
parol  on  plea  of  res  adjudicata  where  pleadings  burned ;  Inglehart  v. 
Lull,  69  Neb.  178,  95  N.  W.  27,  applying  rule  to  show  nature  of  case 
tried  before  justice  of  peace  upon  motion  directed  against  alleged  change 
of  issues  on  appeal. 

24  How.  352-357,  16  L.  712,  DAY  v.  WASHBURN. 

Syl.  2  (VI,  60).     Creditor's  suit — Necessity  for  judgment. 

Approved  in'Wyman  v.  Wallace,  201  U.  S.  242,  50  L.  741,  26  Sup. 
Ct.  495,  affirming  George  v.  Wallace,  135  Fed.  292,  68  C.  C.  A.  40,  hold- 
ing no  judgment  at  law  on  note  given  by  national  bank  necessary  to 
suit  by  holder  to  subject  property  conveyed  to  trustee  as  security  to 
satisfaction  of  debt. 


35-^  Notes   on  U.   S.   Reports.  24  How.  376-413 

24    How.    376-3S.5,    TG    L.    73.5,    BOARD    OF    COMMISSIONERS    OP 
KNOX  CO.  V.  ASPINWALL. 

.     Syl.  1    (VI,  63).     Nature  of  niandiunus. 

Approved  in  Territo-y  v.  Crum,  ]3  Okl.  11,  73  Pac.  297,  refusing 
mfnd.imus  to  compel  probate  judge  to  account  for  all  fees  in  entering 
townsites  and  pay  over  all  such  fees  received  in  excess  of  annual  salary; 
Wilson  V.  Cox,  73  S.  C.  400,  53  S.  E.  613,  mandamus  does  not  lie  to 
compel  dispenser  of  county  to  open  and  operate  dispensary,  where,  in 
order  to  do  so,  court  would  have  to  set  aside  election  against  dispensary; 
State  V.  Washington  Irr.  Co.,  41  Wash.  286,  111  Am.  St.  Rep.  1021,  83 
Pac.  310,  mandamus  docs  not  lie  to  compel  irrigation  company  to  com- 
ply with  contract  to  furnish  water. 

Syl.  2   (VI,  64).     Mandamus  to  compel  assessment  for  bonds. 

Approved  in  Theis  v.  Commrs.  of  Washita  County,  9  Okl.  653,  60 
Pac.  508,  mandamus  and  not  action  for  money  judgment  lies  where 
county  commissioners  have  issued  bridge  warrants  under  statutory  au- 
thority and  have  failed  to  levy  annual  tax  to  pay  warrants. 

24  How.  386-394,  16  L.  599,  BULKLEY  v.  NAUMKEAG  STEAM  ETC. 
CO. 

Syl.  1   (VI,  66).     Contract  of  affreightment — Delivery  to  lighter. 

Approved  in  Guffey  v.  Alaska  etc.  S.  S.  Co.,  130  Fed.  274,  64  C.  C.  A. 
517,  where  at  time  goods  delivered  on  wharf  under  bill  of  lading  recit- 
ing that  goods  were  to  be  shipped  on  board  ship  lying  at  certain  dock, 
complainant  knew  vessel  was  at  sea,  and  goods  not  delivered  to  master, 
vessel  not  subject  to  lien  for  breach  of  contract  of  affreightment ;  Ches- 
apeake etc.  Towing  Co.  v.  Western  Assurance  Co.,  99  Md.  443,  50  Atl. 
17,  finding,  in  suit  by  assignee  of  owner  of  cargo  of  goods  against 
steamer  and  owner  of  scow  carrying  goods  to  steamer,  that  scow  unsea- 
worthy,  does  not  estop  owner  of  scow  in  action  against  insurer  of  cargo. 

Syl.  2  (VI,  66).     Bill  of  lading — Necessity  for  delivery  of  goods. 
See  105  Am.  St.  Rep.  350,  note. 

24  How.  398-407,  16  L.  714.  LESSEE  OF  SMITH  v.  McCANN. 

Syl.  4  (VI,  68).     Ejectmeiit — Title  in  stranger  as  defense. 

Approved  in  McGuire  v.  Blount,  199  U.  S.  144,  50  L.  128,  26  Sup.  Ct. 
1,  applying  rule  where  defendant  set  up  ancient  documents  showing  pro- 
bate of  will  in  proceedings  during  Spanish  control  of  Florida  and 
judicial  sale  of  testator's  lands. 

24  How.  407-413,  16  L.  696,  ADLER  v.  FENTON. 

Syl.  5  (VI,  70).     Fraudulent  conveyance — Simple  contract  creditor. 

Approved  in  Bitzer  v.  Washburn,  121  Iowa,  466,  96  N.  W.  980,  con- 
spiracy to  defeat  collection  of  judgment  by  lawful  means  is  not  action- 
able; Flournoy  v.  Bullock,  11  N.  M.  104,  66  Pac.  550,  55  L.  R.  A.  745, 
where    receiver    appointed    for    partnership,    simple    creditor    having    no 


24  How.  426-461  Notes  on  U.  S,  Reports.  356 

lien  cannot  intervene  in  suit;  Rothcbilcl  v.  Trewella,  36  Wash.  682,  104 
Am.  St.  Rep.  973,  79  Pac.  481,  68  L.  R.  A.  281,  simple  contract  creditor 
cannot  sue  at  law  purchaser  of  stock  of  goods  in  bulk  who  has  not  com- 
plied with  Laws  1901,  p.  222,  c.  109,  to  recover  on  seller's  debt  due  him;' 
Fryer  v.  Miley,  54  W,  Va.  330,  46  S.  E.  136,  holding  suit  to  set  aside 
fraudulent  conveyance  under  Code  1899,  c.  133,  §  2,  by  creditor  at  large 
before  his  debt  due,  cannot  be  sustained. 

24  How.  426-427,  16  L.  742,  TRACY  v.  HOLCOMBE. 

Syl.  1  (VI,  73).     Supreme  court — New  trial — Final  judgment. 

Approved  in  Clement  v.  Wilson,  135  Fed.  750,  68  C.  C.  A.  387,  apply- 
ing rule  to  order  of  federal  court  setting  aside  verdict  and  directing 
new  trial. 

24  How.  427-435,  16  L.  742,  SUYDAM  v.  WILLIAMSON. 

Syl.  1   (VI,  73).     Following  state  decisions  as  to  realty. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry.  Co.,  144  Fed.  179, 
applying  rule  in  determining  title  to  Oakland  waterfront;  Succession  of 
Hasling,  114  La.  296,  38  So.  174,  validity  of  will  made  in  Louisiana  by 
citizen  thereof  devising  land  in  Mississippi,  is  governed  by  law  of  lat- 
ter state;  Bramblet  v.  Davis,  141  Fed.  784,  and  dissenting  opinion  in 
Metcalfe  v.  Union  Trust  Co.,  181  N.  Y.  54,  73  N.  E.  503,  both  arguendo. 

Distinguished  in  Davis  v.  Commonwealth  Land  etc.  Co.,  141  Fed.  716, 
where  pending  federal  suit  to  quiet  title  by  owners  of  tract  under  state 
patent  which  involved  question  of  boundary,  state  decree  in  replevin 
decided  boundary  question  in  action  to  which  land  owners  not  parties, 
state  decision  not  binding  on  federal  court. 

24  How.  450-461,  16  L.  749,  FREEMAN  v.  HOWE. 

Syl.  1  (VI,  75).     Conflicting  jurisdiction^Priority  by  seizure  of  res. 

Approved  in  Fountain  v.  624  Pieces  of  Timber,  140  Fed.  381,  where 
deputy  sheriff  having  attachment  went  in  boat  and  had  raft  pointed  out 
to  him  but  did  not  assume  possession,  subsequent  seizure  under  admiralty 
process  was  valid;  In  re  Porterfield,  138  Fed.  197,  where  trust  deed 
executed  by  bankrupt  to  wife  more  than  four  months  prior  to  bank- 
ruptcy but  less  than  four  months  prior  to  state  suit,  and  ijroperty  sold 
in  bankruptcy  free  of  liens,  creditors  could  distribute  fraud  according 
to  state  law  making  preferences  void;  Security  Trust  Co.  v.  Union  Trust 
Co.,  134  Fed.  302,  where  state  court  on  foreclosure  of  railroad  mortgage 
has  appointed  receiver  and  ordered  sale,  federal  court  has  no  jurisdic- 
tion to  enforce  lien  on  property ;  Beardslee  v.  Ingraham,  183  N.  Y.  418, 
76  N.  E.  477,  where  federal  court  attachment  issued  against  property 
of  corporation  and  writ  filed  with  clerk  of  district  where  property  situ- 
ated, and  thereafter  receiver  appointed  by  state  court  in  suit  to  dis- 
solve corporation,  state  court  could  not  enjoin  marshal  from  selling 
property  on  execution;  Burnham  etc.  Co.  v.  Dickson,  5  Okl.  117,  47  Pac. 
1061,  where  attachment  placed  in  hands  of  deputy  sheriff  after  execu- 


357  Notes  on  U.   S.  Eeports.  24  How.  450-46X 

tion  was  put  in  hands  of  sheriff  but  served  before  execution  it  was  en- 
titled to  priority. 

Syl.  2   (VI,  78).     State  replevy  of  goods  hold  by  federal  attachment. 

Ai)proved  in  Dorashow  v.  Ott,  134  Fed.  745,  67  C.  C.  A.  644,  suit  in 
equity  in  district  court  by  bankruptcy  trustee  against  adverse  claimant 
of  property  is  not  reviewable  in  circuit  court  of  appeals  under  Comp. 
St.  1901,  p.  3433,  though  defendant  sought  to  be  restrained  from  prose- 
cuting state  court  replevin;  In  re  Moody,  131  Fed.  529,  where  bankruptcy 
receiver  takes  possession  of  property  in  possession  of  adverse  claimant, 
it  may  determine  right  of  ownership;  In  re  Mertens,  131  Fed.  514,  where 
goods  sold  by  buyer's  bankruptcy  trustee,  bankruptcy  court  could  en- 
join seller  from  suing  trustee  in  state  court  for  conversion  of  proceeds; 
In  re  Spitzer,  130  Fed.  880,  66  C.  C.  A.  35,  upholding  jurisdiction 
over  trover  against  trustee  in  bankruptcy  to  recover  value  of  property 
converted  as  part  of  assets  of  estate. 

Distinguished  in  Guaranty  Trust  Co.  v.  North  Chicago  St.  E.  Co.,  130 
Fed.  805,  806,  65  C.  C.  A.  65,  pending  in  federal  court  of  creditor's  suit 
against  railroad  for  which  receiver  appointed,  but  whose  road  is  oper- 
ated by  state  court  receiver  of  its  lessee  not  ground  for  enjoining  state 
court  from  trying  suit  by  stockholders  to  enjoin  delivery  of  amended 
lease. 

Syl.  5   (VI,  83).     Federal  courts  determine  own  jurisdiction. 

Distinguished  in  Ingraham  v.  National  Salt  Co.,  139  Fed.  687,  where 
federal  attachment  levied  on  land  of  corporation  and  pending  action, 
state  insolvency  receiver  appointed  who  sold  all  corporation 's  property, 
federal  court  would  not  enjoin  receiver  from  enjoining  marshal  selling 
land  on  execution. 

Syl.  6  (VI,  83).     Citizenship — Ancillary  suits. 

Approved  in  Hatcher  v.  Hendrie  etc.  Co.,  133  Fed.  270,  68  C.  C.  A.  19, 
following  rule;  Julian  v.  Central  Trust  Co.,  193  U.  S.  113,  48  L.  640, 
24  Sup.  Ct.  399,  federal  court  which  has  decreed  foreclosure  sale  may 
entertain  supplemental  bill  by  purchaser  under  decree  to  enjoin  sale  to 
satisfy  state  judgments  on  cause  of  action  arising  subsequent  to  con- 
firmation of  sale;  O'Connor  v.  O'Connor,  146  Fed.  997,  in  federal  equity 
suit  to  set  aside  dismissal  of  action  at  law,  service  of  process  may  be 
made  though  parties  reside  out  of  district;  Ames  etc.  Co.  v.  Big  Indian 
etc.  Co.,  146  Fed.  179,  180,  in  federal  equity  suit  to  protect  water  rights 
against  subsequent  appropriators  who  are  citizens  of  states  other  than 
complainant,  court  may  entertain  cross-bill  by  some  of  defendants 
against  complainant  and  codefendants;  Campbell  v.  Golden  Cycle  Min. 
Co.,  141  Fed.  613,  applying  rule  to  suit  to  enjoin  action  at  law  for 
possession  of  mining  claims. 

Distinguished  in  Guardian  Trust  Co.  v.  Kansas  City  etc.  Ry.  Co.,  146 
Fed.  340,  denying  federal  jurisdiction  to  enjoin  state  court  from  prose- 
outing  action  against  foreclosure  purchaser  on  its  liability  to  pay  mort- 
gagor's debt  under  agreement  for  reorganization;  Columbia  etc.  Co.  v. 


24  How.  461-544  Notes  on  U.   S.   Eeports.  358 

Nunamakor,  73  S.  C.  556,  53  S.  E.  99S,  rule  that  bill  to  restrain  action 
at  law  in  same  court  is  ancillary  does  not  apply  to  suit  in  common  pleas 
to  restrain  condemnation  proceedings  in  special  statutory  tribunal  from 
which  appeal  lies  to  common  pleas. 

24  How.  461-465,  16  L.  753,  HOWAED  v.  BUGBEE. 

Syl.  1  (VI,  85).     Redemption — Statute  void  as  to  prior  mortgages. 

Approved  in  Hooker  v.  Burr,  194  U.  S.  425,  48  L.  1052,  24  Sup.  Ct. 
706,  upholding  amendments  to  Cal.  Code  Civ.  Proc,  §  702,  relating  to 
lime  of  redemption  and  interest  as  to  rights  of  foreclosure  purcliaser 
buying  after  amendment;  Harrison  v.  Eemington  Paper  Co.,  140  Fed. 
392,  holding  void  Kan.  Act  1898,  c.  10,  repealing  acts  giving  creditors 
action  against  stockholders  on  suspension  of  business  of  corporation,  as 
against  contracts  made  prior  to  its  passage;  Welsh  v.  Cross,  146  Cal. 
633,  106  Am.  St.  Eep.  63,  81  Pac.  233,  amendment  of  1897  to  Code  Civ. 
Proc,  §  702,  extending  time  for  redemption  does  not  apply  to  judg- 
ments existing  at  time  of  its  passage. 

24  How.  465-508,  16  L.  701,  PEEIN  v.  CAEEY. 

Syl.  5   (VI,  87).     Equitable  jurisdiction  over  charities. 

Cited  in  dissenting  opinion  in  Danforth  v.  Oshkosh,  119  Wis.  290,  97 
N.  W.  268,  arguendo. 

Syl.  6  (VI,  88).     Corporation's  power  to  hold  land  for  charity. 

Cited  in  Danforth  v.  Oshkosh,  119  Wis.  281,  97  N.  W.  265,  arguendo. 

Syl.  7  (VI,  88).     Charity  defined. 

Approved  in  Grant  v.  Saunders,  121  Iowa,  81,  100  Am.  St.  Eep.  310, 
95  N.  W.  411.  upholding  bequest  in  trust  for  poor  to  be  given  by  trustee 
to  such  objects  and  persons  as  she  thinks  best  to  help;  Crow  v.  Clay 
County,  196  Mo.  260,  95  S.  W.  375,  bequest  for  tuition  or  education  of 
poor  children  under  age  of  sixteen  witliin  certain  district    is  a  charity. 

24  How.  526-532,  16  L.  760,  KNIGHT  v.  SCHELL. 

Syl.  1  (VI,  92).  Duties — Importation  of  filled  barrels  exported 
empty. 

Approved  in  Franklin  Sugar  Eef.  Co.  v.  United  States,  137  Fed.  658, 
additional  duty  on  sugar  assessable  under  act  authorizing  such  duty  on 
goods  receiving  bounty  in  exporting  country  is  based  on  invoice  weight 
and  not  on  weight  on  arrival. 

24  How.  536-544,  16  L.  762,  BEETHOLD  v.  GOLDSMITH. 

Syl.  1  (VI,  93).     Partnership  defined. 

Approved  in  Burton  v.  United  States,  142  Fed.  62,  where  one  partner 
deposits  nonmailable  matter  in  mail  in  execution  of  joint  enterprise  with 
knowledge  of  other,  latter  is  guilty  under  Eev.  St.,  §  3893. 


359  Kotes  on   U,  S.  Reports.  1  Black,  23-35 

Syl.  7  (VI,  94).     Partnership — Profit  sharing — Power  of  partner. 

Approved  in  Feehtcler  v.  Palm  Bros.,  133  Fed.  467,  469,  66  C.  C.  A. 
336,  contract  between  two  firms  giving  each  privilege  of  buying  at  cost 
from  other  and  providing  for  payment  by  each  to  other  of  percentage 
of  gross  sales,  does  not  constitute  partnership. 

24  How.  544-553,  16  L.  765,  WHEELER  v.  NESBITT. 

Syl.   6    (VI,    96).     Malicious   prosecution — Probable   cause    defined. 

Approved  in  United  States  v.  Green,  136  Fed.  628,  applying  rule  in 
proceeding  for  removal  of  trial  to  another  district  of  defendant  charged 
with  bribery  of  postal  oflicial  to  promote  sale  of  goods  to  government. 

24  How.  553-G31,  16  L.  770,  GAINES  v.  IIENNEN. 

Syl.  2   (VI,  97).     Proof  of  lost  or  destroyed  will. 

Approved  in  Ewing  v.  McTntyre,  133  Mich.  462,  95  N.  W.  ■'541,  proT^ate 
court  may  admit  lost  or  destroyed  will  to  probate.  See  110  Am.  St. 
Rep.  475,  note. 


I  BLACK. 


1  Black,  23-35,  17  L.  29.  BUTTON  v.  STRONG. 

Syl.  1   (VI,  103).     Riparian  owner's  right  to  wharf  out. 

Approved  in  Small  v.  Harrington,  10  Idaho,  520,  79  Pac.  4G8,  up- 
holding right  to  build  piers  for  logs  across  stream. 

Distinguished  in  Sutter  v.  Heckman,  1  Alaska,  88,  owner  of  uplands  on 
sea  in  Alaska,  has  no  title  to  tide  lands  in  front  of  his  property. 

Syl.  2    (VI,  105).     Public  and  private  piers  distinguished. 

Approved  in  Wcems  Steainlioat  Co.  v.  People's  Steamboat  Co.,  141 
Fed.  456,  457,  single  carrier  leasing  wharf  on  navigable  river  in  country 
where  it  constitutes  only  access  to  river  cannot  exclude  other  carriers 
from  using  it  on  payment  of  wharfage;  Thousand  Island  Steamboat  Co. 
T.  Visger,  179  N.  Y.  210,  71  N.  E.  765,  under  grant  of  lands  under  navi- 
gable waters  on  which  riparian  owner  had  erected  dock  for  promoting 
commerce  of  state,  use  of  dock  was  open  to  public  on  payment  of  com- 
pensation. 

Syl.  3   (VI,  105).     Pier  on  non-navigable  water  not  public. 

Approved  in  Louisville  etc.  R.  R.  Co.  v.  West  Coast  Naval  etc.  Co., 
198  U.  S.  498,  49  L.  1141,  25  Sup.  Ct.  745,  wharf  in  harbor  of  city  at 
foot  of  street,  built  by  railroad  under  city  permit  for  facilitation  of 
own  traflBc  is  not  public  wharf. 

(VI,  103).  Miscellaneous.  Cited  in  Southern  Pac.  Co.  v.  Western 
Pac.  Ry.  Co.,  144  Fed.  199,  determining  title  to  Oakland  waterfront; 


1  Black,  39-94  Notes   on   U.   S.   Eeports.  360 

Peoria  v.  Central  Nat.  Bank,  224  111.  57,  79  N.  E.  300,  water's  edge 
and  not  surveyed  meander  line  is  shore  line  from  which  lines  drawn 
to  show  accretion  rights  of  riparian  owners. 

1  Black,  39-53,  17  L.  52,  WEIGHTMAN  v.  THE  CITY  OF  WASHING- 
TON. 

Syl.   3    (VI,   107).      City's   liability   for   defective   streets. 

Approved  in  Naumburgh  v.  City  of  Milwaukee,  146  Fed.  647,  R48, 
Milwaukee  liable  for  negligence  of  city  bridge  tender  in  operating 
bridge;  City  of  Guthrie  v.  Swan,  5  Okl.  783,  51  Pac.  564,  muuicipality 
is  liable  for  injuries  caused  by  neglect  to  repair  streets. 

Distinguished  in  dissenting  opinion  in  Naumburgh  v.  City  of  ililwau- 
kee,  146  Fed.  656,  majority  holding  Milwaukee  liable  for  negligence  of 
city  bridge  tender  in  operating  bridge. 

1  Black,  55-62,  17  L.  94,  UNITED  STATES  v.  BABBIT. 

Syl.  2  (VI,  109).     Implications  as  part  of  statute  or  contract. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  812,  constru- 
ing covenant  for  forfeiture  in  oil  lease;  Theis  v.  Conimrs.  of  Washita 
County,  9  Okl.  651,  60  Pac.  508,  under  Statutes  1890,  county  com- 
missioners cannot  issue  warrants  for  bridges  unless  first  authorized 
to  do  so  by  vote  of  people;  Eiggins  v.  Eichards,  97  Tex.  236,  77  S. 
W.  948,  Waco  Charter  Act,  273,  providing  for  removal  by  council  of 
officers  for  incompetency,  etc.,  after  due  notice,  sufficiently  provides 
mode  of  procedure;  dissenting  opinion  in  Armour  Packing  Co.  v. 
Lacy,  200  U.  S.  237,  50  L.  458,  26  Sup.  Ct.  232,  majority  upholding 
N.  C.  Laws  1903,  c.  247,  taxing  local  business  of  foreign  meat  pack- 
ing house;  dissenting  opinion  in  Silver  Springs  etc.  E.  E.  Co.  v. 
Van  Ness,  45  Fla.  583,  34  So.  891,  majority  holding  clause  in  deed 
of  right  of  way  for  railroad,  providing  that  if  phosphate  beds  be 
found  on  line  of  survey  railroad  would  remove  tracks  to  adjacent  land 
on  notice,  gave  action  for  damages  for  breach  thereof. 

Syl.  3  (VI,  111).     Provisos  in  statutes. 

Approved  in  United  States  v.  Downing.  146  Fed.  59,  provision  in 
par.  626,  Free  List,  §  2,  Tariff  Act  1897,  for  "products  of  crude 
petroleum"  does  not  include  articles  not  composed  in  chief  value  of 
petroleum,  though  petroleum  predominates  in  quantity. 

1  Black,  80-94,  17  L.  41,  HAGEE  v.  THOMPSON. 

Syl.  4  (VI,  113).     Setting  aside  settlement  for  fraud. 

Approved  in  Daly  v.  Busk  Tunnel  Ry.  Co.,  129  Fed.  521.  64  C.  C. 
A.  87,  upholding  settlement  made  by  surety  on  contractor's  bond. 
See  100  Am.  St.  Eep.  446,  note. 


3G1  Notes  on  U.  S.  Ecporta.  1  Black,  101-1G9 

1  Black,  101-107,  17  L.  33,  STILES  v.  DAVIS. 

Syl.  1  (VI,  115).     Attachment  of  goods  in  carrier's  hands. 

Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Cox,  3G  Ind.  App.  297,  73 
N.  E.  122,  where  shipper's  consigned  goods  to  themselves  under  as- 
sumed names,  innocent  carrier  not  liable  as  garnishee  to  shipper's 
creditors  under  writ  served  during  transit;  Cornell  v.  Mahoney,  190 
Mass.  26P,  76  N.  E.  665,  it  is  good  defense  to  action  against  ware- 
houseman for  conversion  that  goods  had  been  attached  by  third  per- 
son. 

1  Black,  108-115,  17  L.  35,  BAGS  OF  LINSEED  (SEAES  v.  WILLS). 

Syl.  2  (VI,  116).     Ship  owner  has  lien  till  freight  paid. 

Approved  in  Portland  etc.  Mills  Co.  v.  Portland  etc.  S.  S.  Co.,  145 
Fed.  692,  where  vessel  stranded  and  it  and  cargo  abandoned  to  in- 
surer and  part  of  cargo  salved  and  sold  and  proceeds  paid  to  its  in- 
surer and  insurer  of  freight  recovered  same  from  shipper,  latter  not 
subrogated  to  earrier's  lien;  Lembeck  v.  Jarvis  etc.  Storage  Co.,  68  N. 
J.  Eq.  496,  59  Atl.  362,  where  carrier  delivered  goods  to  consignee  who 
agreed  to  hold  them  till  freight  paid,  it  cannot  assert  lien  against 
innocent  pledgee. 

Syl.  5  (VI,  117).     Loss  of  lien  by  delivery. 

Approved  in  Michigan  S.  S.  Co.  v.  Thornton,  136  Fed.  137.  60  C. 
C.  A.  132,  where  charter  provided  for  payment  of  freight  on  delivery 
of  each  cargo  and  for  lien  on  all  cargo  for  freight  moneys,  where  con- 
signee remitted  to  shipper,  remittance  impressed  with  trust  in  favor 
of  ship  owner;  Kennedy  v.  Weston,  136  Fed.  168,  69  C.  C.  A.  78, 
arguendo. 

1  Black,  121-131,  17  L.  70,  THE  ISLAND  CITY. 

Syl.  1  (VI,  lis).     Salvage — Abandonment  with  intent  to  return. 

Approved  in  The  Eliza  Strong,  130  Fed.  99,  64  C.  C.  A.  433,  vessel 
not  derelict  when  master  and  crew  abandon  it  temporarily  to  get  as- 
sistance to  save  vessel  and  cargo. 

(VI,  lis.)  Miscellaneous.  Cited  in  Spaulding  v.  Alaska  Com.  Co., 
1  Alaska,  503,  citing  argument  of  counsel. 

1  Black,  140-149,  17  L.  135,  BRYAN  v.  UNITED  STATES. 
Syl.  2  (VI,  119).     Liability  of  surety  on  official  bond. 
See  103  Am.  St.  Rep.  933,  note. 

1  Black,  156-169,  17  L.  97,  NELSON  v.  WOODRUFF. 

Syl.  1  (VI,  120).     Bill  of  lading  as  evidence  of  condition. 
Approved  in  The  Presque  Isle,  140  Fed.  204,  following  rule. 


1  Black,  2SG-315  Notes  on  U.  S.  Reports.  3C2 

1  Black,  286-298,  17  L.  130,  THE  OHIO  AND  MISSISSIPPI  K.  K. 
CO.  V.  WHEELER. 

Syl.  1  (VI,  131).     Suit  against  corporation — Citizenship. 

Approved  in  Thomas  v.  Ohio  State  University  Trustees,  195  U.  S. 
210,  214,  49  L.  164,  165,  25  Sup.  Ct.  24,  allegation  that  University 
Trustees  are  citizens  of  Ohio  is  insufficient  averment  that  they  are 
Ohio  corporation  vrhcre  statute  creating  them  construed  by  state 
court  as  not  conferring  corporate  powers;  Lee  v.  Atlantic  etc.  R. 
Co.,  150  Fed.  796,  where  one  corporation  is  merged  into  another  it 
remains  citizen  of  state  of  its  original  incorporation  for  purposes  of 
federal  jurisdiction;  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  117, 
66  C.  C.  A.  179,  fact  that  defendant  is  president  of  corporation 
creates  no  presumption  that  he  is  citizen  of  same  state  as  corpora- 
tion. 

Syl.  2  (VI,  134).  Citizenship  of  reincorporated  foreign  corpora- 
tion. 

Approved  in  Dodd  v.  Louisville  Bridge  Co.,  130  Fe'd.  195,  follow- 
ing rule;  United  States  v.  Milwaukee  etc.  Transit  Co.,  142  Fed.  254, 
applying  rule  in  suit  under  Elkins  act  of  1903,  to  enjoin  rebating 
where  officers  of  brewery  owning  majority  of  stock  organized  transit 
company  which  made  shipping  contracts  for  brewery  on  commission 
paid  by  carriers;  Western  Un.  Tel.  Co.  v.  Pittsburg  etc.  Ey.  Co., 
137  Fed.  437,  applying  rule  in  bill  against  consolidated  railroad  for 
specific  performance  of  right  of  way  contract  between  telegraph  com- 
pany and  constituent  railroads;  Russell  v.  St.  Louis  etc.  Hy.  Co.,  71 
Ark.  454,  457,  75  S.  W.  727,'  728,  foreign  corporation  complying  with 
acts  1899,  p.  43,  c.  34,  became  domestic  with  right  to  exercise  emi- 
nent domain;  Baltimore  etc.  R.  R.  Co.  v.  Allen,  58  W.  Va.  398,  112 
Am.  St.  Rep.  985,  52  S.  E.  469,  3  L.  R.  A.  (N.  S.)  60S,  railroads 
chartered  by  other  states,  but  operating  roads  here  have  status  of 
residents,  and  may  be  garnished  without  reference  to  jurisdiction 
in  which  debts  due  from  them  are  payable 

Syl.  3  (VI,  135).     Suit  by  corporation  of  two  states. 

Approved  in  Walsey  v.  Chicago  etc.  Ry.  Co.,  147  Fed.  614,  615, 
railroad  incorporated  in  two  states  and  formed  by  consolidation  of 
two  companies,  one  of  each  state  and  consolidated  with  five  other 
companies  of  one  of  states,  cannot  remove  suit  on  ground  of  diversity 
of  citizenship. 

1  Black,  309-315,  17  L.  67,  FARNI  v.  TESSON. 

Syl.  1  (VI,  136).     Necessary  parties — ^Joint  contract. 

Approved  in  United  States  v.  Church3'ard,  132  Fed.  85,  action  on 
government  contrnetor's  bond  given  under  Comp.  St.  1901,  p.  2523, 
is  within  federal  jurisdiction  regardless  of  citizenship  of  parties. 


363  Notes  on  U.  S.  Keports.  1  Black,  316-426 

1  Black,  316-325,  17  l!  208,  HARKXESS  v.  UNDEEHILL. 

Syl.  3  (VI,  138).     Agreement  for  fraudulent  entry — Trusts. 

Approved  in  dissenting  opinion  in  Hartman  v.  Butterfield  Lumber 
Co.,  199  U.  S.  341,  50  L.  220,  26  Sup.  Ct.  63,  majority  holding  one 
holding  under  trust  deed  from  patentee  with  knowledge  of  prior  con- 
veyance of  timber  cannot  challenge  validity  of  conveyance  because  it 
was  made  pursuant  to  agreement  for  advance  of  money  to  pay  entry 
fees. 

1  Black,  350,  351,  17  L.  216,  FARNEY  v.  TOWLE. 

Syl.  1  (VI,  140).     State  decision  against  federal  question. 

Approved  in  Harding  v.  Illinois,  196  U.  S.  88,  49  L.  397,  25  Sup. 
Ct.  176,  following  rule. 

1  Black,  352-358,  17  L.  91,  CREWS  v.*  BURCHAM. 

Syl.  1  (VI,  140).     Indian  treaty — Equitable  interest  in  land. 

Approved  in  Conway  v.  United  States,  149  Fed.  267,  where  lands 
were  allotted  to  Ponca  squaw  and  buck  whom  she  afterward  married 
and  later  they  selected  adjoining  lieu  lands,  but  trust  patent  by  mis- 
take made  to  husband  for  both  tracts  she  was  entitled  to  half  of 
land. 

Distinguished  in  Wallace  v.  Adams,  143  Fed.  722,  judgments  of 
citizenship  of  Choctaw  Nation,  though  final  when  rendered,  were  re- 
viewable under  subsequent  acts  enacted  prior  to  allotments  of  land. 

Syl.  5  (VI,  141).     Record  of  deed  and  possession  as  notice. 
See  104  Am.  St.  Rep.  344,  note. 

1  Black,  35S-386,  17  L.  147,  RICE  v.  THE  MINX.  &  N.  W.  R.  R.  CO. 

Syl.  5  (VI,  142).     Railroad  aid  grant — Vesting  title  on  condition. 

Approved  in  Davis  v.  Moyles,  76  Vt.  32,  56  Atl.  176,  grant  of  land 
from  state  conveys  only  such  title  as  state -had. 

Syl.  6  (VI,  143).     Public  grants  strictly  construed. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  35,  50  L. 
359,  2G  Sup.  Ct.  224,  municipal  grant  of  waterworks  franchise  does 
not  impliedly  devest  city  of  power  to  construct  its  own  system;  Story 
v.  Woolverton,  31  Mont.  355,  78  Pac.  590,  act  of  Congress  of  1S91, 
granting  to  Montana  part  of  land  of  former  military  post  did  not 
grant  right  of  use  of  water  of  stream  from  which  government  had 
taken  water  through  ditch  across  other  lands. 

1  Black,  419-426,  17  L.  93,  CLEVELAXD  v.  CHAMBERLAIN. 

Syl.  1   (VI,  146).     Dismissal  where  appellant  buys  opponent. 

Approved  in  Ridge  v.  Manker,  132  Fed.  601,  67  C.  C.  A.  596,  de- 
cree against  receiver  of  another  court  is  not  nullity  on  collateral  at- 
tack merely  because  record  fails  to  affirmatively  show  grant  of  leave 
to  sue. 


1  Black,  427-506  Notes  on  U.  S.  Keports.  361 

Distinguished  in  Succession  of  Dauphin  (Choppin  v.  Dauphin),  112 
La.  134,  36  So.  298,  fact  that  judgment  signed  after  compromise  af- 
'fected  does  not  deprive  judgment  of  effect  as  res  adjudicata. 

1  Black,  427-431,  17  L.  168,  VANCE  v.  CAMPBELL. 

Syl.  1  (VI,  147).     Patents — Infringement  of  part  of  combination. 

Approved  in  Eawson  etc.  Co.  v.  Hunt  Co.,  147  Fed.  241,  where 
drawings  and  descriptions  of  reissue  are  identical  with  original,  valid- 
ity of  original  not  affected  by  invalidity  of  other  claims;  O.  H. 
Jewell  Filter  Co.  v.  Jackson,  140  Fed.  344,  holding  claim  to  Jewell, 
patent  No.  509,126,  for  improvements  in  filters  not  infringed. 

1  Black,  436-450,  17  L.  173,  THE  JEFFEESON  BRANCH  BANK  v. 
SKELLT. 

Syl.  2  (VI,  150).     Eelinquishm'ent  of  taxing  power  not  presumed. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
42,  105  Am.  St.  Eep.  702,  50  L.  77,  25  Sup.  Ct.  715,  special  franchise 
tax  imposed  by  N.  Y.  Laws  1899,  c.  712,  does  not  impair  obligation 
of  grant  to  operate  street  railroads  on  payment  of  percentage  of 
earnings. 

1  Black,  459-471,  17  L.  218,  McCOOL  v.  SMITH. 

Syl.  (VI,  155).     Statutes — Construction  of  well-known  terms. 

Approved  in  Whitfield  v.  Aetna  Life  Ins.  Co.,  144  Fed.  360,  con- 
struing Eev.  St.  Mo.  1899,  §  7896,  relating  to  suicide  as  defense  to 
insurance  policy. 

Syl.  4  (VI,  156).     Eepeals  by  implication  not  favored. 

Approved  in  Territory  v.  Neville,  10  Okl.  99,  60  Pac.  796,  Okl. 
Stat.  1893,  c.  23,  relating  to  changing  of  county  seats,  does  not 
conflict  with  law  authorizing  opening  of  Cherokee  outlet. 

1  Black,  484-488,  17  L.  225,  UNITED  STATES  v.  JACKALOW. 

Syl.   1    (VI,   159).     Venue  of  federal  criminal  prosecutions. 

Approved  in  Mahaffey  v.  Territory,  11  Okl.  226,  66  Pac.  346,  up- 
holding removal  of  criminal  case,  on  application  of  territory,  from  one 
judicial  district  to  another. 

1  Black,  503-506,  17  L.  134,  EX  PAETE  GOEDON. 

Syl.  1  (VI,  162).     Mode  of  review  of  circuit  criminal  judgment. 

Approved  in  Whitney  v.  Dick,  202  U.  S.  139,  50  L.  966,  26  Sup.  Ct 
584,  circuit  court  of  appeals  cannot  issue  certiorari  to  review  con 
viction  in  inferior  federal  court  where  only  question  is  whether  fed 
eral  court  has  jurisdiction  to  punish  offense;  Barber  Asphalt  Pav.  Co 
V.  Morris,  132  Fed.  955,  07  L.  E.  A.  761,  66  C.  C.  A.  55,  granting  man 
damns  to  circuit  judge  to  vacate  order  staying  proceedings  pending 
certain  state  court  appeals.     See  111  Am.  St.  Eep.  934,  936,  953,  note. 


365  Notes  ou  U,  S.  Reports.  1  Black,  518-635 

1  Black,  518-522,  17  L.  65,  IIOYT  v.  SIIKLDON. 

Syl.  1  (VI,  163).     Decision  on  federal  point  against  appellant. 

Approved  in  Giles  v.  Teasley,  193  U.  S.  160,  48  L.  659,  2-1  Sup.  Ct. 
359,  denying  jurisdiction  to  review  state  order  sustaining  demurrer 
in  action  for  damages  for  refusal  to  register  negro  as  elector;  Hutchin- 
son V.  Morris  Bros.,  190  Mo.  G77,  89  S.  W.  871,  applying  principle  on 
appeal  from  circuit  court  to  supreme  court. 

1  Black,  522-532,  17  L.  180,  THE  STEAMER  ST.  LAWRENCE. 

Syl.  6  (VI,  165).     Admiralty — Enforcement  of  state  lien  statute. 

Approved  in  Fredericks  v.  James  Eees  &  Sons  Co.,  135  Fed.  731,  68 
C.  C.  A.  368,  lien  enforced  by  proceedings  in  rem  under  state  statute 
for  repairs  and  supplies  to  vessel  in  home  port,  is  enforceable  in  ad- 
miralty. 

1  Black,  603-635,  17  L.  191,  COXWAY  v.  TAYLOR. 

Syl.  2  (VI,  176).     Nature  of  ferry  franchise. 

Api)roved  in  State  v.  Faudre,  54  W.  Va.  128;  132,  102  Am.  St.  "Rep. 
927,  46  S.  E.  272,  273,  63  L.  R.  A.  877,  Wes?t  Virginia  cannot  punish 
one  acting  under  Ohio  ferry  franchise  for  charging  one  coming  from 
Ohio  more  than  allowed  by  West  Virginia  ferry  law. 

Syl.  3  (VI,  176).     Ferry  franchise  across  river  boun<lary. 

Apjiroved  in  State  v.  Faudre,  54  W.  Va.  123,  134,  136,  102  Am.  St. 
Rep.  927.  4G  S.  E.  269,  274,  275,  63  L.  R.  A.  877,  West  Virginia  can- 
not punisli  one  acting  under  Ohio  ferry  francliise  for  charging  one 
coining  from  Ohio  more  than  allowed  by  Wt.st  Virginia  ferry  law. 

Syl.  7   (VI,  178).     State's  power  to  regulate  ferries. 

Approved  in  State  v.  Faudre,  54  W.  Va.  133,  102  Am.  St.  Rep.  927, 
46  S.  E.  274,  63  L.  R.  A.  877,  West  Virginia  cannot  punish  one  act- 
ing under  Ohio  ferry  franchise  for  charging  one  coming  from  Ohio 
more  than  allowed  by  West  Virginia  ferry  law. 


II  BLACK. 


2    Black,    372-304,    17   L.    282,    CALAIS    STEAMBOAT    CO.    v.    VAN 
PELT 'S  ADMR. 

Syl.  3  (VI,  183).     Sales — Burden  of  proof  to  show  agency. 

Approved  in  In  re  Ducker,  133  Fed.  776,  seller  of  merchandise  to 
bankrupt  under  unrecorded  conditional  sale  not  entitled  to  priority 
js  against  subsequent  creditors  without  notice,  though  such  creditors 
had  no  lien  on  property. 

2  Black,  408-418,  17  L.  292,  KING  v.  ACKEEMAN. 

Syl.  3  (VI,  184).     Devise  with  power  to  dispose  creates  fee. 

Approved  in  McCaffrey  v.  Manogue,  196  U.  S.  568,  49  L.  602,  2.5  Sup. 
Ct.  319,  where  testator  gave  all  estate  to  heirs  as  devisees  and  charged 
debts   on   one   receiving   greater  part,   devisees   took   fees. 

Syl.  4   (VI,  184).     Extrinsic  evidence  to  explain  ambiguity. 
Approved  in  Darnell  v.  Lafferty,   113  Mo.  App.  303,  88   S.   W.   791, 
admitting  parol  evidence  to  explain  memorandum  of  sale  of  cows. 

2  Black,  418-429,  17  L.  298,  CHICAGO  v.  EOBBINS. 

Syl.  1   (A^I,  185).     City's  liability  of  defects  in  streets. 

Approved  in  United  States  v.  Port  of  Portland,  147  Fed.  868, 
Port  of  Portland  is  liable  in  damages  for  collision  caused  by  neg- 
ligence of  employees  in  charge  of  one  of  its  boats  while  perform- 
ing duties  on  Columbia  river;  Graves  v.  City  etc.  Tel.  Assn.,  132 
Fed.  388.  where  negligence  of  telephone  companj'-  and  traction  com- 
jiany  acting  independently,  in  maintaining  wires  caused  injuries,  they 
may  be  joined  as  defendants.  See  notes.  111  Am.  St.  Eep.  704;  108 
Am.  St.  Eep.   154. 

Syl.  2  (VI,  188).  Conclusiveness  as  to  contractor  of  judgment 
against  city. 

Approved  in  Chesapeake  etc.  Towing  Co.  v.  Western  Assurance 
Co.,  99  Md.  442,  58  Atl.  17,  where  in  action  by  assignee  of  owner 
of  goods  against  steamer  for  loss  of  cargo  from  plaintiff's  scow 
on  route  to  steamer,  it  was  found  scow  was  unseaworthy,  plaintiff 
not  estopped  hy  finding  in  action  against  cargo  insurer;  Detroit  v. 
Grant,  135  Mich.  629,  98  N.  W.  406,  where  paving  contractor  who 
secured  city  from  damages  through  his  negligence  was  sued  jointly 
with  city  and  he  procured  discontinuance  as  to  himself,  he  is  not 
entitled  to  written  notice  of  pendency  of  action. 

[366] 


3G7  Notes  on  U.  S.  Reports.  2  Black,   485-499 

Syl.  5   (VI,   192).     Liability  of  owner  for  contractor's   negligence. 

Distinguished  in  Hoff  v.  Shockley,  122  Iowa,  728,  98  N.  W.  57G, 
101  Am.  St.  Eep.  289,  64  L.  R.  A.  538,  -property  owner  contracting 
with  independent  contractor  to  build  house  not  liable  for  injury  to 
passerby  in  street  caused  by  latter 's  failure  to  guard  and  light  sand 
pile  in  front  of  premises. 

Syl.  6   (VI,  194).     Following  state  decisions. 

Approved  in  Three  States  Lumber  Co.  v.  Blanks,  133  Fed.  4S2,  60  L. 
R'.  A.  283,  66  C.  C.  A.  353,  decision  of  question  as  to  what  will  excuse 
plaintiff's  nonreturn  of  replevied  property  on  his  failure  in  action  is 
one  of  local  law  not  binding  on  federal  courts;  Phoenix  Bridge  Co. 
V.  Castloberry,  131  Fed.  178,  65  C.  C.  A.  481,  determining  priority 
of  jurisdiction  on  grant  of  letters  of  administration. 

2  Black,  485-499,  17  L.  311,  MISSISSIPPI  ETC.  R.  R.  CO.  v.  WARD. 

Syl.  3  (VI,  203).     Amount  in  dispute  on  abatement  of  nuisance. 

Approved  in  Board  of  Trade  v.  Cella  Commission  Co.,  145  Fed. 
29,  upholding  jurisdiction  over  suit  to  enjoin  use  of  board  of  trade's 
market  quotations;  Louisville  etc.  Co.  v.  Bitterman,  144  Fed.  44, 
45,  in  suit  by  carrier  to  restrain  scalping  of  excursion  tickets,  value 
of  business  sought  to  be  protected  determines  amount  in  contro- 
versy; Anderson  v.  Bassman,  140  Fed.  14',  applying  principle  in 
suit  to  enjoin  diversion  of  water. 

Syl.  5  (VI,  204).     Abatement  of  interstate  bridge  as  nuisance. 

Approved  in  Haddock  v.  Haddock,  201  U.  S.  577,  50  L.  873,  26 
Sup.  Ct.  525,  holding  mere  domicile  within  state  of  one  spouse  does 
not  give  state  court  jurisdiction  to  render  divorce  against  nonresi- 
dent nonappearing  defendant  only  constructively  served.  See  l09 
Am.  St.  Rep.  263,  note. 

Distinguished  in  dissenting  opinion  in  Haddock  v.  Haddock,  201 
U.  S.  610,  50  L.  886,  26  Sup.  Ct.  525.  majority  holding  mere  domicile 
in  state  of  one  of  spouses  gives  state  court  no  jurisdiction  to  render 
divorce  against  nonappearing  nonresident  defendant  only  construc- 
tively served. 

Syl.  6   (VI,  204).     Injunction  against  bridge  in   doubtful   case. 

Approved  in  Kansas  City  etc.  R.  E.  Co.  v.  Wiygul,  S2  Miss.  231, 
33  So.  967,  61  L.  R.  A.  578,  railroad  having  grant  to  bridge  naviga- 
ble stream  may  make  repairs;  Madison  v.  Ducktown  etc.  Iron  Co., 
113  Tenn.  351,  83  S.  W.  662.  refusing  to  enjoin  alleged  nuisance 
caused  by  operation  of  reduction  plant  after  ten  years'  delay. 

Syl.  7  (VI,  205).     Restraining  jjublic  nuisance  at  suit  of  individu**J. 
See  107  Am.  St.  Rep.  205,  note. 


2  Black,  499-553  Notes  on  U.  S.  Eeports.  3CS 

2  Black,  499-509,  17  L.  278,  NOONAN  v.  LEE. 

Syl.  2   (VI,  206).     Deeds— Eeference  to  maps. 

Approved  in  Pence  v.  Bryant,  54  W.  Va.  269,  46  S.  E.  277,  whoie 
land  has  been  dedicated  for  public  street  and  it  has  been  accepted 
by  long  use  as  street,  dedication  cannot  be  retracted  though  city  has 
never  formally  accepted  it. 

Syl.  11   (VI,  208).     Vendee's  relief  where  title  defective— Fraud. 

Approved  in  United  States  v.  Martindale,  146  Fed.  293,  holding 
insufficient  indictment  under  Rev.  St.,  §  5209,  charging  director  of 
national  bank  with  misapplication  of  funds  by  means  of  draft. 

Syl.  14  (VI,  208).  Practice  in  federal  courts  not  regulated  by 
states. 

Cited  in  Hatcher  v.  Hendrie  etc.  Co.,  133  Fed.  272,  68  C.  C.  A. 
19,  arguendo. 

2  Black,  510-518,  17  L.  305,  OILMAN  v.  SHEBOYGAN. 

Syl.  4  (VI,  211).     Municipal  aid  to  railroads. 

Approved  in  State  v.  Chicago  etc.  E.  E.  Co.,  195  Mo.  238,  93 
S.  W.  786,  Const.  Amend.  1900,  relating  to  levy  of  additional  road 
tax,  is  void,  since  it  exempts  certain  cities. 

2  Black,  544,  545,  17  L.  333,  WRIGHT  v.  SILL. 

Syl.  1   (VI,  219).     Stare  decisis. 

Approved  in  dissenting  opinion  in  Rush  v.  Buckley,  100  Me.  340, 
61  Atl.  782,  70  L.  R.  A.  404,  majority  holding  municipal  judge  issu- 
ing warrant  and  trying  case  under  void  ordinance  not  liable  for  false 
imprisonment. 

2  .Black,  545-553,  17  L.  333,  PARKER  v.  WINNIPISEOGEE  ETC. 
CO. 

Syl.  1  (VI,  219).     Equity — Objection  of  adequacy  of  law  remedy. 

Approved  in  Kane  v.  Luckman,  131  Fed.  618,  621,  denying  specific 
performance  of  contract  for  sale  to  plaintiff  of  certain  cows  at 
fixed  price  where  they  are  not  shown  to  have  distinctive  value; 
Nomo-Snook  Co.  v.  Simpson,  1  Alaska,  589,  court  may  of  own  mo- 
tion dismiss  suit  by  adverse  applicant  for  mining  patent  where  no- 
tice of  application  in  land  office  was  fatally  defective;  Allen  v. 
Myers,  1  Alaska,  117,  denying  jurisdiction  over  suit  to  quiet  title 
after  applicant  for  patent  has  initiated  proceedings  in  land  office 
under  Rev.  St.,  §§  2325,  2326;  dissenting  opinion  in  Barnes  v. 
Newton,  5  Okl.  460,  49  Pae.  1081,  majority  holding  successful  party 
in  contest  before  land  department  may  enjoin  antagonist  from  fur- 
ther interference  or  occupancy  of  premises;  Glenn  v.  West,  103  Va. 
524,  49  S.'  E.  672,  holder  of  mere  equitable  title  out  of  possession 
cannot  maintain  bill  to  quiet  ngaiiist  ])osscssor  claiming  under  tax 
title,  between  whom  and  himself  no  privity  exists. 


369  Notes  on  U.  S.  Reports.  2  Black,  554-5G3 

Syl.  2   (VI,  220).     Relief  against  nuisance  where  right  clear. 

Approved  in  Silver  v.  J.  P.  Eustis  Mfg.  Co.,  130  Fed.  349,  deny- 
ing injunction  against  infringement  of  patent  where  defendant  denies 
infringement  and  states  he  has  abandoned  sale  of  article  and  will 
not  further  infringe;  Sampson  etc.  Co.  v.  Scaver  etc.  Co.,  129  Fed. 
772,  refusing  preliminary  injunction  to  restrain  publication  of  in- 
fringing city  directory  where  its  sale  would  not  interfere  greatly 
with  sale  of  complainant's;  American  Plate  Glass  Co.  v.  Nicoson,  34 
Ind.  App.  654,  73  N.  E.  629,  holding  insufficient  petition  to  en- 
join obstruction  of  stream  causing  water  to  back  up  and  flood  com- 
plainant's premises;  Chessman  v.  Hale,  31  Mont.  589,  79  Pac.  257, 
in  action  for  damages  for  maintenance  of  nuisance  by  pollution  of 
water,  plaintiff  entitled  to  jury  though  he  also  asks  for  injunction; 
West  &  Severns  v.  Ponca  City  Milling  Co.,  14  Okl.  650,  79  Pac.  102, 
refusing  to  restrain  completion  of  frame  building  within  fire  limits; 
Madison  v.  Ducktown  etc.  Iron  Co.,  113  Tenn.  350,  83  S.  "W.  662.  re- 
fusing to  enjoin  maintenance  of  copper  reduction  plant  after  ten  years' 
delay. 

Syl.  4  (VI,  222).     Laches  bars  equitable  relief. 

Approved  in  Madison  v.  Ducktown  etc.  Iron  Co.,  113  Tenn.  335, 
83  S.  W.  662,  refusing  to  enjoin  maintenance  of  copper  reduction 
plant  after  ten  years'  delay. 

2  Black,  554-503,  17  L.  265,  LINDSAY  v.  HAWES. 

Syl.  1  (VI,  222).  Compelling  conveyance  where  patent  to  trus- 
tee. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co..  200  U.  S. 
339,  50  L.  506,  26  Sup.  Ct.  282,  bona  fide  purchaser  of  standing  tim- 
ber from  holders  of  receiver's  final  receipts  for  purchase  price  of 
land  entered,  need  not  account  to  government  for  timber  cut,  where 
patent  canceled  for  fraud  of  entryman. 

Sj'l.  2   (VI,  223).     Vacation  of  patent  issued  by  mistake. 

Approved  in  Le  Marchel  v.  Teegarden,  133  Fed.  827,  one  attack- 
ing patent  for  mistake  of  fact  must  plead  and  prove  evidence  be- 
fore department  from  which  mistake  resulted,  and  particular  mis- 
take made. 

Distinguished  in  Estes  v.  Timmons,  199  U.  S.  395,  50  L.  244.  29 
Sup.  Ct.  85.  perjury  on  hearing  before  Land  Department  of  land 
contest  is  not  ground  for  equitable  relief. 

Syl.  3  (VI,  225).  Possession  by  residence — Survey  at  time  of 
entry. 

Approved  in  Walker  v.  United  States,  139  Fed.  413,' where  marshal 
has  rendered  accounts  against  government  for  services  of  deputies, 
which  have  been  allowed  and  paid  according  to  rules  governing  such 
24 


2  Black,  575-606  Notes  on  U.  S.  Ecports.  370 

allowances,   government   cannot   recover   tbem   years   afterward   when 
he  was  out  of  office. 

2  Black,  575-581,  17  L.  258,  EUSSELL  v.  ELY. 

Syl.   5    (VI,  228).     Ejectment   of   mortgagee — Illegal   possession. 

Approved  in  Stouffer  v.  Harlan,  68  Kan.  138,  74  Pac.  611,  64  L.  R. 
A.  320,  mortgagee  in  possession  of  mortgaged  premises  who  assumed 
possession  under  foreclosure  proceedings,  cannot  be  dispossessed  with- 
out payment  of  mortgage   debt. 

2  Black,  590-593,   17  L.   271,  NEBRASKA  CITY  v.  CAMPBELL. 

Syl.   1    (VI,   232).     City's  liability  for   defects  in  streets. 

Approved  in  Naumburgh  v.  City  of  Milwaukee,  146  Fed.  647,  hold- 
ing Milwaukee  liable  for  personal  injuries  caused  by  city  drawbridge 
tender;  Carson  v.  (Jenesee,  9  Idaho,  256,  108  Am.  St.  Rep.  127,  74 
Pac.  866,  city  of  second  class  liable  in  damages  for  injuries  caused  by 
defective  sidewalk.  See  notes,  108  Am.  St.  Rep.  159;  103  Am.  St. 
Rep.  262. 

2    Black,   599-606,    17   L.   261,  LEFFINGWELL   v.   WARREN. 

Syl.   1    (VI,   234).     Following  state  statutory  construction. 

Approved  in  Jacobson  v.  Massachusetts,  197  U.  S.  24,  49  L.  649.  25 
Sup.  Ct.  358,  following  state  court's  construction  of  compulsory  vaccina- 
tion; Yocum  V.  Parker,  134  Fed.  213,  67  C.  C.  A.  227,  following  con- 
struction of  state  statutes  relating  to  descent  and  alienation  of  lands. 
See   103  Am.  St.  Rep.   868,  note. 

Syl.  3   (VI,  238).     Limitations  as  vesting  title. 

Approved  in  Linton  v.  Heye,  69  Neb.  455,  111  Am.  St.  Rep.  559,  95  N.  W. 
1041,  applying  rule ;  Northern  Pac.  Ry.  Co.  v.  Ely,  197  U.  S.  8,  49  L.  642, 
25  Sup.  Ct.  302,  title  to  Northern  Pacific  right  of  way  cannot  be  ac- 
quired by  adverse  possession  under  state  law;  Davis  v.  Mills,  194  U. 
S.  457,  48  L.  1071,  24  Sup.  Ct.  692,  Mont.  Code  Civ.  Proc,  §  554, 
prescribing  new  limitation  for  enforcement  of  corporate  debts  against 
directors  of  corporation  which  has  not  filed  annual  report,  is  valid  as 
to  actions  outside  state  on  liability  incurred  prior  to  enactment ;  First 
Baptist  Church  v.  Harper,  191  Mass.  209,  77  N.  E.  780,  where 
religious  society  claimed  defendant's  ancestor  took  deed  in  own  name 
on  plaintiff's  behalf,  attendance  of  ancestor  at  divine  worship  on 
premises  did  not  show  his  occupation  was  permissive;  O 'Keefe  v. 
Dillenbeck,  15  Okl.  448,  83  Pac.  543,  former  owner  cannot  sue  to 
avoid  tax  deed  valid  on  face  after  one  year  from  recordation  of 
deed;  Corkran  Oil  etc.  Co.  v.  Arnaudet,  111  La.  586,  35  So,  756, 
arguendo. 

Syl.   4    (VI,   240).     Limitation    statutes   are   statutes    of   repose. 

Approved  in  Sojicr  v.  Lawrence  Bros.  Co.,  201  U.  S.  368,  50  L. 
791,  26  Sup.  Ct.  473,  upholdin;:^  Me.  Pub.  Laws  1895,  c.  162,  relating 
to  adverse  possession  of  wild  laud;   Lynchburg  etc.  Co.  v.  Travelers' 


371  Notes  on  U.  S.  Eeports.  2  Black,  606-635 

Ins.  Co.,  140  Fed.  724,  under  insurance  policy  providing  for  bar 
of  action  thereon  not  brought  within  thirty  days  after  right  ac- 
crues, limitation  begins  to  run  on  clear  announcemeut  by  insurer 
of  refusal  to   pay. 

2  Black,  GOG-GIG,  17  L.  317,  PAEPtlSH  v.  FERRIS. 

Syl.  1  (VI,  240),  Conclusiveness  of  state  judgment  in  federal 
court. 

Approved  in  Georgia  R.  etc.  Co.  v.  Wright,  132  Fed.  917,  state 
decision  that  charter  precluded  tax  on  corporation  in  excess  of  cer- 
tain percentage  of  net  earnings  concludes  state  in  subsequent  suit 
for  taxes  for  different  year  or  under  different  statute;  Lockhart  v. 
Leeds,  12  N.  M.  164,  76  Pac.  314,  judgment  against  plaintiff  on 
bill  to  declare  mine  location  void  for  fraud  and  collusion  by  defend- 
ants and  violation  of  agreement  to  locate  claim  for  plaintiff,  bars 
suit  to  have  property  declared  to  be  held  in  trust. 

2  Black,  613-GJ9,  17  L.  309,  ROTHWELL  v.  DEWEES. 

Syl.  3   (VI,  242).     Inurement  of  tax  title  acquired  by  agent. 

Approved  in  Booker  v.  Crocker,  132  Fed.  8,  6;"  C.  C.  A.  627,  where 
one  of  several  bondholders  secured  by  mortgage  purchases  superior 
liens  takes  them  in  trust  for  co-bondholders  on  condition  that  they 
contribute  share  of  purchase  price  within  reasonable  time;  First 
Congregational  Church  v.  Terry,  130  Iowa,  518,  107  N.  W.  307,  wife 
of  life  tenant  occupying  premises  with  husband  as  homestead  can- 
not obtain  valid  tax  title  as  against  remainderman;  Coleman  v. 
Coleman,  71  S.  C.  524,  51  S.  E.  252,  where  tenant  in  common  con- 
veyed entire  fee  to  mother  and  children  who  conveyed  fee  to  B 
who  held  for  over  twenty  years,  deed  to  B  from  cotenants  of  gran- 
tor not  presumed  as  against  children. 

2  Black,  620-635,  17  L.  457,  BANK  OF  COMMERCE  v.  NEW  YORK. 
Syl.  1   (VI,  245).     State  tax  on  national  banks. 
Approved  in  dissenting  opinion  in  South  Carolina  v.  United  States, 

199  U.  S.  466,  50  L.  272,  26  Sup.  Ct.  110,  majority  holding  govern- 
ment may  exact  revenue  license  from  dispensing  agents  of  state 
which  has  taken  charge  of  liquor  business. 

Distinguished    in    Hibernia    Savings    etc.    Soc.    v.    San    Francisco, 

200  U.  S.  313,  50  L.  496,  26  Sup.  Ct.  265,  United  States  treasury 
checks  for  accrued  interest  on  government  bonds  are  taxable  by 
state  in  hands  of  owner;  South  Carolina  v.  United  States,  199  U. 
S.  452,  50  L.  266,  26  Sup.  Ct.  110,  government  may  exact  revenue 
license  from  dispensing  agents  of  state  which  has  taken  charge  of 
liquor  business. 

Syl.  2   (VI,  247).     Tax  on  capital  stock  as  tax  on  property. 
Approved    in   Delaware   etc.   R.    R.    Co.   v.   Pennsylvania,    198    U.    S. 
354,  49  L.  10S2,  25  Sup.  Ct.  669,  including  in  appraisement  of  capital 


2  Black,  635-721  Notes  on  U.  S.  Eeports.  372 

stock  of  domestic  corporation  for  tax  purposes,  value  of  coal  mined 
by  it  within  state  but  situated  elsewhere,  is  illegal. 

2  Black,  635-699,  17  L.  459,  PKIZE  CASES. 

Syl.   3    (VI,   250).     War   defined. 

Approved  in  Hamilton  v.  McClaughry,  136  Fed.  449,  Boxer  uprising 
of  1900,  constituted  "time  of  war"  within  fifty-eighth  article  of  war  re- 
lating to  court-martials. 

Syl.  4  (VI,  254).     Judicial  notice  of  civil  war. 

Approved  in  La  Eue  v.  Kansas  Mut.  Life  Ins.  Co.,  68  Kan.  543, 
75  Pac.  495,  taking  judicial  notice  of  existence  of  insurrection  in 
Mindanao   prior  to   1902. 

Syl.  8   (\^I,  258).     Eatification  of  President's  invalid  orders. 

Approved  in  Lincoln  v.  United  States,  202  U.  S.  499,  50  L.  1119, 
26  Sup.  Ct.  728,  collection  of  duties  on  imports  to  Manila  not  au- 
thorized by  President's  order  of  1898,  not  ratified  by  Comp.  St. 
Supp.   1905,  p.   391,   ratifying  such   order. 

2   Black,    715-721,    17    L.    339,    KOCHLEE   v.    BLACK    EIVEE    ETC. 
lEON  CO. 

Syl.  3  (VI,  263).  Equitable  foreclosure  of  illegally  drawn  mort- 
gage. 

Approved  in  Fourth  Nat.  Bank  v.  Camden  L.  Co.,  142  Fed.  260, 
rnrporation 's  deed  of  trust  executed  by  president  and  secretary  to 
secure  purchase  price  of  property  not  impeachable  for  want  of  seal 
cr  want  of  authorization  where  corporation  used  property  and  made 
payments. 

Syl.  4  (VI,  263).     Corporate  directors  are  trustees  for  stockholders. 

Approved  in  Beach  v.  McKinnon,  148  Fed.  736,  bill  by  receiver 
of  insolvent  corporation  against  director  for  accounting  as  to  notes 
transferred  by  it  to  him  must  allege  that  transfer  was  fraudulent; 
In  re  Castle  Braid  Co.,  145  Fed.  235,  contract  between  corporation 
and  directors  for  purchase  of  stock  not  prima  facie  void;  Burnes  v. 
Burnes,  137  Fed.  790,  70  C.  C.  A.  357,  transfer  of  stock  from  cor- 
poration to  trustee  for  majority  of  directors  and  others  by  controlling 
votes  of  that  majority  are  voidable  by  stockholders;  City  Nat.  Bank 
v.  Goshen  etc.  Mills  Co.,  35  Ind.  App.  579,  69  N.  E.  211,  director  of 
insolvent  corporation  who  resigned  after  it  was  agreed  he  should 
resign  and  have  preference,  is  director  for  purpose  of  determining 
validity  of  preference.     See  97  Am.  St.  Eep.  41,  note. 


I  WALLACE. 


1  Wall.  5-16,  17  L.  515,  CEOSS  v.  DE  VALLE. 

Syl.   1    (VI,   271).     Alien's   power   to   hold   land. 

Approved  in  Louisville  Property  Co.  v.  Nashville,  114  Tonn.  221, 
84  S.  W.  812,  failure  of  foreign  corporation  to  file  articles  of  in- 
corporation as  provided  by  statute  is  no  bar  to  recovery  for  dam- 
ages to  property  from  change  of  street  grade. 

Syl.    2    (VI,    271).      (!roKs-bill    dependent    on    original. 

Approved  in  Ames  I\'calty  Co.  v.  Big  Indian  ]\Iin.  Co.,  14G  Fed. 
169,  179,  in  federal  suit  to  protect  water  rights  against  separate  ap- 
ludpriators,  all  of  whom  citizens  of  different  states  from  complain- 
ant, court  may  entertain  cross-bill  by  any  defendant  setting  ud 
prioritj',  irrespective  of  citizenship;  Gilmore  v.  Bort,  134  Fed.  661, 
()62,  in  suit  for  cancellation  of  indemnity  bond  against  loss  by  rea- 
son of  dejiosit  of  fun<ls  in  bank  by  indemnified 's  treasurer,  wheie 
treasurer  filed  cross-bill  alleging  validity  of  bond  and  also  praying 
release  from  lialjility  on  his  own  bond  if  first  was  invalid,  treasurer 
could  not  object  to  voluntary  dismissal  of  original  bill;  Blythe  Co. 
V.  Banker's  luv.  Co.,  147  Cal.  92,  93,  81  Pac.  285,  decree  rendered 
pro  confesso  on  cross-bill  nmy  be  vacated  on  motion  after  adjourn- 
ment of  term;  Armstrong  v.  Mayer,  69  Neb.  194,  195.  95  X.  W. 
53,  where,  pending  proceedings  for  possession  of  defendant's  build- 
ing occupied  by  plaintiff,  latter  sought  to  enjoin  writ  of  restitution 
until  review  of  judgment  in  unlawful  detainer  and  to  enjoin  action 
until  pending  cause  determined,  cross-bill  for  damages  for  prosecut- 
ing  vexatious    appeals    not    maintainable. 

1  Wall.   16-22,   17  L.  555,  WRIGHT  v.  ELLISON. 

Syl.   2    (VI,   274).     Creation   of   equitable   lien   on   fund. 

Approved  in  Union  Trust  Co.  v.  Bulkeley,  150  Fed.  513,  parol  as- 
signment of  accounts  and  bill  receivable  to  secure  indorser  creates 
valid  lien  as  against  assignor's  bankruptcy  trustee,  though  no  no- 
tice given  to  creditors;  In  re  Cramond,  145  Fed.  977,  assignment  to 
secure  advances  to  prosecute  work  of  all  moneys  due  from  city  un- 
der paving  contract  gives  equitable  lien  superior  to  lien  of  laborers 
given  bj^  Bankr.  Act,  §  64;  dissenting  opinion  in  San  Francisco 
Nat.  Bank  v.  Dodge,  197  U.  S.  109,  49  L.  686,  25  Sup.  Ct.  384,  ma- 
jority holding  national  banks  discriminated  against  by  taxing  their 
shares,  under  Cal.  Pol.  Code,  §§  3608-3610,  at  market  value  while 
value  of  franchise  not  included   in  assessment  of  state  banks. 

[373] 


1  Wall.  25-53  Notes  on  U.  S.  Eeports.  374 

1  Wall.  25-43,  17  L.  604,  CLEAEWATER  v.  MEREDITH. 

Syl.   2    (VI,   275).     Legislative   consent  to    corporate   consolidation. 

Approved  in  Jones  v.  Missouri-Edison  El.  Co.,  135  Fed.  156,  con- 
Bolidation  of  corporations  under  Rev.  St.  Mo.  1899,  §  1334,  not  in- 
validated by  fact  that  one  of  constituent  companies  was  itself 
created   by  prior   consolidation. 

Syl.  3    (VI,  275).     Consolidation   of  corporations  dissolves   old. 

Approved  in  Walsey  v.  Chicago  etc.  Ry.  Co.,  147  Fed.  614,  where 
corporation  formed  by  consolidation  of  Illinois  and  Iowa  corpora- 
tions consolidated  with  lojva  corporation,  it  became  corporation  of 
either  state  for  purpose  of  federal  jurisdiction;  Gladding  v.  Saint 
Matthew's  Church,  25  R.  I.  635,  105  Am.  St.  Rep.  904,  57  Atl.  863, 
65  L.  R.  A.  225,  where  testatrix  bequeathed  property  to  deaf-mute 
church,  which,  before  her  death,  consolidated  with  another,  and  de- 
partment of  consolidated  corporation  carried  on  work  with  deaf 
mutes,  later  codicil  making  no  reference  to  bequest  did  not  sub- 
stitute  department   for   original   legatee. 

Distinguished  in  Lee  v.  Atlantic  etc.  R.  Co.,  150  Fed.  789,  con- 
struing agreement  as  merger  and  not  consolidation  of  corporations; 
Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  775,  upholding  minor- 
ity stockholder's  right  to   avoid   contract  of  consolidation   for  fraud. 

Syl.  4   (VI,  276).     Dissolution  of  stock  subscriber's  contract. 

Approved  in  Brown  v.  Morton,  7  N.  J.  L.  29,  58  Atl.  96,  provision 
in  incorporation  certificate  that  stockholders  appearing  as  such  on 
books  shall  be  liable  for  unpaid  subscriptions  or  assessments  binds 
one  becoming  stockholder  after  organization  and  who  at  time  of 
assessment   had   sold   stock   but   had   not   surrendered    certificate. 

Syl.  5   (VI,  277).     Consolidation  of  corporation  at  will  of  majority. 

Approved  in  Spencer  v.  Seaboard  Air  Line  Ry.  Co.,  137  N.  C. 
120,  49  S.  E.  101,  Priv.  Law  1901,  p.  4C3,  c.  168,  empowering  majority 
of  railroad  stockholders  to  consolidate  with  other  corporations  is 
exercise   of   power    of   eminent    domain. 

Distinguished  in  Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  776, 
upholding  minority  stockholder's  right  to  avoid  consolidation  of  cor- 
porations affected  by  fraud. 

Syl.   10    (VI,  278).     Judgment   on   demurrer  as  res   adjudicata. 
Approved    in   Board    of    County    Commrs.    v.    Cross,    12    N.    M.    76, 
73   Pac.    616,   following    rule. 

1   Wall.   43-53,   17   L.   609,   THE   COMMANDER-IN-CHIEF. 

Syl.  4  (VI,  279).  Admiralty — Specification  of  exceptions  to  mas- 
ter 's   report. 

Approved  in  The  Thomas  M.  Parsons,  129  Fed.  972,  following  rule; 
In  re  Davidson  S.  S.  Co.,  133  Fed.  413,  applying  principle  to  denial 
in  answer  as  to  competency  of  crew  and  seaworthiness  of  ship. 


375  Kotes  ou  U.  fci.  Eeijorts.  1  Wall.  53-103 

Distinguished  in  Merrit  etc.  Co.  v.  Morris  etc.  Co.,  132  Fed.  154, 
155,  general  exception  to  amount  of  findings  by  commissioner  in 
admiralty  is  sufficient  where  all  evidence  is  attached  to  report  of 
commissioner. 

Syl.  5  (VI,  279).  Admiralty — Parties  in  intervention  in  ship 
owner's   suit. 

Approved  in  The  Nonpareil,  149  Fed.  525,  carrier  by  water  of 
merchandise  may  sue  for  its  loss  in  behalf  of  all  parties  in  in- 
terest   though    loss   paid   by   insurance. 

1  Wall.   53-GO,  17  L.  544,  HUTCHINS   v.   KING. 

Syl.   8    (VI,   281).     Appeal- — Objections   to   rulings   on   evidence. 

Approved  in  National  Bank  etc.  v.  Schufelt,  145  Fed.  510,  follow- 
ing  rule. 

1   Wall.  69-73,  17  L.  514,  EX  PARTE  DUBUQUE  &  PACIFIC  E.  R. 

Syl.  1  (VI,  282).  No  new  trial  on  reversal  and  direction  of  judg- 
ment. 

Approved  in  American  Soda  Fountain  Co.  v.  Sample,  136  Fed. 
858,  aj)plying  rule  where  circuit  court  decree  upholding  patent  re- 
versed. 

1   Wall.   73-77,   17  L.   560,  ORCHARDS  v.  HUGHES. 

Syl.   4    (VI,   284).     Mortgages — Execution   for   deficiency. 

Cited  in  Hatcher  v.  Hendrie  etc.  Co.,  133  Fed.  272,  68  C.  C.  A. 
19,    arguendo. 

1  Wall.   78S0,  17  L.  547,  FAMES  v.  GODFREY. 

Syl.    1    (VI,   284).     Patent   for   combination — Infringement. 

Approved  in  Cortis  v.  American  Street  Lamp  etc.  Co.,  145  Fed. 
519,  Cortis  patent  No.  613,648,  for  illuminating  gas  lamp,  not  in- 
fringed by  mantle  supporting  device  of  Momand  patent  No.  781,- 
61.3. 

1  Wall.  83-97,  17  L.  548,  MERCER  COUNTY  v.  HACKET. 

Syl.   2    (VI,   288).     Corporate  bonds   like   commercial   paper. 

Approved  in  Cudahy  Packing  Co.  v.  State  Nat.  Bank,  134  Fed. 
540,  545,  67  C.  C.  A.  662,  provision  in  note  for  payment  of  attorney's 
fees  in  case  it  is  not  paid  at  maturity  does  not  destroy  negotiability. 

1  Wall.  99-103,  17  L.  561,  BURR  v.  DES  MOINES  R.  R.  &  NAV. 
CO. 

Syl.    3    (VI,    290).     Appeal — Agreed    statement    of    facts. 

Approved  in  Anglo-American  Lan.d  etc.  Co.  v.  Lombard,  132  Fed. 
734,  68  C.  C.  A.  89,  applying  rule  to  special  finding  by  court  tried 
by  stipulation  without  jury. 


1  Wall.  109-175  Notes  on  U.  S.  Eeports.  376 

1   Wall.  109-116,   17  L.  551,  MINNESOTA  v.  BACHELDER. 

Syl.  1  (VI,  292).  School  lands — Congressional  confirmation  of 
pre-emption. 

Approved  in  State  v.-  Tally,  31  Mont.  378,  78  Pac.   764,  arguendo. 

Syl.  2    (VI,  292).     Conclusiveness  of  land  office  receiver. 
Approved    in    Smith    v.    Love,    49    Fla.    239,    38    So.    379,    granting 
equitable  relief  where   patent   obtained  by   fraud. 

1  Wall.   116-155,   17  L.  571,  BRIDGE  PROPRIETORS  v.  HOBOKEN 
CO. 

Syl.   2    (VI,   293).     Record   must   sh&w   federal   question   decided. 

Approved  in  Chicago  etc.  Ry.  Co.  v.  McGuire,  196  U.  S.  133,  49 
L.  417,  25  Sup.  Ct.  200,  suggestion  of  violation  of  federal  right 
first  made  in  petition  for  review  in  highest  state  court  for  judgment 
of  intermediate  appellate  court  is  too  late;  Mathew  v.  Wabash  Ry. 
Co.,  115  Mo.  App.  481,  81  S.  W.  648,  granting  writ  of  error  to  state 
supreme  court  where,  in  action  for  personal  injuries,  defendant  alleged 
train  was  engaged  in  interstate  commerce  and  equipped  with  equipment 
required  by  interstate  commerce  commission  which  greatly  increased 
risk. 

Syl.    5    (VI,    295).     Statutes — Construction    of    words. 

Approved  in  Indianapolis  etc.  Transit  Co.  v.  Andis,  33  Ind.  App. 
636,  72  N.  E.  150,  statute  making  employer  liable  for  kijuries  to 
employee  through  negligence  of  employee  having  charge  of  "loco- 
motive engine  or  train  upon  railroad,"  does  not  apply  to  one  operat- 
ing electric  cars. 

Syl.   6    (VI,  295).     Impairment  of  exclusive  bridge  franchise. 

Approved  in  Sault  Ste.  Marie  Bridge  Co.  v.  Powers,  138  Fed. 
263,  corporation  organized  under  Missouri  railroad  incorporation  act, 
to  build  and  own  bridge  used  solely  for  railroad  purposes,  is  railroad 
within   Acts   1901,   p.   236,  for   taxation   of   railroads, 

1   Wall.   166-175,   17   L.   681,   SWEENY   v.   EASTER. 

Syl.    1    (VI,    297).     Notes — Indorsement    of    collection. 

Approved  in  Winfield  Nat.  Bk.  v.  McWilliams,  9  Okl.  505,  60 
Pac.  232,  where  bank  receives  check  indorsed  in  blank  for  cor- 
respondent and  parts  with  value,  it  is  entitled  to  proceeds  though 
check  not  actually  collected  until  after  failure  of  transmitting 
bank;  Smith  v.  Bayer,  46  Or.  146,  79  Pac.  498,  indorsee  of  note  "for 
collection"  may  sue  thereon  in  own  name.  See  111  Am.  St.  Rep. 
428,  note. 


377  Notes  on  U.  S.  Reports.  1  Wall.   175-223 

1  Wall.   175-223,   17  L.   520,  GILPCKE  v.   CITY  OF  DUBUQUE. 

Syl.  1  (VI,  299).  Corporation's  negotiable  paper — Municipal  aid 
bonds. 

Approved  in  Union  Nat.  Bank  v.  Neill,  149  Fed.  715,  unauthorized 
act  of  member  of  trading  partnership  in  signing  firm  name  as  ac- 
commodation indorser  is  no  defense  to  firm  as  against  bona  fide 
purchaser;  Board  of  Education  v.  Beyer,  5  Okl.  232,  47  Pac.  1092, 
where  city  board  of  education  acts  on  petition  to  have  territory 
annexed  to  city  for  school  purposes,  and  orders  territory  attache*^. 
and  entry  made  in  records,  presumed  that  petition  signed  by  ma- 
jority  of   electors   of   annexed   territory. 

Syl.  6  (VI,  303).  Impairment  of  contracts — Aid  bonds — State  de- 
cisions. 

Approved  in  Gamble  v.  Eural  Indep.  School  Dist.,  146  Fed.  117, 
bona  fide  purchaser  of  negotiable  school  bond  not  affected  by 
subsequent  Iowa  code  amendment  restricting  recovery  on  nego- 
tiable paper  procured  by  fraud;  Board  of  Commrs.  v.  Tollman,  145 
Fed.  763,  federal  court  puts  own  construction  on  state  constitutional 
provision  where  at  time  of  issuance  of  railroad  bonds  there  was 
no  state  decision  construing  constitution;  Sedalia  v.  Donohue,  190 
Mo.  418,  89  S.  W.  389,  where  Kansas  City  court  of  appeals  decided 
that  tax  bill  issued  by  clerk  in  pursuance  of  resolution  of  council 
was  valid,  tax  bills  subsequently  issued  by  clerk  are  not  contracts 
impaired  by  subsequent  supreme  court  decision  denying  their 
validity. 

Distinguished  in  Tampa  ^Yaterworks  Co.  v.  Tampa,  199  U.  S. 
243,  50  L.  173,  26  Sup.  Ct.  23,  upholding  state  decision  that  city 
could  not  by  contract  deprive  itself  of  right  to  regulate  rates  con- 
formably to  statute;  dissenting  opinion  in  Muhlker  v.  New  York  etc. 
R.  R.  Co.,  197  U.  S.  573,  49  L.  879,  25  Sup.  Ct.  522,  majority  holding 
owner  of  realty  acquiring  such  when  state  courts  had  decided  in  favor 
of  his  contract  rights  to  easements  of  light  and  air,  is  protected  against 
impairment  of  easements  by  substitution  of  elevated  railroad  in  lieu 
of   surface   road. 

Syl.  14  (VI,  310).  Enforcement  of  valid  part  of  separable  con- 
tract. 

Approved  in  Minnesota  Sandstone  Co.  v.  Clark,  35  Wash.  472,  77 
Pac.  805,  invalidity  of  provision  in  contract  for  sale  of  stone  at 
certain  price  that  seller  would  pay  to  buyer  freight  rebates  does 
not    affect   whole    contract. 

Distinguished  in  Potter  v.  Potter,  43  Or.  153,  72  Pac.  704,  con- 
tract by  which  husband  agrees  to  convey  land  to  wife,  provided 
papers  drawn  so  that  she  releases  dower  in  his  land  and  the  curtesy 
in  her  land,  is  void  in   entirety. 


1  Wall.  234-311  Notes  on  U.  S.  Reports.  378 

1   Wall.   234-243,   17   L.   534,   BALDWIN"   v.   BANK   OF   NEWBURY. 

Syl.   2    (VI,   314).     Parol   evidence — Note   payable   to   cashier. 

Approved  in  State  v.  Omaha  Nat.  Bank,  66  Neb.  865,  93  N.  W.  321, 
where  state  warrant  presented  to  bank  was  indorsed  by  president  aa 
such,   he   is   not   liable   thereon   individually. 

1  Wall.  243-254,  17  L.  589,  EX  PARTE  VALLANDIGHAM. 

Syl.   3    (VI,  315).     Certiorari  by   supreme   court. 

Approved  in  Whitney  v.  Dick,  202  U.  S.  138,  139,  50  L.  965,  966, 
26  Sup.  Ct.  584,  circuit  court  of  .appeals  cannot  issue  original  writ 
of    certiorari    to    review    conviction    in    inferior   federal    court. 

1   Wall.   254-269,   17  L.   584,   DUNHAM  v.   CINCINNATI    ETC.   EY. 
CO. 

Syl.   1    (VI,  316).     Mortgage  of  after-built  road — Priority. 

Approved  in  Pisher  v.  Zollinger,  149  Fed.  57,  taking  possession 
of  mortgaged  chattels  by  mortgagee  within  four  months  prior  to 
mortgagor's  bankruptcy  does  not  operate  as  preferential  transfer 
within   Bankr.   Act,    §    60a.     See   99   Am.   St.   Rep.   257,   note. 

1  Wall.  269-272,  17  L.  50,  STURGIS  v.  CLOUGH. 

Syl.   2    (VI,   318).     Collusion — Entire   cost   of   vessel   as   damages. 

Distinguished  in  Critchfield  v.  Julia,  147  Fed.  73,  where  defend- 
ant, in  consideration  of  services  rendered,  agreed  to  give  plaintiff 
certain  preferred  stock  in  corporation  to  be  formed,  plaintiff  may 
recover  value  of  stock,  determinable  with  reference  to  value  of  cor- 
poration's   activities,    though    preferred   stock    not   issued. 

1   Wall.    274-282,   17   L.   536,   GREGG   v.   VON   PHUL. 

Syl.  2  (VI,  320).  Ejectment — Notice  to  quit  to  vendee  in  pos- 
session. 

See  107  Am.  St.  Rep.  727,  note. 

1   Wall.  282-290,  17  L.  594,  MALARIN  v.   UNITED  STATES. 

Syl.  2   (VI,  321).     Redelivery  of  deed  after  alteration. 

Approved  in  State  v.  Paxton,  65  Neb.  130,  90  N.  W.  990,  apply- 
ing principle  where  bond  after  delivery  was  altered  by  addition 
of   new   sureties. 

1   Wall.   298-311,   17  L.   540,   MILLER  v.   TIFFANY. 

Syl.  2   (VI,  323).     Usury — Interest  at  place  of  performance. 

Approved  in  Midland  Sav.  &  Loan  Co.  v.  Solomon,  71  Kan.  190, 
79  Pac.  1079,  where  parties  stipulate  that  bond  shall  be  governed 
by  law  of  certain  state,  fact  that  it  is  secured  by  mortgage  on 
land  situate  in  another  state,  where  suit  is  brought,  does  not  abro- 
gate stipulation;   Davis  v.   Vandy,   107   Mo.   App.   448,   81   S.    W.   460, 


379  Notes  on  U.  S.  Reports.  1  Wall.  317-340 

where  note  given  in  one  state  is  payable  in  another,  under  laws  of 
which  it  is  usurious,  it  is  presumed  that  parties  intended  law  of 
state   where   made   to   govern. 

Syl.  3    (VI,   324).     Lex  loci  contractus  governs  validity. 

Approved  in  Easton  v.  Geo.  Wostenholm  &  Son,  137  Fed.  530,  70 
C.  C.  A.  108,  where  firm  doing  business  in  California  and  Costa 
Rica  purchased  goods  in  England  through  purchasing  agent,  under 
agreement  that  complainant  advance  price  and  other  charges,  for  com- 
mission, contract  governed  by  English  law. 

1  Wall.  317-326,   17  L.   684,  GODFREY  v.  EAMES. 

Syl.    1    (VI,  325).     Patents— Withdrawal   of   application. 

Approved  in  Hayes  Young  etc.  Co.  v.  St.  Louis  Transit  Co.,  137 
Fed.  82,  83,  70  C.  C.  A.  1,  absence  of  prior  user  or  sale  of  invention 
for  more  than  two  years  prior  to  second  application  for  patent  is 
indispensable    to    its    validity. 

1   W^all.   330-332,   17   L.   553,   .TONES  v.   GREEN. 

Syl.  3   (VI,  327).     Equitable  relief  where  lien  acquired. 

Approved  in  Craddock  v.  Fulton,  140  Fed.  429,  upliolding  federal 
equity  jurisdiction  over  suit  under  Code  W.  Va.  1899,  c.  106,  pro- 
viding that  one  having  claim  against  nonresident  may  sue  in  equity 
to  establish  claim  and  enforce  attachment  lien;  Viquesuey  v.  Allen, 
131  Fed.  24,  65  C.  C.  A.  259.  simple  contract  creditor  cannot  main- 
tain bill  in  equity  in  federal  court  to  set  aside  fraudulent  convey- 
ance  of   debtor's  property. 

Distinguished  in  George  v.  Wallace,  135  Fed.  293,  68  C.  C.  A.  40, 
upholding  suit  by  holder  of  note  against  trustee  of  national  bank 
in  process  of  liquidation  to  enforce  pledge  lien  on  assets  of  bank. 

1  Wall.  337-340,  17  L.  557,  LEE  v.  WATSON. 

Syl.    1    (VI,    329).     Appeal— Amount    in    dispute — Prayer. 

Approved  in  Shewalter  v.  Lexington,  143  Fed.  163,  in  action  to 
quiet  title  as  against  street  improvement  certificates  amounting  to 
less  than  $2,000,  amount  of  certificates  and  not  value  of  land  con- 
stitutes subject  matter  of  action;  Smith  v.  Chesapeake  etc.  Ry.  Co., 
118  Ky.  829,  82  S.  W.  411,  where,  in  action  against  railroad  for  killing 
horse,  value  of  animal  was  alleged  to  be  $150,  and  pending  de- 
fendant's motion  for  direction  of  verdict  petition  amended  to  show 
$75  the  additional  damages,  no  appeal  lies  to  court  of  appeals,  as 
amendment  was  shown;  Gallagher  v.  Asphalt  Co.  of  America,  65 
N.  J.  Eq.  283,  55  Atl.  269,  refusing  to  dismiss  bill  by  creditor 
to  enjoin  corporation  from  exercising  franchise  on  ground  that 
federal  court  had  jurisdiction  of  assets  of  corporation  under  re- 
ceivership. 


1  Wall.  340-486  Notes  on  U.  S.  Reports.  380 

1   Wall.   340-352,   17   L.   581,   BLOOMER   v.   MILLINGER. 

Syl.    1    (VI,   330).     Rights   of   purchaser   of   patent   medicine. 

Approved  in  Wagner  Typewriter  Co.  v.  Webster  Co.,  144  Fed. 
410,  manufacturer  selling  together  patented  ribbon  mechanism  for 
typewriters  and  ribbon  spool  for  replacement  not  chargeable  with 
infringement. 

1  Wall.   359-371,   17   L.   642,   SCHUCHARDT   v.   ALLENS. 

Syl.   2    (VI,   332).     Sales — Action   for  false  warranty. 

Approved  in  Kimber  v.  Young,  137  Fed.  747,  70  C.  C.  A.  178, 
upholding  complaint  joining  cause  of  action  for  breach  of  warranty 
in  sale  of  bonds  with  cause  of  action  for  deceit  growing  out  of 
different  phases  of  same  transaction. 

Syl.  4  (VI,  332).     Peremptory  nonsuit. 

Distinguished  in  Huntt  v.  McNamee,  141  Fed.  294,  and  Parks  v. 
Southern  Ry.  Co.,  143  Fed.  278,  both  upholding  refusal  of  plaintiff  to 
take  nonsuit  after  aU  evidence  introduced. 

Syl.  6   (VI,  332).     Direction  of  verdict. 

Approved  in  Peltomaa  v.  Katahdin  etc.  Co.,  149  Fed.  283,  denying 
motion  for  new  trial  in  action  for  personal  injuries;  Gunn  v.  Union 
R.  R.  Co.,  27  R.  I.  327,  62  Atl.  121,  upholding  R.  I.  Gen.  Laws  1896. 
e.  251,  §  11,  authorizing  supreme  court  to  direct  judgment  without,  fur- 
ther trial  by  jury. 

Syl.  7  (VI,  334).     New  trial  is  discretionary. 

Cited  in  Semet-Solway  Co.  v.  Wilcox,  143  Fed.  840,  arguendo. 

1  Wall.  371-374,  17  L.  502,  HARDY  v.  JOHNSON. 

Syl.   1    (VI,  334).     Tenant  in  common  may  recover  entirety. 

Limited  in  Williams  v.  Coal  Creek  etc.  Co.;  115  Tenn.  580,  93  S.  W. 
573,  one  tenant  in  common,  in  ejectment,  can  recover  only  portion  to 
which  he  shows  title. 

1  Wall.  405-411,  17  L.  616,  BRONSON  v.  LA  CROSSE  R.  R.  CO. 

Syl.  1  (VI,  339).     District  court's  regulation  of  ministerial  duties. 

Approved  in  First  Nat.  Bank  v.  State  Nat.  Bank,  131  Fed.  431,  65 
C.  C.  A.  414,  where  appeal  perfected  under  Bankr.  Act,  §  25a,  from 
judgment  rejecting  debt,  district  court,  pending  appeal,  cannot  enter- 
tain motion  for  rehearing. 

1  Wall.  456-486,  17  L.  505,  INSURANCE  COMPANIES  v.  WRIGHT. 

Syl.  2  (VI,  341).     Usage  to  contradict  written  contract. 

Approved  in  Moore  v.  United  States,  196  U.  S.  166,  49  L.  433.  25  Sup. 
Ct.  202,  existence  of  custom  at  San  Francisco  requiring  consignee  to 
designate  discharging  berth  does  not  affect  contract  requiring  delivery 
on  wharf  to  quartermaster  at  Honolulu;  Kentucky  Vermillion  etc.  Co.  v. 
Norwich  etc.  Ins.  Co.,  146  Fed.  698,  refusing  parol  testimony  to  explain 


381  Notes  on  U.  S.  Eeports.  1  Wall.  486-578 

meaning  of  term  "watchman's  clause"  in  insurance  policy;  Lillard  v. 
Kentucky  Distilleries  etc.  Co.,  134  Fed.  182,  67  C.  C.  A.  74,  admitting 
eviiloncc  of  usage  to  show  that  contract  to  deliver  distillery  slop  at 
distiller 's  feeding  lot  contemplated  division  of  lot  into  pens  supplied 
with  troughs. 

1  Wall.  486-490,  17  L.  688,  HOMER  v.  THE  COLLECTOR. 

Syl.  1   (VI,  342).     Customs  duties— Specific  duty. 

Approved  in  Brennan  v.  United  States,  136  Fed.  747,  69  C.  C.  A.  393, 
reversing  129  Fed.  838,  and  holding  limes  in  brine  are  not  dutiable  as 
"limes"  but  are  free;  United  States  v.  Boden,  133  Fed.  840,  canned 
pineapples  containing  amount  of  sugar  not  sufficient  to  preserve  them 
are  dutiable  under  lower  rate  provided  by  Tariff  Act  1897,  par.  263. 

1  Wall.  518-531,  17  L.  646,  WHEELER  v.  SAGE. 

Syl.  2    (VI,  344).     Equitable  aid — Both  parties  guilty  of  fraud. 

Approved  in  Johnston  v.  Little,  141  Ala.  387,  37  So.  593,  where  two 
persons  agree  to  purchase  realty  through  tlicir  agent,  deception  by 
agent  and  one  of  vendees  as  to  purchase  price  at  expense  of  other  sub- 
jects them  to  account. 

1  Wall.  531-578,  17  L.  650,  BURR  v.  DURYEE. 

Syl.  1   (VI.  344).     Patent  for  machine. 

Approved  in  Regina  Co.  v.  New  Century  Music  Box  Co.,  138  Fed.  908, 
Brachhausen  &  Reissner  patent  No.  500,371,  for  music-box,  is  void  for 
lack  of  invention  in  view  of  prior  art;  Lourie  Imp.  Co.  v.  Lenhart,  130 
Fed.  129.  64  C.  C.  A.  456,  construing  Lenhart  patent  No.  415,542,  for 
adjustable  sliding  plate  for  plows. 

Syl.  3  (VI,  345).     Patent  for  principle  is  void. 

Approved  in  Bradford  v.  Expanded  Metal  Co.,  146  Fed.  987,  Golding 
patent  No.  527.242,  for  process  of  making  open  or  shut  metal,  is  void; 
Edison  etc.  Elec.  Co.  v.  Crouse  etc.  Elec.  Co.,  146  Fed.  548,  construing 
Metzger  patent  No.  489,682,  for  electric  lamp  socket;  Cortis  v.  American 
Street  Lamp  etc.  Co.,  145  Fed.  519,  Cortis  patent  No.  613.648,  for  lamp, 
not  infringed  by  mantle  supporting  device  of  ]Momand  patent  No. 
781,613;  American  Crayon  Co.  v.  Sexton,  139  Fed.  566,  construing 
Liedke  patent  No.  476,051,  for  machine  for  making  crayons;  Scott  v. 
Fisher  etc.  Mach.  Co.,  139  Fed.  145,  Bellis  patent  No.  561,559,  for  im- 
provement in  knitting  machines,  not  infringed  by  machine  of  Fisher 
patent  No.  656,535;  Cook  v.  Heywood  Bros.  etc.  Co.,  131  Fed.  762, 
Bowen  patents,  for  improvements  in  chairs  and  furniture,  relating  to 
cachet  device,  not  infringed  by  device  of  Luppino  reissue  No.  11,919. 


1  Wall.  592-657  Notes  on  U.  S.  Eeports.  382 

1  Wall.  592-604,  17  L.  63S,  POMEEOY'S  LESSEE  v.  BANK  OF  IN- 
DIANA. 

Syl.  3  (VI,  348).     Every  exception  insertable  in  bill. 

Approved  in  Nichols  v:  Board  of  Commrs.,  13  Wyo.  8,  76  Pac.  682, 
where  final  judgment  is  not  supported  by  pleadings,  it  may  be  reversed 
on   record  proper  without   any  bill  of  exceptions. 

Distinguished  in  Kipp  v.  Burton,  29  Mont.  102,  101  Am.  St.  Rep.  544, 
74  Pac.  87,  63  L.  R.  A.  325,  execution  not  under  seal  of  court  is  void- 
able only. 

Syl.  5  (VT,  348).     Appeal — Necessity  for  bill  of  exceptions. 
Cited  in  Cassatt  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  43,  arguendo. 

1  Wall.  604-627,  17  L.  619,  SPAIN  v.  HAMILTON'S  ADMINISTRA- 
TOR. 

Syl.  4  (VI,  350).     Usury — Payment  dependent  on  contingency. 

Approved  in  Tayloe  v.  Buzard,  114  Mo.  App.  625,  90  S.  W.  126, 
where  on  sale  of  piano  vendee  gave  note  for  $300  with  highest  legal  in- 
terest, payable  in  monthly  installments  of  $10,  and  providing  that  if 
payments  did  not  exceed  $3  monthly  they  should  be  applied  as  rent  and 
rights  of  purchaser  to  piano  forfeited,  contract  not  usurious. 

1  Wall.  637-644,  17  L.  601,  BEAVER  v.  TAYLOR. 

Syl.  2   (VI,  353).     What  is  res  gestae. 

Approved  in  Sprinkle  v.  United  States,  141  Fed.  816,  817,  applying 
rule  on  trial  of  defendants  jointly  indicted  for  defrauding  government 
of  liquor  revenue  licenses;  Guild  v.  Pringle,  130  Fed.  423,  64  C.  C.  A. 
621,  declaration  by  man  who  had  fallen  into  trench  at  night  that  there 
was  no  light,  made  ten  minutes  after  fall,  in  answer  to  direct  question, 
is  no  part  of  res  gestae. 

Syl.  3  (VI,  353).     Adverse  possession — Proof  of  payment  of  taxes. 

Approved  in  Schauble  v.  Schulz,  137  Fed.  394,  69  C.  C.  A.  581,  under 
Rev.  Codes  N.  D.  1899,  §  3491a,  providing  for  establishment  of  title 
by  adverse  possession  of  ten  years  and  payment  of  all  taxes,  period 
begins  to  run  with  adverse  possession  and  not  on  date  of  first  tax  pay- 
ment. 

1  Wall.  655-657,  17  L.  673,  BLOSSOM  v.  MILWAUKEE  ETC.  R.  R. 
CO. 

Syl.  1  (VI,  355).     Purchaser  at  master's  sale  may  appeal. 

Approved  in  Julian  v.  Central  Trust  Co.,  193  U.  S.  112,  48  L.  639, 
24  Sup.  Ct.  399,  federal  court  which  has  decreed  foreclosure  sale  may 
entertain  supplemental  bill  in  original  suit  by  purchaser  to  enjoin  sale 
of  property  to  satisfy  judgments  of  state  court  in  suits  against  mort- 
gagor to  which  he  was  not  party;  Empire  State  etc.  Co.  v.  Hanley,  136 
Fed.  104,  69  C.  C.  A.  87,  where,  after  affirmance,  appellee  filed  in  trial 
court   motion   to   proceed   containing   notice   to   sureties   on   supersedeas 


S83  Notes  on  U.  S.  Reports.  1  Wall.  690-745 

bond  that  he  would  apply  for  suiuaiary  decree  on  bond,  summary  judg- 
ment authorized. 

1  Wall.  C9()-702,  17  L.  677,  UNITED  STATES  v.  GOMEZ. 

Syl.  1   (VI,  357).     Time  to  ai)peal. 

Approved  in  In  re  McCall,  14")  Fed.  902,  time  limit  for  appeal  from 
order  confirming  bankrupt's  composition  with  creditors  begins  to  run 
from   ciitiy   of  order  on   records. 

Syl.    3    (VI,  35cS).     Appeal — Certiorari — Diminution   of  record. 
Approved  in  Elickinger  v.  First  Nat.  Bank,   M.')  Fed.   164,  motion  to 
strike  transcript  because  it  does  not  contain   all  evidence  is  not  proper. 

1  Wall.  702-706,  17  L.  503,  HOUGHTON  v.  JONES. 

Syl.  3    (VI,  358).     Scope  of  cross-examination. 

Approved  in  Eesurr(>ction  G.  ZNIin.  Co.  v.  Fortune  G.  Min.  Co.,  129 
Fed.  674,  64  C.  C.  A.  ISO,  following  rule;  Balliet  v.  United  States,  129 
Fed.  696,  697,  64  C.  C.  A.  201,  instructing  in  prosecution  for  using 
mails  with  intent  to  defraud,  that  jury  may  consider  failure  of  defend- 
ant, who  has  testified,  to  explain  material  matters  within  his  knowledge 
is  misleading. 

Distinguished  in  dissenting  o])inion  in  Resurrection  G.  ]\Iin.  Co.  t. 
Fortune  G.  Min.  Co.,  129  Fed.  681,  64  C.  C.  A.  180,  majority  following 
rule. 

1  Wall.  721-74.5,  17  L.  627,  ROMERO  v.  UNITED  STATES. 

Syl.    1    (VI,    359).      Mexican    archives    as    evidence. 

Approved  in  Sprinkle  v.  Ihiited  States,  141  Fed.  820,  on  trial  for 
violation  of  internal  revenue  laws,  regulations  of  revenue  comuiissioiier 
are  admissible. 


II  WALLACE. 


2  Wall.  1-9,  17  L.  762,  DERMOTT  v.  JONES. 

Syl.   1    (VI,  362).     Excuse  for  failure  to   perform  contract  in   time. 

Approved  in  Cottrell  &  Son  v.  .Smokeless  Fuel  Co.,  148  Fed.  597,  under 
contract  for  sale  and  delivery  of  coal  from  certain  mine,  deliveries  to  be 
subject  to  strikes  which  might  delay  or  prevent  shipment,  performance 
not  excused  because  strike  increased  cost  of  production;  Link  Belt  etc. 
Co.  V.  United  States,  142  Fed.  247,  under  construction  contract  providing 
penalty  for  each  day's  delay,  delay  caused  by  inability  to  obtain  steel 
owing  to  congestion  of  mills' is  no  excuse;  Indian  Mt.  etc.  Coal  Co.  v. 
Ascheville  Ice  etc.  Co.,  134  N.  C.  584,  47  S.  E.  120,  under  contract  for 
sale  of  all  coal  defendant  may  require  during  certain  period,  defendant 
cannot  be  compelled  to  reduction  by  pro-rating  with  other  patrons  of 
plaintiff ;  Wheeling  etc.  Foundry  Co.  v.  Wheeling  etc.  Iron  Co.,  58  W.  Va. 
66,  51  S.  E.  131,  under  contract  to  deliver  machinery  by  certain  time, 
fact  that  contractor  acted  in  good  faith  and  with  due  diligence  is  no 
defense  to  deduction  of  penalty  from  contract  price. 

Syl.  2  (VI,  363).     Assumpsit — Performance  not  according  to  contract. 

Ap])rnved  in  United  States  v.  Molloy,  144  Fed.  325,  327,  where  plain- 
tiff's ilelivcry  of  stone  was  not  in  accordance  with  contract,  but  de- 
fendant accepted  it  with  knowledge,  he  is  liable  on  quasi  contract  for 
value  of  stone  delivered  less  losses  due  to  breach. 

2  Wall.  10-23,  17  L.  776,  HAWTHORNE  v.  (JALEF. 

Syl.  2   (VI,  366).     Obligation  of  contracts — Stockholder's  liability. 

Approved  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  392,  Laws 
Kan.  1898,  c.  10,  p.  27,  repealing  existing  laws  and  substituting  new 
form  of  action  to  enforce  stockholder's  liability,  is  void  as  to  pre-ex- 
isting creditors;  Knickerbocker  Trust  Co.  v.  Myers,  133  Fed.  767,  Act. 
Md.  1904,  p.  579,  c.  337,  substituting  single  suit  in  equity  against  stock- 
holders for  benefit  of  all  corporation 's  creditors  is  void  as  against  pre- 
existing creditors. 

Distinguished  in  Miners'  etc.  Bank  v.  Snyder,  100  Md.  65,  108  Am. 
St.  Rep.  390,  59  Atl.  708,  68  L.  R.  A.  213,  upholding  Acts  1904,  p.  597, 
c.  337,  substituting  remedy  by  bill  in  equity  to  enforce  stockholder's 
liability  as  against  creditor  who  has  sued  under  prior  law  but  has 
not  obtained  judgment. 

2  Wall.  24-35,  17  L.  780,  DRURY  v.  FOSTER. 

Syl.  2   (VI,  368).     Delivery  of  deed  in  blank. 

Approved  in  Burk  v.  Johnson,  146  Fed.  219,  where  name  of  grantee 
iu   escrow   deed   left   blank   at   request   of   vendee,   subsequent  liiJing   in 

[384] 


385  Notes  on  U.  S.  ReporU.  2  Wall.  35-70 

blank  and  recordation  did  not  invalidate  it;  Carr  v.  McColgan,  100  Md. 
477,  60  Atl.  608,  act  of  mortgagees  in  accepting  benefit  of  mortgage 
loan  and  participating  in  foreclosure  sale  estops  them  from  excepting 
to  sale  on  ground  that  scrivener's  authority  to  fill  in  blanks  rested  only 
in   parol. 

Syl.  4   (VI,  369).     Married  woman's  power  of  attorney. 

Approved  in  Lewis  v.  Apperson,  103  Va.  632,  106  Am.  St.  Rep.  903, 
49  S.  E.  981,  68  L.  R.  A.  867,  where  wife  joined  commissioner  in  suit 
to  subject  lands  to  liens,  in  executing  deed  relinquishing  dower  rights, 
she  is  not  estopped  from  claiming  dower  rights  as  husband  did  not 
join  in  deed. 

2   Wall.   35-45,  17  L.  755,  MILES  v.  CALDWELL. 

Syl.  3  (VI,  370).    Res  adjudicata — Parol  to  explain  judgment. 

Approved  in  Halford  v.  James,  136  Fed.  555,  556,  69  C.  C.  A.  263, 
where  issues  involved  in  former  case  do  not  appear  in  entry  of  judg- 
ment pleaded  as  res  adjudicata,  and  pleadings  have  been  burned,  parol 
is  competent  to  prove  issues. 

2  Wall.  45-56,  17  L.  868,  TOOL  CO.  v.  NORRIS. 

Syl.  1  (VI,  372).     Payment  for  getting  government  contract. 

Approved  in  Le  Tourneux  v.  Gilliss,  1  Cal.  App.  552,  82  Pac.  629,  note 
for  money  advanced  for  expenses  of  lobbyist  is  void. 

Distinguished  in  Padilla  v.  Padilla,  11  N.  M.  546,  70  Pac.  564,  where 
brother  secured  judgment  in  court  of  claims  on  Indian  depredation 
claim  for  property  owned  by  himself  and  sister,  and  before  judgment  he 
agreed  to  pay  sister  her  share  when  he  received  money,  sister  may  re- 
cover. 

Syl.  2  (VI,  374).  Contracts  to  control  government's  business  opera- 
tion. 

Approved  in  Hazelton  v.  Sheckels,  202  U.  S.  78,  79,  50  L.  941,  942, 
26  Sup.  Ct.  567,  agreement  to  sell  land  at  specified  price  is  void  where 
consideration  was  rendition  of  services  in  calling  attention  of  Congress 
of  desirability  of  land  for  public  building  site;  Sussman  v.  Porter,  137 
Fed.  164,  agreement  to  procure  consent  of  abutting  property  owners 
for  construction  of  trolley  line  and  to  obtain  franchise  for  same  for 
contingent  fee,  is  void;  McGuffin  v.  Coyle,  15  Okl.  668,  674,  85  Pac. 
960,  962,  note  payable  to  officers  of  railroad  in  personal  capacity  on 
condition   that  road  built  to   certain  point  by  certain  time,  is  void. 

2  Wall.  57-70,  17  L.  818,  BANKS  v.  OGDEN. 

Syl.  1   (VI,  375).     Accretions  belong  to  riparian  owner. 

Approved  in  Sherwin  v.  Bitzer,  97  Minn.  256,  106  N.  W.  1048,  state- 
ment in  deed  that  land  conveys  certain  number  of  acres  does  not  con- 
trol description  of  lots  abutting  on  water,  where  water  has  receded. 
25 


2  Wall.  70-96  Notes  on  U.  S.  Ecports.  386 

Syl.  4  (VI,  376).     Boundaries — Grant  bordering  on  river. 

Approved  in  Western  Union  Tel.  Co.  v.  Krueger,  36  Ind.  App.  353, 
74  N.  E.  26  and  Sweatman  v.  Bathrick,  17  S.  D.  159,  95  N.  W.  427, 
both  following  rule. 

2  Wall.  70-87,  17  L.  732,  BEOOKS  v.  MARTIN, 

Syl.  1  (VI,  377).     Accounting  where  illegal  contract  performed. 

Approved  in  Doyle  v.  Burns,  123  Iowa,  512,  99  N.  W.  204,  where 
after  plaintiff  and  defendant  agreed  to  locate  mining  claims,  latter 
sold  claims  receiving  stock  therefor,  and  defendant  testified  plaintiff 
made  false  proofs  in  perfecting  title,  and  he  and  defendant  directors 
in  company  to  which  mines  sold  for  more  than  they  were  worth, 
plaintiff's  actions  not  bar  to  suit  to  recover  half  of  defendant's  stock; 
Padilla  v.  Padilla,  11  N.  M.  553,  70  Pac.  566,  where  brother  recovered 
judgment  in  court  of  claims  on  Indian  depredation  claim  for  prop- 
erty owned  by  himself  and  sister,  and  before  judgment  promised 
to  give  sister  her  share,  sister  may  recover;  Monahan  v.  Monahan,  77 
Vt.  143,  59  Atl.  172,  70  L.  R.  A.  &35,  where  property  put  in  defend- 
ant's name  without  his  knowledge  to  avoid  taxation,  it  is  impressed 
with  trust  in  favor  of  owner;  Overholt  v.  Burbridge,  28  Utah,  416,  79 
Pac.  563,  bucket-shop  accepting  margin  to  protect  short  sale  to  one 
buying  long  and  who  paid  bucket-shop,  for  seller,  difference  between 
market  and  sale  price,  cannot  defend  suit  by  seller  for  profit  on 
ground  of  illegality  of  transaction.     See  99   Am.   St.   Rep.  327,  note. 

Distinguished  in  Smythe  v.  Evans,  209  111.  383,  70  N.  E.  909,  where 
corporation  let  contract  for  construction  under  supervision  of  engineer, 
contracts  between  engineer  and  contractor  for  division  of  profits  is 
unenforceable;  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  345, 
majority  permitting  recovery  of  money  by  one  who  was  induced  to 
participate  in  fake  footrace  and  was  given  "double  cross." 

Syl.  2   (VI,  381).     Purchase  of  partner's  interest — Good  faith. 

Approved  in  Shevlin  v.  Shevlin,  96  Minn.  413,  105  N.  W.  263, 
applying  rule  in  holding  that  burden  of  proof  to  show  no  undue  in- 
fluence was  on  elder  brother  with  respect  to  stock  transfer  by  drunken 
and  financially  embarrassed  brother. 

2  Wall.  87-96,  17  L.  836,  BADGER  v.  BADGER. 

Syl.  1  (VI,  382).     Laches  barring  equitable  relief. 

Approved  in  dissenting  opinion,  Werner  Co.  v.  Encyclopedia  etc. 
Co.,  134  Fed.  1024,  majority  holding,  in  suit  for  infringement  of  copy- 
right where  complainant  had  no  knowledge  of  infringing  articles 
until  less  than  eighteen  months  before  suit,  suit  not  barred  by  laches. 

Syl.  2   (VI,  384).     Gross  laches  bars  equitable  relief. 

Approved  in  Frank  v.  Butler  Co.,  139  Fed.  124,  suit  in  equity  for 
enforcement  of  aid  bonds  barred  after  lapse  of  twenty  years  from  re- 
fusal   of    registration;    Kansas    City    etc.    Ry.    Co.    v.    Stevenson,    135 


387  Notes  on  U.  S.  Eeports.  2  Wall.   106-122 

Fed.  557,  where  defendant  on  resigning  railroad  presidency  retained 
title  to  property  donated  to  aid  railroad  extension,  claiming  same  as 
his  own,  nine  years'  delay  after  knowledge  in  suing  to  establish  trust 
bars  suit;  Eyan  v.  Woodin,  9  Idaho,  531,  75  Pac.  262,  applying  rule  to 
suit  to  set  aside  sheriff's  deed  brought  five  years  after  its  execution; 
Patterson  v.  Hewitt,  11  N.  M.  18,  23,  66  Pac.  556,  558,  55  L.  R.  A. 
658,  applying  rule  in  suit  to  enforce  trust  in  mining  claims;  Bryan 
V.  Dupoyster,  130  Fed.  87,  64  C.  C.  A.  417,  arguendo. 

Syl.  3   (VI,  386).     Pleading  excuse  for  laches. 

Approved  in  Klcinclaus  v.  Dutard,  147  Cal.  250,  81  Pac.  518,  apply- 
ing rule  in  suit  to  enforce  express  trust;  Succession  of  Dauphin 
(Choppin  V.  Dauphin),  112  La.  140,  36  So.  300,  applying  rule  in  suit 
to  annul  judgment  for  fraud;  Patterson  v.  Hewitt,  11  X.  M.  42,  66 
Pac.  564,  55  L,  E.  A.  650,  applying  rule  in  suit  to  enforce  trust  in 
mining  claims. 

2  Wall.  106-110,  17  L.  905,  HUMISTON  v.  STAINTHORP. 

Syl.  1   (VI,  387).     Final  decree — Reference  for  account. 

Approved  in  Ex  parte  National  Enameling  etc.  Co.,  201  U.  S.  160, 
50  L.  708,  26  Sup.  Ct.  404,  denying  cross-appeal  by  complainant  from 
decree  granting  injunction  against  infringement  of  valid  claims  and 
dismissing  bill  as  to  those  held  invalid;  Australian  Knitting  Co.  v. 
Gormly,  138  Fed.  103,  decree  sustaining  validity  of  patent  and  award- 
ing injunction  against  infringement,  and  referring  question  of  damages 
to  master,  being  interlocutory,  is  not  conclusive  of  validity  of  patent 
in  subsequent  suit  prior  to  rendition  of  final  decree, 

2  Wall.  110-122,  17  L.  857,  MURRAY  v.  LARDNER. 

Syl.  2  (VI,  388).    Presumptions  on  transfer  of  note  before  maturity. 

Approved  in  First  Nat.  Bank  v.  Moore,  148  Fed.  957,  958,  following 
rule;  dissenting  opinion  in  Williams  v.  Neely,  134  Fed.  18,  69  L.  R.  A. 
252,  67  C.  C.  A.  171,  arguendo.     See  103  Am.  St.  Rep.  984,  note. 

Syl.  3  (VI,  389).    Notes— Bona  fides— Suspicion  of  defect. 

Approved  in  Fillebrown  v.  Hayward,  190  Mass.  480,  77  N.  E.  47, 
where  director  sold  his  stock  to  another  knowing  that  sale  gave  him 
control  of  company,  and  payments  made  by  check  signed  by  purchaser 
as  treasurer,  seller  not  charged  with  notice  of  misappropriation  of 
funds  by  treasurer;  Unaka  Nat.  Bank  v.  Butler,  113  Tenn.  585,  83 
S.  W.  658,  where  check  was  indorsed  in  blank  and  lost,  merchant 
accepting  same  from  customer  unknown  to  him,  but  supposed  to  be 
payee,  was  bona  fide  purchaser;  Bank  v.  Ohio  Valley  etc.  Co.,  57 
W.  Va.  630,  50  S.  E.  882,  70  L.  R.  A.  312,  applying  principle  where 
bank  discounted  note  indorsed  in  blank  by  principal,  with  knowledge 
that  holder  was  agent;  dissenting  opinion  in  Peirson  v.  McNeal,  1.37 
Mich.  177,  100  N.  W.  465,  majority  holding  assignments  of  mortgages 
delivered  to  assignee  prior  to  assignor's  death. 


2  Wall.  123-198  Notes  on  U.  S.  Reports,  388 

Sjl.  4   (VI,  391).     Negotiable  instruments — Vendor's  lack  of  title. 

Approved  in  Massachusets  National  Bank  v.  Snow,  187  Mass.  163, 
72  N.  E.  960,  where  note  was  indorsed  in  blank  by  payee  and  stolen 
from  him  by  maker,  who  discounted  it  at  bank,  latter  may  collect  it. 

2  Wall.   123-134,   17  L.   859,  HECKERS  v.   FOWLER. 

Syl.  2  (VI,  394).     Reference  of  cause. 

Approved  in  Burrell  v.  United  States,  147  Fed.  49,  where  parties 
.1  greed  to  trial  before  arbitrators,  federal  court  may  enter  judgment 
on  award. 

Distinguished  in  Swift  v.  Jones,  145  Fed.  493,  circuit  judge  cannot 
in  action  at  law,  with  consent  of  parties,  order  trial  before  special 
master. 

2  Wall.  160-177,  17  L.  922,  FREEBORN  v.  SMITH. 

Syl.  2  (VI,  396).     Admission  of  states — Pending  causes. 

Approved  in  Wallace  v.  Adams,  143  Fed.  726,  upholding  32  Stat. 
641,  whereby  citizenship  court  was  created  and  empowered  to  review 
final  judgments  of  federal  courts  under  29  Stat.  339,  as  against  liti- 
gants who  had  not  procured  allotments  prior  to  its  passage. 

Syl.  4  (VI,  397).     Correspondence  between  partners  and  agent. 

Approved  in  Inman  Bros.  v.  Dudley  etc.  Lumber  Co.,  146  Fed.  455, 
I'^tter  from  agent  to  principal  reporting  interview  between  agent  and 
third  part}--  is  inadmissible  against  latter. 

2  Wall.  177-190,  17  L.  822,  SHEETS  v.  SELDEN. 

Syl.  3   (VI,  398).     "Month"  means  calendar  month. 

Approved  in  Brock  v.  Kirkpatrick,  72  S.  C.  495,  52  S.  E.  593,  con- 
struing code  provision  relative  to  publication  of  notice  of  hearing  of 
application   for  discharge   of   executor. 

Syl.  4  (VI,  398).     Computation  of  time. 

Approved  in  Maxwell  v,  Jacksonville  etc.  Co.,  45  Fla.  455,  34  So. 
265,  applying  rule  to  time  for  taking  testimony  in  equity  suits  under 
rule  of  court. 

2  Wall.  191-198,  17  L.  839,  CHITTENDEN  v.  BREWSTER. 

Syl.  1   (VI,  399).     Nonappellant  cannot  complain  of  error. 

Approved  in  Field  v.  Barber  Asphalt  Paving  Co.,  194  U.  S.  621,  48 
L.  1153,  24  Sup.  Ct.  784,  cross-appeal  to  review  only  nonfederal  ques- 
tions decided  against  defendant  may  be  taken  directly  to  supreme 
court  from  circuit  court. 

Syl.  4  (VI,  400).    Assignment  for  creditors — Priority  of  jurisdiction. 

Approved  in  Louisville  Trust  Co.  v.  Knott,  130  Fed.  825,  65  C.  C. 
A.  158,  where,  after  expiration  of  franchise,  assets  of  corporation  de- 
livered to  trustee  as  liquidator  and  minority  stockholders  filed  state 


389  Notes  on  U.  S.  Reports.  2  Wall.  200-237 

suit  for  inspection  of  books,  state  court  had  jurisdiction  prior  to  fed- 
eral court  in  subsequent  creditor's  suit  based  on  collusive  judgment. 

2  Wall.  200-210,  17  L.  793,  BANK  TAX  CASE. 

Syl.   1   (VI,  401).     State   tax  on  capital  stock. 

Approved  in  Delaware  etc.  R.  R.  Co.  v.  Pennsylvania,  198  U.  S.  354, 
49  L.  1082,  25  Sup.  Ct.  669,  including,  in  appraisement  of  capital  stock 
of  domestic  corporation,  value  of  coal  mined  within  state  but  situated 
elsewhere,  is  illegal;  Scottish  Union  etc.  Ins.  Co.  v.  Bowland,  19G  U. 
S.  626,  49  L.  626,  25  Sup.  Ct.  345,  bonds  in  which  foreign  insurance 
company  is  required  to  invest  portion  of  capital  stock  under  Ohio 
statutes  are  personal  property  within  tax  laws. 

Syl.  2  (VI,  401).     State  tax  on  bank's  government  bonds. 

Approved  in  First  National  Bank  v.  Douglas  Co.,  124  .Wis.  21,  102 
N.  W.  317,  real  estate  belonging  to  national  bank  acquired  with  and 
constituting  part  of  capital  is  exempt  from  taxation;  dissenting 
opinion  in  South  Carolina  v.  United  States,  199  U.  S.  466,  50  L.  272, 
26  Sup.  Ct.  110,  majority  holding  United  States  may  exact  liquor 
license  tax  from  state's  dispensing  agents. 

Distinguished  in  Hibernia  Savings  etc.  Soc.  v.  San  Francisco,  200 
U.  S.  313,  50  L.  496,  26  Sup.  Ct.  265,  United  States  treasury  checks 
for  accrued  interest  on  government  bonds  are  taxable  by  state  in  hands 
of  owner;  South  Carolina  v.  United  States,  199  U.  S.  452,  50  L.  266, 
26  Sup.  Ct.  110,  United  States  may  exact  liquor  license  tax  from 
state's  dispensing  agent. 

2  Wall.  210-217,  17  L.  783,  FLORENTINE  v.  BARTON. 

Syl.    2    (VI,   404).      Presumptions — Sale   of    decedent's    realty. 

Approved  in  Threadgill  v.  Colcord,  16  Okl.  470,  85  Pac.  710,  pur- 
chaser at  master's  sale  under  decree  in  suit  to  which  he  is  party  can- 
not collaterally  attack  decree. 

2  Wall.  218,  17  L.  755,  COOKE  v.  UNITED  STATES. 

Syl.  1  (VI,  406).     Amount  in  controversy — Subsequent  reduction. 

Approved  in  Kirby  v.  American  Soda  etc.  Co.,  194  U.  S.  146,  48  L. 
913,  24  Sup.  Ct.  619,  upholding  federal  jurisdiction  where  cross-bill 
seeks  recovery  of  $1,700  on  contract  for  exchange  of  goods  where 
original  bill  dismissed  on  complainant's  motion  prayed  cancellation  of 
agreement  to  pay  $2,025,  in  consideration  of  exchange. 

2  Wall.  219-237,  17  L.  788,  SMITH  v.  UNITED  STATES. 

Syl.  1  (VI,  219).     Variation  in  agreement — Subscribed  by  surety. 

Approved  in  Jeigler  v.  Hallahan,  131  Fed.  209,  66  C.  C.  A.  1,  surety 
for  lessee  under  contract  binding  tenant  to  pay  rent  and  deliver 
premises  in  good  condition  at  end  of  term  is  discharged  by  modifica- 
tion of  lease  by  provision  for  termination  of  lease  by  destruction  of 
premises. 


2  Wall.  237-328  Notes  on  U.  S.  Eeports.  390 

2  Wall.  237-251,  17  L.  827,  MILLEK  v.  SHEERY. 

Syl.  3  (VI,  410).  Compelling  conveyance  of  property  out  of  juris- 
diction. 

Approved  in  Fuller  v.  Horner,  69  Kan.  470,  77  Pac.  89,  creditor's 
suit,  after  lapse  of  limitations,  to  subject  property  bought  with  pro- 
ceeds of  fraudulent  sale  is  barred  though  proceeds  first  invested  in 
another  state. 

Syl.  5   (VI,  410).     Purchaser  pendente  lite. 

Approved  in  Bridger  v.  Exchange  Bank,  126  Ga.  829,  56  S.  E.  101, 
lis  pendens  begins  from  filing  of  cross-complaint  as  to  matters  therein 
alleged. 

2  Wall.  252-258,  17  L.  785,  MARINE  BANK  v.  FULTON  BANK. 

Syl.  1  (VI,-411).     Relation  between  bank  and  depositor. 

Approved  in  Burton  v.  United  States,  196  U.  S.  302,  49  L.  488, 
25  Sup.  Ct.  243,  averment  charging  receipt  of  checks  at  St.  Louis 
and  payment  thereon  there  not  supported  by  evidence  showing 
check  drawn  on  St.  Louis  bank  received  by  defendant  in  Washing- 
ton and  there  deposited  in  bank  for  collection;  Board  of  Commrs. 
V.  Patterson,  149  Fed.  233,  where  cashier  of  insolvent  bank  was  county 
treasurer  and  deposited  taxes  in  bank,  county  could  recover  same 
from  receiver  plus  proceeds  of  loans  of  such  taxes  made  by  bank; 
Schinotti  v.  Whitney,  130  Fed.  781,  money  deposited  in  New  York 
at  interest  subject  to  check  is  "money  lent"  within  Civ.  Code  La., 
art.  3538,  prescribing  limitations  for  recovery  thereof;  Retan  v. 
Union  Trust  Co.,  134  Mich.  8,  95  N.  W.  1008,  deposits  in  bank  made 
by  county  clerk  of  deposits  in  court  are  not  special  deposits  en- 
titled to  priority  on  failure  of  bank;  Bank  of  Blackwell  v.  Dean, 
9  Okl.  631,  60  Pac.  228,  determining  whether  deposit  was  general  or 
special. 

2  Wall.  283-312,  17  L.  725,  BRONSON  v.  LA  CROSSE  RY.   CO. 

Syl.  3  (VI,  418).  Defense  by  stockholders  where  directors  re- 
fuse. 

See  97  Am.  St.  Rep.  41,  note. 

Distinguished  in  Bowling  Green  Tr.  Co.  v.  Virginia  etc.  R.  Co., 
132  Fed.  924,  individual  holders  of  small  minority  of  railroad  bonds 
cannot  intervene  in  foreclosure  to  displace  trustee,  who  is  plain- 
tiff, where  no  fraud  on  his  part  is  charged. 

2  Wall.  320-328,  17  L.  817,  CASE  v.  BROWN. 

Syl-    1    (VI,   420).     Patents- — Claim   for   combination. 

Approved  in  Cortis  v.  American  Street  Lamp  etc.  Co.,  145  Fed. 
519,  Cortis  lamp  patent  No.  613,648,  not  infringed  by  mantle  sup- 
porting   device    of    Momand    patent    No.    781,013;    American    Crayon 


391  Xotes  ou  U.  S.  Keports.  2   Wall.  328-474: 

Co.   V.   Sexton,   139   Fed.   5G6,   construing  Liedke   patent   No.   470,051, 
for  crayon-making  machine. 

2  Wall.  328-349,  17  L.  871,  HARVEY  v.  TYLER. 

Syl.  1  .(VI,  421).     No  exceptions  to  instructions  as  whole. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  etc.  Co.,  147  Fed.  906, 
where  judge,  after  instructing  .jury,  but  before  sending  them  out, 
retired  to  chambers  and  there  heard  and  allowed  exceptions,  he  need 
not  thereafter  allow  exceptions;  Mountain  Copper  Co.  v.  Van  Bureu, 
133  Fed.  8,  66  C.  C.  A.  151,  it  is  improper  to  permit  exceptions  to 
be  noted  in  presence  of  jury  and  specification  of  objection  to  be 
noted  in  the  record  later;  Steel  Rail  Supply  Co.  v.  Baltimore  etc. 
Ry.  Co.,  130  Fed.  434,  64  C.  C.  A.  635,  exception  to  so  much  of 
charge  as  states  that  only  question  for  consideration  is  certain  ques- 
tion (loos  not  support  assignment  based  on  failure  to  submit  an- 
other question. 

Syl.  4  (VI,  422).  Collateral  attack — .Judgment  of  court  of  general 
jurisdiction. 

Approved  in  Fowler  v.  Jenks,  90  Minn.  78,  95  N.  W.  889,  appoint- 
ment of  new  trustee  under  Bankr.  Act,  §  44,  on  reopening  bankrupt 
estate,  without  prior  action  on  part  of  creditors,  is  not  invalid  on 
collateral  attack. 

Syl.  5  (VI;  423).  Judgment — Court  of  general  jurisdiction — Spe- 
cial powers. 

Distinguished  in  Taylor  v.  Huntington,  34  Wash.  458,  75  Pac.  1105. 
j'udgment  of  court  of  general  jurisdiction  foreclosing  tax  lien  can- 
not he  vacated  on  ground  that  affidavit  of  publication  did  not  show 
holder  of  delinquency  certificate  had  paid  all  accrued  taxes. 

2    Wall.    450-474,    17    L.    805,    PACIFIC    MAIL    STEAMSHIP    CO.    v. 
JOLIFFE. 

Syl.  1  (VI,  432).     Quasi  contract  for  half  pilotage. 

Approved  in  In  re  United  Button  Co.,  140  Fed.  502,  claim  for  un- 
liquidated damages  resulting  from  injury  to  property  not  reduced 
to  judgment  cannot  be  liquidated  under  Bankr.  Act,  §  G3b. 

Syl.  3    (VI,  432).     Repeal   of  statute — Quasi   contracts. 

Approved  in  Eidman  v.  Tilghman,  136  Fed.  143,  69  C.  C.  A.  139, 
legacies  left  by  testator,  dying  within  one  year  prior  to  amend- 
ment of  1901  to  sections  of  war  revenue  act  taxing  inheritances  are 
not  taxable  thereunder. 

Syl.  4  (VI,  434).     Repealing  statute  same  as  repealed. 

Approved  in  Campbell  v.  California,  200  U.  S.  92,  50  L.  387,  26 
Sup.  Ct.  182,  enactment  of  new  inheritance  tax  law  after  decision 
of  state  court  that  prior  act  did  not  deny  equal  protection  does 
not  convert  federal  question  into  moot  one;  Pratt  v.  Dudley,  73  Ark. 
541,    84    S.    W.    783,    under    repealing    act    of    1901,    relating    to    levee 


■*'  . 


2  Wall.  501-550  Notes  on  U.  S.  Eeports.  392 

districts,  commissioners  created  tliereby  could  recover  from  county- 
treasurer  moneys  collected  by  him  under  levee  act  of  1893;  Wilson 
V.  Head,  184  Mass.  517,  69  N.  E.  318,  construing  amendment  of 
1901  to  act  of  1890,  providing  for  recovery  of  payments  made  on 
sales  on  margin. 

2  Wall.  501-510,  17  L.  851,  LEVY  COURT  v.  CORONER. 

Syl.  1   (VI,  437).     Actions  against  municipality. 

Distinguished  in  Duncan  v.  Willits,  4  Pcnne.  (Del.)  496,  57  Atl. 
370,  action  ex  contractu  does  not  lie  against  county. 

2  Wall.  510-525,  17  L.  900,  RAILROAD  CO.  v.  SOUTLER. 

Syl.  1   (VI,  438).     Following  mandate  of  appellate  court. 

Approved  in  Ex  parte  Marks,  136  Fed.  170,  69  C.  C.  A.  80,  where 
mandate  directed  trial  court  to  take  such  further  proceedings  as,  ac- 
cording to  right  and  justice,  ought  to  be  had,  trial  court  could  cor- 
rect mistake  in   computation  of  interest. 

2  Wall.  525-538,  17  L.  765,  UNITED  STATES  v.  STONE. 

(VI,  439.)  Miscellaneous.  Cited  in  Hollister  v.  United  States,  145 
Fed.  779,  as  to  effect  of  scire  facias. 

Syl.  2   (VI,  440).     Land  officer  cannot  cancel  predecessor's  acts. 

Approved  in  Sage  v.  Rudnick,  91  Minn.  334,  100  N.  W.  108,  pend- 
ency before  Interior  Department  of  asserted  claim  to  public  land 
does  not  suspend  running  of  limitations  in  favor  of  adverse  claim. 

Syl.  4  (VI,  441).     Setting  aside  patent  in  equity. 

Approved  in  United  States  v.  Laam,  149  Fed.  583,  government  may 
sue  in  equity  to  cancel  patent  issued  through  mistake  under  home- 
stead law  to  tract  selected  by  state  as  school  land  where  selection 
had  not  yet  been  approved;  dissenting  opinion  in  United  States  v. 
Ju  Toy,  198  U.  S.  277,  49  L.  1050,  25  Sup.  Ct.  644,  majority  holding 
decision  of  Secretary  of  Labor  affirming  denial  of  immigration  offi- 
cials of  right*  of  Chinese  to  land  is  conclusive  on  federal  courts  on 
habeas  corpus. 

Syl.  6   (VI,  442).     Lands  in  reservation  not  patentable. 

Approved  in  Behrends  v.  Goldsteen,  1  Alaska,  524,  setting  apart  by 
Secretary  of  Navy,  and  use  by  department  for  naval  purposes,  of 
public  lands,  constitutes  valid  reservation  by  executive. 

2  Wall.  538-550,  17  L.  833,  THE  ANN  CAROLINE. 

Syl.  6   (VI,  443).     Admiralty — Allowance  of  interest. 

Distinguished  in  Burrows  v.  Lownsdale,  133  Fed.  251,  66  C.  C.  A. 
650,  interest  not  allowed  on  damages  awarded  in  admiralty  for  per- 
sonal injury. 


393  Notes  on  U.  S.  Eeports.  2  Wall.  550-759 

2  Wall.  550-561,  17  L.  862,  THE  MOENING  LIGHT. 

Syl.  2   (VI,  443).     Collision — Inevitable  accident  defined. 

Approved  in  The  Jumna,  149  Fed.  172,  exonerating  vessels  for  series 
of  collision  in  East  river  following  parting  of  towboat 's  hawser; 
Bleakley  v.  New  York,  139  Fed.  808,  injury  to  scow  by  floating  ir-e, 
left  on  side  of  pier  in  river  at  place  exposed  and  generally  regarded 
as  dangerous  when  ice  moving,  not  caused  by  inevitable  accident; 
The  Cornell,  134  Fed.  697,  applying  rule  where  tows  were  driven 
together  by  sudden  and  severe  windstorm  when  passing  at  proper 
distance;  Kenova  Trans.  Co.  v.  Monongahela  Kiver  etc.  Coke  Co.,  56 
W.  Va.  73,  48  S.  E.  846,  where  during  fog  in  river  in  night  towboat 
with  barges  drifted  down  and  struck  pier  and  one  of  barges  cut 
loose  and  injured  wharf-boat,  injury  caused  by  inevitable  accident. 

2   Wall.  591-605,  17  L.  812,  BEAD  v.  BOWMAN. 

Syl.   1   (VI,  447).     Liability  of  sureties. 

Approved  in  American  Surety  Co.  v.  Campbell  &  Zell  Co.,  138  Fed. 
533,  afl&rming  Campbell  &  Zcll  Co.  v.  American  Surety  Co.,  129  Fed. 
493,  holding  bond  to  discharge  attachment  in  action  by  corporation's 
receiver  is  liable  to  corporation  where  declaration  had  been  amended 
substituting  corporation  for  receiver. 

2  Wall.  609-649,  17  L.  886,  MINNESOTA  CO.  v.  ST.  PAUL  CO. 

Syl.  2  (VI,  448).  Determining  whether  bill  original  or  supple- 
mental. 

Approved  in  O'Connor  v.  O'Connor,  146  Fed.  997,  suit  in  equity  to 
set  aside  dismissal  of  judgment  law  action,  being  ancillary,  service 
may  be  made  on  parties,  though  they  reside  outside  district;  Campbell 
V.  Golden  Cycle  Min.  Co.,  141  Fed.  613,  applying  rule  where  minority 
stockholders  filed  bill  to  enjoin  action  at  law  against  corporation  on 
ground  of  conspiracy  between  plaintiff  and  controlling  stockholders; 
Manning  v.  Berdan,  132  Fed.  384,  bill  in  equity  by  nonresident  de- 
fendant, to  enjoin  prosecution  of  law  action,  against  plaintiff  there- 
in and  nonresident  corporation,  which  is  not  party  to  law  action, 
not  being  ancillary,  must  be  brought  in  district  of  residence  of 
plaintiff  or  defendant;  Nelson  v.  Meehan,  2  Alaska,  494,  where  judg- 
ment obtained  by  fraud  was  appealed  and  judgment  affirmed,  court 
cculd  vacate  judgment  where  pending  final  disposition  of  case  in  dis- 
trict court  defendants,  by  affidavit,  disclosed  fraud. 

2  Wall.  728-759,  17  L.  768.     LOVrLEE  v.  BANGS. 

Syl.  4  (VI,  452).     Stipulation  in  charter-party  as  warranty. 

Approved  in  Eoss-Meehan  Foundry  Co.  v.  Eoyer  Wheel  Co.,  113 
Tenn.  376,  83  S.  W.  168,  68  L.  E.  A.  829,  contract  to  make  and  deliver 
for  three  years  all  castings  required  by  defendant,  each  deliver}^  to 
be  paid  for  within  sixty  days,  may  be  terminated  on  failure  to  make 
payments  as  provided. 


Ill  WALLACE. 


3  Wall.  1-10,  18  L.  129,  LOVEJOY  v.  MURRAY. 

Syl.  3  (VI,  455).     Unsatisfied  joint  judgment  as  bar. 
See  111  Am.  St.  Eep.  287,  note. 

Syl.  4  (VI,  456).     Who  are  joint  trespassers. 

Approved  in  Saxlehner  v.  Eisner,  140  Fed.  941.  where  executive 
officers  of  corporations  controlled  defense  in  infringement  suit  against 
corporation,  suit  lies  to  recover  of  them  individually  damages  therein 
decreed. 

Syl.  5   (VI,  456).     Satisfied  judgment  as  bar  to  second  recovery. 

Approved  in  Carey  1'.  Bilby,  129  Fed.  205,  63  C.  C.  A.  361,  where  one 
claiming  damages  against  two  jointly  for  fraudulent  misrepresentations 
in  sale  accepted  money  from  one  and  executed  release,  reserving  right 
to  sue  other,  release  no  defense  to  action  against  other;  Louisville 
etc.  Mail  Co.  v.  Barnes,  117  Ky.  874,  876,  111  Am.  St.  Eep.  280,  281, 
79  S.  W.  264,  64  L.  R.  A.  574,  acceptance  of  money  from  one  joint  tort- 
feasor in  part  satisfaction  and  in  consideration  of  his  release  from 
further  payment  does  not  preclude  recovery  against  other. 

Syl.  7  (VI,  457).     Unsatisfied  judgment  for  conversion. 
Approved  in  Moss  v.  Marks,  70  Neb.  704,  97  N.  W.  1032,  dismissal  of 
action  for  conversion  is  no  bar  to  replevin. 

Syl.  8  (VI,  458).     When  third  party  concluded  by  judgment. 

Approved  in  Harrington  v.  Atlantic  etc.  Tel.  Co.,  143  Fed.  337, 
majority  stockholder  who  controls  affairs  of  and  transferred  to  cor- 
poration patents  in  violation  of  trust,  is  jointly  liable  with  it  for  in- 
fringement; Australian  Knitting  Co.  v.  Gornily,  138  Fed.  97,  98,  manu- 
facturer of  infringing  article  who  assists  purchaser  in  defending  in- 
fringement suit,  but  who  does  not  control  defense,  is  not  concluded 
by  judgment;  Friend  v.  Ralston,  35  Wash.  433,  77  Pac.  798,  judgment 
by  owner  of  building  against  contractor  for  breach  of  contract  con- 
cludes surety. 

3  Wall.  20-37,  18  L.  125,  THE  PLYMOUTH. 

Syl.  1  (VI,  459).     Admiralty — Locality  of  torts. 

Approved  in  The  San  Rafael,  134  Fed.  752,  railroad  operating  ferry- 
boat may  limit  liability  for  injuries  to  passenger  by  collision  of  boat 
though  passenger  carried  on  through  ticket. 

[394] 


395  Notes  on  U.  S.  Eeports.  3  Wall.  37-96 

Syl.  2  (VI,  460).     Admiralty — Maritime  torts. 

Distinguished  in  United  States  v.  Ev'ans,  195  U.  S.  364,  368,  49  L. 
236,  238,  25  Sup.  Ct.  46,  upholding  admiralty  jurisdiction  over  libel 
against  vessel  for  collision  with  beacon  built  on  piles  in  water. 

3  Wall.  37-46,  18  L.  50,  THE  KIMBALL. 

Syl.  4   (VI,  462).     Charter-party  binding  ship  and  cargo. 

Cited  in  Portland  etc.  Mills  Co.  v.  Portland  etc.  S.  S.  Co.,  145  Fed. 
693,  arguendo, 

Syl.  5  (VI,  462).     Advance  freight  money — Failure  of  carriage. 

Distinguished  in  Burn  Line  v.  United  States  &  Australia  S.  S.  Co., 
150  Fed.  428,  charter  freight  not  recoverable  where  ship  lost  and  bills 
of  lading  provided  that  freight  prepaid  should  be  considered  as  earned 
whether  ship  lost  or  not. 

Syl.  7  (VI,  462).     Note  does  not  discharge  debt. 

Approved  in  The  Winnebago,  141  Fed.  951,  giving  of  notes  by  owner 
of  vessel  under  construction  to  materialman  to  be  used  by  him  to 
raise  funds  is  not  payment  depriving  him  of  lien;  Pflueger  v.  Lewis 
etc.  Mach.  Co.,  134  Fed.  36,  67  C.  C.  A.  102,  where  bankrupt  gave 
checks  in  payment  of  goods  under  agreement  to  provide  funds  in  few 
days,  seller  entitled  to  original  rights  under  sale;  Davis  v.  Thomas, 
66  Neb.  29,  32,  92  N.  W.  1S7,  189,  where  part  payment  made  and  new 
note  given  for  remainder  and  old  note  surrendered,  but  mortgage  re- 
tained, mortgage  was  security  for  renewal  note. 

3  Wall.  51-83,  18  L.  137,  THE  BINGHAMPTON  BRIDGE. 

Syl.  3    (VI,  466).     Charter  rights  against  state  not  presumed. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  472,  50  L.  831,  20  Sup. 
Ct.  427,  Illinois  amendatory  act  of  1865  did  not  extend  right  to  use 
streets  of  Chicago  for  street  railroad  purj^oses  to  ninety-nine  years, 
without  reference  to  time  limit  fixed  by  city;  Knoxville  Water  Co. 
V.  Knoxville;  200  U.  S.  35,  50  L.  359,  26  Sup.  Ct.  227,  municipal  grant 
of  waterworks  franchise  does  not  deprive  city  of  right  to  construct 
own  waterworks;  Story  v.  Woolverton,  31  Mont.  355,  78  Pac.  590, 
congressional  act  granting  state  land  of  former  reservation  did  grant 
right  to  use  water  of  stream  from  which  government  had  taken  water 
by  means  of  ditch  across  other  lands. 

3  Wall.  93-96,  18  L.  33,  SHEBOYGAN  COUNTY  v.  PARKER. 
Syl.  3  (VI,  470).     Commissioners  to  issue  aid  bonds  not  officers. 

Approved  in  Daily  Leader  v.  Cameron,  3  Okl.  682,  41  Pac.  636,  Appro- 
priation Act  of  1895,  §  25,  does  not  create  office  of  public  printer. 


3  Wall.  97-145  Notes  on  U,  S.  Eeports.  396 

3  Wall.  97-105,  18  L.  49,  SPARROW  v.  STRONG, 

Syl.  1  (VI,  471).     Appeal — Ifismissal — Record  not  filed  in  time. 
Approved  in  Perkins  v.  Boyd,  17  Colo.  App.  448,  68  Pac.  1062,  failure 
to  file  record  within  time  specified  by  Code,  §  389,  not  ground  for  dis- 
missal where  filed  prior  to  motion  to  dismiss. 

3  Wall.  107-114,  18  L.  170,  YORK  CO.  v.  CENTRAL  R.  R.  CO. 

Syl.  1  (VI,  473).     Contract  restricting  carrier's  liability. 

Approved  in  Cau  v.  Texas  etc.  Ry.  Co.,  194  U.  S.  430,  48  L.  1056, 
24  Sup.  Ct.  663,  following  rule;  Ficklin  v.  Wabash  R.  R.  Co.,  117  Mo. 
App.  226,  93  S.  W.  848,  where  contract  valued  cattle  at  $50  per  head, 
and  provided  that  valuation  was  made  to  obtain  reduced  rate  and  limit 
carrier's  liability,  and  there  was  no  other  rate  for  cattle  of  such  valu- 
ation, carrier's  liability  not  limited. 

Syl.  6  (VI,  477).  Consideration — Contract  limiting  carrier's  lia- 
bility. 

Approved  in  Cau  v.  Texas  etc.  Ey.  Co.,  194  XT.  S.  431,  48  L.  1057, 
24  Sup.  Ct.  663,  following  rule;  Arthur  v.  Texas  etc.  Ry.  Co.,  139  Fed. 
129,  upholding  sufficiency  of  consideration  expressed  in  bill  of  lading 
for  carriage  of  cotton  to  support  provision  exempting  carrier  from 
liability  for  loss  by  fire. 

3  Wall.  114-145,  18  L.  116,  CLIQUOT'S  CHAMPAGNE. 

Syl.  4  (VI,  479).     Evidence  to  prove  market  value. 

Approved  in  American  Bonding  Co.  v.  Regents  of  Idaho  University, 
11  Idaho,  192,  81  Pac.  614,  admitting  testimony  of  witness  engaged  in 
plumbing  business  for  over  five  years  as  to  difference  in  price  of  ma- 
terials used  in  building  and  kind  contract  calls  for,  though  he  fixes 
difference  from  wholesaler's  catalogue;  McCrary  v.  Chicago  etc.  R.  R. 
Co.,  109  Mo.  App.  572,  83  S.  W.  83,  evidence  by  shipper  as  to  price  paid 
for  cattle  at  certain  market  on  certain  day  not  hearsay,  though  he  was 
present  only  during  part  of  day;  Cameron  Mill  etc.  Co.  v.  Anderson. 
34  Tex.  Civ.  232,  78  S.  W.  972,  physician  who  has  never  employed 
nurse,  and  has  no  personal  knowledge  of  compensation  of  "nurses,  can- 
not testify  as  to  reasonable  and  customary  compensation  of  pro- 
fessional nurse. 

Syl.   9    (VI,  480).     Seizures— Burden   of  proof. 

Approved  in  Low  Foon  Yin  v.  United  States  etc.  Commr.,  145  Fed. 
796,  upholding  provision  of  Chinese  Exclusion  Act  of  1892,  placing 
burden  of  proof  of  right  of  Chinese  without  certificate  to  remain  in 
United  States  on  him. 

Syl.  12  (VI,  481).     Revenue  laws  not  penal. 

Approved  in  Scow  No.  36,  144  Fed.  934,  vessel  used  in  depositing 
refuse  matter  in  navigable  waters  is  subject  to  penalty  imposed  by 
Comp.  St.  1901,  pp.  3542,  3544,  though  act  was  without  knowledge  of 


397  Notes  on  U.  S.  Reports.  3  ^Va]l.  140-11)0 

owners;  State  v.  Western  Union  Tel.  Co.,  96  Minn.  19,  104  X.  W. 
570,  upholding  Laws  1901,  p.  251,  authorizing  taxation  of  tangible  and 
intangible  property  of  telegraph  companies  as  system. 

3  Wall.  145-149,  18  L.  121,  FENNEESTEIN'S  CHAMPAGNE. 

Syl.  1  (VI,  482).     Admissibility  of  letters  to  show  market  value. 

Approved  in  United  States  v.  Greene,  146  Fed.  795,  book  entries 
regularly  made  and  contemporaneously  with  transactions  are  admis- 
sible in  criminal  prosecution;  Cameron  Mill  etc.  Co.  v.  Anderson,  34 
Tex.  Civ.  232,  78  S.  W.  972,  physician  who  is  not  nurse  and  has  never 
employed  one,  and  has  no  personal  knowledge  of  their  compensation, 
cannot  testify  as  to  their   reasonable  and  customary  compensation. 

3  Wall.  164-174,  18  L.  85,  THE  LOUISIANA. 

Syl.   1    (VI,   485).     Collision — Inevitable   accident — Drifting   vessel. 

Approved  in  The  William  E.  Reis,  143  Fed.  1015,  where  moored 
vessel  broke  mooring  after  rise  in  river  caused  by  flood  and  collided 
with  another  vessel,  she  was  liable,  lines  not  being  properly  adjusted; 
Eebstoek  v.  Gilchrist  Transp.  Co.,  132  Fed.  177,  holding  where  vessel 
moored  away  from  channel  and  opposite  bend  in  river,  she  was  not 
in  fault  for  collision  with  towed  vessel  which  failed  to  make  turn; 
The  Drunieraig,  133  Fed.  804,  breaking  of  ship  from  moorings  and 
her  drifting  into  collision  not  inevitable  accident  where  there  was 
warning  of   approach   of  storm,  requiring  putting  out   of  more   lines. 

Syl.  4  (Vr,  486).  Collision — Inevitable  accident — Breaking  of  moor- 
ings. 

Approved  in  Bleakley  v.  New  York,  139  Fed.  808,  crushing  of  vessel 
by  floating  ice  not  caused  by  inevitable  accident  where  left  on  ex- 
posed side  of  pier,  which  was  regarded  as  dangerous  when  ice  moving 
in  river. 

3  Wall.  175-196,  18  L.  186,  BLACKBURN  v.  CRAWFORDS. 

Syl.  4   (VI,  487).     Baptismal  register  as  evidence. 

Approved  in  Collins  v.  German-American  etc.  Life  Assn.,  112  Mo. 
App.  219,  86  S.  W.  894,  following  rule;  Casley  v.  Mitchell,  121  Iowa, 
98,  96  N.  W.  726,  admitting  register  of  parish  in  England  to  prove 
marriage  recorded  therein  by  vicar. 

Syl.  5  (VI,  487).  Transcript  of  court  record  as  evidence  of  illegiti- 
macy. 

Approved  in  Sorensen  v.  Sorensen,  68  Neb.  496,  497,  98  N.  W.  839, 
decree  denying  alleged  widow  was  decedent 's  widow  in  proceeding 
for  nomination  of  administrator  not  binding  on  one  claiming  to  be 
legitimate  son  of  woman   and   decedent,  on   petition  for  distribution. 

Syl.  8  (VI,  488).     Privilege — Statements  by  testator  to  attorney. 
Approved  in  Ex  parte  Gfeller,  178  Mo.  268,  77  S.  W.  558,  decedent's 
attorney  in  discovery  proceedings  in  matter  of  estate  may  be  asked 


3  Wall.  196-275  Notes  on  U.  S.  Eeports.  398 

when  lie  last  saw  certain  securities  belonging  to  decedent,  and  wbetlior 
at  her  death  he  had  any  money  belonging  to  her. 

Syl.  9  (VI,  488).     Waiver  of  privilege  by  client. 

Approved  in  Denuzio  v.  Scholtz,  117  Ky.  192,  77  S.  W.  716,  where 
attorney  employed  to  incorporate  business  was  told  by  owner  that 
he  would  give  employer  stock,  and  on  employment  to  prepare  owner  's 
will  was  told  stock  had  been  given,  he  may  testify  thereto. 

3  Wall.  196-210,  18  L.  243,  BLOSSOM  v.  EAILEOAD  CO. 

Syl.   1    (VI,  489).     Unaccepted  highest   bid — Eight  to   confirmation. 
See  97  Am.  St.  Eep.  661,  note. 

Syl.  6   (VI,  491).     Judicial  sales — Discretion  of  officers  to  adjourn. 
See  97  Am.  St.  Eep.  655,  note. 

3  Wall.  210-214,  18  L.  180,  TUENPIKE  CO.  v.  THE  STATE. 

Syl.  1  (VI,  491).     Nonexclusive  corporate  privileges. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  .37,  50  L. 
361,  26  Sup.  Ct.  24,  municipal  grant  of  waterworks  franchise  does  not 
devest  city  of  power  to  construct  own  system. 

3  Wall.  225-2.31,  18  L.  194,  THE  CONVOY'S  WHEAT. 

Syl.  3  (VI,  493).  Obstacle  to  delivery  to  connecting  carrier — 
Notice. 

Approved  in  Fisher  v.  Boston  etc.  E.  E.  Co.,  99  Me.  343,  105  Am. 
St.  Eep.  283,  59  Atl.  534,  68  L.  E.  A,  390,  following  rule. 

8  Wall.  236-240,  18  L.  48,  TEEEITOEY  v.  LOCKWOOD. 

Syl.  2  (VI,  494).     Quo  warranto — Parties. 

Approved  in  dissenting  opinion  in  McDaid  v.  Territory,  1  Okl. 
112,  30  Pac.  444,  majority  upholding  territorial  court's  jurisdiction  to 
issue  mandamus  to  compel  townsite  trustees  to  issue  deed  to  party 
they  have  decided  is  entitled  thereto,  and  from  whom  they  withhold 
deed  merely  because  there  is  right  to  appeal  from  their  decision. 

3  Wall.  257-268,  18  L.  271,  NEWELL  v.  NOETON  AND  SHIP. 

Syl.  1   (VI,  496).     Admiralty — Dismissal  as  to  part  of   defendants. 

Approved  in  The  San  Eafael,  141  Fed.  280,  where  exceptions  to  libel 
against  vessel  and  owner  sustained  for  misjoinder,  libel  may  be 
amended  to  declare  against  vessel  alone;  Graham  v.  Oregon  etc.  Nav. 
Co.,  134  Fed.  693,  upholding  amendment  of  libel  in  admiralty  to  show 
jurisdiction. 

3  Wall.  268-275,  18  L.  165,  THE  OTTAWA. 

S;,-!-!.  2   (VI,  498).     Collision — Vigilant  lookout  necessary. 

Approved  in  Brigham  v.  Luckenbach,  140  Fed.  326,  applying  rule 
where  master  was  lookout  and  was  in  pilot-bouse;  The  Sitka,  132  Fed. 


399  Notes  on  U.  S.  Keports.  3  Wall.  291-320 

8G4,  holding  steamer  leaving  anchorage  at  night  liable  for  collision 
with  steamer  passing  with  tow,  where  steamer's  lookout  not  vigilant; 
The  Tarpon,  132  Fed.  278,  applying  rule  where  steamer  collided  with 
drifting  scow;  The  Echo,  131  Fed.  631,  master  of  steamer  on  roof  of 
boat  is  not  proper  lookout;  The  Dauntless,  129  Fed.  722,  64  C.  C.  A. 
243,  holding  steamer  at  fault  for  collision  in  river  with  launch. 

3  Wall.  294-304,  18  L.  38,  HAVP^MEYER  v.  IOWA  COUNTY. 

Syl.  2  (VT,  499).     Impairment  of  contracts  by  decisions. 

Approved  in  Commrs.  of  Onslow  Co.  v.  Tollman,  145  Fed.  763,  fed- 
eral courts  put  own  construction  on  state  constitution  whore  at  time 
of  issuance  of  county  aid  bonds  there  was  no  state  construction  of 
constitutional   provision   relating   thereto. 

3  Wall.  310-315,   18  L.   179,  THE  CRANTTE  STATM. 

Syl.  1  (VI,  502).     Fault  whore  barge  moored  out  of  track. 

Distinguished  in  The  Millville,  137  Fed.  975,  vessel  moored  at  end 
of  pier  on  dark  night  in  narrow  channel  constantly  traversed  by  craft 
and  not  having  lights,  cannot  recover  for  collision  with   passing  tow. 

Syl.  2  (VI,  502).     Collision — Fault  where  moored  vessel  struck. 

Approved  in  The  Degama,  150  Fed.  324,  fact  that  moving  vessel 
colliding  with  moored  barge  not  exonerated  because  being  handled 
by  tugs  controlling  her  movements,  unless  defense  pleaded  and  proved; 
Rebstock  v.  Gilchrist  Transp.  Co.,  132  Fed.  177,  vessel  moored  at  side 
of  channel  opposite  bend  not  liable  for  collision  with  tow  where  she 
was  not  in  channel. 

Syl.  3   (VI,  503).     Damages — Cost  of  repairs. 

Approved  in  The  Mobila,  147  Fed.  883,  measure  of  damages  for  total 
loss  of  vessel  by  collision  is  market  value  at  time  of  loss  determinable 
from  opinions  of  experts. 

3  Wall.  315-320,  IS  L.  76,  THE  SUFFOLK  CO.  v.  HAYDEX. 

Syl.  1   (VI,  504).     Abandonment  of  patent — Second  application. 

Approved  in  Kinnear  Mfg.  Co.  v.  Wilson,  142  Fed.  973,  where, 
pending  application  for  patent  and  after  notice  of  rejection  of  one 
of  claims,  applicant  applied  for  another  patent  in  which  he  incor- 
porated claim  substantially  like  rejected  one,  and  after  allowance  of 
last  he  canceled  rejected  claim  of  first,  there  was  no  abandonment 
of  claim  as  allowed;  Thomson-Houston  Elec.  Co.  v.  Black  River  Tr. 
Co.,  135  Fed.  764,  68  C.  C.  A.  461,  upholding  Van  Depoeli  reissue  No. 
11,872,  for  traveling  contract  for  electric  railroads. 

Syl.   2    (VI,   504).     Patents — Second    application. 

Approved  in  Dodge  Coal  Storage  Co.  v.  New  York  etc.  R.  R.  Co., 
139  Fed.  982,  holding  void  Priz  &  Beaumont  patents  Nos.  668,960 
and  688,111,  for  coal  storage  apparatus  granted  on  division  of  same 
application- 


3  Wall.  327-347  Notes  on  U.  S.  Beports.  400 

Syl.    5    (VI,    505).     Infringement — Damages — Value    of    use. 

Approved  in  Brown  v.  Lanyon,  148  Fed.  839,  action  at  law  not 
maintainable  for  sole  purpose  of  recovering  profits  which  infringer 
of  patent  has  made;  Dolen  v.  City  of  Boston,  138  Fed.  409,  owner 
of  patent  may  recover  from  user  of  infringing  device  as  profits 
amount   saved  by  substitution  of  such   device. 

3  Wall.  327-332,  18  L.  177,  THOMPSON  v.  LEE   COUNTY. 

Syl.  4   (VI,  510).     Retrospective   curative  bond   acts. 

Approved  in  Whitlock  v.  Hawkins,  105  Va.  259,  53  S.  E.  406, 
upholding  act  of  1906,  confirming  assessments  made  in  compliance 
with   act   of   1903. 

3   Wall.   332-334,   18   L.   42,  MINNESOTA   CO.   v.   NATIONAL  CO. 

Syl.  1  (VI,  513).     Law  not  changed  where  court's  personnel  changed. 

Approved  in  Lockhart  v.  Leeds,  12  N.  M.  164,  76  Pac.  314,  judg- 
ment against  plaintiff  on  bill  to  declare  mine  location  void  for 
fraud  and  collusion  by  defendants  and  violation  of  agreement  to 
locate  claim  for  plaintiff  bars  suit  to  have  property  declared  to  be 
held    in    trust. 

(VI,  513).  Miscellaneous.  Cited  in  State  v.  Jennings,  47  Fla.  321, 
35  So.  993. 

3  Wall.  334-347,  18  L.  257,  BUCK  v.  COLBATH. 

Syl.   2    (VI,   514).     Custodia  legis- — Property   seized   under   process. 

Approved  in  In  re  Moody,  131  Fed.  529,  bankruptcy  court  may,  by 
receiver,  take  property  in  possession  of  adverse  claimant,  which 
is  alleged  to  have  been  fraudulently  transferred,  and  may  determine 
question  of  ownership;  Tobin  v.  Central  Vermont  Ry.  Co.,  185  Mass. 
341,  70  N.  E.  433,  where  railroad's  assets  sold  by  federal  receiver, 
state  court  has  no  jurisdiction  of  action  for  personal  injuries  sus- 
tained by  employee  of  receiver;  French  v.  White,  78  Vt.  96,  62  Atl. 
36,  2  L.  R.  A.  (N.  S.)  804,  property  vesting  in  bankruptcy  trustee 
is   not   subject   to   state   attachment. 

Syl.    6    (VI,   517).     Process    directing   seizure — Liability   of   officer. 

Approved  in  McKnight  v.  United  States,  130  Fed.  666,  65  C.  C. 
A.  37,  sheriff  liable  for  levying  attachment  against  man  on  Indian 
wife's  cattle  on  reservation  which  bore  her  own  and  Indian  De- 
partment's  brands,   though   running    with   husband's   cattle. 

Syl.    8    (VI,    519).     Concurrent    jurisdiction — Priority. 

Approved  in  Guaranty  Trust  Co.  v.  North  Chicago  St.  R.  Co., 
130  Fed.  807,  65  C.  C.  A.  65,  pendency  in  federal  court  of  cred- 
itor's suit  against  street  railway  for  which  receiver  appointed, 
but  whose  road  is  operated  under  lease  by  federal  receiver  of  lessee 
does  not  bar  state  to  enjoin  delivery  of  new  lease. 


401  Notes  on  U.  S.  Reports.  3  Wall.  3S2-407 

Syl.   ]0    (VI,   520).     State   suit    against    marshal- — Wrongful   seizure. 

Approved  in  Guaranty  Trust  Co.  v.  North  Chicago  St.  R.  Co., 
130  Fed.  805,  806,  65  C.  C.  A.  65,  pendency  in  federal  court  of 
creditor's  suit  against  street  railway  for  which  receiver  appointed, 
but  whoso  road  is  operated  un<ler  lease  by  federal  receiver  of  lessee, 
does    not    bar   state    suit    to    enjoin    delivery    of    new   lease. 

Distinguished  in  In  re  Mortens,  131  Ted.  515,  where  sale  of 
goods  is  rescinded  !)y  seller  for  fraud  after  buyer's  bankruptcy, 
b;Lnkru|)tcy  court  may  enjoin  claimant  from  suing  receiver  in  state 
court    for    conversion    of    proceetls. 

3  Wall.   382-387,   18  L.   164,  McGUIRE   v.   THE  COMMONWEALTH. 

Syl.   2    (VT,  524).      Error  to   court   rendering   final   decree. 

Distinguished  in  Kentucky  v.  Powers,  139  Fed.  489,  upholding 
right  of  removal  of  criminal  case  to  federal  court  whore  defendant 
denied    equal    protection    of    laws    in    selection    of    jury. 

3  Wall.   387-396,   18  L.  226,  McGUrRE   v.   THE  COMMONWEALTH. 

Syl.    1    (VT,  525).     Federal   liquor  license— State   law. 

Approved  in  In  re  Heff,  197  U.  S.  505,  49  L.  855,  25  Sup.  Ct. 
506,  sale  of  liquor  within  state  to  Indian,  to  whom  allotment  made 
under  Act  of  1887,  violates  29  Stat.  506,  c.  109;  Hodge  v.  Muscatine 
Co.,  196  U.  S.  280,  49  L.  481,  25  Sup.  Ct.  237,  upholding  Iowa  Code, 
§  5007,  making  tax  imposed  thereby  on  business  of  selling  cigarettes 
[ien  on  premises  where  «igarcttes  sold;  Newton  v.  McKay,  130  Iowa, 
599.  102  N.  W.  828,  Code,  §§  2433,  2447,  relating  to  mult  taxes  on 
sale  of  liqiior,  impose  tax  and  not  license,  and  is  collectible  by 
summary    proceedings.     See    104    Am.    St.    Rep.    314,    note. 

3   Wall.    396-407,    18   L.    34,    COMSTOCK   v.    CRAWFORD. 

Syl.    1    (VI,   526).     Judgment — Collateral   attack   for   irregularities. 

Approved  in  White  v.  Martin,  2  Alaska,  498,  judgment  of  probate 
court  decreeing  person  insane  and  appointing  guardian  of  his  estate 
Is  not  collaterally  attackable;  Beresford  v.  American  Coal  Co.,  124 
Iowa,  37,  98  N.  W.  903,  question  of  defect  in  administrator's  bond 
cannot  be  raised  in  action  brought  by  administrator;  Larson  v 
Union  P.  R.  Y.,  70  Neb.  266,  97  N.  W.  315,  appointment  of  admin- 
istrator contrary  to  Comp.  St.  1901,  c.  23,  §  173,  providing  order 
of  appointment,  not  collaterally  attackable. 

Syl.  1    (VI,  527).     Collateral  attack  on  probate  sale. 

Approved    in    Threadgill    v.    Colcord,    16    Okl.    470,    85    Pac.    710, 
where    purchaser    at    master's    sale    under    decree    is    party    to    suit, 
he    cannot    collaterally    attack    decree. 
2S 


5  Wall.  407-494  Notes  on  U.  S.  Keports.  402 

3   Wall.   407-420,   18   L.   1S2,  UNITED   STATES  v.   HOLIDAY. 

Syl.  1  (VI,  52S).  Circuit  and  district  courts'  criminal  jurisdic- 
tion. 

Approved  in  Renfrew  v.  United  States,  3  Old.  166,  41  Pac.  90,  sale 
of  liquor  to  Indian  who  has  received  allotment  of  land  in  Kausas 
and   become   elector  of   state    violates   Eev.   St.,    §    2139. 

Syl.    3    (VI,    529).     Commerce    v/ith   Indians— Sale    of    liquor. 

Approved  in  Renfrow  v.  United  States,  3  Okl.  170,  171,  41  Pac.  91, 
sale  of  liquor  to  Indian  who  has  received  allotment  of  land  in 
Kansas  and  become  elector  of  state,  violates  Rev.  St.,  §   2139. 

3  Wall.  420-424,  18  L.  263,  DE  SOBRY  v.  NICHOLSON. 

Syl.    2    (VI,   530).     Jurisdiction — New    contract   by   diverse    citizen. 

Approved  in  Paige  v.  Town  of  Rochester,  137  Fed.  665,  where 
assignee  of  town  railroad  aid  subscription  could  sue  alone  in  federal 
courts,   he  and   his  assignees   can   sue   there   together. 

3   Wall.   448-460,   18   L.   245,   GREEN   v.  VAN   BUSKIRK, 

Syl.  1  (VI,  534).     To  what  court  error  issues. 

Distinguished  in  Kentucky  v.  Powers,  139  Fed.  489,  upholding 
right  of  removal  of  criminal  case  to  federal  court  where  defendant 
denied  equal   protection   of  laws  in  selection   of  jury. 

3   Wall.   451-460,   18  L.   197,  THE  SALLY  MAGEE. 

Syl.   2    (VI,  534).     Bill  of  lading  vests  title  in  consignee. 
See  105  Am.  St.  Rep.  355,  note. 

3  Wall.  460-478,  18  L.  265,  SIMPSON  v.  DALL. 

Syl.  2  (VI,  535).  Secondary  evidence — Exhaustion  of  means  of 
discovery. 

Approved  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  301. 
refusing  secondary  evidence  of  contents  of  books  of  distiller  where 
books  had  been  taken  from  him  by  collector  and  removed  to  lat- 
ter's  ofGce,  and  thence  to  revenue  agent's  oflice,  and  proof  made  of 
search  in  latter 's  office  but  not  in  collector's;  Avery  v.  Stewart, 
134  N.  C.  295,  296,  46  S.  E.  522,  523,  testimony  of  witness  that  he 
received  certain  letter,  and  that  it  was  lost  and  he  eould  not  find  it, 
does  not  warrant  admission   of  secondary  evidence. 

3  Wall.  478-494,  18  L.  88,  BEARD  v.  FEDERY. 

Syl.  1   (VI,  536).     Land  patent — Relation  back. 

Approved  in  United  States  v,  Anderson,  194  U.  S.  399,  48  L.  1039, 
24  Sup.  Ct.  716,  government  cannot  retain,  as  against  grantees  of 
indemnity  railroad  lands,  sum  collected  for  removal  of  stone  and 
timber  during  period  between  selection  of  lands  and  approval  of 
selection;  Peyton  v.  Desmond,  129  Fed.   12,  63  C.  C.  A.  651,  home- 


403  Notes  on  U.  S.  Reports.  3  "Wall.  495-603 

stead  patentee  may  recover  value  of  timber  wrongfully  cut  and  re- 
moved from  land  after  initiation  of  claim  and  prior  to  issuance  of 
patent. 

3   Wall.   495-ni4,   18    L.   207,   BANK    FOR    SAVINGS  v.   THE   COL- 
LECTOR. 

Syl.   2   (VI,  538).     Bank  defined. 

Approved  in  Hamilton  Nat.  Bank  v.  American  Loan  &  T.  Co.,  6fi 
Neb.  72,  92  N.  W.  191,  corporation  organized  to  negotiate  loans, 
])ureiiase  and  soil  notes  and  mortgages  and  receive  deposits  and 
execute  trusts,  is  bank  whose  stockholders  are  liable  under  Const., 
art.    lib,    §    7. 

o  Wall.  5()4-r)()fi,  18  L.  168,  THE  DUORO. 

Syl.   1    (VI,  541).     Frivolous  appeals  condemned. 

Approved  in  MeCourt  v.  Singers-Bigger,  150  Fed.  104,  decree  ad- 
judging subsequent  issues  not  determined  by  earlier  decree  which 
was    basis    of    appellate    mandate    is   ajipealable. 

3  Wall.  573-C03,  18  L.  229,  VAN  ALLEN  v.  THE  ASSESSORS. 
Syl.   1    (VI,  541).     Uniformity — State  tax  on  national  bank  shares. 
Approved    in    First    National    Bank   v.    Douglas    Co.,    124    Wis.    21, 

102  N.  W.  317,  real  estate  belonging  to  national  bank  acquired  with 
and   constituting  part  of   capital   stock  is  exempt   from  taxation. 

Syl.   2    (VI,  542).     State   tax  on   national  bank   shares. 

Approved  in  People's  Sav.  Bank  v.  Layman,  134  Fed.  638,  under 
Code  Iowa,  §  1322,  savings  bank  not  entitle^l  to  deduction  of 
amount  of  government  bonds  held  by  it,  in  making  assessment; 
Consolidated  Nat.  Bank  v.  Pima  Co.,  5  Ariz.  150,  48  Pae.  295,  up- 
holding Acts  Ariz.,  April  13,  1893,  taxing  shares  of  stock  in  national 
bank;  First  National  Bank  v.  City  of  Independence,  123  Iowa, 
484,  99  N.  W.  143,  in  estimating  value  of  stock  in  bank  for  purpose 
of  taxation,  value  of  government  bonds  owned  by  bank  may  be 
considered. 

Syl.  3  (VI,  544).     Tax  on  national  bank  shares  not  on  capital. 

Approved  in  Delaware  etc.  R.  R.  Co.  v.  Pennsylvania,  198  U.  S. 
354,  49  L.  1082,  25  Sup.  Ct.  669,  value  of  coal  mined  by  domestic 
corporation  in  state  but  situated  elsewhere  cannot  be  considered  in 
appraising    capital    stock    for    taxation;    Wilkens    Co.    v.    Baltimore, 

103  Md.  313,  63  Atl.  5G5,  under  Gen.  Laws  1904,  art.  81,  §§  2,  4, 
where  principal  place  of  business  of  foreign  corporation  was  within 
Btate,  fact  that  four-fifths  of  preferred  stock  was  held  by  residents 
and  taxable  did  not  exempt  corporation's  tangible  property  within 
state;  Stroh  v.  Detroit,  131  Mich.  116,  90  N.  W.  1032,  under  Pub. 
Acts  1893,  No.  206,  §  8,  shares  in  foreign  corporations  are  exempt 
from   taxation   when    its   property    is   taxable    in    state;    Old    National 


3   Wall.  636-743  Notes  on  U.  S.  Ecports.  404 

Bank  v.  State,  58  W.  Va.  561,  562,  52  S.  E.  495,  government  bonds 
held  by  national  bank  as  part  of  its  capital  are  not  taxable  by 
-ounty;  First  National  Bank  v.  Douglas  Co.,  124  Wis.  22,  102  N.  W.  318, 
real  estate  belonging  to  national  bank  acquired  with  and  constituting 
part  of  capital  stock  is  exempt  from  taxation;  dissenting  opinion 
in  Consolidated  Nat.  Bank  v.  Pima  Co.,  5  Ariz.  151,  48  Pac.  295, 
majority  upholding  Acts  Ariz.,  April  13,  1893,  taxing  shares  of 
Btock  in   national   bank. 

3  Wall.  636-642,  18  L.  262,  YOUNG  v.  GUILBEAU. 

Syl.   5   (VI,  550).     Delivery  of  deed  essential  to   transfer. 

Approved  in  Brumby  v.  Jones,  141  Fed.  323,  bankruptcy  court 
cannot  entertain  plenary  suit  by  third  person  to  cancel  satisfac- 
tion of  mortgage  and  declare  trust  in  bankrupt 's  mortgaged  prop- 
erty, which   is  not   in  possession  of   bis  trustee. 

3   Wall.   654-672,   18  L.   79,   EOGEES  v.   BURLINGTON. 

Syl.  1  (VI,  550).  Bill  of  exceptions  unnecessary  to  review  de- 
murrer. 

Approved  in  Nichols  v.  Board  of  Conimrs.  of  Weston  Co.,  13  Wyo. 
8,  76  Pac.  682,  final  judgment  unsupported  by  pleadings  or  findings 
may  be  vacated  on  error,  on  record  proper  without  bill  of  excep- 
tions. 

Syl.  3   (VI,  551).     Municipalities  controllable  by  legislature. 
See  97  Am.   St.   Rep.   349,  note. 

3   Wall.   68S-703,   17   L.   268,   UNITED   STATES   v.   DASHIEL. 

Syl.  2   (VI,  555).     Appeal  does  not   affect  property  executed   on. 

Approved  in  Thalhcim  v.  Camp  Phosphate  Co.,  48  Fla.  195,  37  So. 
525,  Rev.  St.  1892,  §  1272,  does  not  restore  personalty  previously 
levied  on  to  possession  of  execution  defendant,  nor  impair  lien  of 
execution   levy. 

3  Wall.   713-743,   18  L.  96,  GILMAN  v.  PHILADELPHIA. 

S}^.    2     (VI,    556).     Congressional    control    of    navigable    waters. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  386,  up- 
holding power  of  government  to  compel  alteration  of  bridge  over 
navigable  stream  where  it   obstructs  navigation. 

Syl.  6  (VI,  558).  Exclusivcness  of  congressional  commerce  regu- 
lations. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  391, 
392,  upholding  power  of  government  to  compel  alteration  of  bridge 
over  navigable  stream   where  it  obstructs   navigation. 

Syl.  9   (VI,  562).     State's  concurrent   exercise  of  power. 
Approved    in    Manigault    v.    Springs,    199    U.    S.     478,    50     L.    278, 
26  Sup.  Ct.  127,  upholding  right  of  state  to  build  dam  across  former 


405  Notes  ou  U.  S.  Reports,  4  Wall.  2-185 

navigable    stream    to    promote    general    health;  Kansas    City    etc.    R. 

R.    Co.    V.    Wiygul,    82    Miss.    231,   33    So.    967,  61   L.    R.    A.   578,   in 

absence   of   congressional   regulation   state   may  authorize   erection   of 
bridge    across   navigable    stream. 

Syl.  10  (VI,  562).  Police  power — Regulation  of  liquor  and 
quarantine. 

Approved  in  Chicago  etc.  Ry.  Co.  v.  Illinois,  200  U.  S.  592,  50 
L.  609,  26  Sup.  Ct.  341,  Illinois  drainage  commissioners  may  impose 
on  railroad  entire  cost  of  removing  and  rebuilding  bridge  made 
necessary  by  deepening  of  channel. 


IV  WALLACE. 


4  Wall.   2-142,   18  L.   281,   EX  PARTE   MILLIGAN. 

Syl.   2    (VI,   566).     Habeas   corpus   as   matter   of   right. 

Approved  in  In  re  Burkell,  2  Alaska,  110,  habeas  corpus  does  not 
lie  where  prisoner  confined  under  sentence  at  hard  labor  when 
statute    does    not    authorize    hard    labor. 

Syl.   11    (VI,   569).     When   martial  lew  justified. 

See   98   Am.   St.   Rep.    774,   note. 

Syl.   12    (VI,   569).     Court-martial — Trial   of   nonmilitary   person. 

See   111  Am  St.  Rep.  936,  note. 

4  Wall.   158-163,  18  L.   354,  UNITED  STATES  v.  HOFFMAN. 

Syl.    1    (VI,   572).     Nature   of   writ   of   prohibition. 

See  111  Am.  St.  Rep.  969,  note. 

Syl.   4    (VI,   573).     Prohibition   not   issuable   when. 

Approved  in  State  v.  Ryan,  180  Mo.  52,  79  S.  W.  435,  where  state 
arbitration  board  has  applied  for  citation  in  contempt  proceedings 
for  failure  to  testify  before  board,  prohibition  to  restrain  circuit 
judge  before  issuance  of  citation   is  premature. 

4  Wall.  177-181,  18  L.  381,  RAILROAD  CO.  v.  ROCK. 

Syl.    3    (VT,    576).     Federal    question — Impairment    of    contracts. 

Cited  in  State  ex  rel.  Louisiana  Imp.  Co.  v.  Board  of  Assessors, 
111  La.  1001,  36  So.  98,  arguendo. 

4  Wall.   182-185,   18   L.   319,   UNITED   STATES   v.   DASHIEL. 

Syl.  1    (VI,  577).     Ofl5cer's  liability  for  loss  by  robbery. 

Approved  in  Van  Trees  v.  Territory,  7  Okl.  363,  54  Pac.  498,  fact 
that  county  moneys  deposited  in  solvent  bank  which  afterward 
failed  is  no  defense  to  action  on  treasurer's  bond. 


4  Wall.  1S6-'J20  Notes  on  U.  S.  Eeports.  406 

4  Wall.   186,  187,  18  L.  321,  UNITED  STATES  v.   ALLSBUEY. 

Syl.   1    (VI,  579).     Surety's  liability  not  greater  than  principal's. 

Approved  in  Hardaway  v.  National  Surety  Co.,  150  Fed.  482, 
following   rule. 

4  Wall.  187-189,  18  L.  333,  LEFTWICH  v.  LECANU. 

Syl.   1    (VI,  579).     Bill  of   exceptions— Exhibits. 

Approved  in  Tracy  v.  Carver  Coal  Co.,  57  W.  Va.  590,  50  S.  E. 
S26,  applying  rule  to  evidence  taken  down  and  transcribed  by  short- 
hand reporter. 

4  Wall.  189-196,  18  L.  416,  MAYOR  v.  SHEFFIELD. 

Syl.    2    (VI,    580).     Municipality's    liability    for    defective    streets. 

Approved  in  City  of  Guthrie  v.  Swan,  5  Okl.  783,  51  Pac.  564,  fol- 
lowing   rule. 

4   Wall.    196-204,    18   L.   322,   CHRISTY   v.    PRIDGEON. 

Syl.   2    (VI,   582).     Following   state    decisions. 

Approved  in  Reed  v.  Munn,  148  Fed.  749,  where  claimants  of  con- 
flicting mining  locations  conveyed  interests  to  trustee  to  adjust 
controversy,  equitable  interest  of  beneficial  owners  under  trust 
agreement  was  seizable  under  execution;  Whitman  v.  Atkinson, 
130  Fed.  761,  65  C.  C.  A.  185,  applying  rule  to  action  against  stock- 
holders on  statutory  liability  under  Kan.  Gen.  St.  1889,  c.  23, 
S§  32,  44;  York  v.  Washburn,  129  Fed.  567,  569,  64  C.  C.  A.  132, 
oral  contract  for  letting  of  realty  located  in  Minnesota  for  more 
than  one  year,  not  complying  with  statute  of  frauds  of  such  state. 
is  not  void  and  lessee  cannot  recover  earnest-money. 

4   Wall.    210-220,   IS   L.   339,   WITHEKSPOON   v.   DUNCAN. 

Syl.    1    (VI,   582).     Following   state    construction   of   tax   laws. 

Approved  in  Hertzler  v.  Freeman,  12  N.  D.  189,  96  N.  W.  295, 
assessment  of  realty  in  name  of  another  than  owner  does  not  render 
tax    void. 

Syl.  3   (VI,  583).     When  public  land  becomes  taxable. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
338,  50  L.  506,  26  Sup.  Ct.  282,  bona  fide  purchaser  of  standing 
timber  from  holder  of  receiver's  final  certificate  of  purchase,  on 
avoidance,  for  entryman's  fraud,  of  subsequent  patents,  need  not 
account  to  government  for  timber  cut;  Hodges  v.  Coleord,  193 
U.  S.  196,  48  L.  679,  24  Sup.  Ct.  433,  one  who  by  contract  induced 
relinquishment  in  local  land  ofiice  of  homestead  entry  made  by 
disqualified  entryman  has  right  of  entry  though  settlement  made 
between  homestead  entry  and  initiation  of  contest;  Oklahoma  City 
V.  McMaster,  12  Okl.  588,  73  Pac.  1017,  rights  of  one  making  home- 
stead  entry   cannot   be   taken   away  for   public   use   except   by   com- 


407  Notes  on  U.  S.  Eoports.  4  Wall.  232-259 

I)cnsatioii  and  due  process  of  law;  I\reMif'liael  v.  Murphy,  12  Okl. 
160,  161,  70  Pac.  191,  and  Holt  v.  Murphy,  15  Okl.  18,  79  Pac.  267, 
both  holding  homestead  application  to  enter  land  already  covered  by 
subsisting  homestead  entry  confers  no  rights  on  applicant;  Flana- 
gan V.  Forsythe,  6  Okl.  235,  50  Pac.  155,  after  final  proof  made  and 
patent  for  homestead  issued,  homestead  not  exempt  from  debts; 
Tegarden    v.   Le   Marchel,   129   Fed.   489,   arguendo. 

4   Wall.   232-237,   18   L.   303,   HUGHES  v.  UNITED  STATES. 

Syl.   1    (VI,  587).     Land  patents   canceled   for  mistake. 

Approved  in  Southern  Pac.  E.  E.  Co.  v.  United  States,  200  U.  S. 
351,  50  L.  511,  26  Sup.  Ct.  296,  upholding  equity  jurisdiction  over 
bill  by  government  to  cancel  patents  and  for  discovery  of  sales  to 
bona  fide  purcliasers  and  confirmation  of  their  titles. 

Syl.   4    (VI,   589).     Eequisitcs   of   judgment   as   res   adjudicata. 

Approved  in  United  States  Fastener  Co.  v.  Bradley,  143  Fed.  530, 
531,  applying  rule  in  suit  for  infringement  of  patent;  Eussell  v. 
Eussell,  134  Fed.  841,  67  C.  C.  A.  436,  question  expressly  determined 
by  equity  decree  affirmed  on  appeal  is  res  adjudicata,  though  such 
question  not  considered  by  appellate  court;  Southern  Pac.  E.  E. 
Co.  V.  United  States,  133  Fed.  661,  66  C.  C.  A.  581,  judgment  of  dis- 
missal without  prejudice  in  suit  by  government  against  railroad  to 
cancel  patents  is  not  bar  to  subsequent  suit  against  company  and 
purchasers  from  it  for  adjudication  of  title;  Geiser  Mfg.  Co.  v.  Berry, 
12  Okl.  194,  70  Pac.  205,  holding  right  of  possession  of  property 
involved  in  replevin  not  res  adjudicata;  Brakefield  v.  Lucas,  10 
Okl.  587,  64  Pac.  11,  judgment  that  one  of  defendants  should  recover 
costs  and  that  there  was  no  joint  liability  on  part  of  codefendants, 
is  not  res  adjudicata  against  first  defendant  in  suit  for  conversion 
of  subject  matter;  Harris  v.  Columbia  etc.  Co.,  114  Tenn.  339,  85 
S.  W.  900,  adjudication  in  action  on  contract  that  action  not  main- 
tainable because  one  of  plaintiffs  was  foreign  corporation  which 
had   not   complied   with  law    is  not   res   adjudicata. 

4  Wall.   244-259,    18   L.    344,   NEW   YORK    v.   THE   TAX   COMMIS- 

SIONEES. 

Syl.  1   (VI,  591).     Uniform  state  taxation  of  national  banks. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
42,  50  L.  77,  105  Am.  St.  Eep.  702,  25  Sup.  Ct.  715,  special  franchise 
tax  imposed  by  N.  Y.  Laws  1899,  c.  712,  does  not  impair  obligation 
of  grant  to  operate  street  railway  in  New  York  in  payment  of  an- 
nual  percentage   of    earnings;    Consolidated   Nat.   Bank   v.   Pima   Co., 

5  Ariz.  145,  48  Pac.  293,  evidence  of  failure  of  state  to  tax  shares 
in  building  and  loan  society  is  immaterial  in  determining  validity 
of  state  tax  on  national  bank  shares;  Commonwealth  v.  Citizens'  Nat. 
Bank,  117  Ky.  955,  80  S.  W.  160,  upholding  Acts   1900,  p.  65,  c.  23, 


4  Wall.  277-399  Notes  on  U.  S.  Reports.  408 

providing    that    national    bank    is    liable   for    taxes    on   its    shares    of 
capital  stock. 

Syl.  2  (VI,  591).     State  tax  on  national  bank  shares — Investments. 

Approved  in  Consolidated  Nat.  Bank  v.  Pima  Co.,  5  Ariz.  150,  48 
Pac.  295,  upholding  Act  Ariz.,  April  13,  1893,  taxing  shares  of  na- 
tional banks;  Wilkens  Co.  v.  Baltimore,  103  Md.  313,  63  Atl.  5G.5, 
where  principal  place  of  business  of  foreign  corporation  was  within 
state,  fact  that  four-fifths  of  preferred  stock  held  by  residents  did 
not  exempt  corporation's  tangible  property  within  state  from  taxa- 
tion; State  v.  Shryack,  179  Mo.  438,  78  S.  W.  811,  under  Laws  189.'), 
p.  242,  bank's  realty  assessed  against  corporation  and  shares  of  stock 
assessed  in  names  of  shareholders;  People  v.  Eeardon,  184  N.  Y.  4.51, 
112  Am.  St.  Eep.  641,  77  N.  E.  976,  upholding  Laws  1905,  pp.  474, 
477,  taxing  transfers  of  stock  in  foreign  and  domestic   corporations. 

4  Wall.   277-332,   18   L.   356,   CUMMINGS  v.   MISSOUEL 

Syl.  5   (VI,  597).     Ex  post  facto  law  defined. 

Approved  in  State  v.  Rooney,  12  N.  D.  151,  95  N.  W.  515,  uphold- 
ing Laws  1903,  c.  99,  substituting  penitentiary  for  county  jail  as 
place  of  confinement  pending  execution,  as  applied  to  one  convicted 
prior  to  its  passage;  dissenting  opinion  in  State  v.  Barrett,  138  N.  C. 
654,  50  S.  E.  514,  majority  upholding  Laws  N.  C.  1903,  p.  749,  c. 
434,  prohibiting  sale  of  liquor  and  making  keeping  of  liquor  in 
more  than  quart  quantities  presumptive  evidence  of  keeping  it  for 
sale. 

4   Wall.   333-399,    18   L.    366,   EX   PAETE   GAELAND, 

Syl.  2  (VI.  600).     Ex  post  facto  laws. 

Approved  in  State  v.  Eooney,  12  N.  D.  151,  95  N.  W.  515,  uphold- 
ing Laws  1903,  c.  99,  substituting  penitentiary  for  county  jail  as 
place  of  confinement  pending  execution,  as  applied  to  one  convicted 
prior  to   its   passage. 

Syl.  3   (VI,  601).     Admission  of  attorney's  in  judicial  act. 

Approved  in  In  re  Branch,  70  N.  J.  L.  548,  57  Atl.  437,  holding 
void  act  of  1903,  requiring  supreme  court  to  recommend  law  clerks 
for  admission  without  examination;  State  v.  Mosher,  128  Iowa,  87, 
103  N.   W.   107,  arguendo. 

Syl.  6  (VI,  603).  Pardoning  power  not  subject  to  legislative  con- 
trol. 

Approved  in  Territory  v.  Eichardson,  9  Okl.  586,  60  Pac.  246,  49 
L.  E.  A.  440,  where  pardon  granted,  proceedings  against  defendant 
must  be  dismissed. 

Syl.  8  (VI,  605).     Pardoned  person  not  excluded  from  privileges. 

Approved  in  Fite  v.  State,  114  Tenn.  656,  88  S.  W.  943,  upholding 
statute  authorizing  commutation  of  sentence  for  good  behavior  and 
defining   credits   allowed. 


409  Notes  on  U.  S.  Reports.  4  "Wall.  409-447 

4  Wall.  409-411,   18  L.  432,  OILMAN  v.  LOCKWOOD. 

Syl.  1   (VI,  607).     Insolvency  law — Impairment  of  contracts. 

Approved  in  In  re  Salmon,  143  Fed.  405,  Eev.  St.  Mo.  1899,  §§ 
1305,  1306,  making  it  duty  of  Secretary  of  State  to  take  charge  of 
bank  whose  capital  impaired  and  providing  for  appointment  of  re- 
ceiver to  wind  up  affairs,  is  insolvency  law,  suspended  by  bankruptcy 
act. 

4  Wall.  4]  1-431,  18  L.  397,   TIIR   MOSES  TAYLOR. 

Syl.  7  (VI,  Oil).  Admiralty — Exclusive  federal  jurisdiction.^ 
Apj)rovcd  in  The  San  Rafael,  141  Fed.  280,  admiralty  jurisdiction 
to  enforce  lien  for  maritime  tort  not  affected  by  state  statute  limiting 
time  within  which  liens  on  vessels  given  thereby  must  be  enforced; 
Fredericks  v.  Jas.  Eees  &  Sons  Co.,  135  Fed.  .731,  68  C.  C.  A.  368, 
lien  to  be  enforced  by  proceeding  in  rem,  given  by  state  for  repairs 
or  supplies  to  vessel  in  home  port,  is  enforceable  in  admiralty; 
John  Meunicr  Gun  Co.  v.  Lehigh  Valley  etc.  Co.,  123  Wis.  148,  101  N. 
W.  388,  action  against  carrier  for  danuiges  to  goods  shipped  is  not 
maritime,  though  answer  alleges  goods  shipped  by  water  and  were 
damaged  by  perils  of  navigation;  Arnold  v.  Eastiu,  116  Ky.  699,  76 
S.  W.  856,  arguendo. 

4  Wall.  435-447,  18  L.  419,  ROCK  ISLAND  COUNTY  SUPERVISORS 
V.    UNITED    STATES. 

Syl.   3   (VI,  616).     Mandamus   to  compel   mandatory   tax. 

Approved  in  United  States  v.  Cornell  Steamboat  Co.,  202  U.  S.  192, 
50  L.  991,  26  Sup.  Ct.  648,  upholding  137  Fed.  458,  69  C.  C.  A.  603, 
holding  under  Rev.  St.,  §  2984,  Secretary  of  Treasury  cannot  arbi- 
trarily refuse  to  allow  refund  of  duties  therein  provided  for;  Corliss 
v.  Highland  Park,  132  Mich.  161,  95  N.  W.  416,  where  village  con- 
tracted for  construction  of  sewers  and  assessment  therefor  was  in- 
valid, village  must  make  new  assessment  not  exceeding  five  per  cent 
of  valuation  of  sewer  district  and  assess  balance  to  village  at  large; 
Jones  v.  Madison  Co.  Coramrs.,  137  N.  C.  592,  50  S.  E.  295  (on  rehear- 
ing). Laws  1903,  p.  490,  c.  289,  authorizing  county  commissioners  to 
issue  funding  bonds,  is  mandatory;  Jordan  v.  Davis,  10  Okl.  332,  61 
Pac.  1063,  St.  Okl.  1893,  §  5820,  relating  to  teacher's  certificates,  im- 
poses on  county  superintendent  imperative  duty  to  indorse  proper 
certificates  when  presented  to  him;  Theis  v.  Commrs.  of  Washita 
County,  9  Okl.  653,  60  Pac.  508,  where  county  commissioners  have 
issued  bridge  warrants  in  accordance  with  statute,  and  have  failed 
to  levy  tax  to  liquidate  warrants,  mandamus  and  not  action  for 
money  judgment  is  remedy  of  warrant-holders;  dissenting  opinion  in 
Battery  Park  Bank  v.  Madison  Co.  Commrs.,  135  N.  C.  240,  47  S.  E. 
1018,  majority  holding  Laws  1903,  p.  490,  c.  289,  authorizing  county 
commissioners  to  issue  funding  bonds,  is  not  mandatory. 


4  Wall.  447-521  Notes  on  U.  S.  Eeports.  410 

4  Wall.  447-458,  18  L.  377,  DAVIDSON  v.  LANIER, 
Cyl.  8  (VI,  621).  Delivery  of  note  signed  in  blank. 
Approved  in  Tbeard  v.  Gucringer,  115  La.  2-16,  38  So.  981,  where 
note  for  $2,600  executed  by  maker  to  own  order  and  indorsed  by  her 
in  blank  left  it  with  notary,  who  sold  it  before  maturity,  telling 
buyer  it  had  been  reduced  $600,  purchaser  has  good  title  to  extent 
of   price   paid. 

4  Wall.  459-463,  18  L.  433,  BRADLEY  v.  PEOPLE. 

Syl.  1   (VI,  621.)     Uniformity — State  tax  on  national  bank  shares. 

Approved  in  Old  National  Bank  v.  State,  58  W.  Va.  562,  52  S.  E. 
495,  government  bonds  held  by  bank  as  part  of  capital  not  taxable  by 
county;  dissenting  opinion  in  Consolidated  Nat.  Bank  v.  Pima  Co.,  5 
Ariz.  151,  48  Pac.  295,  majority  upholding  Act  Ariz.,  April  13,  1893, 
relating  to   taxation  of   shares  of  national   banks. 

Distinguished  in  Consolidated  Nat.  Bank  v.  Pima  Co.,  5  Ariz.  150, 
48  Pac.  295,  upholding  Act  Ariz.,  April  13,  1893,  relating  to  taxa- 
tion  of   national   bank   shares. 

4  Wall.  463-474,  18  L.  423,  THOMPSON  v.  BOWIE. 

Syl.   1    (VI,   622.)     Evidence   must  be   relevant   to   issues. 
Approved  in  Dunn  v.  State,  162  Ind.  182,  70  N.  E.  523,  in  prosecu- 
tion for  murder,  where  accused  in  cross-examination  has  denied  state- 
ment  admitting   prior   adultery,   rebuttal   evidence   of   such   statement 
is  inadmissible. 

Distinguished  in  Bryan  v.  United  States,  133  Fed.  501,  66  C.  C.  A, 
369,  where  indictment  in  one  count  alleged  passing  of  counterfeit 
5-ccnt  pieces,  and,  in  another,  charged  possession  of  molds  for  25-cem; 
pieces,  dismissal  of  latter  count  does  not  warrant  withdrawal  of 
evidence  introduced  thereunder,  where     it  shows  intent  under  former, 

4  Wall.  475-501,  18  L.  437,  MISSISSIPPI  v.  JOHNSON, 
Syl.  1  (VI,  623).  Mandamus — What  is  ministerial  duty. 
Approved  in  State  v.  Frazier,  114  Tenn.  520,  86  S.  W.  320,  denying 
mandamus  to  compel  board  of  election  inspectors  to  compare  vote  and 
declare  result  of  election;  State  v.  Brooks,  14  Wyo.  411,  84  Pac.  490, 
upholding  supreme  court's  jurisdiction  to  issue  mandamus  to  compel 
governor  to  grant  certificate  of  election  to  state  officer. 

Syl.  4  (VI,  624).     Federal  jurisdiction  to  enjoin  executive. 

Approved  in  Anthony  v.  Burrow,  129  Fed.  790,  federal  equity  court 
has  no  jurisdiction  to  order  state  officer  to  certify  nomination  of  cer- 
tain person  as   candidate   for   Congress. 

4  Wall.  513-521,  18  L.  435,  PUECELL  v.  MINER. 

Syl.  1   (VT.  628).     Exchange  of  lands — Statute  of  frauds. 
See  102  Am.  St.  Rep.  232,  note. 


411  Notes  on  U.  S.  Reports.  4  Wall.  522-555 

Syl.  3  (VI,  629).     Specific  performance  of  oral  contract  for  land. 

Approved  in  Kane  v.  Luckman,  131  Fod.  612,  refusing  specific  per- 
formance of  oral  contract  for  purchase  of  cows  in  exchange  for  farm, 
difference  payable  in  cash. 

(VI,  628).  Miscellaneous.  Cited  in  State  ex  rel.  Louisiana  Imp.  Co. 
V.  Board  of  Assessors,  111  La.  1001,  36  So.  98. 

4    Wall.    522-535,    18    L.    335,    COMMISSIONER    OF    PATENTS    v. 
WITELEY. 

Syl.  2  (VI,  631).     Mandamus,  when  lies. 
Cited  in  98  Am.  St.  Rep.  869,  874,  note. 

4    Wall.   535-555,   18   L.   403,  VON  HOFFMAN  v.  CITY  OF  QUINCY. 

Syl.  3    (VI,  G32).     Statute   declared   void  only  in   clear  case. 

Approved  in  Board  of  Conimrs.  v.  Tollman,  145  Fed.  766,  upholding 
Laws  N.  C.  1SS5,  p.  439,  c.  2.S3,  incorporating  railroad  and  authoriz- 
ing issuance  of   county   aid   bonds. 

Syl.  5  (VI,  633).     Subsisting  laws  enter  into  contract. 

Approved  in  In  re  Thompson  Milling  Co.,  144  Fed.  316,  attorney's 
fee  jirovided  for  in  note  is  not  "fixed  liability,"  provable  against 
bankruptcy  estate,  where  petition  filed  before  note  matured;  W^elsh  v. 
ri-,,ss,  146  Cal.  624,  106  Am.  St.  Rep.  63,  81  Pac.  230.  amendment 
of  1.SSI7  to  Code  Civ.  Proc,  §  702,  extending  time  of  redemption,  does 
not   apply  to  judgments  existing  at  time  of  its  passage. 

Syl.   9    (VI,   636).     Obligation   of  contracts — Change  of   remedy. 

Approved  in  Graham  v.  Folsom,  200  U.  S.  252,  50  L.  468,  26  Sup. 
Ct.  245,  granting  mandamus  to  compel  county  authorities  to  levy  tax 
to  iiay  judgment  on  township  bonds,  and  affirming  Ex  parte  Folsom, 
131  Fed.  504,  construing  S.  C.  constitutional  amendment  relating  to 
incorporation  of  townships  as  impairing  obligation  of  railroad  aid 
bonds;  Gamble  v.  Rural  etc.  School  Dist.,  146  Fed.  118,  in  spite  of 
Iowa  Code,  1897,  §  3070,  amending  prior  statute,  and  limiting  recovery 
on  negotiable  paper  procured  by  fraud,  purchaser  with  knowledge 
from  innocent  holder  of  negotiable  school  bond  fraudulently  issued 
prior  to  amendment  could  recover  full  amount;  Harrison  v.  Reming- 
ton Paper  Co.,  140  Fed.  392,  Kan.  Laws  1898,  c.  10,  p.  27,  substituting 
suit  in  equity  by  receiver  of  corporation  to  collect  stockholder's  lia- 
bility is  void  as  against  contracts  made  prior  to  its  passage;  Myers 
V.  Knickerbocker  Trust  Co.,  139  Fed.  116,  holding  void  Maryland  Act 
of  1904,  substituting  for  existing  remedy  to  enforce  stockholder's 
liability  suit  in  equity  on  behalf  of  all  creditors,  as  against  prior 
creditors  who  had  brought  suit  under  prior  act;  Folsom  v.  Green- 
wood Co.,  137  Fed.  450,  69  C.  C.  A.  473,  where  statute  enabled 
township  to  issue  aid  bonds  and  authorized  officers  to  collect  taxes 
provided  for  in  statute,  state  could  not  deprive  bondholders  of 
remedy  thereby  provided;  Boise  Irr.  etc.  Co.  v.  Stewart,  10  Idaho,  60, 
77  Pac.  32,  upholding  Laws  1903,  p.  223,  providing  that  certain  state- 


4  Wall.  555-679  Notes  on  U.  S.  Eeports.  412 

ments  and  maps  referred  to  in  §  37  thereof  should  be  evidence  on 
trial  of  action  to  establish  water  rights;  Miners'  etc.  Bank  v.  Snyder, 
100  Md.  65,  108  Am.  St.  Eep.  390,  59  Atl.  710,  68  L.  E.  A.  312,  up- 
holding Acts  1904,  p.  597,  c.  337,  substituting  bill  in  equity  on  behalf 
of  all  creditors  against  all  stockholders,  as  applied  to  creditor  who 
has  sued  stockholder  under  prior  law,  but  has  not  obtained  judgment. 

Syl.   10    (VI,   637).     Obligation   of   contracts— Change   of   tax. 

Approved  in  City  of  Ft.  Madison  v.  Ft.  Madison  etc.  Co.,  134  Fed. 
216,  67  C.  C.  A.  142,  Code  Iowa,  1897,  §  1305,  providing  for  assessment 
of  property  at  quarter  of  value  is  invalid  in  so  far  as  it  affects  ability 
of  city  to  pay  water  rents  under  contract  made  when  statute  pro- 
vided for  assessments  at  actual  value. 

4  Wall.  555-572,  18  L.  451,  THE  HINE  v.  TEEVOEE. 

Syl.  2  (VI,  641).     Admiralty  jurisdiction — State  remedies. 
Approved  in  Arnold  v.  Eastin,  116  Ky.  699,  76  S.  W.  856,  arguendo. 

Denied  in  The  Winnebago,  141  Fed.  948,  upholding  Mich.  Comp. 
Law,  c.  298,  giving  lien  to  persons  furnishing  labor  and  material  in 
construction  of  vessels  and  providing  for  their  enforcement  in  state 
courts. 

4  Wall.  584-598,  18  L.  410,  SFAEEOW  v.  STEOXG. 

Syl.   1    (VI,   647).     Supreme   court — Territorial   grant   of  new   trial. 

Approved  in  Copper  King  v.  Johnson,  195  U.  S.  627,  49  L.  351,  25 
Sup.   Ct.   793,  following   rule. 

4  Wall.  605-617,  18  L.  447,  PEAESON  v.  DUANE. 

Syl.   1   (VI,  649.)     Common  carriers  must  carry  all. 

See  107  Am.  St.  Eep.  299,  note. 

Syl.  2   (VI,  649).     Carriers — Expulsion  of  passenger. 

Approved  in  Owens  v.  Macon  etc.  Ey.  Co.,  119  Ga.  233,  46  S.  E. 
88,  upholding  refusal  of  carrier  to  carry  violent  lunatic  when  carrier 
had  no  notice  of  intention  to  ship  lunatic.  See  107  Am.  St.  Eep.  303, 
note. 

4  Wall.  650-657,  18  L.  328,  EAILEOAD  CO.  v.  LINDSAY. 

Syl.  4   (VI,  652).     Variance  between  petition  and  findings. 

Approved  in  Black  v.  Teeter,  1  Alaska,  564,  where  in  ejectment 
evidence  was  offered  by  both  parties  of  second  location  by  plaintiff, 
which  was  not  specially  pleaded,  instruction  submitting  last  location 
not   error. 

4  W^all.   657-679,   18  L.   427,   EOBBINS   v.   CHICAGO. 

Syl.  1   (VI,  652).     City's  liability  for  defective  streets. 

Approved  in  United  States  v.  Port  of  Portland,  147  Fed.  868,  Port 
of  Portland  is  liable  in  damages  for  collision  caused  by  negligence  of 
its  employees  in   charge  of   one   of  its   tugs. 


413  Notes  on  U.  S.  Ecports.  4  Wall.  680-684 

Syl.  2  (VI,  654).  Conclusiveness  of  judgment  against  citj  on 
third  persons. 

Approved  in  Saxlehner  v.  Eisner,  140  Fed.  941,  executive  ofTiccrs 
of  corporation  are  jointly  and  severally  liable  with  it  for  infringe- 
ment of  patent,  and  judgment  is  conclusive  thereon  as  to  damages; 
Graves  v.  City  etc.  Tel.  Assn.,  132  Fed.  388,  hohling  telephone  and 
traction  companies  jointly  liable  for  personal  injuries  caused  by 
former  leaving  latter 's  feed  wire  in  contact  with  one  of  its  poles. 
See  112   Am.  St.   Rep.   31,  note. 

Distinguished  in  Chesapeake  etc.  Towing  Co.  v.  Western  Assurance 
Co.,  99  Md.  442,  58  Atl.  17,  where,  on  loss  of  cargo,' from  plaintiff's 
scow  en  route  to  steamer,  in  suit  by  assignee  of  owner  of  goods 
against  owner  of  steamer,  scow  found  unseaworthy,  plaintiff  not 
estopped  by  such  finding  in  action  against  insurer  of  cargo. 

Syl.  3   (VI,  656).     Liability  of  street  contractor  for  injuries. 

Approved  in  Thomas  v.  Harrington,  72  N.  H.  47,  54  Atl.  287,  65 
L.  R.  A.  742,  owner  of  house  contracting  with  one  to  run  pipe  from 
road  is  liable  for  injuries  to  one  driving  into  unguarded  trench. 

Syl.  7   (VI,  658).     Conclusiveness  of  judgment — Parties  to  suit. 

Approved  in  Australian  Knitting  Co.  v.  Gormly,  138  Fed.  97,  98, 
manufacturer  of  infringing  article  assisting  purchaser  in  defending 
infringement  suit,  not  party  to  suit,  not  concluded  by  decree  adjudg- 
ing validity  of  patent. 

Syl.  10  (VI,  658).     Liability  of  employer  for  acts  of  contractor. 

Approved  in  Hoff  v.  Shockley,  122  Iowa,  728,  101  Am.  St.  Rep.  289, 
98  N.  W.  576,  64  L.  E.  A.  538,  property  owner  contracting  with  in- 
tlependent  contractor  to  build  house  not  liable  for  injury  to  passer-by 
on  street  caused  by  latter 's  failure  to  guard  and  light  sand  pile  in 
front  of  premises;  Geller  v.  Briscoe  Mfg.  Co.,  136  Mich.  332,  99  N.  W. 
281,  employer  directing  foreman  to  clean  water-coolers  with  potash  is 
liable  for  injuries,  where  he  did  not  give  instructions  to  adopt  pre- 
cautionary measures  to  prevent  injury;  Loth  v.  Columbia  Theater  Co., 
197  Mo.  354,  94  S.  W.  854,  theater  company  employing  electric  com- 
pany'to  attend  to  sign  is  liable  for  injuries  caused  by  falling  of 
sign;  Cameron  Mill  etc.  Co.  v.  Anderson,  34  Tex.  Civ.  107,  78  S.  W. 
9,  owner  liable  for  injuries  to  one  falling  into  unguarded  excavation 
in  street  though  contractor  had  charge  of  work. 

4  Wall.  680-684,  18  L.  311,  UNITED  STATES  v.  McMASTERS. 

Syl.  2   (VI,  659).     Objections  to  evidence  must  specify. 

Approved  in  Graves  v.  Bonness,  97  Minn.  281,  107  N.  W.  164,  fol- 
lowing rule. 


V  WALLACE. 


5  Wall.   74-80,   18  L.  580,  WATSON  v.  SUTHERLAND. 

Syl.   1    (VI,   662).     Equity   jurisdiction — Adequacy   of  law  remedy. 

Approved  in  General  Elec.  Co.  v.  Westinghouse  Elec.  &  Mfg.  Co., 
144  Fed.  466,  where  contract  for  sale  of  goods  provided  that  violator 
should  pay  as  liquidated  damages  fifty  per  cent  of  sale  price  of  goods, 
injunction  against  violation  of  contract  refused;  Big  Six  etc.  Co.  v. 
Mitchell,  138  Fed.  286,  upholding  jurisdiction  over  bill  by  landlord  to 
cancel  mining  lease  as  cloud  on  title,  to  establish  his  right  of  posses- 
sion in  premises  and  to  enjoin  lessee  from  mining  because  of  lessee's 
breach  of  lease;  American  Lighting  Co.  v.  Public  Service  Corp.,  134 
Fed.  131,  one  cannot  be  punished  for  contempt  for  disregarding  order 
restraining  violation  of  contract  for  street  lighting;  United  Cigarette 
etc.  Co.  v.  Wright,  132  Fed.  197,  upholding  jurisdiction  over  bill  for 
accounting  from  defendant  as  agent  with  reference  to  separate  trans- 
actions; American  Plate  Glass  Co.  v.  Vicoson,  34  Ind.  App.  652,  73 
N.  E.  628,  refusing  to  enjoin  obstruction  of  stream  where  complain- 
ants operated  quarry  and  dam  backed  up  water  on  premises,  but  charac- 
ter of  land  overflowed  not  alleged ;  Bluffton  v.  Miller,  33  Ind.  App.  523, 
70  N.  E.  990,  property  owner  affected  by  street  improvement  may 
enjoin  city  from  carrying  out  contract  which  is  beyond  scope  of  its 
power;  Stauffer  v.  Cincinnati  etc.  R.  R.  Co.,  33  Ind.  App.  358,  70  N. 
E.  543,  enjoining  removal  of  buildings  from  land  which  complainant 
had  acquired  by  condemnation;  Barnes  v.  Newton,  5  Okl.  435,  48 
Pac.  193,  successful  party  in  contest  before  land  department  may 
enjoin  adversary  from  interfering  with  possession. 

Syl.  3   (VI,  666).     Injunction  against  wrongful  execution. 

Distinguished  in  dissenting  opinion  in  Barnes  v.  Newton,  5  Okl. 
446,  49  Pac.  1076,  majority  holding  successful  party  in  land  contest 
before  land  department  may  enjoin  adversary  from  interfering  with 
his  possession. 

5  Wall.  81-87,  18  L.  542,  PARMELEE  v.  SIMPSON. 

Syl.    1    (VI,   666).     Nothing   passes   till   delivery   of   deed. 

Approved  in  Brumby  v.  Jones,  141  Fed.  323,  applying  rule  where 
mortgagor  made  mortgage  to  himself  as  executor  and  recorded  it. 

Syl.  4   (VI,  667).     Ratification   of   imperfect   delivery   of   deed. 

Approved  in  Merchants'  Banking  Co.  v.  Cargo  of  the  Afton,  134 
Fed.  730,  67  C.  C.  A.  618,  applying  rule  where  owners  of  mortgaged 
ship  chartered  her  under  charter  providing  for  advances  and  master 
obtained  additional  advances. 

[414] 


415  Notes  on  U.  S.  Eeports.  5  Wall.  90-170 

5  Wall.  90-106,  18  L.  591,  ILLINOIS  ETC.  EAILROAD  CO.  v.  BAR- 
RON. 

Syl.  2   (VI,  GG9).     Action  by  next  of  kin  for  wrongful  death. 

Approved  in  McCabe  v.  Narragansett  Elec.  etc.  Co.,  27  R.  I.  277, 
61  Atl.  669,  loss  of  parental  care  of  deceased  father  not  considered 
in  action  for  wrongful   death   under  Gen.   Laws    1896,  c.   233,  §   14. 

Syl.  3   (VI,  671).     Measure  of  damages  for  death — Anguish. 

Approved  in  Denver  R.  R.  Co.  v.  Gunning,  33  Colo.  288,  80  Pae. 
729,  upholding  verdict  for  $4,000  for  death  of  twenty-three  yeai  old 
husband,  whose  earning  capacity  was  .$400  per  annum;  Breen  v.  St. 
Louis  Transit  Co.,  102  Mo.  App.  489,  77  S.  W.  81,  physical  and  mental 
suffering  caused  by  wrongful  ejection  of  passenger  are  elements  of 
damages. 

(VI,  G6S.)  Miscellaneous.  Cited  in  Chicago  etc.  R.  R.  Co.  v. 
Newell,  198  U.  S.  579,  49  L.  1171,  25  Sup.  Ct.  801. 

5   Wall.    107-113,   18   L.   518,   HADDEN   v.   THE    COLLECTOR. 

Syl.  1   (VI,  673).     Statutory  construction — Title. 

Approved  in  Rider  v.  United  States,  149  Fed.  166,  under  Comp.  St. 
Supp.  1905,  p.  365,  jurisdiction  over  offenses  on  Arkansas  Hot  Springs 
reservation  cannot  be  exercised  by  ordinary  United  States  commis- 
sioner; Commonwealth  v.  Barney,  115  Ky.  478,  74  S.  W.  182,  upholding 
Laws  1902,  p.  151,  c.  66,  prohibiting  fraudulent  disposition  of  property 
of  another;  State  v.  Patterson,  134  N.  C.  614,  47  S.  E.  809,  where 
title  of  Laws  1903,  p.  472,  c.  349,  prohibit  manufacture,  sale  and 
importation  of  liquor  in  two  named  counties,  and  §  2  thereof  makes 
place  where  delivery  is  made  in  state  the  place  of  sale,  latter  section 
applies  to  sale  and  delivery  at  anj'^  place  in  state;  Choctaw  etc.  R. 
R.  Co.  V.  Alexander,  7  Okl.  584,  595,  52  Pac.  945,  54  Pac.  422,  up- 
holding Stats.  1893,  c.  37,  regulating  prairie  fires;  Territory  v.  Ho]i- 
kins,  9  Okl.  154,  59  Pac.  982,  construing  Laws  1895,  c.  7,  relating  to 
refunding    bonds. 

Syl.  2   (VI,  675).     Statutory  construction — Policy  not  considered. 

Approved  in  Paterson  v.  Wilson,  11  Okl.  80,  65  Pac.  923,  under  a<-t 
of  Congress  of  March  2,  1889,  relating  to  opening  of  Cherokee  strip, 
one  entering  territory  and  remaining  there  between  passage  of  act  and 
opening  of  country  is  not  entitled  to  homestead  though  he  left  prior 
to   opening. 

5  Wall.  119-170,  18  L.  502,  STANLEY  v.  COLT. 

Sjd.   1   (VI,  677).     Devises  on  condition  and  in  trust  distinguished. 

Affirmed  in  Union  Stockyards  Co.  v.  Nashville  Pack.  Co.,  140  Fed. 
704,  conveyance  pursuant  to  contract  whereby  grantee  agreed  to  build 
packing-house  on  land,  not  set  aside  where  packing-house  built  but 
subsequently  abandoned;  Thornton  v.  Mayor  etc.  of  Natchez,  11^9 
Fed.    87,    63    C.    C.    A.    526,    deed    conveying    laud    to    city    for    burial 


5  WalL  188-290  Notes  on   U.  S.  Keports.  416 

ground  without  condition  as  to  reversion  does  not  require  maintenance 
of  burial   ground   perpetually  irrespective   of   general   welfare. 

Syl.  2   (VI,  677).     "Proviso"  in   deed  not  condition. 

Approved  in  Bain  v.  Parker,  77  Ark.  171,  90  S.  W.  1001,  deed  con- 
vej'ing  land  to  railroad  in  consideration  of  building  road  to  be  com- 
pleted by  certain  date  not  invalidated  by  failure  to  complete  road  by 
that  date;  Prince  v.  Barrow,  120  Ga.  819,  48  S.  E.  413,  construing 
bequest  to  wife  on  condition  that  she  apply  designated  portion  of  in- 
come to  own  use  and  balance  in  certain  other  ways;  MacKenzie  v. 
Trustees  of  Presbytery  of  Jersey  City,  67  N.  J.  Eq.  661,  61  Atl.  1031, 
69  L.  R.  A.  (N.  S.)  227,  construing  deed  to  religious  society  on  condi- 
tion that  society  should  always  be  known  by  certain  name  and  that 
no  instrumental  music  be  used  in  worship. 

Syl.  3   ("VI,  678).     Care  of  trust  property  by  trustee. 

Approved  in  In  re  Columbia  Iron  Wks.,  142  Fed.  239,  referee  in 
bankruptcy  cannot  permit  creditors  by  majority  vote  to  select  at- 
torney  for  trustee. 

5  Wall.   18S-190,  18  L.  676,  EX  PARTE  MILWAUKEE   R.  R.   CO. 

Syl.   3    (VI,    682).     Supersedeas   by   supreme    court. 

Approved  in  Boston  &  M.  R.  Co.  v.  Gokey,  150  Fed.  687,  where  dis- 
trict court  judgment  affirmed  by  circuit  court  of  appeals  and  mandate 
sent  down,  but  defeated  party  gets  certiorari  from  supreme  court  to 
review  decision  of  latter  court,  district  court  will  stay  execution. 
See  98  Am.  St.  Rep.  897,  note. 

5    Wall.   208-211,   18   L.   595,   SEAVER   v.   BIGELOWS. 

Syl.   1    (VI,   685),     Amount  in   dispute^ — .Joint   appeal. 

Approved  in  Feely  v.  Bryan,  55  W.  Va.  591,  47  S.  E.  310,  where 
several  creditors  attack  mortgage  as  preference  and  judgment  decrees 
out  of  property  particular  sums  to  the  several  creditors,  sums  cannot 
be    added   to   give   supreme   court   jurisdiction. 

5  Wall.  268-290,  18  L.  572,  CROXALL  v.  SIIERERD. 

Syl.    6    (VI,   691).     Bona   fide    purchaser    in    possession. 

Approved  in  Scott  v.  Mineral  Dev.  Co.,  130  Fed.  501,  64  C.  C.  A. 
659,  continuation  of  possession  of  part  of  tract  under  deed  describing 
land  by  metes  and  bounds  for  statutory  period  under  claim  to  whole 
gives   adverse   title  to  whole   against   one  out   of  possession. 

Syl.    7    (VI,    692).     Remainder    not    construed    contingent,    when. 

Approved  in  Archer  v.  Jacobs,  125  Iowa,  475,  101  N.  W.  198,  devise 
to  daughter  for  life,  remainder  to  her  children,  but  if  she  die  without 
children,  then  to  testator's  son  or  his  children,  gave  daughter  life 
estate,  and  her  children  in  being  took  vested  remainder;  Curtis  v. 
Zutavern,  67  Neb.  194,  93  N.  W.  405,  quitclaim  deed  of  owner  passes 
reversionary  rights  in  same  land  which  he  holds  subject  to  then 
existing   dower    estate. 


^417  Notes  oil   U.  fcj.  iiepoils.  5   Wall.  290-307 

Syl.   10   (VI,  C92).     Adverse   possession— Statute  does   not   stop. 

Approved  in  Linton  v.  Hoyo,  69  Neb.  455,  111  Am.  St.  Rep.  559,  95 
N.  W.  1041,  statute  of  limitation  respecting  actions  for  recovery  of 
realty  does  not  deprive  owner  of  property  witliout  due  process. 
See   104   Am.   St.   Rep.   762,  note. 

5   Wall.  290-307,   18   L.  475,  CHRISTMAS  v.   RUSSELL. 

Syl.  1  (VI,  694).  Prospective  limitation  statutes — Contract  obliga- 
tions. 

Approved  in  Lamb  v.  Powder  Riv.  etc.  Co.,  132  Fed.  438,  67  L.  R. 
A.  558,  65  C.  C.  A.  570,  Colo.  Act  of  1899,  amending  Sess.  Laws 
1895,  p.  239,  c.  106,  relating  to  limitation  of  actions  on  foreign  judg- 
ments is  void  as  against  judgment  rendered  prior  to  passage  of  act; 
Terry  v.  Heison,  115  La.  1083,  40  So.  466,  upliolding  Const.  1898,  art. 
233,  prescribing  three-year  limitation  against  actions  to  annul  tax 
sales. 

Syl.  3   (VI,  695).     Act  denying  action  on  foreign  judgment. 
See   103   Am.   St.   Rep.   324,   note. 

Syl.   4    (VI,   695).     Authenticated   copies   of  judgments — Full   faith. 

Approved  in  dissenting  opinion  in  Haddock  v.  Haddock,  201  U.  S. 
632,  50  L.  890,  26  Sup.  Ct.  525,  majority  holding  mere  domicile  in 
state  of  one  spouse  does  not  give  state  court  jurisdiction  to  render 
divorce  decree  enforceable  in  all  states  against  nonresident  non- 
appearing  defendant  served  by  publication.  See  103  Am.  St.  Rep. 
319,  note. 

Syl.  8  (VI,  099).  Inquiry  as  to  jurisdiction  of  foreign  judgments 
Approved  in  Lamb  v.  Powder  Riv.  etc.  Co.,  132  Fed.  441,  67  L.  R. 
A.  558,  65  C.  C.  A.  570,  Colo.  Act  of  1899,  amending  Sess.  Laws  1895, 
p.  239,  c.  106,  relating  to  limitation  of  actions  on  foreign  judgments, 
is  void  as  against  judgment  rendered  prior  to  its  passage.  See  103 
Am.  St.  Rep.  308,  note. 

Syl.  9  (VI,  699).     Fraud  as  defense  to  foreign  judgment. 

Approved  in  Jaster  v.  Currie,  198  U.  S.  147,  49  L.  989,  25  Sup 
Ct.  614,  reversing  69  Neb.  5,  94  N.  W.  996,  and  holding  refusal  of 
Nebraska  court  to  permit  action  on  Ohio  judgment  denies  full  faith 
and  credit  thereto,  when  based  on  alleged  fraud  in  acquiring  juris- 
diction of  defendant  in  Ohio  suit  by  enticing  him  there  by  subpoena 
to  take  deposition;  Shelby  v.  Creighton,  65  Neb.  495,  101  Am.  St. 
Rep.  630,  91  N.  W.  373,  where  administrator,  who  is  also  trustee'  of 
personalty  under  will,  purchases  part  of  personalty,  and  accounts  to 
court  for  proceeds,  order  approving  accounts  and  discharging  him 
concludes  cestui  que  trust;  dissenting  opinion  in  Haddock  v.  Had- 
dock, 201  U.  S.  627,  50  L.  893,  26  Sup.  Ct.  525,  majority  holding  mere 
domicile  in  state  of  one  spouse  does  not  give  state  court  jurisdiction  to 
render  divorce  decree  enforceable  in  all  states  against  nonresident 
27 


5  Wall.  307-419  Notes  on  U.  S.  Keports.  41"^ 

nonappcaring  defendant  served  by  publication.     See  103  Am.  St.  Rep. 
315,   note. 

Distinguished  in  Jaster  v.  Carrie,  69  Neb.. 5,  94  N.  W.  996,  in  action 
on  sister  state  judgment,  defendant  may  show  he  was  induced  by 
plaintiff's  fraudulent  conduct  to  come  within  jurisdiction  of  court 
rendering  judgment. 

5  Wall.  307-318,  18  L.  599,  GEEEN  v.  VAN  BUSKIRK. 

Syl.  1  (VI,  702).     Attachment — Law  governing  priorities. 

Approved  in  Eoed  v.  Munn,  148  Fed.  748,  where  owners  of  conflict- 
ing mining  locations  conveyed  to  trustee  in  order  to  adjust  contro- 
versy, equitable  interest  of  beneficial  owners  was  subject  to  execution. 

Syl.  2  (VI,  703).     Law  governing  transfers  of  personalty. 

Approved  in  Cooper  v.  Philadelphia  Worsted  Co.  (Lees  v.  Harding 
etc.  Co.),  68  N.  J.  Eq.  629,  60  Atl.  355,  Pub.  Laws  18S9,  p.  421,  re- 
lating to  conditional  sales,  does  not  apply  to  contracts  made  in  an- 
other state  with  reference  to  chattels  there  situated,  between  reisident 
of  that  state  and  resident  of  this,  though  goods  brought  here  without 
former  owner's  consent;  State  v.  Fidelity  etc.  Co.,  35  Tex.  Civ.  219, 
80  S.  W.  547,  municipal  securities  deposited  with  state  treasurer  by 
foreign  corporation,  in  order  to  do  business  here,  are  taxable  in  this 
state. 

Distinguished  in  Studebaker  Bros.  Co.  v.  Mau,  14  Wyo.  78,  82  Pac. 
5,  where  vendee  of  personalty  under  conditional  sale  removes  prop- 
erty to  another  state  without  consent  of  vendor,  latter  may  enforce 
lien  in  other  state  against  subsequent  purchasers  without  complying 
with   registration  laws  of  such  state. 

5  Wall.  318-325,  18  L.  489,  DWYER  v.  DUNBAR, 

Syl.  1   (VI,  705).     Letter  to  third  person  inadmissible. 

Approved  in  laman  Bros.  v.  Dudley  etc.  Lumber  Co.,  146  Fed.  455, 

letter  from  agent  to  principal  reporting  interview  between  agent  and 

third  person  is  inadmissible   against  such  person. 

5  Wall.  326-337,  18  L.  547,  TOW^NSEND  v.  GREELEY. 

Syl.  5  (VI,  707).     San  Francisco  pueblo  lands  held  in  trust. 

Approved  in  Bowden  v.  San  Francisco,  199  U.  S.  600,  50  L.  328, 
26  Sup.  Ct.  748,  following  rule. 

5  Wall.  413-419,  18  L.  657,  EWING  v.  CITY  OF  ST.  LOUIS. 

Syl.  1   (VI,  712).     Injunction  against  inferior  boards — Certiorari. 

Approved  in  Whitney  v.  Dick,  202  U.  S.  138,  50  L.  965,  26  aup.  Ct. 
584,  supreme  court  will  not  issue  certiorari  as  substitute  for  writ  of 
error  to  review  conviction  in  lower  court  where  only  question  is 
whether  federal  courts  have  jurisdiction  to  punish  offense. 


419  Notes  on  U.  S.  Keporta.  5  Wall.  419-475 

Syl.   2    (VI,  714).     Federal  relief  no  greater  than  state. 

Approved  in  dissenting  opinion  in  James  v.  Gray,  131  Fed.  415,  65 
C.  C.  A.  385,  majority  holding  loan  by  wife  to  husband  from  her  sep- 
arate estate  is  provable  in  bankruptcy,  irrespective  of  its  enforce- 
ability under  state  law. 

5  Wall.  419-433,  18  L.  700,  DE  GROOT  v.  UNITED  STATES. 

Syl.   4    (VI,   715).     Setoff  against   United   States. 

Approved  in  United  States  v.  Gillies,  144  Fed.  991,  following  rule; 
United  States  v.  Warren,  12  Okl.  364,  71  Pae.  689,  applying  rule  in 
action  by  government  against  district  court  clerk  for  moneys  errone- 
ously paid  as  compensation. 

Syl.  6  (VI,  716).     Jurisdiction  where  government  is  defendant. 

Approved  in  United  Slates  v.  Foreman,  5  Okl.  257,  48  Pac.  98,  one 
bringing  suit  against  government  in  territorial  district  court  to  re- 
cover mone}^  paid  for  land  on  which  entry  canceled  need  not  show 
surrender  of  du[)licate  receipt  to  Secretary  of  Interior  and  relinquish- 
nuuit   of  claim  to   laud. 

5  Wall.  -102-475,  18  L.  497,  LICENSE  TAX  CASES  (UNITED  STATES 
V.  VASSAR). 

Syl.    1    (VI,    719).     Public    policy,    how    determined. 

Approved  in  Langdon  v.  Conlin,  67  Neb.  245,  108  Am.  St.  Rrp. 
644,  93  N.  W.  390,  holding  void  contract  between  attorney  and  lay- 
man by  which  latter  is  to  get  cases  for  former  and  assist  in  looking 
after  witnesses  for  share  in  fees. 

Syl.  4  (VI,  721).     Direct  and  indirect  taxes,  how  imposed. 

Approved  in  McCrary  v.  United  States,  195  U.  S.  56,  49  L.  96,  24 
Sup.  Ct.  769,  upholding  act  of  1886,  as  amended  in  1902,  imposing 
tax  on  artificially  colored  oleomargarine. 

Syl.  5    (VI,  721).     Federal  license  not   permission  in   states. 

Approved  in  In  re  Heff,  197  U.  S.  505,  49  L.  855,  25  Sup.  Ct.  506, 
sale  of  liquor  within  a  state  to  Indian  to  whom  allotment  of  land 
made  under  act  of  1887,  not  punishable  under  29  Stat.  506,  c.  ]09; 
Hodge  V.  Muscatine  Co.,  196  U.  S.  280,  104  Am.  St.  Rep.  314,  49  L. 
481,  25  Sup.  C|t.  237,  Iowa  Code,  §  5007,  making  tax  imposed  thereby 
on  business  of  selliug  cigarettes  a  lien  on  property  where  business  is 
carried  on;  does  not  deny  due  process  of  law  to  owner  of  premises; 
Bishoff  V.  State,  43  Fla.  80,  30  So.  812,  ordinance  imposing  license 
tax  creates  no  coutract  right. 

Syl.  6  (VI,  722).  -  Licenses — Prohibition  against  doing  business 
witliout. 

A[)pr()ved  in  Norfolk  etc.  Ry.  Co.  v.  Suffolk,  103  Va.  501,  502,  49 
S.   E.   G59,   GGO,   Suffolk   Charter,   §    IS,   authorizes   ordinance   imposing 


5  Wall.  475-509'  Notes  on  U.  S.  Ecports.  420 

license  tax  on  railroad  doing  business  in  town,  tliough  road  is  amen- 
able to  fine  under  state  law  for  failure  to  transact  its  business. 

5  Wall.  475-481,  18  L.  G08,  PERVEAR  v.  THE  COMMONWEALTH. 

Syl.  1   (VI,  724).     Federal  license  no   defense  to  state  prosecution. 

Approved  in  Hodge  v.  Muscatine  Co.,  196  U.  S.  280,  104  Am.  St. 
Rep.  314,  49  L.  481,  25  Sup.  Ct.  237,  Iowa  Code,  §  5007,  making  tax 
imposed  thereby  on  business  of  selling  cigarettes  a  lien  on  premises 
where  business  is  carried  on,  does  not  deny  due  process  of  law  to 
owner  of  premises. 

Syl.  2   (VI,  725).     State  tax  on  original  packages. 

Approved  in  Gulf  etc.  Ry.  Co.  v.  State,  97  Tex.  286,  78  S.  W.  499, 
where  grain  in  cars  bought  by  Texas  company  from  Missouri  firm 
which  had  grain  ^coming  from  another  state,  and  cars  transshipped 
from  one  point  in  state  to  destination,  shipment  was  under  jurisdic- 
tion of  state  railroad  commission. 

Syl.  5   (VI,  726).     Eighth   amendment  not   applicable  to  states. 

Approved  in  St.  Louis  etc.  Ry.  Co.  v.  Davis,  132  Fed.  632,  federal 
court  not  given  jurisdiction  of  suit  to  enjoin  officers  of  state  from 
contemplated  act  by  allegation  that  it  will  violate  fifth  amendment; 
In  re  Briggs,  135  N.  C.  121,  47  S.  E.  404,  upholding  Code,  §  1215, 
providing  that  no  one  can  be  excused  from  testifying  as  to  gaming 
transactions,  but  that  such  evidence  cannot  be  used  against  him. 

5  Wall.  481-496,  18  L.  486,  THE  EDDY, 

Syl.  4   (VI,  728).     Actual  delivery  to  consignee  unnecessary. 

Approved  in  The  Titania,  131  Fed.  230,  65  C.  C.  A.  215,  following 
rule;  Rosenstein  v.  Vogemann,  184  N.  Y.  330,  77  N.  E.  626,  where 
bill  of  lading  provided  for  taking  of  goods  immediately  upon  dis- 
charge, and  that  carrier's  liability  ceased  on  their  leaving  ship's 
tackle,  carrier  must  give  notice  of  time  and  place  of  arrival. 

5  Wall.  497-509,  18  L.  520,  HANSBROUGH  v.  PECK. 

Syl.  2  (VI,  731).     Sales — Retention  of  title  as  security. 

Approved  in  Pierce  v.  Staub,  78  Conn.  466,  62  Atl.  763,  3  L.  R.  A. 
(N.  S.)  785,  where  contract  for  sale  on  installment  payments  provided 
for  possession  by  seller  until  full  payment  made,  and  buyer  failed  to 
meet  installments,  and  seller  sold  goods  to  others,  buyer  could  recover 
money  paid. 

Syl.  8   (VI,  731).     Sales — Recovery  of  partial  payments. 

Approved  in  Pierce  v.  Staub,  78  Conn.  465,  62  Atl.  762,  3  L.  R.  A. 
(N.  S.)  785,  where  contract  for  sale  on  installment  payments  provided 
for  possession  by  seller  until  full  payment  made,  and  buyer  failed  to 
meet  installments,  and  seller  sold  goods  to  others,  buyer  could  recover 
money  paid;  Sipley  v.  Stiekney,  190  Mass.  46,  76  N.  E.  227,  willful 
failure  of  former  manager  to  return  accurate  account  of  expenses  bars 


421  Notes  on  U.  S.  Reports.  5  Wall.  009-503 

recovery  for  services,  thougli  stii>ulation  for  return  of  account  is  not 
of  essence  of  contract. 

5  Wall.  509-517,  18  L.  524,  INSURANCE  CO.  v.  CHASE. 

Syl.  4  (VI,  734).     Insurance — Specification  of  interest  by  owner. 

Approved  in  American  Cer.  Co.  v.  Western  Assur.  Co.,  148  Fed.  79, 
where  policy  insured  A  against  loss  on  certain  property,  loss  payable 
to  B  as  his  interest  might  appear,  A  was  insured. 

5    Wall.    541-545,    18    L.    540,    MERCHANTS'    INSURANCE    CO.    v. 
RITCHIE. 

Sj'l.   1   (VI,  73G).     Suit  between   citizens   of  same   state. 

Approved  in  Thomas  v.  Board  of  Trustees,  195  U.  S.  210,  49  L.  164, 
25  Sup.  Ct.  24,  allegation  that  board  of  Ohio  University  trustees  is 
citizen  of  state,  and  was  created  by  state  laws,  is  not  sufficient  aver- 
ment that  it  is  Ohio  corporation. 

Syl.    4    (VI,   737).     Repeal    of   statute    giving   jurisdiction. 

Approved  in  United  States  v.  Sena,  12  N.  M.  414,  78  Pac.  62,  repeal 
of  Laws  of  1901  deprived  supreme  court  of  jurisdiction  over  criminal 
appeals  not  taken  during  term  at  which  judgment  rendered;  Terry  v. 
McClung,  104  Va.  601,  52  S.  E.  356,  construing  Acts  1887-88,  p.  68, 
c.  58,  relating  to  jurisdiction  in  road  cases. 

Limited  in  Sena  v.  United  States,  147  Fed.  488,  where  defendant  in 
criminal  case  appealed  from  territorial  district  court  within  time  and 
in  accordance  with  existing  statute,  repeal  of  statute  without  saving 
clause  before  hearing  of  appeal  did  not  deprive  appellate  court  of 
jurisdiction. 

5  Wall.  545-563,  18  L.  6G2,  THE  BIRD  OF  PARADISE. 

Syl.  2   (VI,  739).     Contract  affirming  freight  lien. 

Approved  in  Portland  etc.  Mills  Co.  v.  Portland  etc.  S.  S.  Co.,  145 
Fed.  693,  provision  of  bill  of  lading  that  carrier  shall  have  lien  on 
goods  for  all  freights  does  not  affect  nature  of  lien;  Michigan  S.  S. 
Co.  V.  Thornton,  136  Fed.  137,  69  C.  C.  A.  132,  where  charter-party 
provided  that  freight  should  be  payable  in  cash  on  delivery  of  each 
cargo,  and  that  ship  should  have  lien  on  all  cargo  for  freight,  and  con- 
eignee  remitted  to  shipper  for  cargo  and  freight,  money  impressed  with 
trust  for  freight. 

Syl.  3  (VI,  739).     Lien  for  freight — Retention  of  goods. 

Approved  in  Portland  etc.  Mills  Co.  v.  Portland  etc.  S.  S.  Co.,  145 
Fed.  692,  provision  of  bill  of  lading  that  carrier  shall  have  lien  on 
goods  for  all  freights  does  not  affect  nature  of  lien. 


5  Wall.  563-663  Notes  on  IT.  S.  Reports.  422 

5    Wall.    563-566,    IS   L.    692,    UNITED    STATES    v.    THE    COMMIS- 
SIONER, 

Syl.  1   (VI,  741).     Mandamus — Quasi-judicial  duties. 

Approved  in  Hover  v.  People,  17  Colo.  App.  392,  68  Pac.  685,  man- 
damus does  not  lie  to  control  determination  of  council  as  to  sufTicipncy 
of  funds  to  meet  demands  of  city  departments  and  amount  of  appro- 
priation. 

5  Wall.  566-574,  18  L.  511,  GOODRICH  v.  CHICAGO. 

Syl.  1  (VI,  742).  State  judgment  on  demurrer  conclusive  in  ad- 
miralty. 

Cited  in  Loekliart  v.  Leeds,  12  N.  M.  167,  76  Pac.  315,  and  Board 
of  County  Commrs.  v.  Cross,  12  N.  M.  76,  73  Pac.  616,  both  holding 
where,  on  sustaining  demurrer,  material  issues  had  to  be  passed  on,  and 
plaintiff  did  not  amend,  but  allowed  entry  of  dismissal,  judgment  was 
res  adjudieata;   Ayres  v.  Cone,  138  Fed.  781,  arguendo. 

5  Wall.  580-599,  18  L.  550,  PACKET  CO.  v.  SICKLES. 

Syl.   1    (VI,   744).     Judgment  as  estoppel. 

Approved  in  Schwarz  v.  Kennedy,  142  Eed.  1029,  judgment  for  de- 
fendant for  costs  in  replevin  against  two  defendants,  in  which  one  of 
defendants  was  owner  of  undivided  interest  only,  is  not  bar  to  action 
for  conversion  of  same  property;  Georgia  etc.  Banking  Co.  v.  Wright, 
liJ2  Fed.  917,  decision  of  Georgia  supreme  court  in  suit  between  rail- 
road and  state  that  company's  charter  precluded  greater  tax  than  cer- 
tain percentage  of  earnings,  concludes  state  in  subsequent  suit,  though 
it  involves  taxes  for  different  year  or  under  different  statute;  State  v. 
MeEldowney,  54  W.  Va.  701,  47  S.  E.  652,  applying  rule  to  decree  in 
suit  assailing  validity  of  tax  deed. 

Syl.  2  (VI,  746).     Judgment — Evidence  aliunde  to  explain. 

Approved  in  Fayerweather  v.  Ritch,  195  U.  S.  306,  49  L.  213,  25 
Sup.  Ct.  58,  declaring  validity  of  releases  to  be  res  adjudieata;  Hol- 
ford  V.  James,  136  Fed.  555,  69  C.  C.  A.  263,  construing  docket  entries 
as  indicating  that  action  proceeded  to  final  judgment;  Oster  v.  Broo, 
161  lud.  123,  64  N.  E.  921,  in  suit  to  compel  defendant  to  allow 
plaintiff  to  repair  ditch  across  defendant's  land,  jurors  in  action  by 
plaintiff  against  defendant  for  tearing  up  part  of  it  cannot  testify 
that  they  did  not  include  cost  of  constructing  ditch  as  part  of  re- 
covery. , 

5  Wall.  660-663,  18  L.  678,  MILWAUKEE  R.  R.  CO.  v.  SOUTTER. 

Svl.  1  (VI,  751).  Confirmation  of  judicial  sale  is  exercise  of  dis- 
cretion. 

Approved  in  The -Sue,  137  Fed.  134,  fact  that  first  bidder  has  de- 
posited amount  of  bid  or  incurred  expense  on  account  of  supposed 
purchase  not  ground  for  objection  to  setting  aside  unconfirmed  sale 
in  admiralty  on  offer  of  increased  bid. 


423  Kotes  on  U.  S.  Reports.  5  Wall.  6G3-704 

5   Wall.  6G3-CS0,   18  L.  704,  THOMPSON  v.  EIGGS. 

Syl.  4   (VI,  752).     Bank  deposits  belong  to   bank. 

Approved  in  Burton  v.  United  States,  196  U.  S.  302,  49  L.  488, 
25  Sup.  Ct.  243,  indictment  charging  receipt  and  payment  of  checks 
in  St.  Loufs  not  sup[)orted  by  evidence  that  checks  drawn  on  St. 
Louis  bank  were  received  by  defendant  in  Washington  and  deposited 
in  local  bank;  Bank  of  Blackwell  v.  Dean,  9  Okl.  631,  60  Pac.  228, 
general  depositor  not  entitled  to  priority  over  other  general  creditors 
on  assignment  of  bank. 

Syl.  6  (VI,  754).     Usage  implied  in  contract. 

Approved  in  MeSlierry  v.  Blanchfield,  68  Kan.  312,  75  Pac.  122, 
where  there  is  express  contract  for  storage,  evidence  of  existence  of 
certain  custom  not  admissible  unless  party  presumed  to  know  of  it. 

5  Wall.  6S1-G89,  18  L.  689,  WOLCOTT  v.  DES  MOIXES  CO. 

Syl.  4  (VI,  757).     Land  grants — Exception  of  reserved  lands. 

Approved  in  Northern  Lumber  Co.  v.  O'Brien,  139  Fed.  617, 
affirming  134  Fed.  304,  holding  where  withdrawal  of  public  lands 
along  route  of  railroad  is  made  by  Land  Department  on  filing  general 
location,  such  withdrawal  excepted  lands  from  subsequent  grant, 
though   route   subsequently   changed. 

5    Wall.    689-704,    18    L.    527,    NASH    v.    TOWNE. 

Syl.  3   (VI,  758).     What   variance   deemed  material. 

Approved  in  Schiffer  v.  Anderson,  146  Fed.  459,  where  complaint 
alleged  certain  defendant  was  member  of  defendant's  firm,  and 
though  other  defendants  had  knowledge  of  facts,  they  did  not  denv 
allegation,  but  proved  contrary  under  general  denial,  variance  not 
material. 

Syl.  5  (VI,  759).     Contracts — Surrounding  circumstances  considered. 

Approved  in  Cleveland-Cliffs  Iron  Co.  v.  East  Itasca  Mining  Co.,  146 
Fed.  235,  construing  contract  for  assignment  of  mining  leases  on 
iron  land  on  royalty;  Vocalion  Organ  Co.  v.  Wright,  137  Fed.  316, 
construing  contract  between  employer  and  its  factory  superintendent 
for  interest  in  latter 's  future  inventions  of  or  improvements  in  piano 
players;  United  Rys.  etc.  Co.  v.  Wehr,  103  Md.  339,  63  Atl.  478, 
where  defendant  solicited  of  plaintiff  bid  for  scrap  iron  in  building, 
not  including  engines  or  piping,  and  plaintiff  bid  for  all  old  material 
for  sale  in  building,  parol  admissible  to  show  whether  structural  iron 
included;  Milske  v.  Steiner  Mantel  Co.,  103  Md.  246,  63  Atl.  473,  5 
L.  R.  A.  (N.  S.)  1105,  where  contractor  agreed  to  put  up  building 
according  to  plans  and  give  bond,  and  bond  recited  that  neither  prin- 
cipal nor  surety  liable  for  damage  caused  by  act  of  God,  contractor 
not  relieved  from  damage  to  building  caused  by  storm. 


5  Wall.  705-737  Notes  on  U.  S.  Keport8.  424 

Syl.  8  (VI,  760).     Parol  to  exonerate  agent  contracting  as  principal. 

Approved  in  Builders'  Supply  Co.  v.  North  Augusta  etc.  Imp.  Co., 
71  S.  C.  375,  51  S.  E.  236,  where  owner  of  lot  agreed  with  another 
to  build  house  thereon  and  convey  it  free  of  liens,  and  permitted 
buyer  to  contract  with  builder,  and  took  bond  from  builder  and  paid 
materialman,  latter  had  lien  on  house  and  lot. 

Syl.  9   (VI,  761).     Parol  to  show  contract  made  by  agent. 

Approved  in  In  re  Weisenberg,  131  Fed.  521,  parol  evidence  is 
admissible  to  show  that  joint  notes  signed  by  members  of  bankrupt 
partnership  are  in  fact  firm  debts. 

5  Wall.  705-710,  18  L.  560,  CITY  OF  GALENA  v.  AMY. 

Syl.   1    (VI,  761).     Tax  levy   to   pay  fund<^d   debt   imperative. 

Approved  in  United  States  v.  Cornell  Steamboat  Co.,  202  U.  S. 
192,  50  L.  991,  26  Sup.  Ct.  648,  affirming  137  Fed.  458,  69  C.  C.  A. 
603,  Secretary  of  Treasury  cannot  arbitrarily  refuse  to  refund  duties 
on  damaged  imports  provided  by  Comp.  St.  1901,  p.  1958;  Jones  v. 
Commissioners,  137  N.  C.  592,  50  S.  E.  295  (on  rehearing),  holding 
Laws  1903,  p.  490,  c.  289,  authorizing  issuance  of  refunding  bonds,  is 
mandatory;  dissenting  opinion  in  Battery  Park  Bank  v.  Madison 
Co.  Commrs.,  135  N.  C.  240,  47  S.  E.  1018,  majority  holding  Laws  1903, 
p.  490,  c.  289,  authorizing  issuance  of  refunding  bonds,  is  not  manda- 
tory. 

Syl.  4  (VI,  763).  Obligation  of  contracts — Eepeal  of  law  to  pay 
debts. 

Approved  in  City  of  Ft.  Madison  v.  Ft.  Madison  etc.  Co.,  134  Fed. 
216,  67  C.  C.  A.  142,  Code  Iowa  1897,  §  1305,  providing  for  assessment 
of  property  at  quarter  of  value,  is  void  in  so  far  as  it  affects  ability 
of  city  to  pay  water  rentals  under  contract  made  when  law  provided 
for  assessment  at  actual  value;  Graham  v.  Folsom,  200  U.  S.  252, 
50  L.  468,  20  Sup.  Ct.  245,  arguendo. 

Syl.  6   (VI,  764).     Mandamus  to  compel  tax  levy. 

Approved  in  Ward  v.  Piper,  69  Kan.  777,  77  Pac.  700,  applying 
rule  in  action  to  compel  municipal  officers  to  pay  judgment  on  bond 
coupons  from  interest  fund;  Territory  v.  Mayor  etc.  of  City  of 
Socorro,  12  N.  M.  185,  76  Pac.  285,  it  is  no  defense  to  mandamus 
to  compel  city  to  levy  tax  to  pay  bonds  that  relator  owns  only  por- 
tion  of   bond  issue. 

5   Wall.   720-737,   18   L.   614,   PHILADELPHIA   v.    COLLECTOR. 

Syl.  4  (VI,  765).     Payment  by  compulsion  of  law  under  protest. 

Approved  in  Kahn  v.  Herold,  147  Fed.  579,  580,  where  at  time 
executors  paid  inheritance  tax  on  life  estate  under  protest  they  had 
no  knowledge  that  life  tenant  had  died,  payment  not  voluntary  so  as 
to  preclude  recovery. 


425  Notes  on  U.  S.  Eeports.  5  Wall.  737-808 

5  Wall.  737-761,  18  L.  667,  THE  KANSAS  INDIANS. 

Syl.  3   (VI,  768).     Tribal  Indians  subject  to  federal  ]aw3. 

Approved  in  In  re  Hctf,  197  U.  S.  506,  49  L.  856,  2a  Sup.  Ct.  506, 
sale  of  liquor  within  state  to  Indian  to  whom  allotment  made  under 
act  of  1887,  not  an  offense  under  29  Stat.    506,  c.  109. 

Distinguished  in  Montana  Catholic  Missions  v.  M-ssoula  Co.,  200 
U.  S.  127,  50  L.  402,  26  Sup.  Ct.  197,  claim  that  cattle  owned  by 
Jesuits  are  exempt  from  state  taxation  because  Jesuits'  income  de- 
voted to  educating  reservation  Indians  does  not  confer  federal  juris- 
diction. 

Syl.  5  (VI,  769).     State  taxation  of  Indian's  lands. 

Approved  in  Goudy  v.  Meath,  38  Wash.  129,  80  Pac.  297,  where 
patent  to  Indians  was  subject  to  treaty  exempting  it  from  sale  or 
levy  until  restriction  removed  by  statute,  and  statute  passed  allowing 
alienation  after  ten  years,  lands  taxable  after  ten  year  period  elapsed. 

Syl.   8    (VI,   771).     Construction   of   Indian   treaties. 

Approved  in  Winters  v.  United  States,  143  Fed.  746,  under  treaty 
of  1888  with  Montana  Indians,  portion  of  waters  of  Milk  river  re- 
served for  irrigation  of  reservation  lands. 

5  Wall.  772-785,  18  L.  556,  SUPERVISORS  v.  SCHENCK. 

Syl.   5    (VI,   774).     Ratification   of   railroad   aid   bonds. 

Approved  in  Schmitz  v.  Zeh,  91  Minn.  295,  97  N.  W.  1051,  where 
county  aid  bonds  issued  under  authority  of  statute  and  sold  to  bona 
fide  purchasers,  and  taxes  levied  for  thirteen  years  to  pay  interest, 
taxpayer  estopped  to  attack   validity. 

5  Wall.  795-808,  18  L.  653,  DEERY  v.  CRAY. 

Syl.  1   (V.Y,  778).     Recitals  in  ancient  deeds  as  evidence. 

Approved  in  Wilson  v.  Braden,  56  W.  Va.  375,  107  Am.  St.  Rep. 
929,  49  S.  E.  410,  recitals  of  heirship  and  widowhood  in  deeds  upward 
of  thirty  years  old,  under  which  possession  continuously  held,  are  ad- 
missible against  adverse  claimants. 

Syl.  3   (VI,  779).     Recital  in  married  woman's  acknowledgment. 
See  108  Am.  St.  Eep.  569,  note. 

Syl.  4   (VI,  780).     Error  must  be  prejudicial  to   reverse. 

Approved  in  Sprinkle  v.  United  States,  150  Fed.  59,  where  defend- 
ants were  jointly  indicted  with  others,  typewritten  letter  purported  to 
have  been  dictated  by  one  of  them  and  signed  in  his  name  by  rubber 
stamp  was  inadmissible  against  him;  Inman  Bros.  v.  Dudley  etc.  Co., 
146  Fed.  452,  in  action  for  breach  of  contract  to  sell  all  lumber  on 
hand  and  entire  cut  for  certain  year  estimated  at  certain  figure,  ex- 
clusion of  evidence  by  defendant  of  amount  actually  cut  during  year 
is  prejudicial;   Armour  &  Co.   v.  Russell,   144  Fed.   615,  in  action  for 


6  Wall.  31-78  Notes  on  U.  S.  Eeports.  42G 

personal  injuries  to  servant,  it  is  prejudicial  to  instruct  that  it  is 
master's  duty  to  furnish  reasonably  safe  place  to  work,  reasonably 
safe  appliances,  and  to  keep  them  in  reasonably  safe  repair;  Seattle 
Elec.  Co.  V.  Hartless,  144  Fed.  381,  under  Bal.  Code  (Wash.),  §§  4828, 
4838,  relating  to  actions  for  wrongful  death  by  heirs  and  personal 
representatives,  in  action  by  widow  and  daughter,  evidence  as  to  their 
physical  condition  is  inadmissible;  Bank  of  Havelock  v.  Western 
Union  Tel.  Co.,  141  Fed.  526,  where  evidence  is  insufficient  to  sustain 
verdict  for  defeated  party  in  action  for  sending  unauthorized  tele- 
gram, instruction  directing  verdict  against  him  on  other  and  errone- 
ous ground  is  not  prejudicial;  National  Biscuit  Co.  v.  Nolan,  138  Fed. 
9,  70  C.  C.  A.  436,  applying  rule  where,  in  action  for  personal  injuries, 
jilaintiff  permitted  to  testify  that  she  depended  on  herself  for  sup- 
port; Union  Pac.  R.  Co.  v.  Field,  137  Fed.  18,  69  C.  C.  A.  536,  applying 
rale  where  counsel  in  argument  insinuated  erroneous  views  of  law  as 
to  measure  of  damages;  Resurrection  Gold  Min.  Co.  v.  Fortuue  Gold 
Min.  Co.,  129  Fed.  677,  64  C.  C.  A.  180,  applying  principle  where  wit- 
ness on  direct  examination  had  related  part  of  conversation,  and 
cross-examination  as  to  entire  conversation  denied. 

5  Wall.  819-822,  18  L.  613,  WITHENBURG  v.  UNITED  STATES. 

Syl.  1  (VI,  782).     Final  appealable  decree  in  prize  case. 

Approved  in  Dodge  v.  Norlin,  133  Fed.  365,  66  C.  C.  A.  425,  bank- 
ruptcy court  judgment  that  chattel  mortgage  on  alleged  property  of 
bankrupt  is  voidable  by  trustee,  and  that  mortgagee  has  no  lien  and 
is  not  entitled  to  preference  out  of  proceeds,  is  final  appealable  judg- 
ment. 


VI  WALLACE. 


6  Wall.  31-35,  18  L.  749,  SOUTHERN  S.  S.  CO.  v.  PORT  WARDENS. 

Syl.  1  (VI,  790).  Congress  exclusively  regulates  interstate  com- 
merce. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  884,  holding 
void  Laws  Wis.  1905,  p.  37,  c.  19,  as  amended,  providing  for  inspec- 
tion of  grain,  as  applied  to  interstate  shipments. 

Syl.  4  (VI,  791).     Fee  for  vessels  arriving  is  tonnage  duty. 
Approved  in  Way  v.  New  Jersey  S.  B.  Co.,  133  Fed.  192,  Laws  N.  Y. 
1897,  p.  701,  c.  592,  §  63,  imposing  tonnage  duty,  is  void. 

6  Wail.  50-78,  18  L.  721,  STATE  OF  GEORGIA  v.  STANTON. 

Syl.   1    (VI,   797).     Political   questions   not   for   courts. 

Approved  in  Anthony  v.  Burrow,  129  Fed.  790,  denying  jurisdiction 
to  enjoin  state  officers  from  issuing  certificate  of  nomination  to  con- 


427  Notes  on  U.  S.  Keports.  6  Wall.  78-91 

gressional  candidate;  Shoemaker  v.  City  of  Des  Moines,  129  Iowa,  248, 
105  N.  \V.  521,  refusing  to  restrain  execution  of  contract  by  city 
ofRoials  at  suit  of  voter,  for  purcliase  of  voting  machines  on  ground 
that  they  are  not  adaptable. 

(VI,  797).  Miscellaneous.  Cited  in  Lockhart  v.  Leeds,  195  U.  S. 
437,  49  L.  269,  25  Sup.  Ct.  76,  relief  under  general  prayer  not  deniable 
because  it  is  asked  for  under  different  theory  than  that  on  which 
special  prayer  is  based,  where  botli  prayers  based  on  same  facts. 

6  Wall.  7S-S0,  18  L.  730,  LUKINS  v.  AIRD. 

Syl.   2    (VI,   799).     Frauilulent  conveyance — Sale   by  failing  debtor. 

Apj)roved  in  Wise  v.  Pfaff,  98  Md.  583,  56  Atl.  817,  where  deed  made 
immediately  on  receipt  of  letter  that  money  due  on  mortgage  must 
be  paid,  and  grantor  knew  deficiency  judgment  would  be  entered,  and 
grantee  received  none  of  rents  from  property  for  long  time,  deed  was 
fraudulent. 

6  Wall.  80-83,  18  L.  725,  WOOD  v.  STEP^LE. 

Syl.  1  (VI,  801).     Alteration  of  commercial  paper  as  discharge. 

Approved  in  Merchants'  etc.  Bank  v.  Baltimore  etc.  S.  B.  Co.,  102 
Md.  580,  582,  63  Atl.  110,  111,  change  of  date  in  bills  of  lading  in- 
validates them;  First  National  Bank  v.  Carter,  138  Mich.  428,  101 
N.  W.  588,  whore  school  order  for  supplies  was  signed  by  officers, 
removal  therefrom  of  certificate  by  payee  that  he  had  received  official 
vouL'lier  containing  recital  that  matter  left  to  vote  of  annual  meeting 
of  district    was  material  alteration. 

Syl.  2   (VI,  801).     Materiality  of  alteration  of  note  for  jury. 

Approved  in  Leppert  v.  Flaggs,  101  Md.  75,  60  Atl.  451,  in  action  on 
building  contract  bond,  plea  that  contract  materially  changed  without 
averring  in  what  respect  it  was  changed  or  allegation  of  facts  consti- 
tuting change  is  insufficient. 

Syl.   3    (VI,   801).     When   alteration   of   instrument   material. 

Approved  in  Merchants'  etc.  Bank  v.  Baltimore  etc.  S.  B.  Co., 
102  Md.  581,  63  Atl.  110,  change  in  date  of  bills  of  lading  invalidates 
them. 

Syl.  6   (VT,  802).     Innocent  holder  of  altered  note. 

Approved  in  Merchants'  etc.  Bank  v.  Baltimore  etc.  S.  E.  Co., 
102  Md.  583,  586,  63  Atl.  Ill,  112,  change  in  date  of  bills  of  lading 
invalidates  them  even  in  hands  of  bona  fide  pledgee. 

6  Wall.  83-91,  18  L.  727.     WILSON  v.  WALL. 

Syl.  5   (VI,  803).     When  vendee  charged  with   constructive  notice. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
333,  50  L.  504,  26  Sup.  Ct.  282,  purchaser  of  property  of  lumber  com- 


6  Wall.  94-100  Notes  on  U.  S.  Eeports.  423 

pany  not  charged  with  knowledge  of  wrongful  character,  as  against 
government,  of  conveyances  of  standing  timber  which  might  have 
been  gained  by  investigation  of  company's  books;  Eeed  v.  Munn,  148 
Fed.  756,  purchaser  with  notice  under  purchaser  without  notice  is 
bona  fide  purchaser;  United  States  v.  Detroit  etc.  Lumber  Co.,  131 
Fed.  675,  receiver's  final  certificates  are  notice  to  purchasers  of  equi- 
table title  they  evidence  that  they  are  avoidable  by  Land  Department 
for  fraud  or  error  at  any  time  before  patents  issue;  Ilavighorst  v. 
Bowen,  214  111.  98,  73  N.  E.  405,  where  beneficiary  under  trust  deed  ac- 
quired fee  from  grantor  of  trust  deed,  and  trustee  released  deed  before 
notes  which  were  pledged  to  third  party  were  due,  fact  that  record 
showed  notes  had  not  matured  is  not  notice  pf  improper  discharge  to 
subsequent  lienholder;  dissenting  opinion  in  Wasserman  v.  Metzger, 
105  Va.  768,  771,  54  S.  E.  900,  901,  majority  holding  where  one  of  two 
notes  paid  and  collusively  transferred  to  another,  who  procured  to 
him  sale  by  trustee  of  property  securing  it,  and  he  then  executed  trust 
deed  to  loan  association  for  benefit  of  first  payee's  wife,  latter  not 
bona  fide  purchaser  as  against  lien  for  payment  of  other  note  secured 
by  original  trust   deed. 

6  Wall.  94-100,  18  L.  752,  WICKER  v.  HOPPOCK. 

Syl.  3   (VI,  805).     Damages — Duty  to   diminish   damages. 

Approved  in  Indian  Mountain  etc.  Coal  Co.  v.  Ashevillc  etc.  Coal 
Co.,  134  N.  C.  588,  47  S.  E.  121,  applying  rule  under  contract  to  sell 
all  coal  required. 

Distinguished  in  Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  178, 
67  C.  C.  A.  74,  buyer  of  distillery  slop  for  feeding  purposes  under 
contract,  whereby  seller  was  to  deliver  it  in  troughs  suitable  for 
feeding,  may  recover,  though  he  did  not  himself  erect  troughs  where 
he  relied  on  seller's  repeated  promises  to  do  so;  Allen  v.  Field,  130 
Fed.  653,  65  C.  C.  A.  19,  where  defendant  contracted  for  purchase  of 
greater  part  of  product  of  plaintiff's  distillery  for  fifteen  years,  on 
repudiation  of  contract  by  defendant  after  two  years,  plaintiff  not 
bound  to  operate  distillery  and  market  product. 

Syl.  4  (VI,  805).     Damages  for  breach  of  indemnity  contract. 

Approved  in  Dancel  v.  Goodyear  Shoe  etc.  Co.,  137  Fed.  159,  where 
corporation  purchases  entire  property  and  assets  of  another,  and  gives 
bond  to  pay  all  its  debts  and  assume  all  its  contracts,  latter  is  not 
indispensable  party  to  suit  in  equity  against  purchaser  to  enforce 
its  liability  on  such  contract;  Broadwell  v.  Banks,  134  Fed.  476,  cov- 
enant by  lessee  to  pay  taxes,  not  being  one  of  indemnity,  cause  of 
action  to  recover  same  accrues  to  lessor  on  failure  to  pay  taxes; 
Cudaback  v.  Hay,  134  Fed.  123,  where  defendant  purchased  realty  in 
another's  name,  agreeing  to  furnish  money  to  pay  taxes  and  principal 
and  interest  on  mortgage,  and  save  him  harmless  from  all  charges, 
defendant's  liability  was  fixed  on  rendition  of  deficiency  judgment  on 


429  Notes  on  U.  S.  Keports,  6  Wall.   llG-139 

foreclosure;  Cousins  v.  Paxton  &  Gallagher  Co.,  122  Iowa,  469,  98  N.  W. 
279,  where  sheriff  accepted  bond  to  indemnify  him  against  liability 
for  damages  sustained  by  levy  on  personalty,  he  cannot  recover  thereon 
for  attorney's  fees  incurred  in  defending  action  for  conversion  till  fee 
actually  paid;  Northern  Assur.  Co.  v.  Borgelt,  67  Neb.  286,  93  N.  W. 
227,  where  insurance  agent  gave  bond  to  faithfully  perform  all  duties 
i>.nd  obey  instructions,  and  they  neglected  to  cancel  policy  as  directed, 
action  on  bond  not  barred  until  five  years  from  loss  to  obligee. 

6  Wall.  116-124,  18  L.  730,  OSTERMAN  v.  BALDWIN. 
Syl.  1  (VI,  807).     Alien's  capacity  to  hold  lands. 

Approved  in  Pembroke  v.  Huston,  180  Mo.  639,  79  S.  W.  472,  alien 
not  justified  in  rescinding  contract  for  exchange  of  lands. 

Syl.  2  (VI,  807).     Naturalization  waives  forfeitures  due  to  alienage. 

Approved  in  Shea  v.  Nilima,  133  Fed.  215,  66  C.  C.  A.  203,  agreement 
between  two  aliens  to  acquire  mining  claims  for  joint  benefit  may  be 
enforced  by  one  subsequently  declaring  intention  to  become  citizen. 

6  Wall.  134-139,  18  L.  765,  THOMPSON  v.  EAILROAD  COS. 

Syl.  1  (VI,  809).     Jurisdictional  objections  raisable  on  appeal. 

Approved  in  Perez  v.  Fernandez,  202  U.  S.  100,  50  L.  949,  26  Sup. 
Ct.  561,  supreme  court  will  of  own  motion,  on  writ  of  error,  inquire 
into  jurisdiction  of  lower  court,  irrespective  of  exception;  Nichols  v. 
Board  of  Commrs.  of  Western  Co.,  13  Wyo.  8,  76  Pac.  682,  where  final 
judgment  is  not  supported  by  pleadings  or  findings,  it  may  be  vacated 
on  error,  on  record  proper,  witliout  bill  of  exceptions. 

Syl.   2    (VI,   810).     Federal   equity  not  limited  by  state  law. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Blair,  130  Fed.  974,  whers 
equity  has  jurisdiction  of  suit  to  cancel  life  policy  for  fraud,  fact  that 
insured  died  prior  to  answer  and  that  action  at  law  brought  on  policy 
does  not  deprive  equity  court  of  jurisdiction;  Anthony  v.  Burrow,  129 
Fed.  790,  denying  equity  jurisdiction  to  enjoin  state  officers  from  is- 
suing certificate  of  nomination  to  congressional  candidate. 

Syl.  3   (VI,  811).     Adoption  of  state  practice. 

Approved  in  Ames  Realty  Co.  v.  Big  Indian  etc.  Co.,  146  Fed.  176, 
rights  given  Civ.  Code  Mont.,  §  1891,  providing  that  in  actions  for 
protection  of  water  rights  plaintiff  may  make  all  diverters  of  water 
from  same  source  parties  and  court  may  settle  rights  of  all  parties, 
are  enforceable  in  federal  court;  Levi  v.  Mathews,  145  Fed.  154,  in 
action  at  law  for  recovery  of  money  due  under  contract,  court  cannot 
entertain  defense  of  fraud  in  procurement  of  contract;  Chapman  v. 
Yellow  Poplar  Lumber  Co.,  143  Fed.  206,  bill  in  federal  court  to  compel 
reconveyance  of  property  conveyed  by  complainants  to  defendants  and 
also  for  damages  for  breach  of  the  contract,  states  two  causes  of  ac- 
tion; Illinois  Life  Ins,  Co.  v.  Newman,  141  Fed.  453,  federal  equity 


6   Wall.  139-209  Notes  on  U.  S.  Reports.  430 

cannot  enjoin  collection  of  state  tax  on  ground  of  its  illcgalitj'; 
Davidson  etc.  Imp.  Co.  v.  Parlin  etc.  Co.,  141  Fed.  40,  simple  contract 
creditor  who  has  not  reduced  claim  to  judgment  cannot  have  claim 
adjudicated  in  equity;  Union  Stockyards  Co.  v.  Nashville  Packing 
Co.,  140  Fed.  706,  where  cause  removed  from  state  court,  which  was 
competent  to  grant  either  equitable  or  legal  relief,  and  plaintiff  pro- 
ceeds in  equity  in  federal  court,  and  no  case  is  made  for  equitable 
relief,  court  cannot  award  damages;  Anglo-American  etc.  Co.  v. 
Lombard,  132  Fed.  731,  68  C.  C.  A.  89,  in  action  at  law  to  enforce 
stockholder's  liability,  defendant  cannot  set  off  indebtedness  from 
corporation  to  him. 

6  Wall.  139-142,  18  L.  819,  WEST  v.  AUEOEA  CITY. 

Syl.  1  (VI,  812).     Affirmative  answer  not  new  removable  suit. 

Approved  in  Smithers  .v.  Smith,  35  Tex.  Civ.  511,  80  S.  W.  648,  fol- 
lowing rule;  Indian  etc.  Coal  Co.  v.  Ashville  etc.  Coal  Co.,  135  Fed. 
840,  where,  after  judgment  in  favor  of  nonresident  plaintiff  was 
affirmed  as  to  original  cause  of  action  but  reversed  as  to  counterclaim, 
defendant  amended  counterclaim  by  increasing  amount  demanded, 
plaintiff  could  not  remove  cause. 

Syl.   2   (VI,   813).     Eemoval — Appearance  in   state   court  waives. 

Distinguished  in  Price  v.  Ellis,  129  Fed.  483,  where  defendant  in 
action  by  nonresident  files  counterclaim  for  more  than  $2,000,  cause  is 
removable  by  plaintiff  at  or  before  time  to  plead  to  counterclaim. 

6  Wall.  142-152,  18  L.  753,  EECTOR  v.  ASHLEY. 

Syl.  4  (VI,  815).     Statutes  govern  claimants  to  public  lands. 

Approved  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  1  Alaska,  447,  ten 
year  statute  of  limitations  begins  to  run  in  favor  of  adverse  possessor 
of  part  of  mining  claim  from  time  of  location  and  not  from  date  of 
patent;  Graham  v.  Great  Falls  etc.  Co.,  30  Mont.  403,  76  Pac.  811, 
applying  rule  in  construing  act  of  1891,  relating  to  confirmation  of 
contested   pre-emptions  in   hands   of  bona  fide   purchasers. 

6  Wall.   153-157,   18  L.   762,  PROVIDENCE  RUBBER  CO.  v.   GOOD- 
YEAR. 

Syl.   1   (VI,  816).     Appeal — Rights  determined  from  filing. 

Approved  in  In  re  McCall,  145  Fed.  901,  902,  time  limit  for  re- 
view of  order  confirming  bankrupt's  composition  runs  from  entry  of 
confirmation  order  on  record. 

6  Wall.  166-209,  18  L.  768,  RIGGS  v.  JOHNSON  COUNTY. 

Syl.  1   (VI,  819).     Jurisdiction  continues  till  judgment  satisfied. 

Approved  in  Hatcher  v.  Hendrie  etc.  Supply  Co.,  133  Fed.  270,  68 
C.  C.  A.  19,  suit  in  equity  to  enforce  attachment  lien  obtained  in 
former  action  is  maintainable  irrespective  of  citizenship  or  of  custody 


431  Notes  on  U.  S.  Reports.  6  Wall.  213-230 

of  proceeds  of  attached  property;  Louisville  Trust  Co.  v.  Knott,  130 
Fed.  825,  65  C.  C.  A.  158,  where,  on  expiration  of  corporation's  fran- 
chise, its  assets  delivered  to  liquidator  and  minority  stockholders  filed 
state  suit  to  inspect  books,  and  pending  suit  creditor  obtained  ap- 
pointment of  federal  receiver,  state  court  had  priority  of  jurisdiction; 
Ingraham  v.  National  Salt  Co.,  139  Fed.  690,  arguendo. 

Syl.  4  (VI,  820).     Mandamus  by  circuit  court. 

Approved  in  Barber  Asphalt  Pav.  Co.  v.  Morris,  132  Fed.  955,  67 
L.  R.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to  circuit  judge  to 
vacate  order  staying  proceedings  in  action  on  claim  against  city  pend- 
ing state  appeals. 

Syl.  7   (VI,  822).     State  injunction  of  federal  proceedings. 

Approved  in  Beardslee  v.  Ingraham,  183  N.  Y.  417,  76  X.  E.  477, 
where  federal  court  issued  attachment  against  property  of  corporation, 
and  writ  filed  in  office  of  clerk  of  county  where  property  situated,  and 
afterward  receiver  appointed  by  state  court  in  suit  for  dissolution, 
state  court  cannot  enjoin  marshal  from  selling  attached  property  on 
execution. 

Distinguished  in  Shaw  v.  Frey,  69  N.  J.  Eq.  324,  59  Atl.  812,  state 
court  may  enjoin  prosecution  of  federal  action  pending  discovery  of 
matters  necessary  to  trial  of  such  action. 

Syl.  9  (VI,  824).     Mandamus  to  levy  tax  to  pay  bonds. 

Approved  in  Theis  v.  Conimrs.  of  Washita  County,  9  Okl.  653,  60 
Pac.  508,  where  county  commissioners  have  issued  bridge  warrants 
in  accordance  with  statute,  mandamus  lies  to  compel  tax  levy  ^o 
liquidate  warrants.     See  105  Am.  St.  Rep.  216,  217,  note. 

6  Wall.  213-216,  18  L.  753,  THE  ROCK  ISLAND  BRIDGE.      ' 

Syl.  2   (VI,  827).     Maritime  lien  not  dependent  on  possession. 

Approved  in  The  San  Rafael,  141  Fed.  281,  lien  for  maritime  tort 
follows  vessel  into  hands  of  buna  fide  purchaser. 

Syl.  4  (VI,  827).     What  subject  to    maritime  lien. 

Approved  in  United  States  v.  Evans,  195  U.  S.  365,  49  L.  237.  25 
Sup.  Ct.  46,  upholding  admiralty  jurisdiction  over  libel  iu  rem  against 
vessel  for  negligently  colliding  with  beacon  built  on  piles  iu  channel; 
Bowers  Hyd.  etc.  Co.  v.  Federal  Cont.  Co.,  148  Fed.  294,  upholding 
admiralty  jurisdiction  over  suit  to  recover  for  hire  of  dredge  intended 
to  operate  a  float,  though  dredge  temporarily  used  on  land  to  dredge 
stream. 

6  Wall.  225-230,  18  L.  823,  THE  VANDERBILT. 

Syl.  1  (VI,  829).     Collision— Xnvigation  in  river. 

Approved  in  Lake  Erie  Transp.  Co.  v.  Gilchrist  Transp.  Co.,  1-12 
Fed.  91,  where  it  is  customary  for  vessels  to  pass  between  buoy  and 


G  Wall.  231-262  Notes  on  U.  S.  Reports.  432 

light,   agreement   made  to  pass   port   to   port   requires   each  vessel   to 
keep  on  starboard  side  of  channel  between  light  and  buoy. 

6  Wall.  231-241,  18  L.  783,  MASON  v.  ELDRED. 

Syl.  3  (VI,  830).     Partner's  obligations  are  joint. 

Approved  in  Outcalt  v.  Collier,  8  Okl.  477,  58  Pac.  644,  where  one 
of  several  joint  debtors  on  note  consents  to  judgment  against  all, 
and  on  motion  court  vacates  judgment  as  to  portion  of  defendants 
who  did  not  authorize  consent,  judgment  must  be  set  aside  as  to  all 
defendants. 

Syl.  4  (VI,  830).     Judgment  against  on^  joint  obligor. 

Approved  in  Outcalt  v.  Collier,  8  Old.  478,  58  Pac.  644,  where  one 
of  several  joint  debtors  on  note  consents  to  judgment  against  all,  and 
on  motion  court  vacates  judgment  as  to  portion  of  defendants  who 
did  not  authorize  consent,  judgment  must  be  set  aside  as  to  all  de- 
fendants. 

(VI,  830).  Miscellaneous.  Cited  in  Bell  v.  St.  -Tohnsbury  etc.  R.  R. 
Co.,  76  Vt.  52,  56  Atl.  109,  notice  and  opportunity  to  be  heard  are 
prerequisites  to  judgment. 

6   Wall.   247-254,   18    L.    Sol,    THE    MAYOR    OF    NASHVILLE    v. 
COOPER. 

Syl.  1  (VI,  832).     No  costs  where  no  jurisdiction. 

Approved  in  Nutter  v.  Brown,  58  W.  Va.  245,  52  S.  E.  92,  1  L.  R.  A. 
(N.  S.)  1083,  decree  respecting  allowances  of  expenses  and  compensa- 
lion  of  receiver  is  appealable. 

Distinguished  in  Graham  v.  Oregon  etc.  Nav.  Co.,  134  Ped.  692. 
where  exceptions  to  libel  in  admiralty  for  want  of  jurisdiction  are 
sustained,  libel  may  be  amended. 

Syl.  2  (VI,  833).     Doubts  resolved  in  favor  of  validity  of  law. 

Approved  in  Board  of  Commrs.  of  Onslow  Co.  v.  Tollman,  145  Fed 
766,  upholding  Laws  N.  C.  1885,  p.  439,  c.  233,  incorporating  railroad 
and  authorizing  issuance  of  county  aid  bonds. 

Syl.  3  (VI,  833).     Federal  courts — Cases  involving  federal  questions. 
Approved  in   Anthony  v.   Burrow,    129   Fed.   787,   question   whether 

county  is  lawfully  in  congressional  district,  where  it  was  placed  by 

state  statute,  is  not  federal  question. 

6  Wall.  258-262,  18  L.  829,  MILLINGAR  v.  HARTUPEE. 

Syl.  1   (VI,  835).     When  federal  question  exists. 

Approved  in  Harris  v.  Rosenberger,  145  Fed.  452,  appeal  from  cir- 
cuit court  to  circuit  court  of  appeals  lies  where  constitutionality  of 
statute  empowering  postmaster  general  to  issue  fraud  orders  as  well 
as  its   construction  is  involved;   York  Co.  Sav.   Bank   v.   Abbot,   131 


433  Notes  on  U.  S.  Reports.  6  Wall.  280-316 

Fed.  982,  upholding  federal  jurisdiction  over  suit  by  lessee  against 
nonresident  lessor  to  conij)el  lessor  to  either  buy  building  from  or 
sell  land  to  complainant,  at  appraised  value,  under  terms  of  lease. 

6  Wall.  280-291,  18  L.  825,  BARNEY  v.  BALTIMORE. 

Syl.  1  (VI,  838).     Partition — All  co-owners  necessary  parties. 

Approved  in  Goldman  v.  Millay,  7  Ariz.  288,  64  Pac.  434,  in  action 
for  partition  by  administrator  of  mortgagee  of  undivided  half  of 
library  against  purchaser  of  other  half,  widow  of  mortgagor  in  pos- 
session of  plaintiff's  undivided  half  is  necessary  party. 

Syl.  2   (VI,  838).     Proper  and  necessary  parties  distinguished. 

Approved  in  Perkins  v.  Hendryx,  149  Fed.  528,  in  suit  to  vacate 
decree  in  favor  of  partnership,  where  firm  dissolved  and  one  of  part- 
ners has  died  since  decree,  his  administrators  are  not  necessary  par- 
ties; United  States  v.  Northern  Pac.  R.  Co.,  134  Fed.  719,  67  C.  C.  A. 
269,  in  suit  by  United  States,  in  which  annulment  of  contract  between 
corporations  is  sought  is  necessary  incident  to  other  relief,  court  can- 
not try  case  where  it  has  no  jurisdiction  over  one  of  corporations 
making  contract. 

Syl.  4  (VI,  840).     Citizen  of  territory  cannot  sue  in  federal  court. 

Ajiproved  in  Laden  v.  Meek,  130  Fed.  879,  65  C.  C.  A.  361,  allegation 
in  removal  petition  that  certain  of  petitioners  are  "residents"  of 
state  other  than  that  of  plaintiff's  citizenship,  and  that  none  of  them 
are  "residents  and  citizens"  of  state  of  plaintiff's  citizenship,  is 
insufficient. 

6  Wall.  291-298,  18  L.  919,  CRAWFORD  v.  ADDISON. 

Syl.  1   (VI,  843).     Salary  as  damages  on  quo  warranto  supersedeas. 

Approved  in  Jones  v.  Carver,  17  Colo.  App.  489,  68  Pac.  1067,  where 
opinion  in  proceedings  to  try  title  to  office  was  that  plaintiff  was 
lawfully  appointed  and  his  removal  illegal,  judgment  estopped  de- 
fendant in  action  to  recover  emoluments  of  office. 

6  Wall.  299-316,  18  L.  786,  CLEMENTS  v.  MOORE. 

Syl.  2   (VI,  845).     Fraudulent  sale  void  'though  value  paid. 

Approved  in  In  re  Pease,  129  Fed.  448,  merchant  gave  chattel  mort- 
gage on  stock  and  with  proceeds  paid  certain  creditors  in  full  and 
next  day  mortgagee  took  possession  and  sold  stock,  transaction  was 
void  under  Bankr.  Act,  c.  541,    §  67e. 

Syl.  3  (VI,  846).     Equitable  relief  to  buyers  at  fraudulent  sale. 

Approved   in   Lynch   v.   Burt,   132   Fed.   432,   67   C.   C.   A.   305,   one 
claiming  through  grantee  in  fraudulent  conveyance,  wlio  did  not  par- 
ticipate in  fraud,  is  entitled  to  reimbursement  for  payments  for  taxes. 
28 


6  Wall.  316-382  Notes  on  U.  S.  Reports.  '  434 

Syl.  5  (VI,  847).     Buyer  has  burden  of  disproving  fraud. 

Approved  in  dissenting  opinion  in  Ilickey  v.  Davidson,  129  Iowa, 
396,  105  N.  W.  682,  majority  holding  where  decedent 's  son  was  in- 
solvent and  his  interest  in  decedent's  property  exhausted  by  advance- 
ments made  by  father,  conveyance  by  sisters  to  infant  son  of  in- 
solvent brother  of  their  interest  in  land  descended  to  them  from 
father  not  in  fraud  of  brother's  creditors. 

6  Wall.  316-318,  18  L.  736,  THOMPSON  v.  BOWMAN. 

Syl.  1  (VI,  847).     Partnership  in  purchase  of  lands. 

Approved  in  Beers  v.  Sharpe,  44  Or.  393,  75  Pac.  719,  cotenant  can- 
not transfer  any  greater  interest  in  water  rights  appurtenant  to  es- 
tate than  own  interest. 

6  Wall.  318-327,  18  L.  816,  EX  PARTE  McCARDLE. 

Syl.  1  (VI,  848).     Habeas  corpus  by  federal  courts. 

Approved  in  West  Virginia  v.  Laing,  133  Fed.  891,  66  CCA.  ni7, 
upholding  release  on  habeas  corpus  where  member  of  posse  assisting 
in  arrest  of  one  indicted  in  federal  court  arrested  under  state  process 
for  murder;  State  v.  Van  Huse,  120  Wis.  21,  97  N.  W.  505,  arguendo. 

6  Wall.  355-363,  18  L.  810,  MASSINA  v.  CAVAZOO. 
Syl.  9  (VI,  853).     Bills  of  exceptions  must  be  signed. 

Approved  in  Woods  v.  Beaton,  2  Alaska,  3,  where  trial  .i^f's^^.  ^o 
whom  bill  of  exceptions  was  presented,  left  bench  without  signing  it, 
his  successor  cannot  sign  it. 

6  Wall.  363-382,  18  L.  863,  GRTSAR  v.  McDOWELL. 

Syl.  3  (VI,  854).     Pueblo's  claim  imperfect  till. lands  assigned. 

Approved  in  Bowden  v.  San  Francisco,  199  U.  S.  600,  50  L.  328,  26 
Sup.  Ct.  748,  following  rule;  Wallace  v.  Adams,  143  Fed.  724,  arguendo. 

Syl.  12  (VI,  855).     Confirmation  of  land  grant  dates  back. 

Approved  in  United  States  v.  Anderson,  194  U.  S.  399,  48  L.  1039, 
24  Sup.  Ct.  716,  government  cannot,  as  against  grantees  of  lands 
Avithin  indemnity  limits  of  railroad  grant,  retain  sums  collected  for 
removal  of  stone  betweerf  selection  and  approval  of  selection ;  Peyton 
V.  Desmond,  129  Fed.  12,  63  C.  C  A.  651,  homestead  patentee  may  re- 
cover value  of  timber  wrongfully  cut  after  initiation  of  claim  and 
prior  to  issuance  of  patent;  Florida  Town  Imp.  Co.  v.  Bigalsky,  44 
Fla.  776,  33  So.  451,  President  could  in  1842  and  1849,  by  executive 
order,  without  special  congressional  authorization,  reserve  part  of 
public  domain  on  Amelia  Island  for  military  reservation. 

Syl.  13  (VI,  856).     President  may  reserve  public  lands. 
Approved  in  United  States  v.  Tuily,  140  Fed.  901,  reciting  history  of 
Ft.  Missoula  Military  Reservation;   Gibson  v.  Anderson,  131  Fed,  41, 


435  Notes  on  U.  S.  Reports.  6  Wall.  385-402 

65  C.  C.  A.  277,  President  may  reserve  portion  of  unoccupied  public 
lands  for  Indian  reservation,  notwithstanding  Rev.  St.,  §  2319,  relat- 
ing to  mineral  deposits  on  public  lands;  Crawford  v.  Burr,  2  Alaska, 
35,  arguendo. 

Syl.  14  (VI,  856).     Suit  against  officer  as  suit  against  government. 

Approved  in  Wadsworth  v.  Boysen,  148  Fed.  780,  denying  federal 
jurisdiction  over  suit  to  enjoin  Indian  agent  from  obstructing  com- 
plainant from  prospecting  on  government  lands;  O'Reilly  De  Camara 
V.  Brooke,  135  Fed.  388,  upholding  right  of  action  against  military 
governor  of  Cuba  for  tort  committed  in  official  capacity  against  indi- 
vidual in  course  of  civil  administration.  See  108  Am.  St.  Rep.  839, 
note. 

C  Wall.  385-402,  18  L.  830,  UNITED  STATES  v.  HARTWELL, 

Syl.  1  (VI,  857).     Office  defined. 

Approved  in  Smith  v.  Van  Buren  Co.,  125  Iowa,  457,  101  N.  W.  187, 
construing  Code,  §  441,  relating  to  selection  of  official  newspaper  by 
supervisors;  State  v.  Theus,  114  La.  1104,  38  So.  873,  parish  superin- 
tendent of  public  instruction  is  a  public  officer;  State  v.  Maroney, 
191  Mo.  545,  90  S.  W.  146,  judges  and  clerks  of  election  appointed 
under  Laws  1903,  p.  170,  are  public  officers  holding  for  fixed  period; 
Opinion  of  the  .Tustices,  73  N.  H.  622,  62  Atl.  970,  notaries  public  arc 
public  officers;  Guthrie  Daily  Leader  v.  Cameron,  3  Okl.  682,  41  Pac. 
636,  Sess.  Laws  1895,  p.  47  does  not  create  office  of  public  printer. 

Syl.  2  (VI,  858).     Clerk  appointed  by  departmental  head  is  officer. 

Approved  in  McGregor  v.  United  States,  134  Fed.  196,  clerk  in 
Postoffice  Department  is  officer  indictable  under  Rev.  St.,  §§  1781, 
1782,  prohibiting  officers  from  receiving  compensation  for  aiding  in 
procuring  government  contract. 

Distinguished  in  United  States  v.  Schlierholz,  137  Fed.  620,  622, 
623,  sjjecial  agent  of  Land  Department  appointed  under  appropriation 
act  of  June  4,  1897,  was  not  United  States  officer  within  meaning  of 
Rev.  St.,  §  5481,  relating  to  extortion;  United  States  v.  Cole,  130  Fed. 
619,  cashier  of  mint  appointed  under  Rev.  St.,  §  3504,  is  not  officer  of 
m'nt  within  Rev.  St.,  §  3506,  relating  to  custody  of  coin. 

Syl.  4  (VI,  859).     Penal  statutes  strictly  construed. 

Approved  in  W^adsworth  v.  Boysen,  148  Fed.  776,  construing  36  Stat. 
1016,  ratifying  agreement  by  which  Shoshone  Indians  ceded  Wind 
River  Reservation;  United  States  v.  Greene,  14G  Fed.  779,  construing 
Rev.  St.,  §  5497,  relating  to  embezzlement  of  public  money;  Mclnerney 
V.  United  States,  143  Fed.  733,  original  application  of  alien  for  natural- 
ization filed  in  federal  court,  together  v/ith  record  of  proceedings 
thereon,  constitute  record  within  Rev.  St.,  §  5403,  punishing  theft  of 
records;  State  v.  Woodward.  182  Mo.  407,  103  Am.  St.  Rep.  646,  81 
S.    W.   862,   under   Rev.    St.    1S99,    §   2043,   punishing   bribery   of   or  at- 


6  Wall,  402-419  Notes  on  U.  S.  Keports,  436 

tempt  to  bribe  jurors,  evidence  showing  proposal  of  willingness  to 
give  bribe  is  sufficient;  State  v.  Hesterly,  182  Mo.  27,  28,  103  Am.  St. 
Eep.  634,  81  S.  W.  628,  Kev.  St.  1899,  §  1845,  prohibits  teacher  from 
carnally  knowing  female  pupil  under  eighteen  at  any  time  during  ex- 
istence of  relation  of  teacher  and  pupil;  Choctaw  etc.  K.  E.  Co.  v. 
Alexander,  7  Okl.  595,  54  Pac.  422,  construing  Stat.  1893,  p.  597,  c.  38, 
regulating  prairie  fires. 

G  Wall.  402-419,  18  L.  925,  STARK  v.  STARRS. 

Syl.  1  (VI,  860).  Quieting  title  by  possessor  against  adverse  claim- 
ant. 

Approved  in  Shewalter  v.  Lexington,  143  Fed.  166,  in  suit  to  quiet 
title  against  street  improvement  certificates,  amounting  to  less  than 
$2,000,  amount  of  certificates  and  not  value  of  land  constitutes  subject 
matter  of  action;  dissenting  opinion  in-  Logan  v.  Ward,  58  W,  Va. 
378,  52  S.  E.  403,  arguendo. 

Syl.  2  (VI,  861).     Suit  by  possessor  to  determine  adverse  claims. 

Approved  in  Foss  v.  Dam,  1  Alaska,  346,  one  in  possession  of  lot 
on  public  lauds  and  using  same  for  purposes  of  trade  or  residence  may 
sue  to  quiet  title  thereto;  Muckle  v.  Gord,  45  Or.  232,  77  Pac.  744, 
applj'ing  rule  in  suit  to  quiet  title  to  tide  lands. 

Distinguished  in  Ladd  v.  Mills,  44  Or.  227,  75  Pac.  142,  under  B.  & 
C.  Comp.,  §  516,  administrator  may  sue  in  equity  to  determine  adverse 
possession. 

Syl.  5   (VI,  863).     Patent  relates  back  to  inception  of  rights. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
335,  50  L.  505,  26  Sup.  Ct.  282,  purchaser  from  patentees  for  value 
without  notice  of  entryman's  fraud  is  entitled  to  protection  as  bona 
fide  purchaser  under  Comp.  St.  1901,  p.  1545,  though  he  acquired  in- 
terest in  lands  under  contract  for  timber  before  patents  issued; 
United  States  v.  Anderson,  194  U.  S.  399,  48  L.  1039,  24  Sup.  Ct. 
716,  government  cannot,  as  against  grautcc  of  lands  within  indem- 
nity limits  of  railroad  grant,  retain  sums  collected  for  removal  of 
stone  between  selection  and  approval  of  selection;  Tegarden  v.  Le 
Marehel,  129  Fed.  490,  state  statute  giving  defendant  in  ejectment 
right  to  recover  value  of  improvements  made  in  good  faith  under 
color  of  title  not  applicable  where  plaintiff  claims  under  patent  is- 
sued after  improvements  made;  Peyton  v.  Desmond,  129  Fed.  12,  63 
C.  C.  A.  651,  patentee  under  homestead  laws  may  recover  value  of 
timber  cut  between  initiation  of  claim  and  issuance  of  patent; 
Blumer  v.  Iowa  R.  R.  Land  Co.,  129  Iowa,  38,  105  N.  W.  344,  as 
against  railroad  entitled  to  land  under  grant,  limitations  run  in  favor 
of  occupant  under  timber  culture  act  from  time  occupant  enters  under 
receiver's  receipt;  Flanagan  v.  Forsythe,  6  Okl.  236,  50  Pac.  155, 
lands  entered  for  homestead  are  not  exempt  from  liability  for  debts 
after  final  proof  made  and  final  certificates  issued;  Washington  Rock 


437  Notes  on  U.  S.  Eeports.  6  Wall.  458-481 

Co.  V.  Young,  110  Am.  St.  Eep.  666,  29  Utah,  121,  80  Pac.  387,  where 
entry  of  public  land  was  made  in  land  office  on  faith  of  original  gov- 
ernment survey,  patent  related  back  to  entry  and  was  based  on  or- 
iginal survey;  Knecland  v.  Korter,  40  Wash.  356,  82  Pac.  610,  1  L. 
R.  A.  (N.  S.)  745,  where  tide  lands  within  place  limits  of  grant  sur- 
veyed and  identified  and  railroad  performed  all  conditions  prior  to 
admission  of  state,  railroad  entitled  to  land  though  patent  issued 
after  adoption  of  constitution. 

Distinguished  in  dissenting  opinion  in  Kneeland  v.  Korter,  40 
Wash.  374,  82  Pac.  613,  1  L.  R.  A.  (N.  S.)  745,  majority  holding 
where  tide  lands  within  place  limits  of  railroad  grant  surveyed  and 
identified  and  railroad  performed  all  conditions  prior  to  admission  of 
state,  railroad  entitled  to  laud  though  patent  issued  after  adoption 
of  constitution. 

Syl.  7   (VI,  8G5).     Constructive  trusts — Compelling  conveyance. 

Approved  in  Kerns  v.  Lee,  142  Fed.  988,  and  .Johnson  v.  Pacific 
Coast  S.  S.  Co.,  2  Alaska,  238,  both  following  rule. 

6  Wall.  458-481,  18  L.  8G9,  DOE,  LESSEE,  v.  CONSIDINE. 

Syl.  2   (VI,  870).     Measure  of  extent  and  duration  of  trusts. 

Approved  in  Brillhart  v.  Mish,  99  Md.  458,  58  Atl.  31,  construing 
trust  deed,  for  grantor's  life,  by  owner  of  curtesy  in  land;  Angle  v. 
Marshall,  55  W.  Va.  680,  47  S.  E.  S8G,  construing  trust  deed  for  pur- 
pose of  managing  estate  as  power  of  attorney  revocable  irrespective 
of  provision  of  irrevocability. 

Syl.  6  (VI,  871).     Vested  remainder  defined. 

Approved  in  Archer  v.  Jacobs,  125  Iowa,  478,  481,  101  N.  W.  199, 
devise  to  daughter  for  life,  remainder  to  her  children  or  grand- 
children, but  if  there  be  none  then  to  testator's  son,  daughter  took 
life  estate  and  her  children  vested  remainder;  O 'Day  v.  Meadows, 
194  Mo.  618,  92  S.  W.  645,  deed  conveying  land  to  wife  through  third 
person,  estate  to  commence  at  death  of  husband  and  continue  during 
wife's  life,  conveyed  vested  interest;  Curtis  v.  Zutavern,  67  Neb. 
194,  93  N.  W.  405,  quitclaim  deed  passes  reversionary  rights  in  land 
which  owner  holds  subject  to  dower  estate;  In  re  Kountz's  Estate, 
213  Pa.  397,  62  Atl.  1105,  3  L.  R.  A.  (N.  S.)  639,  under  will  provid- 
ing for  children  and  grandcliildren,  income  to  be  paid  to  them  for 
life,  and  for  division  among  grandchildren  after  death  of  children, 
grandchildren  took  contingent  remainder;  Rhode  Island  Hospital 
Trust  Co.  V.  Noyes,  26  R.  I.  329,  58  Atl.  1002,  under  will  giving  cer- 
tain part  of  income  to  sister  and  residue  to  grandson  until  he  should 
attain  certain  age,  and  if  he  should  die  before  such  age  then  income 
to  go  in  other  ways,  grandson  took  vested  interest  in  trust  fund. 


6  Wall.  481-494  Notes  on  U.  S.  Eeports.  438 

Syl.  12  (VI,  872).  Executory  clevises  and  contingent  remainders 
not  favored. 

Approved  in  Anderson  v.  Messinger,  146  Fed.  939,  where  testator 
declared  that  if  either  of  two  sons  died  without  descendants,  survivor 
should  take  his  estate,  and  if  survivor  so  died  then  half  of  deced- 
ent's portion  and  half  of  portion  taken  by  survivorship  should  go  to 
testator's  brothers  and  sisters,  sons  took  life  estate;  Thomas  v.  Castle, 
76  ('onn.  451,  56  Atl.  855,  construing  will  giving  estate  in  trust  for 
son,  who  may  use  income  and  after  his  death  to  others,  as  creating 
contingent  remainder. 

Syl.  15   (VI,  873).     Vesting  of  devise  to  class  in  futuro. 

Approved  in  Taylor  v.  Stephens,  165  Ind.  205,  74  N.  E.  9S2,  con- 
struing devise  to  wife  for  life  and  at  her  death  to  testator's  children 
as  giving  children  vested  remainder. 

6  Wall.  481-484,  18  L.  930,  WALKLEY  v.  CITY  OF  MUSCATINE. 

Syl.  1   (VI,  874).     Mandamus  to  compel  tax  to  pay  judgment. 

Approved  in  Marra  v,  San  Jacinto  etc.  Irr.  Dist.,  131  Fed.  790, 
applying  rule  where  regularly  organized  irrigation  district  issued 
bonds;  Anthony  v.  Burrow,  129  Fed.  789,  refusing  mandatory  injunc- 
tion requiring  state  officer  to  certify  nomination  of  certain  person  as 
congressional  candidate. 

6  Wall.  484-491,  18  L.  920,  UNITED  STATES  v.  ECKFOED. 

Syl.  2  (VI,  875).     Circuit  court's  jurisdiction  limited. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  24,  50  L.  644,  2G  Sup. 
Ct.  3S7,  denial  of  equal  civil  rights  in  summoning  or  impaneling  jurors 
docs  not  give  right  of  removal  of  criminal  prosecution. 

Syl.  4  (VI,  876).     Setoff  against  United  States. 

Approved  in  United  States  v.  Gillies,  144  Fed.  991,  limitation  does 
not  run  against  action  on  claim  during  pendency  of  action  against 
claimant  in  which  such  claim  is  pleaded  as  setoff,  which  action  is  dis- 
continued by  plaintiff;  United  States  v.  Warren,  12  Okl.  3G5,  71  Pac. 
690,  in  action  by  United  States,  defendant  may  set  off  demand  to 
extent  of  government's  claim. 

6  Wall.  492-494,  18  L.  931,  FOLEY  v.  SMITH. 

Syl.  1  (VI,  876).     Taker  of  overdue  note  subject  to  equities. 

Distinguished  in  Gardner  v.  Beacon  Trust  Co.,  190  Mass.  31,  76 
N.  E.  456,  2  L.  E.  A.  (N.  S.)  767,  where  transferee  of  overdue  note 
obtains  it  from  owner  by  fraud,  bona  fide  purchaser  takes  it  free 
from  equity  of  original  owner. 


439  Notes  on  U.  t3.  Keports.  6  Wall.  499-561 

6  Wall.  499-511,  18  L.  890,  GAEDNER  v.  THE  COLLECTOR. 

Syl.   1   (VI,  878).     President  need  not  date  bill  on  signing. 

Approved  in  Quinn  v.  Cambridge,  187  Mass.  509,  73  K.  E.  6G1,  69 
L.  R.  A.  311,  determining  when  assessment  for  betterments  must  be 
made  under  Pub.  St.  1882,  c.  51,  §  1,  providing  that  assessment  must 
be  made  within  two  years  of  original  order. 

Syl.  3  (VI,  878).  Statutes — Evidence  to  determine  date  of  ap- 
proval or  terms. 

Approved  in  In  re  Seaholm,  136  Fed.  145,  69  C.  C.  A.  142,  under 
Comp.  St.  Supp.  1903,  p.  411,  amending  bankruptcy  act,  bankrupt 
cannot  procure  discharge  on  own  application  where  within  six  years 
he  has  been  granted  discharge  in  voluntary  proceedings;  Rogers  v. 
State,  72  Ark.  5G7,  82  S.  W.  170,  holding  void  anti-gambling  act  of 
1901;  Ex  parte  Helton,  117  Mo.  App.  619,  93  S.  W.  915,  construing 
Laws   1905,  pp.   168,  169,  relating  to  game  protection. 

Limited  in  Sconten  v.  Whatcom,  33  Wash.  282,  74  Pac.  392,  under 
statutes  providing  for  consolidation  of  cities,  election  of  officers  may 
be  conducted  within  six  months  of  filing  result  of  election  with  Sec- 
retary of  State. 

6   Wall.   514-517,   18   L.   933,   UNITED     STATES     v.     COUNCIL    OF 
KEOKUK. 

Syl.  3   (VI,  881).     Mandamus  lies  to  compel  tax  levy. 

Distinguished  in  State  v.  Board  of  Conimrs.  of  Clinton  Co.,  162  Tnd. 
606,  70  N.  E.  984,  mandamus  will  not  lie  to  compel  county  commis- 
sioners to  order  collection  of  railroad  aid  tax  which  it  had  been  en- 
joined from  enforcing. 

6  Wall.  532-542,  18  L.  939,  HANGER  v.  ABBOTT. 

Syl.  10   (VI,  886).     Limitation  did  not  run  during  Rebellion. 

Approved  in  Alice  E.  Min.  Co.  v.  Blanden,  136  Fed.  255,  holding  un- 
der Iowa  limitation  statute  note  sued  on  after  death  of  maker,  and 
at  earliest  possible  date  after  maker's  death,  not  barred. 

Distinguished  in  Patterson  v.  Safe  Deposit  etc.  Co.,  148  Fed.  790, 
where  action  commenced  in  District  of  Columbia  more  than  two  years 
after  accrual  was  pending  seven  years  later,  when  defendant  died 
in  Maryland,  and  two  years  after  his  death  action  commenced  egainst 
executor  in   Maryland,  plaintiff  guilty   of   laches. 

6  Wall.  55G-561f  18  L.  948,  INSURANCE  CO.   v.   HALLOCK. 

Syl.  1   (VI,  890).     Process  must  have  seal. 

Distinguished  in  Leas  v.  Merriman,  132  Fed.  512,  notice  given  in 
conformity  with  Virginia  statute  authorizing  judgment  on  motioi4 
after  notice  need  not  be  under  seal. 


6  Wall.  561-611  Notes  on  U.  S.  Eeports.  440 

Syl.  2   (VI,  890).     Order  of  sale  void  without   seal. 

Approved  in  Kipp  v.  Burton,  29  Mont.  100,  101,  102,  101  Am.  St. 
Eep.  544,  74  Pac.  86,  87,  63  L.  R.  A.  325,  execution  issued  without 
seal  was  validated  by  Act  of  March  2,  1899,  p.  145,  §  2,  without 
amendment  by  the  court. 

6  Wall.  561-572,  18  L.  894,  CANAL  CO.  v.  GOEDON. 

Syl.  2  (VI,  891).     Failure  to  make  contract  payments  as  breach. 

Approved  in  Brock  v.  Williams,  16  Okl.  126,  82  Pac.  923,  where 
subcontractor  requests  original  contractor  to  have  architect  make 
estimate  of  materials  furnished  and  labor  done,  and  make  payments 
as  per  contract,  and  contractor  fails  to  do  so,  former  nor  bondsman 
not   liable   for   abandoning   work. 

6  Wall.  578-582,  18  L.  791,  EGBERTS  v.  GRAHAM. 
Syl.  1  (VI,  892).     Special  damages  must  be  averred. 

Approved  in  Salt  River  etc.  Co.  v.  Hickey,  4  Ariz.  244,  36  Pac.  173, 
in  action  for  damages  for  refusal  of  corporation  to  deliver  certificate 
of  stock  bought  from  it,  allegation  of  general  damages  is  sufficient; 
Thompson  v.  St.  Louis  etc.  Ey.  Co.,  Ill  Mo.  App.  475,  86  S.  W.  468, 
functional  trouble  manifesting  itself  in  woman  seventy  days  after 
severe  blow,  caused  by  nervous  shock,  is  matter  of  special  damage 
which  must  be  specially  pleaded;  Friedman  v.  Pulitzer  Pub.  Co.,  102 
Mo.  App.  694,  77  S.  W.  343,  where  petition  for  libel  charged  gen- 
erally that  plaintiff  had  been  greatly  damaged  by  publication,  and 
claimed  actual  and  punitive  damages,  evidence  that  plaintiff  had  been 
suspended  from  association  of  persons  engaged  in  his  business  inad- 
missible. 

Syl.  3  (VI,  893).  Objection  of  variance  not  first  raisable  on  ap- 
peal. 

Approved  in  Collot  v.  Kahner,  140  Fed.  839,  following  rule;  Preiss 
v.  Zitt,  148  Fed.  618,  applying  rule  in  action  for  broker's  commissions; 
Chicago  etc.  Ry.  Co.  v.  Voclker,  129  Fed.  529,  65  C.  C.  A.  226,  70 
L.  R.  A.  264,  where,  in  action  for  wrongful  death  by  reason  of  de- 
fective coupler,  there  was  no  objection  to  evidence  to  interstate  char- 
acter of  shipment,  objection  to  instruction  applying  Comp.  St.  1901, 
p.  3174,  not  available  on  appeal  where  exception  below  not  placed 
on  ground  that  petition  failed  to  aver  interstate  shipment;  Black  v. 
Teeter,  1  Alaska,  566,  applying«rule  in  ejectment. 

6  Vrall.  594-611,  18  L.  897,  SOCIETY  FOR  SAVINGsV  COITE. 

Syl.  2  (VI,  894).     Corporate  franchises  are  legal  estates. 

Approved  in  dissenting  opinion  in  San  Francisco  Nat.  Bank  v. 
Dodge,  197  U.  S.  96,  49  L.  681,  25  Sup.  Ct.  384,  majority  holding  dis- 
crimination  against  national  banks  results  from  taxation  of  national 
bank  shares  under  Cal.  Pol.  Code,  §§  3608-3610,  at  market  value. 


441  Notes  on  U.  S.  Reports.  G  Wall.  Gll-739 

Syl.  3  (VI,  854).     Taxation  of  corporate  franchises — Exemptions. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
40,  105  Am.  St.  Rep.  701,  50  L.  76,  25  Sup.  Ct.  715,  franchise  tax 
imposed  by  Laws  1899,  c.  712,  does  not  impair  obligation  of  grant 
of  privilege  of  operating  railway  in  New  York  on  payment  of  per- 
centage of  earnings;  State  v.  Savage,  65  Neb.  747,  91  N.  W.  721,  state 
board  of  equalization  in  assessment  of  railroad  and  telegraph  prop- 
erties should  include  value  of  franchises. 

Syl.  4  (VI,  895).     Tax  on  deposits — Not  property  tax. 

Approved  in  American  Smelting  etc.  Co.  v.  People,  .34  Colo.  247,  82 
Pac.  533,  Sess.  Laws  1902,  p.  73,  c.  3,  §  65,  imposing  license  tax  on 
foreign  corporations,  does  not  impose  property  tax;  Levy  v.  State, 
161  Ind.  258,  68  N.  E.  175,  upholding  Burns'  Rev.  St.  1901,  §§  7231a, 
7231t,  prohibiting  business  by  transient  merchants  without  license. 

6  Wall.  611-632,  18  L.  907,  PROVIDENT  INSTITUTION  v.  MASS.V- 
CHUSETTS. 

Syl.  4  (VI,  897).     State  tax  on  bank  deposits. 

Approved  in  Attorney  General  v.  Electric  etc.  Battery  Co.,  188  Mass. 
240,  74  N.  E.  467,  upholding  Stat.  1903,  p.  450,  c.  437,  §  75,  imposing 
excise  tax  on  foreign  corporations  assessed  on  capital  stock. 

6    Wall.    632-641,    18    L.    904,    HAMILTON    COUNTY    v.    MASSA- 
CHUSETTS. 

Syl.  3  (VI,  899).     Corporate  franchise  are  taxable. 

Approved    in    Attorney  General    v.    Electric    etc.    Batterv    Co.,    IBS 

Mass.   240,   74   N.  E.  467,  upholding   Stat.   1903,   p.   450,   c."4;;7,   §    75, 

imposing    excise    tax    on  foreign    corporations    assessed    ou     cajjital 
stock. 

6  Wall.  642-719,  18  L.  950,  GAINES  v.  NEW  ORLEANS. 
Syl.  1  (VI,  900).     Conclusiveness  of  foreign  probate. 

Approved  in  Ward  v.  County  Commrs.  Logan  Co.,  12  Okl.  278,  70 
Pac.  382,  probate  court  decree  admitting  will  to  probate  not  col- 
laterally attackable  in  ejectment  brought  by  heirs  to  dispossess  dev- 
isee under  will. 

6  Wall.  723-739,  IS  L.  967,  WILLIAMSON  v.  SUYDAM. 

Syl.  2  (VI,  903).     Appointment  of  new  trustees  by  court. 

Approved  in  dissenting  opinion  in  Metcalfe  v.  Union  Trust  Co.,  1S1 
N.  Y.  54,  73  N.  E.  503,  majority  holding  where  will  established  trust 
fund  to  provide  income  for  wife  for  life  and  children,  assigned  all  in- 
terest in  remainder  to  her  and  she  then  released  to  herself  all  inter- 
est in  income,  trust  not  terminated  where  will  made  prior  to  Laws 
1897,  p.  507,  c.  417,  §  3. 


C  Wall.  747-759  Kotcs  on  U.  S.  Eeports.  442 

6  Wall.  747,  748,  18  L.  847,  FLEMING  v.  SOUTTER. 

Syl.  1  (VI,  904).     Mortgages — Decree  for  installment  payments. 

Approved  in  Cancel  v.  Goodyear  Shoe  etc.  Co.,  137  Fed.  IGl,  equity 
decree  giving  judgment  on  contract  by  which  defendant  must  pay 
monthly  installments,  not  all  of  which  are  due,  may  provide  for  entry 
of  judgment  for  future  installments  as  they  fall  due. 

G  Wall.  748-750,  18  L.  859,  EAILEOAD  CO  v.  CHAMBEELAIX. 

Syl.  1  (VI,  904).     Citizenship  in  ancillary  proceedings. 

Approved  in  Ames  Ecalty  Co.  v.  Big  Indian  Min.  Co.,  146  Fed.  179, 
180,  in  suit  to  protect  water  rights  against  other  appropriators  of 
stream,  all  of  whom  are  citizens  of  different  states  from  complainant, 
cross-bills  by  some  defendants  against  complainant  and  codefendants 
setting  up  priority  are  maintainable  irrespective  of  citizenship. 

G  Wall.  752-75<5,  IS  L.  885,  .TAMES  v.  EAILEOAD  CO. 

Syl.  2  (VI,  90G).  Purchase  of  corporate  property  at  foreclosure  by 
directors. 

Approved  in  The  Telegraph  v.  Loe,  125  Iowa,  22,  98  N.  W.  .366,  where 
treasurer  secretly  purchased  claim  against  corporation  for  less  than 
full  value,  and  then  sold  portion  to  favored  members,  and  then  secretly 
paid  himself  amount  of  claim  from  corporation's  funds,  he  is  liable  to 
corporation  for  profit. 

6  Wall.  756-759,  IS  L.  973,  SMITH  v.  COCKEILL. 

Syl.  1  (VI,  906).     Adoption  of  state  practice. 

Approved  in  Jones  v.  Eogcrs,  85  Miss.  830,  38  So.  745,  under  How. 
&  H.  Dig.,  p.  633,  §  17,  providing  that  sales  of  land  shall  be  at  court- 
liouse  of  county,  execution  sale  by  marshal,  on  federal  judgment,  out- 
side of  county  where  land  situated,  is  void. 


VII  WALLACE. 


7  Wall.  1-16,  19  L.  53,  GIRARD  v.  PHILADELPHIA. 

Syl.  2  (VI,  912).     Effect  of  change  on  rights  of  old  muoicipalily. 

Approved  in  School  Dist.  No.  76  v.  Capitol  Nat.  Bank,  7  Okl.  50,  54 
Pac.  311,  debts  incurred  by  township  for  erection  of  schoolhouse,  pay- 
ment of  teacliers  and  for  support  of  separate  schools,  under  Laws  1890, 
c.  79,  art.  13,  are  county  and  not  township  debts;  City  of  Guthrie  v. 
Territory,  1  Okl.  202,  31  Pac.  194,  11  L.  R.  A.  418,  change  of  village 
corporation  into  city,  since  liability  of  village  for  debts  of  provisional 
organization  fixed  by  legislature,  does  relieve  city  succeeding  village 
from  liability  for  debts;  South  Carolina  Mut.  Ins.  Co.  v.  Price,  67 
S.  C.  210,  45  S.  E.  174,  where  name  of  insurance  company  changed  by 
legislature,  member  of  old  company  not  deprived  of  membership  in 
new. 

T   Wall.    16-25,   19  L.   57,  BANKS  v.   NEW  YORK    (NEW   YORK   v. 
CONNELLY). 

Syl.  4   (VI,  914).     State  taxation  of  federal  obligations. 

Ap]irovcd  in  dissenting  opinion  in  South  Carolina  v.  United  States, 
199  U.  S.  466,  50  L.  272,  26  Sup.  Ct.  110,  majority  holding  govern- 
ment may  exact  revenue  license  from  dispensing  agents  of  state  con- 
trolling liquor  business. 

Distinguished  in  Hibernia  Savings  etc.  Soc.  v.  San  Francisco,  200 
U.  S.  313,  315,  50  L.  496;  497,  26  Sup.  Ct.  265,  United  States  treas- 
ury checks  for  interest  accrued  on  government  bonds  are  taxable  by 
states  in  hands  of  owner;  South  Carolina  v.  United  States,  199  U.  S. 
452,  50  L.  266,  26  Sup.  Ct.  110,  government  may  exact  internal  reve- 
nue license  from  dispensing  agents  of  state  which  controls  liquor 
business. 

7  Wall.  26-31,  19  L.  60,  BANK  v.  SUPERAHLSORS. 

Syl.  1   (VI,  914).     State  tax  on  federal  obligations. 

Approved  in  Hibernia  Savings  etc.  Soc.  v.  San  Francisco,  200  U. 
S.  314,  50  L.  496,  26  Sup.  Ct.  265,  United  States  treasury  cheeks  for 
interest  accrued  on  government  bonds  are  taxable  by  states  in  hands 
of  owner. 

7  Wall.  44-53,  19  L.  65,  INSURANCE  CO.  v.  TWEED. 

Syl.  1   (VI,  915).     Distinction  between  law  and  equity  prevails. 

Approved  in  Tootle  v.  Brown,  4  Okl.  615,  46  Pac.  551,  following 
rule;    National   Surety   Co.    v.    Cincinnati   etc.   Ry.   Co.,   145    Fed.   35, 

[443] 


7  Wall.  44-53  Notes  on  U.  S.  Keports.  444 

where  action  at  law  is  tried  without  jury  and  only  general  finding 
made  and  ultimate  facts  not  agreed  upon,  and  no  exceptions  taken 
to  rulings,  no  questions  are  reviewable;  York  v.  Washburn,  129  Fed. 
566,  64  C.  C.  A.  132,  opinion  of  trial  judge  does  not  become  special 
finding  of  ultimate  facts  by  being  copied  into  judgment  entry. 

Syl.  5  (VI,  919).     Insurance — Proximate  and  remote  cause. 

Approved  in  Niver  Coal  Co.  v.  Cheronea  S.  S.  Co.,  142  Fed.  410, 
where,  because  of  strike  of  coal  miners,  much  coal  imported  by  many 
ships,  causing  delay  in  discharge,  strike  not  proximate  cause  of  de- 
lay within  charter  provision  exempting  charterer  from  demurrage  on 
account  of  delay  caused  by  strikes;  Quinette  v.  Bisso,  136  Fed.  840, 
69  C.  C.  A.  825,  one  entering  skiff  for  passage  across  river  during 
fog  and  run  down  by  tug  and  drowned  not  contributorily  negligent 
because  skiff  had  no  fog  horn;  Texas  &  P.  Ey.  Co.  v.  Coutourie,  135 
Fed.  473,  68  C.  C.  A.  177,  where  loss  alleged  to  have  been  caused  by 
negligence  of  carrier  in  failing  to  protect  goods,  failure  to  specifically 
define  proximate  and  remote  causes  not  error  where  jury  instructed 
that  defendant's  negligence  must  have  been  direct  cause  of  loss; 
Empire  State  etc.  Co.  v.  Atchison  etc.  Ey.  Co.,  135  Fed.  141,  where 
carrier  was  unable  to  deliver  cattle  owing  to  floods  and  put  them  in 
another  place  in  stockyards,  which  were  flooded  after  arrival  and 
cattle  changed  to  prevent  drowning,  and  many  died,  carrier  not  lia- 
ble; Jarnagin  v.  Travelers'  Prot.  Assn.,  133  Fed.  894,  895,  68  L.  E. 
A.  499,  66  C.  C.  A.  622,  where  it  was  alleged  that  deceased  died  from 
shot  fired  by  third  persons  while  in  charge  of  ofiicers,  and  that  death 
caused  by  negligence  of  officers  in  failing  to  protect  him,  proximate 
cause  of  death  was  shot;  Fishburn  v.  Burlington  etc.  Ey.  Co.,  127 
Iowa,  497,  103  N.  W.  4S7,  where  railroad  snow  fence  negligently 
constructed  fell  and  injured  boy,  fact  that  earlier  in  day  boy  found 
panel  in  fence  down  and  lifted  it  in  place  not  independent  interven- 
ing cause  of  accident;  Georgetown  Tel.  Co.  v.  McCullough,  118  Ky. 
189,  111  Am.  St.  Eep.  294,  80  S.  W.  784,  where  defendant  rented  two 
rooms  in  building,  using  one  for  storing  materials,  and  owner  of 
building  employed  carpenter  to  build  partition  next  to  storeroom,  to 
do  which  dynamite  in  room  removed  by  carpenter  exploded,  injurying 
defendant's  employee,  defendant  not  liable;  Haley  v.  St.  Louis  Transit 
Co.,  179  Mo.  35,  77  S.  W.  731,  64  L.  E.  A.  295,  street-ear  company  not 
liable  to  passenger  carried  beyond  destination  and  injured  by  slip- 
ping on  sidewalk  while  returning  to  destination;  Shippers'  Compress 
etc.  Co.  V.  Davidson,  35  Tex.  Civ.  560,  80  S.  W.  1033,  where  defendant 
unlawfully  erected  gangway  in  street  and  plaintiff's  horse  frightened 
at  noise  of  defendant's  servant  in  running  down  gang#ay  with  truck, 
defendant  liable  for  consequent  injuries;  Snyder  v.  Philadelphia  Co., 
54  W.  Va.  158,  102  Am.  St.  Eep.  941,  46  S.  E.  369,  63  L.  E.  A.  896, 
where,  by  negligent  blowing  off  of  gas-well,  horses  frightened  and 
rein  breaks,  causing  driver  to  fall,  blowing  off  of  well  is  proxi- 
mate cause  of  injury,  though  rein  was  weak. 


445  Notes  on  U.  S.  Eeports.  7  Wall.  53-107 

7  Wall.  53-71,  19  L.  67,  THE  CHINA. 

Syl.  1  (VI,  919).     Collision — Compulsory  pilot's  negligence. 

Approved  in  The  Bulley,  138  Fed.  172,  vessel  liable  for  tortious  act 
of  master  or  crew  in  deluging  another  vessel  with  steam  and  hot 
water,  though  committed  without  authority  of  owners;  The  Robert 
Eiekmcrs,  131  Fed.  642,  fact  that  anchorage  of  ship  selected  by  mas- 
ter of  tug  does  not  relieve  her  from  liability  for  injury  to  another 
vessel  against  which  she  drifted,  due  to  fact  that  she  was  placed  too 
near  other  vessel;  The  Surprise,  129  Fed.  881,  64  C.  C.  A.  309,  per- 
sons furnishing  wharfage  or  supplies  to  vessel  on  order  of  master 
have  lien  therefor,  though,  under  charter,  charterer  is  bound  to  make 
all  disbursements  and  protect  vessel  from  litns. 

Syl.  6  (VI,  921).     Nature  of  maritime  lien  for  collision. 

Approved  in  United  States  v.  Evans,  195  U.  S.  367,  49  L.  237,  25 
Sup.  Ct.  46,  upholding  admiralty  jurisdiction  over  libel  against  ship 
for  collision  with  beacon  standing  in  channel  and  built  on  piles;  The 
W.  G.  Mason,  142  Fed.  917,  where  two  tugs  belonging  to  same  owner 
were  towing  ship,  leading  tug  directing  ship's  movements,  but  rear 
tug's  movements  directed  by  own  master,  rear  tug  not  liable  in  rem 
for  stranding  of  tow  through  fault  of  leading  tug. 

7  Wall.  71-81,  19  L.  101,  LANE  COUNTY  v.  OREGON. 
Syl.  7  (VI,  922).     Powers  reserved  to  states. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
348,  48  L.  705,  24  Sup.  Ct.  436,  upholding  enforcement  of  anti-trust 
act  by  federal  decree  enjoining  corporation  organized  in  pursuance 
of  combination  of  stockholders  of  two  competing  interstate  railroads 
to  acquire  control  of  companies    from  exercising  such  control. 

Syl.  12  (VI,  923).  Extent,  manner  and  subjects  of  taxation  for 
states. 

Approved  in  Gay  v.  Thomas,  5  Okl.  10,  46  Pac.  581,  upholding  Act 
1895,  providing  for  taxation  of  cattle  ranging  in  unorganized  country 
in  county  to  which  country  is  attached  for  judicial  purposes. 

Syl.  14  (VI,  924).     Debts  arising  on  contract — Taxation. 

Distinguished  in  In  re  Waller,  142  Fed.  887,  county  is  not  entitled 
to  priority  over  other  creditors  for  money  due  on  delinquent  taxes 
under  Bankr.  Act,  §  64b. 

7  Wall.  82-107,  19  L.  42,  AURORA  CITY  v.  WEST. 

Syl.  7  (VI,  926).     Judgment  must  be  final  to  work  estoppel. 

Approved  in  Spring  Valley  Coal  Co.  v.  Patting,  210  111.  347,  71 
N.  E.  373,  judgment  of  reversal  and  granting  new  trial  and  subse- 
quent entry  of  nonsuit  by  trial  court,  not  final  judgment  raising  estop- 
pel by  verdict. 


7  Wall.  82-107  Notes  on  U.  S.  Eeports.  446 

Syl.  12   (VI,  927).     Former  judgment  as  res  adjudicata. 

Approved  in  Aj^res  v.  Cone,  138  Fed.  781,  where  validity  of  claim 
of  petitioning  creditor  is  put  in  issue  by  bankrupt's  answer,  and  de- 
cided in  favor  of  creditor,  claim  cannot  again  be  contested  when  filed 
for  allowance  before  referee;  Third  Nat.  Bank  v.  Atlantic  City,  130 
Fed.  754,  65  C.  C.  A.  177,  where  bill  to  establish  right  to  fund,  set- 
ting out  grounds  of  right  and  alleging  its  priority  was  taken  pro  con- 
fesso,  decree  rendered  thereon  was,  after  term,  conclusive  against  de- 
faulting defendant  as  to  any  matters  which  might  have  been  set  uj) 
in  answer;  Rew  v.  Independent  School  Dist.,  125  Iowa,  31,  106  Am. 
St.  Eep.  282,  98  N.  W.  803,  federal  judgment  based  on  conclusion 
that  school  district  is  estopped  by  recitals  in  bonds  from  setting  up 
certain  defenses  is  res  adjudicata  in  state  suit  between  same  parties 
involving  same  subject  matter. 

Syl.  14  (VI,  928).     Judgment  on  demurrer,  when  final. 

Approved  in  Frye  v.  Milej^,  54  W.  Va.  333,  46  S.  E.  139,  where  bill 
to  set  aside  fraudulent  conveyance  before  creditor's  demand  is  due  is 
dismissed,  decree  must  save  plaintiff  right  to  prosecute  other  proper 
suit  in  respect  to  matters  complained  of  in  bill. 

Syl.  15  (VI,  928).     Judgment  on  demurrer  as  res  adjudicata. 

Approved  in  Board  of  County  Commrs.  v.  Cross,  12  N.  M.  77,  7" 
Pac.  616,  where,  on  sustaining  demurrer,  material  issues  had  to  bo 
passed  on  and  plaintiff  did  not  amend  but  allowed  entry  of  dis- 
missal, judgment  was  res  adjudicata. 

Syl.  17  (VI,  928).     Judgment  on  demurrer  as  bar. 

Approved  in  Board  of  County  Commrs.  v.  Cross,  12  N.  M.  76,  73 
Pac.  616,  following  rule;  Loekhart  v.  Leeds,  12  N.  M.  167,  76  Paf. 
315,  judgment  against  plaintiff  on  bill  to  have  mine  location  declared 
void  for  fraud  and  collusion  of  defendants  and  violation  of  agree- 
ment to  locate  claim  for  plaintiff,  bars  suit  to  have  property  declared 
to  be  held  in  trust  for  plaintiff. 

Syl.  21  (VI,  930).     Former  judgment,  when  conclusive. 

Approved  in  Delaware  etc.  E.  Co.  v.  Kutter,  147  Fed.  59,  where  only 
defense  pleaded  in  action  for  money  due  under  contract  was  breach 
of  contract  by  plaintiff,  judgment  therein  is  conclusive  only  on 
that  question  in  subsequent  suit  for  wrongful  termination  of  con- 
tract by  defendant;  Georgia  E.  E.  etc.  Co.  v.  Wright,  132  Fed.  917, 
state  decision  that  railroad  charter  was  contract  precluding  imposition 
of  tax  in  excess  of  certain  percentage  is  res  adjudicata  in  subsequent 
suit  for  taxes  for  other  year  under  different  statute;  Pratt  v.  Eatliff, 
10  Okl.  174,  61  Pac.  525,  holding  decree  in  suit  to  enjoin  execution  on 
judgment  alleged  to  be  void  as  res  adjudicata  in  replevin  against 
sheriff  holding  under  execution  on  judgment;  Moore  v.  Snowball,  98 
Tex.  24,  107  Am.  St.  Eep.  596,  81  S.  W.  8,  66  L.  E.  A.  745,  decree  in 


447  Notes  on  U.  S.  Eeports.  7  Wall.  107-139 

trespass  to  try  title,  where  it  was  alleged  tax  sale  void  for  want  of 
service  and  because  property  sold  in  bulk  not  res  adjudicata  in  suit  for 
reconveyance,  alleging  invalidity  of  tax  sale  because  of  irregularities 
causing  property  to  be  sold  for  inadequate  price;  State  v.  McEldow- 
ney,  54  W.  Va.  702,  47  S.  E.  653,  decree  in  suit  assailing  tax  deed  for 
errors  and  irregularities  in  sale  is  not  res  adjudicata  on  question  of 
power  to  sell  for  taxes. 

7  Wall.  107-113,  19  L.  154,  DURANT  v.  ESSEX  CO. 

Syl.  2  (VI,  934).     Decree  of  dismissal  not  final  decree. 

Approved  in  Robinson  v.  American  Car  etc.  Co.,  142  Fed.  171,  de- 
cree of  dismissal  without  prejudice  of  bill  for  infringement  no  estoppel 
in  question  of  validity  of  patent. 

7  Wall.  118-122,  19  L.  8G,  COWLES  v.  MERCER  COUNTY. 

Syl.  4  (VI,  938).     State  cannot  limit  federal  jurisdiction. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  949,  950, 
67  L.  R.  A.  761,  66  C.  C.  A.  55,  Duluth  charter  which  provides  for  ap- 
peals from  allowance  or  rejection  of  city  claims  to  state  court,  and 
prohibits  payment  pending  appeals,  does  not  restrict  federal  court 
jurisdiction  over  claims. 

Distinguished  in  Parks  Co.  v.  City  of  Decatur,  138  Fed.  554,  munic- 
ipal corporation  not  being  suable  by  attachment  in  courts  of  another 
state,  such  suit  is  not  removable. 

7  Wall.  122-131,  19  L.  125,  NICHOLS  v.  UNITED  STATES. 

Syl.  11  (VI,  940).     Judicial  review  of  revenue  department  rulings. 

Approved  in  Christie-Street  Com.  Co.  v.  United  States,  136  Fed.  330, 
69  C.  C.  A.  464,  claim  for  back  internal  revenue  taxes  illegally  exacted 
may  be  enforced  by  action  directly  against  United  States;  Cornell 
Steamboat  Co.  v.  United  States,  130  Fed.  482,  and  United  States  v. 
Cornell  Steamboat  Co.,  202  U.  S.  195,  50  L.  992,  26  Sup.  Ct.  648,  both 
upholding  district  court's  jurisdiction  over  suit  to  recover  from  United 
States  salvage  on  duties  paid  on  cargo  afterward  saved  from  fire  while 
in  possession  of  customs  officers. 

7  V>'all.  132-139,  19  L.  106,  LINCOLN  v.  CLAFLIN. 

Syl.  8  (VI,  942).     Evidence  of  contemporaneous  frauds. 

Approved  in  Exchange  Bank  v.  Moss,  149  Fed.  344,  in  action  for 
money- obtained  by  means  of  conspiracy  extending  over  long  period, 
evidence  of  similar  deceits  by  cashier  of  defendant  are  admissible; 
Brooks  V.  United  States,  146  Fed.  231,  in  prosecution  for  using  mails  to 
defraud,  letters  other  than  those  laid  in  indictment  purporting  to  have 
been  written  by  defendants'  company  are  admissible;  Olson  v.  United 
States,  133  Fed.  854,  67  C.  C.  A.  21,  under  indictment  for  conspiracy 
to  defraud  government  of  lands  by  illegal  entries,  evidence  that  dc- 


7  Wall.  139-152  Notes  on  U.  S.  Reports.  448 

fendant  induced  other  entries  by  other  person  at  same  time  is  admis- 
sible. 

Syl.  10  (VI,  944).     Allowance  of  interest  at  law. 

Approved  in  Black  v.  Minneapolis  etc.  R.  R.  Co.,  122  Iowa,  37,  96 
N.  W.  986,  in  action  against  railroad  for  burning  of  hay,  jury  may  add 
interest  to  damages  sustained;  Union  Water  Power  Co.  v.  Lewiston, 
101  Me.  580,  65  Atl.  74,  upholding  denial  of  interest  on  value  of  each 
year's  excess  of  water  drawn  by  city  in  excess  of  grant. 

Syl.  12  (VI,  944).  General  exception  unavailable  where  one  cor- 
rect. 

Approved  in  Kansas  City  etc.  Ry.  Co.  v.  Prunty,  133  Fed.  21,  66  C. 
C.  A.  163,  applying  principle  to  objection  to  charge  in  action  for  per- 
sonal injuries  by  employee. 

7  Wall.  139-152,  19  L.  109,  GREEN  v.  VAN  BUSKIRK. 

Syl.  7  (VI,  947).     Law  governing  sales  of  personalty. 

Approved  in  Reed  v.  Munn,  148  Fed.  748,  where  claimants  of  conflict- 
ing mining  locations  conveyed  to  trustee  to  adjust  controversy,  their 
equitable  interest  is  subject  to  execution;  In  re  Greene,  134  Fed.  138, 
bankrupt's  chattel  mortgage  duly  recorded  in  state  where  property  lo- 
cated is  valid  as  against  creditors,  though  not  recorded  in  state  of 
residence  of  mortgagor  and  mortgagee;  In  re  Brannock,  131  Fed.  820, 
under  Iowa  Code,  §  2906,  chattel  mortgage  on  property  in  mortgagor's 
possession  in  county  where  he  is  at  work  and  in  which  he  actually  re- 
sides while  at  work,  is  properly  recorded  in  such  county,  though  resi- 
dence there  only  temporary;  Smead  v.  Chandler,  71  Ark.  511,  76  S.  W. 
1068,  65  L.  R.  A.  353,  applying  rule  to  trust  deed  executed  by  Mis- 
souri corporation  in  that  state  and  assigning  property  lor  benefit  of 
creditors;  Cooper  v.  Philadelphia  Worsted  Co.  (Lees  v.  Harding  etc. 
Co.),  68  N.  J.  Eq.  629,  60  Atl.  355,  where  contract  with  reference  to 
title  of  goods  situated  in  another  state  is  there  made  between  resident 
thereof  and  New  Jersey  corporation,  to  be  there  performed,  it  is  gov- 
trued,  as  to  its  effect,  by  laws  of  that  state;  Greenville  Nat.  Bank  v. 
Evans-Snyder-Buel  Co.,  9  Okl.  370,  60  Pac.  254,  chattel  mortgage  duly 
filed  according  to  laws  of  state  wherein  property  situated  is  superior  to 
rights  of  one  attaching  property  after  its  removal  to  this  territory 
though  mortgage  not  recorded. 

Distinguished  in  Studebaker  Bros.  Co.  v.  Mau,  14  Wyo.  78,  82  Pac. 
5,  where  vendee  in  conditional  sale  removes  property  to  another  state 
without  consent  of  vendor,  latter  may  enforce  lien  against  subsequent 
bona  fide  purchasers,  without  complying  with  registration  laws  of  other 
state. 


449  Notes  on  U.  S.  Eeports.  7  Wall.  152-218 

7  Wall.  152-165,  19  L.  129,  THE  SIREN, 

Syl.  5   (VI,  952).     Damages  for  collision  enforceable  in  rem. 

Approved  in  The  John  McCrakes,  145  Fed.  707,  708,  vessels  owned 
by  port  of  Portland  used  by  it  in  its  work  are  not  seizable  by 
United  States  in  admiralty  suit  in  rem  to  recover  damages  for  mari- 
time tort. 

Syl.  12   (VI,  952).     Government's  transfer  subject  to  mortgage. 

Approved  in  Walker  v.  United  States,  139  Fed.  413.  denying  right 
of  government  years  after  expiration  of  term  of  office  to  recover 
sums  paid  ma.rshal,  who  has  in  good  faith  rendered  accounts  for 
services  of  deputies  which  have  been  paid;  United  States  v.  War- 
ren, 12  Okl.  365,  71  Pac.  690,  where  government  sues,  defendant  has 
setoff  to  extent  of  demand. 

7  Wall.  lSS-195,  19  L.  35,  GOEDOX  v.  UNITED  STATES. 

Syl.  2   (VI,  957)..    Arbitrator  defined. 

Approved  in  Levin  v.  Northwestern  Nat.  Ins.  Co.,  146  Fed.  77, 
award  of  arbitrators  in  federal  action  at  law  on  insurance  policy  is 
unimpeachable   for   fraud   or   misconduct    of   arbitrators. 

Syl.  3  (VI,  957),  Adjustment  of  government  claims — Arbitra- 
tion. 

Approved  in  United  States  v.  Foreman,  5  Okl.  257,  48  Pac.  98, 
one  suing  government  in  territorial  court  for  recovery  of  money 
paid  for  land  entry  on  which  patent  erroneously  allowed  and  afterward 
canceled,  need  not  show  surrender  of  duplicate  receipt  to  Secretary 
of  Interior  nor  execution  of  relinquisliment  of  claim  to  land. 

7  Wall.  196-205,  19  L.  113,  THE  GRACE  GIRDLER. 

Syl.  5  (VI,  958).     Inevitable  accident  defined. 

Approved  in  The  .Jumna,  149  Fed.  172,  applying  rule  to  collision 
between  tow  and  steamer  and  between  tow  and  pier. 

7  Wall.  205-218,  19  L.  134,  BROWN  v.  PIERCE. 

Syl.  7   (VI,  960).     What  is  duress  warranting  setting  deed  aside. 

Approved  in  Burnes  v.  Burues,  132  Fed.  493,  where  surviving  brother 
and  partner  on  opposition  to  proposed  formation  of  corporation  and 
division  of  stock  threatened  to  administer  on  estate  as  surviving 
partner,  settlement  as  he  proposed  not  void  for  duress;  First  Nat. 
Bank  v.  Sargent,  65  Neb.  601,  91  N.  W.  597,  59  L.  R.  A.  29G,  where 
one  in  financial  distress  and  indebted  to  bank  conveyed  land  by 
absolute  deed  as  security  and  thereafter  procured  purchaser  but 
bank  refused  to  consent  to  sale  or  release  its  interest  unless  given 
large  bonus,  bonus  recoverable  by  debtor. 

2& 


7  Wall.  219-290  Notes  on  U.  S.  Eeports.  450 

Syl.   13   (VI,  961).     Priority  of  judgment  lien. 

Approved  in  Lewis  v.  Atherton,  5  Okl.  94,  47  Pac.  1072,  under 
Stat.  1893,  c.  21,  §  13,  district  court  judgment  agaiust  one  seised 
of  realty  and  in  whom  title  appears  of  record,  is  lien  on  property, 
though  he  had  previously  conveyed  realty  to  another. 

7  Wall.  219-228,  19  L.  158,  SILVER  v.  LADD. 

Syl.  6  (VI,  963).  Equitable  relief  where  patent  to  wrong  per- 
son. 

Approved  in  Johnson  v.  Pacific  Coast  S.  S.  Co.,  2  Alaska,  238,  and 
Smith  V.  Love,  49  Fla.  239,  38  So.  379,  both  following  rule;  Kerna 
V.  Lee,  142  Fed.  988,  arguendo. 

7  Wall.  229-258,  19  L.  141,  BRONSON  v.  EODES. 
Syl.  3  (VI,  965).     Payment  of  money  defined. 

Approved  in  Oneida  Co.  v.  Tibbits,  125  Wis.  15,  102  N.  W.  899, 
certificates  issued  in  payment  of  expenses  of  reviewing  county  equali- 
cation  are  not  receivable  for  taxes. 

7  Wall.  258-262,  19  L.  149,  BUTLER  v.  HORWITZ. 

Syl.  5  (VI,  968).     Medium  of  payment — Contracts. 

Approved  in  San  Juan  v.  St.  .lohn's  Gas  Co.,  195  U.  S.  520,  49  L. 
304,  25  Sup.  Ct.  108,  determining  medium  of  payment  under  con- 
tract for  street  lighting  in  Porto  Rico. 

7  Wall.  262-269,  19  L.  88,  NORTHERN  CENTRAL  R.  R.  CO.  v. 
JACKSON. 

Syl.  2  (VI,  970).     Tax  on  security  and  on  debtor  distinguished. 
Approved  in  Mosely  v.  State,  115  Tenn.  57,  86  S.  W.  716,  interest 
on  government  bonds  not  taxable  as  income. 

Syl.  3   (VI,  970).     Tax  on  corporate  property  in  other  state. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  202, 
50  L.  153,  26  Sup.  Ct.  36,  assessment  under  Ky.  St.,  §  4020,  on  roll- 
ing stock  permanently  located  in  other  state  denies  due  process  to 
Kentucky  railroad. 

7   Wall.   272-290,   19   L.   74,   ST.   PAUL   ETC.   R.   R.   CO.   v.   SCHUB- 
MEIR. 

Syl.    4    (VI,    972).     Meander   lines    not   boundary   lines. 

Approved  in  Johnson  v.  Hurst,  10  Idaho,  319,  321,  77  Pac.  788,  789, 
following  rule;  Whitaker  v.  McBride,  197  U.  S.  512,  49  L.  861,  25 
Sup.  Ct.  530,  patentee  of  government  lands  bordering  on  stream  owns 
island  on  his  side  of  center;  Peoria  v.  Central  Nat.  Bank,  224  111. 
52,  79  N.  E.  298,  applying  rule  where  city  claimed  land  as  street; 
McBride   v.   Steinweden,  72  Kan.  515,  83  Pac.  824,  approving  defini- 


451  Notes  on  U.  S.  Eeports.  7  Wall.  290-295 

tion  of  "island";  Sherwin  v,  Bitzcr,  97  Minn.  255,  106  K  W.  1047, 
transfer  of  government  lot  abutting  on  lake  by  number  according  to 
survey  conveys  all  land  ■which  has  become  part  of  lot  by  recession 
of  lake;  Kleven  v.  Gunderson,  95  Minn.  251,  104  N.  W.  6,  applying 
rule  where  meander  corners  of  government  survey  lost;  Webber  v. 
Axtell,  94  Minn.  379,  102  N.  W.  916,  patentee  of  meandered  lots 
entitled  to  island  in  lake  which  later  was  connected  with  lots  by 
sandbar,  though  island  patented  to  another. 

Distinguished  in  Alaska  Gold  Mining  Co.  v.  Barbridge,  1  Alaska, 
324,  325,  locator  of  mining  claim  cannot  include  in  claim  mineral 
lands   that   may  extend   under  the  sea  below  high-water   mark. 

Syl.  8   (VI,  975).     Title  of  riparian  owner  in   stream. 

Approved  in  Franzini  v.  Layland,  120  Wis.  82,  97  N.  W.  503, 
riparian  proprietor  on  navigable  stream  owns  unsurveyed  island  on 
his    side   of   ordinary   high-water   mark. 

Syl.   9    (VI,  970).     Eiparian  owner's  rights  to  wjharf   out. 

Ai)proved  in  United  States  v.  Roth,  2  Alaska,  202,  homestead  en- 
try on  lands  abutting  navigable  stream  gives  cntryman  exclusive 
right  to  use  and  occupation  of  shore  laud  between  high  and  lew 
water   mark  as   against   trespasser. 

Distinguished  in  Sutter  v.  Heckman,  1  Alaska,  8S.  owner  of  up- 
lands bordering  on  sea  has  no  exclusive  right  to  fish  alung  tide  flats. 

Syl.   11    (VI,   978).     City's   title   in   streets. 

Approved  in  Eiverside  v.  MacLain,  210  111.  321,  102  Am.  St.  Rep. 
164,  71  N.  E.  413,  66  L.  R.  A.  288,  determining  that  city  had  ac- 
cepted dedication  as  park  of  land  which  had  been  so  platted  prior 
to  incorporation. 

(VI,  972.)  Miscellaneous.  Cited  in  Minnesota  Canal  etc.  Co.  v. 
Koochiching  Co.,  97  Minn.  440,  107  N.  W.  4U9,  detiuiug  navigable 
stream. 

7   Wall.   290-295,   19  L.   190,   MEAD   v.  BALLARD. 

Sj'l.   1    (VI,  979).     Conveyance   on   condition   that   building   erected. 

Approved  in  Rannels  v.  Rowe,  145  Fed.  300,  conveyance  on  condi- 
tion of  building  of  railroad  within  three  years  is  on  condition  sub- 
sequent; State  V.  Irvine,  14  Wyo.  386,  84  Pac.  105,  where  state  in- 
corporated agricultural  college,  which  was  public  corpora  tion,  fact 
that  property  thereafter  given  in  trust  for  it  did  not  preclude  re- 
peal of  incorporation  act. 

Syl.  4  (VI,  980).  Deeds — "Pernmuent"  in  condition  subsequent 
defined. 

Approved  in  Union  Stockyards  Co.  v.  Nashville  Pack.  Co.,  140 
Fed.    706,    applying    rule    where    land    deed    for    erection    of   packing- 


7  Wall.  299-327  Notes  on  U.  S.  Reports.  452 

house  which  was  built  but  subsequently  abandoned;  Lucas  v.  New 
York  etc.  E.  Co.,  130  Fed.  438,  64  C.  C.  A.  638,  where,  in  considera- 
tion of  grant  of  land  to  village  for  roadway,  railroad  when  it 
changed  its  depot  was  to  make  entrances  to  depot  grounds,  which 
it  did,  but  thereafter  village  changed  grade  of  avenue  so  that  en- 
trance was  obstructed,  railroad  not  liable  for  not  continuing  entrances, 

7  Wall.  299-306,  19  L.  40,  DUEY  v.  CEOSS. 

Syl.   4    ("\'T[,  980).     Corporate  directors  act  for  benefit   of   all. 

Approved  in  In  re  Castle  Braid  Co.,  145  Fed.  230,  231,  235,  up- 
holding contract  between  corporation  and  directors  for  purchase  of 
latter 's  shares  of  stock  in  order  to  settle  disputes  and  terminate 
litigation;  Burns  v.  Cooper,  140  Fed.  277,  applying  rule  where 
guardian  sold  ward's  property  under  order  of  court,  for  purpose  of 
having  title  transferred  to  himself;  City  Nat.  Bank  v.  Goshen  etc. 
Mills  Co.,  35  Ind.  App.  579,  69  N.  E.  211,  applying  rule  where  di- 
rector of  insolvent  resigned  after  it  had  been  agreed  that  he  should 
resign  and  have  a  preference;  Attalla  Iron  Ore  Co.  v.  Virginia  etc. 
Coke  Co.,  Ill  Tenn.  536,  77  S.  W.  776,  where  managing  officers  of 
corporation  formed  secret  agreement  with  another  to  form  new  cor- 
poration in  which  officials  were  to  have  controlling  interest,  and 
then  they  entered  into  contract  with  new  corporation  on  behalf 
of  old,  latter  could  annul  contract. 

Distinguished  in  Beach  v.  McKinnon,  148  Fed.  736,  bill  by  re- 
ceiver of  insolvent  corporation  against  director  for  accounting  as 
to  notes  alleged  to  have  been  transferred  from  corporation  to  de- 
fendant is  insufficient  where  it  does  not  allege  transfer  was  fraud- 
ulent. 

7  Wall.  306-313,  19  L.  91,  EDMOXDSON  v.  BLOOMSHIEE. 

Syl.   5    (VI,    9S3).     Bond   unnecessary   to    constitute    appeal. 

Approved  in  In  re  T.  E.  Hill  Co.,  148  Fed.  833,  834,  neither  citation 
nor   bond   are   jurisdictional   requisite  to   bankruptcy   appeal. 

7  Wall.  316-320,  19  L.  192,  BOYD  v.  MOSES. 

Syl.  2  (VI,  984).     Carrier  may  refuse  goods  injurious  to  others. 

Approved  in  Birt  v.  Hardie,  132  Fed.  66,  upholding  refusal  of  load 
of  flour  where  master  had  previously  loaded  kerosene  and  feared 
damage  to  flour. 

7   Wall.    321-327,     19    L.     223,     TWITCHELL     v.     THE     COMMON- 
WEALTH. 

Syl.   5    (VI,  985).     Fifth   amendment  not   limitation  on   states. 

Approved  in  Ex  parte  Munn,  140  Fed.  783,  federal  court  cannot, 
on  habeas  corpus,  release  witness  imprisoned  for  refusing  to  answer 
questions    on    ground    that    answers    might    incriminate    him;    In    re 


453  Notes  on  U.  S.  Kcports.  7  Wall.  327-386 

Briggs,  135  N.  C.  121,  47  S.  E.  404,  upholding  Code,  §  1215,  com- 
pelling testimony  by  gamblers;  State  v.  Patterson,  134  N.  C.  618, 
47  S.  E.  810,  upliolding  Laws  1903,  p.  472,  c.  349,  §  2,  providing  that 
any  place  to  which  liquor  shall  be  shipped  for  delivery  to  purchaser 
shall  be  deemed  place  of  sale. 

7  Wall.  327-331,  19  L.  93,  TYLEE  v.  BOSTON. 

Syl.  2  (VI,  988).  Patent  for  new  chemical  combination — Descrip- 
tion. 

Approved  in  Panzl  v.  Battle  Is.  Paper  Co.,  138  Fed.  53,  70  C.  C. 
A.  474,  Panzl  patent  No.  644,367,  claims  1  and  2,  for  composition  of 
material  for  lining  pulp  digesters,  is  void  for  failure  to  specify  pro- 
portions of  ingredients. 

Syl.  4  (VI,  988).     Patents— "  Equivalents  "  defined. 

Approved  in  Chadeloid  Chemical  Co.  v.  De  Eonde  Co.,  14G  Fed.  992, 
substitution  of  acetone  for  alcohol  in  paint  remover  is  use  of  chem- 
ical equivalent. 

7  Wall.  347-354,  19  L.  62,  GAINES  v.  THOMPSON. 

Syl.  1   (VI,  991).     Mandamus  to  control  discretionary  action. 

Approved  in  Adams  v.  Couch,  1  Okl.  34,  26  Pac.  1015,  following 
rule;  Bates  etc.  Co.  v.  Payne,  194  U.  S.  109,  48  L.  895,  24  Sup.  Ct. 
595,  refusing  to  enjoin  postmaster  general  for  refusing  to  admit  to 
periodical  to  mails  as  second-class  matter;  Barnes  v.  Wilson  Co. 
Commrs.,  135  N.  C.  39,  47  S.  E.  741,  refusing  to  mandamus  commis- 
sioners to  issue  liquor  license;  Wilbourne  v.  Baldwin,  5  Okl.  272, 
275,  47  Pac.  1048,  denying  injunction  on  application  of  homesteader 
where  Interior  Department  has  decided  that  Indian  lands  are  not 
open  to  settlement;  Fitzgerald  v.  Keith,  5  Okl.  263,  48  Pac.  Ill,  ter- 
ritorial courts  cannot  review^  action  of  Interior  Department  in  dis- 
posing of  public  domain  until  title  has  passed  from  government; 
Laramie  Nat.  Bank  v.  Steinhoff,  11  Wyo.  307,  71  Pac.  994,  where  no 
patent  issued  on  certificate  of  purchase,  court  cannot  determine  title 
between  holder  of  certificate  and  claimant  under  entry;  dissenting 
opinion  in  Sproat  v.  Durland,  2  Okl.  52,  35  Pac.  888,  majority  grant- 
ing injunction  on  application  of  homesteader  against  adverse  claim- 
ant interfering  with  possession,  though  contest  pending  in  Land 
Department. 

7  Wall.  364-386,  19  L.  214,  EX  PAETE  BEADLEY. 

Syl.  6   (VI,  995).     Power  to  punish  attorneys  for  misconduct. 

Approved  in  State  v.  Mosher,  128  Iowa,  86,  103  N.  W.  107,  trial 
court  as  authorized  by  statute  may  revoke  license  of  attorney  though 
supreme  court  has  exclusive  authority  to  admit. 


7  Wall.  386-392  Notes  on  U.  S.  Reports.  454 

Syl.  9  (VI,  996).     Mandamus  to  inferior  courts. 

Approved  in  State  v.  Graves,  66  Neb.  23,  92  N.  W.  146,  granting 
mandamus  to  vacate  injunction  granted  without  jurisdiction. 

Distinguished  in  Smith  v.  Connor,  98  Tex.  438,  84  S.  W.  817,  man- 
damus to  inferior  court  cannot  be  substituted  for  appeal  in  cases 
where  appeal  not  given. 

Syl.  12   (VI,  996).     Mandamus  for  abuse  of  discretion. 
See  98  Am.  St.  Eep.  899,  note. 

7   Wall.  386-392,  19  L.  257,  EIDDLESBARGER  v.  HARTFORD  INS. 
CO. 

Syl.  1  (VI,  997).     Limitation  statutes  give  no  right  of  action. 

Approved  in  Lynchburg  etc.  Co.  v.  Travelers'  Ins.  Co.,  140  Fed. 
724,  conduct  of  insurer  inducing  delay  in  bringing  suit  beyond  time 
limited  in  policy  is  not  entire  annulment  of  limitation  clause. 

Syl.  3   (VI,  997).     Shortening  limitations  by  contract. 

Approved  in  Mead  v.  Phoenix  Ins.  Co.,  68  Kan.  435,  75  Pac.  475, 
lU  L.  R.  A.  79,  applying  rule  where  minor's  house  destroyed  during 
minority  and  suit  on  policy  brought  on  attainment  of  majority  but 
after   time   limited   in   policy. 

Svl.  4  (VI,  997).  Strict  compliance  with  insurance  contract  re- 
quired. 

Approved  in  .Johnson  v.  Maryland  Casualty  Co.,  73  N.  H.  261,  111 
Am.  St.  Eep.  610,  60  Atl.  1010,  delay  in  giving  notice  of  accident 
beyond  time  limit  prescribed  in  policy  bars  recovery  though  delay 
result  of  the  accident. 

Syl.   7    (VI,   998).     Insurance — Condition  fixing  time  to  sue   valid. 

Approved  in  Ward  v.  Pennsylvania  Fire  Ins.  Co.,  82  Miss.  129,  33 
So.  842,  following  rule;  Lynchburg  etc.  Mill  Co.  v.  Travelers'  Ins. 
Co.,  149  Fed.  958,  where  employer's  liability  policy  provided  for  bar 
of  action  thirty  days  after  accrual  of  right,  but  insurer  participated 
in  negotiations  for  settlement  for  more  than  ninety  days  after  ex- 
piration of  limit,  limitation  waived;  Luekenbaeh  v.  Home  Ins.  Co., 
142  Fed.  1026,  upholding  provision  in  marine  policy  limiting  time 
to  sue  thereon  and  providing  that  if  action  brought  after  time  lim- 
ited, lapse  of  time  deemed  conclusive  of  invalidity  of  claim;  Spinks  v. 
Mutual  etc.  Life  Assn.,  137  Fed.  170,  applying  rule  to  life  policy; 
Paul  V.  Fidelity  etc.  Co.,  186  Mass.  416,  104  Am.  St.  Rep.  594,  71 
N.  E.  802,  running  of  limitations  provided  for  in  policy  for  action 
thereon  not  stopped  by  injunction  against  action  thereon,  issued 
after  limitation  commenced  to  run;  Fey  v.  I.  O.  O.  F.  Mut.  L.  Ins. 
Soc.  120  Wis.  367,  98  N.  W.  209,  statute  extending  time  to  sue,  where 
person  entitled  to  sue  dies,  does  not  apply  to  insurance  policy  limit- 
ing time  for  beneficiary  to  sue. 


455  Notes  on  U.  S.  Keports.  7   Wall.  392-425 

Denied  in  Union  etc.  Ins.  Co.  v.  Spinks,  119  Kan.  267,  83  S.  W.  61G, 
provision  in  life  policy  that  no  suit  shall  be  •  commenced  thereon 
after  lapse  of  one  year  from  death  is  void  where  statute  prescribes 
fifteen  year  limitation. 

7  Wall.  392-416,  19  L.  117,  CHICAGO  ETC.  E.  E.  CO.  v.  HOWARD. 

Syl.  1   (VI,  1000).     Corporate  assets  as  trust  fund  for  creditors. 

Approved  in  Ex  parte  Savings  Bank  of  Eock  Hill,  73  S.  C.  396,  53 
S.  E.  615,  where  liquidating  bank  turned  over  assets  to  another  bank 
to  pay  creditors,  and  before  settlement  liquidating  bank  became  in- 
solvent creditor,  former  had  prior  lien  on  assets  in  possession  of  re- 
ceiver  of  latter  belonging  to   former  bank. 

Distinguished  in  Anderson  v.  War  Eagle  etc.  Min.  Co.,  8  Idaho,  801, 
72  Pac.  673,  fact  that  manager  and  stockholder  in  corporation  be- 
came manager  of  new  corporation,  which  purchased  all  stock  of  old 
company,  does  not  make  new  company  liable  for  debts  of  old. 

Syl.   6    (VI,   1002).     Corporations   may   issue   negotiable   paper. 

Approved  in  In  re  New  York  Car  Wheel  Works,  141  Fed.  435,  up- 
holding validity  of  indorsement  by  corporation  of  notes  of  another 
corporation;  Fidelity  Trust  Co.  v.  Louisville  Gas  Co.,  118  Ky.  598, 
111  Am.  St.  Eep.  302,  81  S.  W.  930,  where  corporation  authorized  to 
issue  bonds  for  half  million  it  may  guarantee  payment  of  million 
dollars  worth  of  bonds  sold  by  it  after  it  had  lawfully  acquired  them. 
See  111  Am.  St.  Eep.  312,  328,  note. 

Syl.  8   (VI,  1003).     Estoppel  of  corporations  by  acts. 

See   111   Am.   St.   Eep.   322,   note. 

Syl.  12   (VI,  1003).     Necessary  parties  to  suit  against  corporation. 

Distinguished  in  Guardian  Trust  Co.  v.  Kansas  City  etc.  Ey.  Co., 
146  Fed.  339,  342,  action  on  liability  of  foreclosure  purchaser  for 
mortgagor's  debt  under  reorganization  scheme  not  impeachment  of 
decree  in  case  in  which  liability  not  litigated  in  foreclosure  suit. 

7  Wall.  416-425,  19  L.  166,  SHEETS  v.  SHELDON. 

Syl.   2    (VI,   1004).      Equitable   relief   against   ejectment   judgment. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  816,  upholding 
equity  jurisdiction  over  suit  to  cancel  oil  and  gas  lease  where  work 
of    development   and   production   not   exercised    diligently. 

Syl.  6  (VI,  1005).     Tenant's  repairs  at  landlord's  expense. 
Approved   in  American   Bonding   Co.   v.   Pueblo   Inv.   Co.,   150   Fed. 
28,  following  rule. 

Syl.  7  (VI,  1005).  Tenant's  liability  for  rent  on  destruction  of 
premises. 

Approved  in  Stevens  v.  Wadleigh,  6  Ariz.  94,  46  Pac.  72,  6  Ariz. 
357,  57  Pac.  624,  where  owner  of  land  having  right  to  use  water  for 


7  Wall.  425-487  Notes  on  U.  S.  Ecports,  456 

irrigation  covenants  to  defend  lessee  of  land  in  peaceable  possession, 
failure  to  deliver  water  does  not  relieve  from  payment  of  rent. 

7  Wall.  425-433,  19  L.  260,  PAYNE  v.  HOOK. 

Syl.  2   (VI,  1006).     Federal  equity  not  limited  by  states. 

Approved  in  Carlson  v.  Sullivan,  146  Fed.  479,  constitutional  pro- 
vision relating  to  jury  trials  applies  to  suit  in  federal  court  in  terri- 
tory by  one  in  possession  of  land  claiming  whole  title;  dissenting 
opinion  in  Moore  v.  Fidelity  Trust  Co.,  138  Fed.  1009,  majority  deny- 
ing federal  jurisdiction  over  suit  by  distributee  under  will  for  ac- 
counting against  decedent's  surviving  partner,  who  was  executor  of 
estate  in  probate  in  state  court. 

Syl.  4  (VI,  1010).  Equity  jurisdiction  to  compel  administrator  to 
account. 

Distinguished  in  Thiel  Detective  etc.  Co.  v.  McClure,  130  Fed.  58, 
59,  federal  court  has  no  equitable  jurisdiction  over  suit  by  creditor 
of  estate  against   executor  for  accounting. 

7  Wall.  433-446,  19  L.  95,  PACIFIC  INS.   CO.  v.  SOULE. 

Syl.  1   (VI,  1011).     Congressional  powers  as  to  taxation. 

Approved  in  McCray  v.  United  States,  195  U.  S.  57,  49  L.  96,  24 
Sup.  Ct.  769,  upholding  Comp.  St.  1901,  p.  2228,  §  8,  taxing  artificially 
colored  oleomargarine. 

7  Wall.  447-453,  19  L.  207,  WAED  v.  SMITH. 

Syl.  5   (VI,  1014).     Agent  can  only  accept  money. 

Approved  in  Cowling  v.  American  Express  Co.,  102  Mo.  App.  372, 
76  S.  W.  713,  one  acepting  draft  in  payment  of  check  he  has  for 
collection  is  liable  where  draft  is  stopped  by  debtor's  order, 

7  Wall.  463-482,  19  L.  249,  UNITED  STATES  v.  ADAMS. 

Syl.  2   (VI,  1018).     Acceptance  of  amount  allowed  by  government. 

Approved  in  County  Commrs.  v.  Seawell,  3  Okl.  287,  41  Pae.  594, 
where  claim  against  county  is  allowed  in  part  and  warrant  drawn 
for  part  allowed  is  accepted,  recovery  on  disallowed  part  of  claim  is 
barred. 

7   Wall.  482-487,   19  L.   278,   UNITED   STATES  v.   KIEBY. 

Syl.   1    (VI,   1019).     Obstructing  mails— Intent. 

Approved  in  United  States  v.  Fifty  Waltham  Watch  Movements, 
139  Fed.  300,  where  one  intentionally  failed  to  enter  goods  at  custom- 
house, though  if  duly  imported  they  are  free  of  duty,  merchandise  is 
forfeitable  under  Eev.  St.,  §  3082. 

Syl.  4   (VI,   1020).     Statutory  intent  governs. 

Approved  in  Mottley  v.  Louisville  etc.  E.  Co.,  150  Fed.  411,  Act 
of  1906,  prohibiting  free  passes,  did  not  invalidate  contract  made  in 


457  Notes  on  U.  S.  Eeports.  7  Wall.  49Golo 

1871,  by  which  carrier  agreed  to  give  pass  for  life  in  consideration 
of  release  of  damages;  Whitfield  v.  Aetna  Life  Ins.  Co.,  144  Fed. 
360,  construing  Eev.  St.  Mo.  1899,  §  7896,  relating  to  suicide  of  in- 
sured as  defense  to  action  on  policy;  United  States  v.  Ninety-nine 
Diamonds,  139  Fed.  965,  2  L.  R.  A.  (N.  S.)  185,  one  having  right  of 
possession  of  and  lien  on  goods  for  dutj'  paid,  with  option  to  pur- 
chase, is  not  liable  under  Comp.  St.  1901,  p.  1895,  §  9,  because 
he  making  entry  as  owner;  United  Shoe  M.  Co.  v.  Duplessis  Shoe  M. 
Co.,  133  Fed.  933,  under  Comp.  St.  1901,  j).  589,  patent  suit  against  alien 
may  be  brought  in  any  district  in  which  defendant  is  found;  Carri- 
gan  V.  Stillwell,  99  Me.  437,  59  Atl.  685,  68  L.  R.  A.  386,  Rev.  St., 
c.  28,  §  38,  requiring  fire-escapes  on  buildings  whore  presence  of 
workmen  required  above  first  floor,  does  not  apply  to  ground  floor 
restaurant,  whose  kitchen  is  on  third  floor,  and  only  three  employed 
in  kitchen;  Moody  v.  McKinney,  73  S.  C.  440,  53  S.  E.  544,  where 
person  did  not  voluntarily  lend  team  to  another  under  circumstances 
which  should  have  led  him  to  believe  it  would  be  used  to  transport 
liquor  at  night,  team  not  liable  to  confiscation  imder  Cr.  Code,  594; 
Jacobson  v.  Massachusetts,  197  U.  S.  39,  103  Am.  St.  Rep.  876,  49 
L.  655,  25  Sup.  Ct.  358,  arguendo. 

7  Wall.  496-499,  19  L.  283,  KELLY  v.  OWEX. 

Syl.  1  (VI,  1022).     Marriage  of  w^oman  to  citizen  makes  her  citizen. 

Approved  in  Hopkins  v.  Fachaut,  130  Fed.  843,  65  C.  C.  A.  1, 
marriage  of  alien  woman  to  citizen  pending  proceedings  for  her  de- 
portation entitles  her  to  discharge  on  habeas  corpus;  Potter  v.  Hall, 
11  Old.  181,  65  Pac.  844,  widow  of  citizen  who  made  homestead  entry 
is  citizen,  and  may  acquire  land  under  Rev.  St,    U.  S.,  §   1994. 

7  Wall.  506-515,  19  L.  264,  EX  PARTE  McCARDLE. 

Syl.  &  (VI,  1024).    Federal  appellate  jurisdiction  limited  by  statute. 

Approved  in  Jung  v.  Myer,  11  N.  M.  389,  68  Pac.  936,  Laws  1901, 
c.  82,  authorizing  appeals  to  supreme  court  from  interlocutary  orders 
affecting  substantial  rights,  is  void   as  conflicting  with   organic   act. 

Syl.   5    (VI,   1025).     Where  jurisdiction  ceases   court  must   dismiss. 

Approved  in  United  States  v.  Sena,  12  N.  M.  413,  414,  78  Pac.  61, 
62,  repeal  of  Laws  1901,  p.  190,  c.  99,  dej^rived  supreme  court  of 
jurisdiction  over  criminal  appeals  not  taken  during  term  at  which 
judgment  rendered. 

Distinguished  in  dissenting  opinion  in  United  States  v.  Sena,  12 
N.  M.  417,  78  Pac.  63,  majority  holding  repeal  of  Laws  1901,  p. 
190,  c.  99,  deprived  supreme  court  of  jurisdiction  over  criminal  ap- 
peals  not   taken   during  term   at   which   judgment   rendered. 

Syl.  9  (VI,  1027).     Repeal  of  act  extending  jurisdiction. 
Approved  in  Sena  v.  United  States,  147  Fed.  488,  where  defendant 
in  criminal  case  took  appeal  within  time  provided  by  statute,  repeal 


7  Wall.  523-559  Notes  on  U.  S.  Eeports,  458 

of  such  statute  before  hearing  of  appeal  did  not  deprive  appellate 
court  of  jurisdiction;  State  v.  Van  Huse,  120  Wis.  21,  97  N.  W.  505, 
Laws  1903,  p.  234,  c.  160,  legalizing  attempted  organization  of  school 
district,  not  void  as  retroacting  on  past  controversy. 

7  Wall.  523-541,  19  L.  285,  EANDALL  v.  BRIGHAM. 

Syl.  2   (VI,  1029).     Judicial  officers  not  liable  for  judicial  acts. 

Approved  in  United  States  v.  Bell,  135  Fed.  338,  68  C.  C.  A.  144, 
applying  rule  in  suit  for  damages  against  circuit  court  clerk  for  re- 
fusal to  issue  summons  in  action  against  state  judge;  Mitchel  v. 
Galen,  1  Alaska,  340,  justice  of  peace  acting  in  collusion  with  others 
and  issuing  warrant  for  arrest  of  mine  owner  for  trespass  on  own 
property,  so  that  mine  may  be  jumped,  is  liable  to  civil  suit;  Corn- 
stock  v.  Eagleton,  11  Okl.  492,  69  Pac.  957,  probate  judge  not  liable 
for  false  imprisonment  for  issuing  commitment  on  judgment  in 
bastardy  proceeding;  Smith  v.  Jones,  16  S.  D.  345,  92  N.  W.  1086, 
denying  right  of  action  against  justice  of  peace  for  issuing  warrant 
on  defective  complaint. 

Syl.  3    (VI,  1030).     Method  of  disbarment  of  attorneys. 
Approved  in  In  re  Branch,  70  N.  J.  L.  548,  57  Atl.  435,  Act  April 
7,  1903.  relieving  law  clerks  from  examination,  is  void. 

Syl.   6    (VI,   1031).     Following   state   statutory   construction. 

Approved  in  City  of  Sioux  Falls  v.  Farmers'  Loan  etc.  Co.,  13G 
Fed.  730,  69  C.  C.  A.  373,  applying  rule  with  reference  to  power  of 
city  to  increase  indebtedness  for  purpose  of  constructing  waterworks, 

7  Wall.  542-559.   19  L.   244,  COPPELL  v.  HALL. 

Syl.   10    (VI,   1033).     Illegality  of  contract  cannot  be  waived. 

Approved  in  Fisher  v.  Hampton  Transportation  Co.,  136  Mich.  223, 
98  N.  W.  1014,  invalidity  of  contract  need  not  be  pleaded  where  com- 
plaint shows  contract  sued  on  is  against  public  policy;  McGuffin  v. 
Coyle,  16  Okl.  653,  85  Pac.  955,  in  action  on  note,  where  language  of 
note  and  all  evidence  shows  it  to  be  against  public  policy,  demurrer 
to  evidence  sustained;  Light  v.  Conover,  10  Okl.  737,  63  Pac.  968, 
no  action  is  maintainable  on  lease  made  without  consent  of  Indian 
agent  for  pasturage  of  cattle  on  Indian  reservation;  Kelly  v.  Courter, 
1  Okl.  282,  30  Pac.  373,  where  under  lease  of  building  for  keeping 
liquor  for  sale,  landlord  agrees  to  supply  ice  for  cooling,  tenant  can- 
not recover  for  damages  caused  by  failure  to  supply  ice  where  sale 
of  liquor  is  illegal;  dissenting  opinion  in  Stewart  v.  Wright,  147 
Fed.  339,  342,  majority  holding  party  given  double  cross  in  swind- 
ling scheme  may  recover  his  money  from  co-swindlers;  dissenting 
opinion  in  Monahan  v.  Monahan,  77  Vt.  151,  59  Atl.  174,  70  L.  R.  A. 
935.  majority  holding  where  complainant  seeks  to  impress  securities 
with  trust  and  issue  is  solely  as  to  title,  relief  not  denied  him  though 
securities  placed  in  defendant's  name  to  avoid  taxation. 


459  Notes  on  U.  S.  Keports.  7  Wall.  565-619 

Distinguishecl  in  Stewart  v.  Wright,  147  Fed.  334,  party  given 
double  cross  in  swindling  schomn  may  recover  his  money  from  co- 
swindlers;  Minnesota  Sandstone  Co.  v.  Clark,  35  Wash.  472,  77  Pac. 
805,  illegality  of  provision  in  contract  for  sale  of  store  that  seller 
would  return  to  buyer  freight  rebates  allowed  by  carrier  does  not 
affect  rest  of  contract. 

7  Wall.  565-571,  19  L.  151,  LABER  v.  COOPER. 

Syl.  G   (VI,  1038).     Denial  of  new  trial  not  reviewable. 

Approved  in  United  Engineering  etc.  Co.  v.  Broadnax,  136  Fed.  353, 
69  C.  C.  A.  177,  decision  on  motion  for  new  trial  is  not  subject  of  re- 
view  in   federal   appellate   court. 

7  Wall.  580-583,  19  L.  263,  UNITED  STATES  v.  ROSENBUEGH. 

Syl.    1    (VI,    1041).      Discretion    to    quash    indictment. 

Approved  in  Dillard  v.  United  States,  141  Fed.  305,  applying  rule 
to  motion  to  quash  indictment  for  misjoinder  of  courts;  Chadwick  v. 
United  States,  141  Fed.  235,  applying  rule  in  prosecution  for  con- 
spiracy with  national  bank  officer  to  wrongfully  certify  cheeks; 
McGregor  v.  United  States,  134  Fed.  192,  194,  applying  rule  in  prose- 
cution for  conspiracy  to  defraud  government;  Radford  v.  United 
States,  129  Fed.  52,  63  C.  C.  A.  491,  denial  of  motion  to  quash  indict- 
ment because  it  is  based  on  incompetent  evidence  is  matter  of  dis- 
cretion. 

7  Wnll.  583  610.  19  L.  177,  AGAWAM  CO.  v.  JOEUON". 

Syl.  7  (VI,  1042).     First  person  perfecting  machine  is  inventor. 

Approved  in  United  Shirt  &  Collar  Co.  v.  Beattie,  149  Fed.  742, 
Pine  patent  No.  645,871,  for  collar-folding  machine,  valid  though 
patentee   emi)loyed   another  to   construct   machine. 

Syl.  9    (VI,   1043).     Employees  entitled  to  own  inventions. 

Approved  in  Eastern  etc.  Bag  Co.  v.  Continental  etc.  Bag  Co.,  142 
Fed.  503,  upholding  Liddell  patent  No.  558,969,  claims  1,  2,  and  7,  for 
paper-bag   machine. 

Syl.  16   (VI,  1044).     Patents — Burden  of  proving  infringement. 

Approved  in  Scott  v.  Fisher  etc.  Mach.  Co.,  139  Fed.  145,  following 
rule. 

7  Wall.  613-619,  19  L.  203,  MORGAN  v.  BELOIT. 

Syl.   1   (VI,   1045).  Liability  for  debts   on  division   of  municipality. 

Approved  in  Gamble  v.  Rural  etc.  School  Dist.,  146  Fed.  119,  under 
Iowa  Code  1893,  §  1715,  suit  by  bondholder  of  divided  school  district 
to  enforce  payment  by  new  districts,  is  within  federal  equity  juris- 
diction; Chicago  V.  Cicero,  210  111.  294,  71  N.  E.  358,  upholding  Laws 


7  Wall,  619-656  Notes  on  U.  S.  Eeports.  460 

1903,   p.    113,    §    1,    enlarging    corporate    limits    of     sanitary     district 
created  by  prior  act. 

Syl.  3  (VI,  1045).     Equity — Inefficiency  of  law  remedy. 

Approved  in  Gamble  v.  Eural  etc.  Dist.,  146  Fed.  120,  upholding 
federal  equity  jurisdiction  over  suit  by  bondholder  of  divided  school 
district   to   enforce  payment  by  new   district. 

7  Wall.  619-624,  19  L.  205,  BELOIT  v.  MORGAN". 
Syl.   1    (VI,   1046).     Conclusiveness  of  judgment. 

Approved  in  Allen  v.  City  of  Davenport,  132  Fed.  221,  65  C.  C.  A. 
641,  where,  after  commencement  of  suit  to  enjoin  street  improvement 
and  levy  of  special  assessment  therefor,  work  done  and  city  paid  for 
it,  and  later  appellate  court  decided  contract  void,  decree  barred 
suit  by  city  to  enforce  lien  as  on  quantum  meruit  under  curative 
statute;  Lockhart  v.  Leeds,  12  N.  M.  167,  76  Pac.  315,  judgment 
against  plaintiff  on  bill  to  have  mine  location  declared  void  for  fraud 
of  defendants  and  violation  of  agreement  to  locate  claim  for  plain- 
tiff bars  suit  to  have  property  declared  to  be  held  in  trust  for  plain- 
tiff; Board  of  County  Commrs.  v.  Cross,  12  N.  M.  76,  73  Pac.  616, 
where,  on  sustaining  demurrer,  material  issues  had  to  be  passed  on  and 
plaintiff  did  not  amend,  but  allowed  entry  of  dismissal,  judgment  was 
res  adjudicata;  dissenting  opinion  in  Leathe  v.  Thomas,  218  111.  2GS, 
75  N.  E.  818,  majority  holding  that  finding  that  plaintiff  was  not  liable 
to  defendant  on  judgment  pleaded  as  counterclaim  was  res  adjudicata, 
not  ground  for  reversal  of  finding  for  defendant  on  counterclaim. 

7  Wall.  624-646,  19  L.  266,  THE  BELFAST.  . 

Syl.  14  (VI,  1054).     States  cannot  create  maritime  liens. 

Approved  in  John  Meunier  Gun  Co.  v.  Lehigh  Valley  etc.  Co.,  123 
Wis.  148,  101  N.  W.  388,  action  for  damage  to  goods  shipped  not 
within  exclusive  admiralty  jurisdiction  where  it  is  set  up  in  answer 
that  goods  shipped  by  water  and  damaged  while  being  lightered  after 
grounding  of  ship;  Arnold  v.  Eastin,  116  Ky.  699,  76  S.  W.  856, 
arguendo. 

7  Wall.  646-656,  19  L.  211,  WHITE'S  BANK  v.  SMITH. 

Syl.  2  (VI,  1056).     Which  is  vessel's  home  port. 

Approved  in  The  New  Bninswick,  129  Fed.  896,  64  C.  C.  A.  325, 
sea-going  vessel  owned  by  corporation  of  another  state  not  liable  for 
lien  for  supplies  though  she  was  enrolled  at  port  where  supplies 
furnished. 

Syl.  6  (VI,  1057).  Eecordation  of  mortgage  on  vessel  gives  prefer- 
ence. 

Approved  in  The  Gordon  Campbell,  131  Fed.  965,  state  statute  in- 
validating chattel  mortgage  securing  note  which  does  not  show  it  is  so 


461  Notes  on  U,  S.  Reports.  7  Wall.  666-743 

secured    does   not    affect    mortgage    on   vessel   enrolled   under   federal 
statute. 

Syl.  7  (VI,  1058).     Eegulation  of  enrolled  vessels. 

Approved  in  The  Alta,  148  Fed.  665,  vessel  not  registered  in  United 
States,  though  owned  by  citizen,  is  subject  to  tonnage  duty  on  entry 
from  foreign  port. 

7  Wall.  666-685,  19  L.  169,  THE  FLOYD  ACCEPTANCES. 

Syl.  10  (VI,  1063).     Acceptance  of  draft  by  government  officer. 

Approved  in  United  States  v.  Kauhoe,  147  Fed.  187,  where  sureties 
on  postmaster's  bond  gave  inspector  note  for  amount  of  default  in 
consideration  of  extension  of  time,  note  void  as  unauthorized. 

7  Wall.  694-699,  19  L.  224,  AUSTIN  v.  BOSTON. 

Syl.  2  (VI,  1066).     Taxing  power  unlimited. 

Approved  in  McCray  v.  United  States,  195  U.  S.  57,  49  L.  96,  24 
Sup.  Ct.  769,  upholding  Comp.  St.  1901,  p.  2228,  as  amended  in  1902, 
taxing  artificial  colored  oleomargarine. 

7  Wall.  700-743,  19  L.  227,  TEXAS  v.  WHITE. 

Syl.  16  (VI,  1071).     Validity  of  acts  of  rebel  legislature. 

Approved  in  Day  v.  Smith,  87  Miss.  407,  39  So.  528,  taxes  levied  in 
sxipport  of  confederacy  by  Mississippi  cannot  be  treated  as  though 
never  paid  because  illegal,  in  support  of  sale  of  land  for  taxes;  Cul- 
lins  V.  Overton,  7  Okl.  4S0,  482,  54  Pac.  705,  where  Texas  authorities 
organized  disputed  territory  into  county  government  and  afterward 
courts  decide  territory  was  not  in  Texas,  judgment  of  county  court  of 
such  county  is  valid. 

Syl.  7  (VI,  1067).  State's  reserve  powers  not  delegated  to  govern- 
ment. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  453,  50  L. 
266,  26  Sup.  Ct.  110,  United  States  may  exact  revenue  tax  from 
dispensing  agents  of  state  which  has  taken  charge  of  liquor  business; 
Northern  Securities  Co.  v.  United  States,  193  U.  S.  34S,  48  L.  704,  24 
Sup.  Ct.  436,  arguendo. 

Syl.  8  (VI,  1067).     Effect  of  secession  ordinances  on  states. 
Cited  in  Mial  v.  Ellington,  134  N.  C.  156,  46  S.  E.  969,  65  L.  E.  A. 
697,  arguendo. 

Syl.  1  (VI,  1066).     Authority  to  sue  on  behalf  of  state. 

Approved  in  Henry  v.  State,  87  Miss.  35,  39  So.  803,  governor  can- 
not sue  in  name  of  state. 

Distinguished  in  dissenting  opinion  in  Henry  v.  State,  87  Miss.  92, 
39  So.  883,  majority  holding  governor  cannot  sue  in  name  of  state. 

(VI,  1066.)  Miscellaneous.  Cited  in  Heiuze  v.  Butte  etc.  Min.  Co., 
129  Fed.  279,  63  C.  C.  A.  388,  arguendo. 


VIII  WALLACE. 


8  Wall.  114,  19  L.  361,  THORINGTON  v.  SMITH. 

Syl.  1  (VII,  7).     Contracts  in  aid  of  insurrection  unenforceable. 

Approved  in  Cullins  v.  Overton,  7  Okl.  482,  54  Pac.  705,  where  Texas 
authorities  organized  disputed  territory  into  county  government,  judg- 
ment of  county  court  thereof  rendered  prior  to  decree  that  territory 
was  not  in  Texas  is  valid. 

Syl.  7   (VII,  12).     Parol  to  explain  ambiguity  in  writing. 

Approved  in  Kilby  Mfg.  Co.  v.  Hinchman  Fireproofing  Co.,  132 
Fed.  962,  66  C.  C.  A.  67,  admitting  parol  evidence  of  prior  statement 
of  party  as  to  width  of  pavement  where  contract  silent. 

8  Wall.  15-26,  19  L.  365,  THE  EAGLE. 

Syl.  7   (VII,  15).     Federal  admiralty  jurisdiction  act. 

Approved  in  The  Winnebago,  141  Fed.  948,  upholding  Michigan 
Comp.  Laws,  c.  298,  giving  liens  for  labor  and  materials  used  in  con- 
struction of  vessels  and  providing  for  their  enforcement  in  state  courts. 

8  Wall.  64-76,  19  L.  326,  MEMPHIS  CITY  v.  DEAN. 

Syl.  1  (VII,  20).     Suit  by  stockholder  for  injury  to  corporation. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  588,  49  L.  610,  25  Sup. 
Ct.  355,  fact  that  interest  of  corporation  defendant  may  be  same  as 
complaining  stockholders  does  not  require  corporation  to  be  grouped 
with  complainants  for  purposes  of  federal  jurisdiction,,  where  control 
of  corporation  is  antagonistic  to  complainants.  See  97  Am.  St.  Eep, 
43,  note. 

8  Wall.  77-85,  19  L.  449,  UNITED  STATES  v.  SPEED. 

Syl.  5   (VII,  21).     Damages  for  breach  of  contract — Expenditures. 

Approved  in  Hadley  Dean  Plate  Glass  Co.  v.  Highland  Glass  Co., 
143  Fed.  244,  following  rule;  Allen  v.  Field,  130  Fed.  657,  65  C.  C.  A. 
19,  in  action  for  breach  of  contract  to  take  entire  product  of  distillery 
for  term,  expert  evidence  as  to  amount  of  deduction  of  damages  by 
reason  of  less  time  engaged  and  release  from  trouble  and  risk  of  full 
execution  of  contract. 

8  Wall.  85-106,  19  L.  332,  EX  PARTE  YERGEB. 

Syl.  2  (VII,  22).     Habeas  corpus  by  supreme  court. 

Approved  in  Ex  parte  Moran,  144  Fed.  596,  upholding  jurisdiction 
to  issue  habeas  corpus  to  review  power  of  Oklahoma  court  to  imprison 
one  convicted  of  capital  offense. 

[462] 


463  Notes  on  U.  S.  Reports.  8  Wall,  110-153 

Syl.  5  (VII,  22).     Federal  original  jurisdiction  in  habeas  corpus. 

Approved  in  Ex  parte  Moran,  144  Fed.  596,  upholding  jurisdiction 
to  issue  habeas  corpus  to  review  power  of  Oklahoma  court  to  imprison 
one  convicted  of  capital  offense. 

Syl.  6   (VII,  23).     Habeas  corpus  to  circuit  court's  decision. 

Approved  in  Ex  parte  Moran,  144  Fed.  601,  upholding  jurisdiction 
to  review  by  habeas  corpus  power  of  Oklahoma  court  to  imprison  one 
.'-onvicted  of  capital  offense. 

8  Wall.  110-123,  19  L.  342,  WARING  v.  THE  MAYOR. 
Syl.  2  (VII,  25).     State  tax  on  original  packages. 

Approved  in  Gulf  etc.  Ry.  Co.  v.  State,  97  Tex.  286,  78  S.  W.  499, 
determining  when  shipment  of  grain  lost  its  interstate  character. 

Syl.  3   (VII,  26).     Sale  of  goods  at  sea. 

Approved  in  United  States  v.  Hartwell  Lumber  Co.,  142  Fed.  437, 
determining  what  tariff  law  governed  where  merchandise  in  American 
waters  prior  to  taking  effect  of  act  of  1897,  though  not  in  jjlace 
customary  for  unloading  until  after  act  took  effect. 

8  Wall.  123-147,  19  L.  382,  WOODRUFF  v.  PARHAM. 

Syl.  2  (VII,  26).     Tax  on  goods  from  other  states — Discrimination. 

Approved  in  In  re  Sydow,  4  Ariz.  210,  36  Pac.  215,  upholding  Laws 
1893,  Act  No.  83,  imposing  license  tax  on  vendors  of  merchandise ; 
Territory  v.  Denver  etc.  R.  R.  Co.,  12  N.  M.  433,  78  Pac.  76,  upholding 
Laws  1901,  p.  96,  c.  45,  §  3,  prohibiting  transportation  out  of  territory 
of  hides  not  inspected  and  tagged,  for  which  ten  cents  a  hide  was 
charged;  People  v.  Reardon,  184  N.  Y.  456,  112  Am.  St.  Rep.  645,  77 
N.  E.  978,  upholding  Laws  1905,  pp.  474,  477,  imposing  tax  on  trans- 
fers of  corporate  shares;  Wrought  Iron  Range  Co.  v.  Campen,  135  N. 
C.  516,  518,  47  S.  E.  661,  662,  Pub.  Laws  1903,  p.  333,  c.  247,  taxing 
peddlers  of  stoves,  is  void  as  to  sales  by  sample  of  goods  manufactured 
in  another  state  and  delivered  in  original  package;  American  Steel 
etc.  Co.  v.  Speed,  110  Tenn.  546,  100  Am.  St.  Rep.  814,  75  S.  W.  1042, 
goods  sent  by  foreign  corporation  to  agent  in  state  in  original  pack- 
age to  have  ready  for  future  sales  are  taxable  by  state.  See  notes, 
112  Am.  St.  Rep.  651;  100  Am.  St.  Rep.  835,  836. 

8  Wall.   148-153,  19  L.  387,  HENSON  v.  LOTT. 

Syl.  3   (VII,  29).     Discrimination — State   tax  on  imports. 

Approved  in  American  Steel  etc.  Co.  v.  Speed,  110  Tenn,  546,  100 
Am.  St.  Rep..  814,  75  S.  W.  1042,  goods  sent  by  foreign  corporation  to 
agent  in  state  in  original  package  to  have  ready  for  future  sale  are 
taxable  by  state. 


8  Wall.   16S-1S5  Notes  on  U.  S.  Eeports.  464 

8  Wall.  168-185,  19  L.  357,  PAUL  v.  VrRGINIA. 

Syl.  1   (VII,  33).     Equal  protection — Corporations  not  citizens. 

Approved  in  Miller  v.  Ahrens,  150  Fed.  656,  trust  created  by  will 
for  benefit  of  foreign  religious  corporation,  involving  devise  of  land 
in  West  Virginia,  is  void  as  against  public  policy  of  such  state; 
Kirven  v.  Virginia-Carolina  Chemical  Co.,  145  Fed.  292,  failure  of 
foreign  corporation  to  comply  with  state  statute  imposing  conditions 
precedent  to  right  to  do  business  in  state  does  not  render  contracts 
void;  Attorney  General  v.  Electric  Storage  Battery  Co.,  188  Mass. 
240,  74  N.  E.  467,  upholding  Act  of  1903,  requiring  certain  classes  of 
foreign  corporations  to  annually  file  certificate  of  certain  facts  and 
pay  excise  tax  assessed  on  its  capital  stock;  Myatt  v.  Ponca  City  Land 
etc.  Co.,  14  Okl.  223,  78  Pac.  194,  68  L.  E.  A.  810,  where  foreign  cor- 
poration attempts  to  acquire  title  to  property  vested  in  individual, 
latter  may  deny  its  corporate  capacity  as  defense;  Kansas  City  etc. 
Ey.  Co.  V.  Stevenson,  135  Fed.  554,  arguendo. 

Syl.  2   (VII,  34).     Jurisdiction — Citizenship  of  corporation. 

Approved  in  Madisouville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  248,  49  L.  466,  25  Sup.  Ct.  251,  upholding  removal  of  proceeding 
for  taking  laud  by  eminent  domain  under  state  statute. 

Syl.  3  (VII,  35).     What  are  privileges  and  immunities  guaranteed. 
.     Approved  in  State  v.  Weber,  96  Minn.  431,  105  N.  W.  493,  uphold- 
ing state  constitutional  provision  limiting  right  of  suffrage  of  natural- 
ized citizens  to  such  as  are  admitted  three  months  prior  to  election. 

Syl.  6  (VII,  37).  Eecognition  of  foreign  corporation  rests  on 
county. 

Approved  in  State  v.  Kansas  etc.  Gas  Co.,  71  Kan.  791,  81  Pac. 
508,  and  Standard  Oil  Co.  v.  Commonwealth,  104  Va.  685,  52  S.  E.  390, 
both  following  rule;  Security  Mut.  Life  Ins.  Co.  v.  Prewitt,  202  U.  S. 
252,  50  L.  1016,  26  Sup.  Ct.  619,  upholding  state  statute  that  if  foreign 
insurance  company  removes  case  to  federal  court  it  shall  lose  license 
to  do  business  in  state;  Evansville  etc.  Traction  Co.  v.  Henderson 
Bridge  Co.,  132  Fed.  404,  federal  court  cannot  compel  Kentucky  cor- 
I)oration  to  permit  Indiana  railroad,  which  has  not  complied  with 
Kentucky  statutes,  to  connect  with  its  tracks  so  as  to  permit  railroad 
to  do  business  in  Kentucky;  Black  v.  Vermont  Marble  Co.,  1  Cal.  App. 
719,  82  Pac.  1061,  Stat.  1899,  p.  Ill,  providing  that  foreign  corpora- 
tions not  designating  agent  on  whom  process  may  be  served  cannot 
sue  in  state  courts,  prohibits  such  corporation  from  pleading  limita- 
tions as  defense;  American  Smelting  etc.  Co.  v.  People,  34  Colo.  255, 
82  Pac.  536,  upholding  act  of  1901,  requiring  foreign  corporation  to 
pay  fee  on  filing  certificate  of  incorporation;  Old  Wayie  etc.  Assn. 
V.  McDonougli,  164  Ind.  327,  73  N.  E.  705,  upholding  Pennsylvania 
statute  requiring  foreign  insnrauee  companies  doing  business  there 
to  stipulate  that  process  may  be  served  on  it  by  service  on  insurance 


465  Notes  ou  U.  S.  lieports.  8  Wall.   168-185 

commissioner  or  on  its  designated  agent;  Prewitt  v.  Security  etc.  Ins. 
Co.,  119  Ky.  327,  83  S.  W.  612,  upholding  Ky.  St.  1903,  §  631,  providing 
for  revocation  of  license  of  foreign  insiirance  company  removing  suits 
to  federal  courts;  Attorney  General  v.  Booth,  143  Mich.  102,  106  N. 
W.  873,  upholding  Laws  1899,  p.  409,  No.  255,  providing  for  revoca- 
tion of  certificate  of  foreign  corporation  violating  such  act;  Pollock 
V.  Qerman  Fire  Ins.  Co.,  132  Mich.  227,  93  N.  W.  437,  upholding  Comp. 
Laws,  §  7246,  defining  term  "agent"  of  foreign  insurance  companies; 
State  V.  Fleming,  70  Neb.  524,  97  N.  W.  1063.  upholding  tax  on  gross 
earnings  of  foreign  corporations  as  privilege  of  doing  business  in  state; 
Fisher  v.  Traders'  Mut.  Life  Ins.  Co.,  136  N.  C.  223,  48  S.  E.  669, 
upliolding  Laws  1901,  p.  66,  c.  5,  requiring  foreign  corporations  to 
appoint  agent,  on  whom  process  may  be  served,  and  providing  for 
service  on  secretary  of  corporation  commission  if  no  agent  designated; 
Chapman  v.  Hallwood  Cash  Kegister  Co.,  32  Tex.  Civ.  78,  73  S.  W. 
970,  foreign  corporation  suing  on  contract  made  within  state  must 
allege  compliance  with  statutes  relating  to  foreign  corporations; 
Booth  v.  Weigand,  28  Utah,  385,  79  Pac.  572,  contracts  of  foreign 
corporation  which  has  failed  to  comply  with  statutes  relating  to  such 
corporations  are  unenforceable;  National  Council  v.  State  Coun- 
cil, 104  Va.  204,  51  S.  E.  169,  upholding  act  of  1900,  creating  cor- 
poration and  giving  it  authority  to  organize  subordinate  councils  of 
certain  beneficial  order,  though  it  in  effect  annuls  prior  existing  right 
of  foreign  corporation  to  transact  business  of  order  in  state;  Presby- 
terian Ministers'  Fund  v.  Thomas,  126  Wis.  284,  110  Am.  St.  Eep.  919. 
105  N.  W.  802,  upholding  Kev.  St.  1898,  §  1978,  prohibiting  foreign 
insurance  companies  from  doing  business  in  state,  except  in  ac- 
cordance with  provisions  of  statutes;  dissenting  opinion  in  Webster  v. 
Ferguson,  94  Minn.  93,  102  N.  W.  215,  majority  liolding  one  not  agent 
of  insurance  company,  not  insurance  agent  under  Laws  1895,  p. 
437,  §  87,  making  insurance  agent  personally  liable  on  insurance 
made  on  behalf  of  company  not  authorized  to  do  business  in  state. 

Syl.   7   (VII,  43).     Scope  of  congressional  power  over  commerce. 

Approved  in  Creek-American  Sponge  Co.  v.  Richardson  Drug  Co.,  124 
Wis.  474,  109  Am.  St.  Rep.  9G1,  102  N.  W.  890,  transaction  by  which 
goods  are  sold  to  resident  by  foreign  corporation  and  are  consigned 
to  local  agent  of  foreign  corporation  for  delivery  to  purchaser, 
is  interstate  commerce;  dissenting  opinion  in  Northern  Securities  Co. 
V.  United  States,  193  U.  S.  372,  48  L.  714,  24  Sup.  Ct.  436,  majority 
holding  combination  by  stockholders  in  two  competing  interstate 
railroads  to  form  holding  company  violates  anti-tr.ust   act. 

Syl.   8    (VII,   44).     Issuance   of   insurance   policy   not   commerce. 

Approved   in  Continental  Ins.   Co.   v.   Parkes,   142   Ala.   659,   39   So. 

207,  Code  1896,  §  2619,  providing  that  if  insurer  shall  make  agreement 

with  insurance   companies    as  to   rates   of   premium,   stipulation   as   to 

notice  shall  be  void,  is  valid   as  to  foreign  insurance  company;   dis- 

30 


8  Wall.  202-242  Notes  on  U.  S.  Reports.  465 

senting  opinion  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
377,  48  L.  716,  24  Sup.  Ct.  436,  majority  holding  combination  by 
stockholders  in  two  competing  interstate  railroads  to  form  holding 
company    violates   anti-trust    act. 

Distinguished  in  Belle  City  etc.  Co.  v.  Frizzell,  11  Idaho,  10,  81 
Pac.  60,  foreign  corporation  selling  machinery  to  citizens  of  this 
state  on  orders  to  be  approved  by  it,  taken  by  agents,  is  not  doing 
business  here  within  act  requiring  such  corporations  to  file  articles. 

Syl.  9  (VII,  45).     Statute  licensing  foreign  insurance  companies. 

Approved  in  Metropolitan  Life  Ins.  Co.  v.  Board  of  Assessors,  115 
La.  706,  39  So.  849,  upholding  Act  No.  170,  of  1898,  taxing  credits 
representing  to  equivalent  thereof  amount  of  property  of  foreign 
corporation  utilized  by  it  in  business   in  state. 

8  Wall.  202-229,  19  L.  306,  SEYMOUR  v.  FREER. 

Syl.  1   (VII,  46).     Partnership  in  lands. 

Distinguished  in  Dexter  v.  MacDonald,  196  Mo.  394,  95  S.  W.  365, 
where  one  purchases  land  and  executes  instrument  agreeing  to  give 
another  half  of  net  profits  of  land  when  sold,  no  trust  created  binding 
purchaser   to   hold   title   for   such   person   for   half   interest   in   land. 

Syl.  8  (VII,  48).  Action  by  cestui  for  breach  of  trustee's  agree- 
ment. 

Approved  in  Jones  v.  Patrick,  140  Fed.  409,  verbal  agrccmout  to 
co-operate  in  sale  of  mine  and  share  in  profit  is  not  within  statute 
of  frauds  so  as  to  defeat  recovery  of  share  from  party  who  took 
interest  in  mine  as  share   of  profit  from  sale. 

Syl.  10  (VII,  48).  Limitations — Express  trust — Absence  of  dis- 
claimer. 

Approved  in  Eddy  v.  San  Francisco,  148  Fed.  280,  under  California 
statute  providing  for  issuance  of  bonds  for  widening  Dupont  street, 
city  not  liable  for  failure  to  levy  taxes  for  payment  of  bonds  to  bond- 
holder who  brought  suit  eight  years  after  maturity  of  bonds  and  over 
twenty  years  after  their  issuance;  Patterson  v.  Hewitt,  11  N.  M.  42. 
66  Pac.  565,  55  L.  R.  A.  658,  applying  rule  where  claimants  of  con- 
flicting mining  claim  agreed  to  abandon  claims  and  make  new  ones 
in  name  of  one  of  them,  all  to  do  pro  rata  of  assessment  work,  and 
some  of  claimants  delayed  eight  years  before  commencing  suit  for 
accounting    of    proceeds. 

8  Wall.  230-242,  19  L.  339,  MOREY  v.  LOCKWOOD. 

Syl.   2    (VII,  49).     Patents — Mel-e   change   in  form. 

Approved  in  Edison  etc.  Elec.  Co.  v.  Crouse  etc.  Elee.  Co.,  146 
Fed.  547,  holding  Metzger  patent  No.  489,682,  claims  5  and  7,  for 
electric  lamp  socket,  valid  and  infringed. 


4C7  Notes  on  U.  S.  Kepoits..  8  Wall.  2G9-310 

8  Wall.  269-276,  19  L.  453,  GIBBONS  v.  UNITED  STATES. 

Syl.  2   (VII,  50).     What  is  duress. 

Approved  in  Burnes  v.  Burnes,  132  Fed.  493,  refusing  to  set  aside 
agreement  for  division  of  stock  between  heirs  and  surviving  partner, 
where  latter  threatened  to  administer  estate  as  surviving  partner 
unless    corporation    formed. 

Syl.  3   (VII,  50).     Government  not  liable  for  misfeasance. 

Approved  in  Christie  Street  Com.  Co.  v.  United  States,  129  Fed. 
507,    509,    following    rule. 

8   Wall.    276-291,   19   L.    349,   HUDSON   CANAL   CO.    v.   PENNSYL- 
VANIA  COAL  CO. 

Syl.  3  (VII,  52).     Contracts — Implications  from  language. 

Approved  in  Grand  Trunk  etc.  Ey.  Co.  v.  Chicago  etc.  K.  Co., 
141  Fed.  802,  construing  lease  of  terminal  facilities;  Amalgamated 
Gum  Co.  v.  Casein  Co.  of  America,  146  Fed.  911,  construing  agree- 
ment by  owner  of  patented  article  to  sell  to  defendant  as  sole  customer, 
provided  latter  accepted  certain  quantities,  as  not  binding  defendant 
to  take  such  quantities;  Barker  v.  Pullman  Co.,  134  Fed.  71,  67  C. 
C.  A.  196,  contract  providing  that  insurer  agrees,  on  expiration  of 
insured's  policies,  to  renew  same  for  three  years  at  specified  rate, 
constitutes  mere  option  not  binding  insured  to  take  insurance; 
Muscogee  Mfg.  Co.  v.  Eagle  etc.  Mills,  126  Ga.  217,  54  S.  E.  1031, 
construing  covenant  in  city  deed  to  water-front  lots;  dissenting 
opinion  in  Silver  Springs  etc.  E.  E.  Co.  v.  Van  Ness,  45  Fla.  5S3,  34 
So.  891,  majority  construing  provision  in  deed  to  right  of  way  to 
effect  that  if  mines  found  along  way,  and  grantor  desires  to  mine, 
railroad  must  move  tracks  on  notice,  as  not  being  reservation  nor 
condition  subsequent. 

8  Wall.  302-306,  19  L.  392,  THE  CAEEOLL. 

Syl.  1   (VII,  54).     Collision  between  steamer  and  schooner. 

Approved  in  The  Pocomoke,  150  Fed.  195,  holding  steamer  liable  for 
collision  with  launch  where  vessels  were  on  crossing  courses;  Brigham 
V.  Luckenbaeh,  140  Fed.  332,  schooner  sailing  close-hauled  and  priv- 
ileged over  tug  approaching  on  crossing  course  not  in  fault  because 
she  kept  course  as  required  by   rules. 

8   Wall.   307-310,   19   L.   394,   THE   LUCY. 

Syl.   2    (VII,  56).     Consent   does   not   give  jurisdiction. 

Approved  in  Clark  v.  Doerr,  143  Feil.  961,  time  to  sue  out  writ  of 
error  under  Comp,  St.  190l,  p.  547,  cannot  be  extended  by  agree- 
ment. 


8  Wall.  325-358'  Notes  on  U.  S.  Eeporta.  468 

8  Wall.  325-329,  19  L.  455,  THE  LADY  FRANKLIN. 

Syl.  1  (VII,  58).     Obligation  of  ship  to  cargo. 

Approved  in  Guffey  v.  Alaska  etc.  S.  S.  Co.,  130  Fed.  274,  64  C. 
C.  A.  517,  where  at  time  goods  delivered  on  wharf  under  bill  of  lad- 
ing reciting  goods  to  be  shipped  on  vessel  lying  at  certain  port,  but 
owner  of  goods  knew  vessel  was  at  sea,  and  goods  never  delivered 
to  vessel,  vessel  not  liable  to  maritime  lien  for  breach  of  contract; 
Eoy  V,  Northern  Pac.  Ey.  Co.,  42  Wash.  579,  85  Pac.  55,  act  of 
carrier's  agent  in  delivering  bill  of  lading  for  goods  which  he  knew 
were  not  delivered  to  carrier  does  not  bind  carrier  even  as  to  in- 
nocent   transferee. 

Syl.   2    (VII,  59).     Bill  of  lading  is  contract  and  receipt. 
See   105   Am.   St.   Eep.   348,   350,   note. 

8  Wall.  330-333,  19  L.  396,  UNITED  STATES  v.  GILMOEE. 

Syl.  3  (VII,  59).     Contemporaneous  statutory  construction. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591,  state  act 
attempting  to  regulate  accounting  by  clerks  of  district  courts  of  ter- 
ritory is   void. 

8  Wall.  333-337,  19  L.  379,  WOOD-PAPEE  CO.  v.  HEFT. 
Syl.    1    (VII,    GO).     Adverse   interests    of   parties   on    appeal. 
Approved    in   Eidge    v.    Manker,    132    Fed.    GOl,    67    C,    C.    A.    596, 

arguendo. 

8  Wall.  342  334,  19  L.  457,  EXPEESS  CO.  v.  KOUNTZE  BEOTHEES. 

Syl.   2   (VII,  62).     Averments  of  diverse   citizenship. 

Approved  in  Sun  Printing  etc.  Assn.  v.  Edwards,  194  U.  S.  383,  48 
L.  1030,  24  Sup.  Ct.  696,  averment  that  plaintiff  is  resident  of 
Delaware  is  sufficient  averment  of  citizenship  therein  for  purpose  of 
federal  jurisdiction,  where  testimony  shows  legal  domicile  therein. 

Syl.  8   (VII,  63).     Necessity  for  request  to  charge. 

Approved  in  Steel  Eail  Sup.  Co.  v.  Baltimore  etc.  Ey.  Co.,  130  Fed. 
434,  64  C.  C.  A.  635,  following  rule. 

Syl.  9  (VII,  64).     Carrier  selecting  unsafe  route  liable. 

Approved  in  Green  Wheeler  Shoe  Co.  v.  Chicago  etc.  Ey.  Co.,  130 
Iowa,  130,  106  N.  W.  500,  carrier  negligently  delaying  shipment  so 
that  it  is  destroyed  by  flood,  which  would  not  have  destroyed  it  ex- 
cept for  delay,  is  liable. 

8  Wall.  354-358,  19  L.  418,  YOUNG  v.  MAETIN. 

Syl.  2  (VII,  65).     Exceptions  must  present  distinct  rulings. 

Approved  in  Metropolitan  E.  E.  Co.  v.  Macfarland,  195  U.  S.  330, 
49  L.  223,  25  Sup.  Ct.  28,  error  in  refusal  of  instructions  not  considered 


469  Notes  oa  U.  S.  Reports.  8  Wall.  358-393 

in    absence    of   bill    of    exceptions,    though    transcript    contains    Tvhat 
purports  to  be  instructions  asked  and  refused,  marked  filed  by  clerk. 

Syl.   5    (VII,   65).     Rcplieation   to   answer   waives    demurrer. 

Approved  in  Berry  v.  Barton,  12  Okl.  224,  71  Pac.  1075,  66  L.  E. 
A.  513,  leave  to  amend  waives  error  in  sustaining  demurrer  to  an- 
swer; Kingman  &  Co.  v.  Pixley,  7  Okl.  352,  54  Pac.  495,  filing  of 
amended  petition  waives  error  in  sustaining  demurrer. 

8  Wall.  358-362,  19  L.  303,  GILBERT  v.  UNITED  STATES. 

Syl.  2    (VII,  66).     Contract  with  government  official. 

Cited  in  North  Chicago  St.  E.  Co.  v.  Chicago  Union  Tr.  Co.,  150 
Fed.   628,  arguendo. 

8  Wall.  370-376,  19  L.  380,  MOTTINGLY  v.  NYE. 

Syl.  3  (VII,  67).     Conclusiveness  of  judgment. 

Approved  in  Salemonson  v.  Thompson,  13  N.  D.  193,  101  N.  W.  323, 
applying  rule  in  action  to  try  title  by  judgment  creditor  against 
alleged  fraudulent  grantee  of  debtor. 

Syl.  5  (VII,  68).     Grantor  cannot  impair  rights  under  trust  deed. 

Approved  in  Lynch  v.  Burt,  132  Fed.  428,  67  C.  C.  A.  305,  judg- 
ment against  fraudulent  grantor,  rendered  after  conveyance,  not 
conclusive  on  grantee  as  to  existence  or  amount  of  debt  at  time  of 
transfer. 

8  Wall.  376-377,  19  L.  422,  AVENDANO  v.  GAY. 

Syl.  1   (VII,  68).     Own  error  not  assignable. 

Approved  in  Francisco  v.  Chicago  etc.  R.  Co.,  149  Fed.  355.  writ 
of  error  at  suit  of  plaintiff  to  review  nonsuit  rendered  at  his  request. 

8  Wall.  377-393,  19  L.  463,  THE  BALTIMORE. 

Syl.  6  (VII,  69).     Damages  for  injury  through  collision. 

Approved  in  The  Loch  Trool,  150  Fed.  432,  denying  right  to  recover 
for  depreciation  in  value  of  vessel  where  she  was  repaired  and  ren- 
dered as  strong  as  before  and  received  original  classification;  The 
Rickmers,  142  Fed.  309,  denying  right  to  recover  for  permanent  in- 
jury in  addition  to  expense  of  repairs  where  all  known  injuries  were 
repaired. 

Syl.  7   (VII,  70).     Collision— Damages  for  total  loss. 

Approved  in  The  Mobila,  147  Fed.  883,  following  rule. 

Syl.   9    (VII,  70).     Collision — Damages   avoidable   by   care. 

Approved  in  The  Ashbury  Park,  147  Fed.  195,  steamer  causing 
dangerous  swell  not  liable  for  sinking  of  barge  some  time  afterward, 
caused  by  failure  to  keep  her  pumped  out;  The  Reno,  134  Fed.  556, 
67   C.   C.   A.   479,  where  owner  had   vessel   raised   and   repaired  without 


8  Wall.  393-420  Notes  on  U.  S.  Eeports,  470 

ascertaining  whether  she  was  worth  putting  in  as  good  condition  as 
before  collision,  amount  so  expended  is  not  measure  of  damages. 

8  Wall.  393-397,  19  L.  467,  BRADLEY  v.  EHINES. 
Syl.    2    (VII,    71).     Federal    suit   by   assignee. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup. 
Ct.  220,  applying  rule  to  suit  to  foreclose  trust  deed;  Utah-Nevada 
Co.  V.  DeLamar,  133  Fed.  121,  66  C.  C.  A.  179,  applying  rule  to  suit 
by  assignee  or  oral  contract  to  recover  money  due  thereon. 

8  Wall.  397-420,  19  L.  437,  TEAVELERS'  INS.  CO.  v.  MOSLEY. 
Syl.  4  (VII,  73).     Evidence  of  declaration  as  to  physical  condition. 

Approved  in  Holloway  v.  Kansas  City,  184  Mo.  39,  82  S.  W.  94, 
physician  testifying  as  expert  cannot  give  opinion  as  to  cause  of  in- 
jury based  on  history  of  case  as  he  learned  it  from  plaintiff's  state- 
ments while  treating  her. 

Syl.  5    (VII,  74).     Res  gestae — Declarations  as  to  bodily  injury. 

Approved  in  Sprinkle  v.  United  States,  141  Fed.  816,  817,  on  trial 
of  defendants  jointly  indicted  for  defrauding  government  of  reve- 
nue taxes,  statements  by  defendants  not  on  trial  are  admissible  when 
part  of  res  gestae;  The  San  Rafael,  141  Fed.  279,  admitting  oral 
declarations  of  one  alleged  to  have  been  drowned  by  sinking  of 
\tssel,  as  to  his  intention  to  become  passenger  thereon;  Guild  v. 
Pringle,  130  Fed.  422,  423,  64  C.  C.  A.  621,  declaration  by  man 
fatally  injured  by  falling  into  excavation  that  there  was  no  light 
there  is  inadmissible;  Union  etc.  Surety  Co.  v.  Mondy,  18  Colo.  App. 
397,  71  Pac.  677,  where  there  was  evidence  of  insured's  injured 
condition  other  than  his  declarations,  declarations  as  to  cause  of 
injury  made  immediately  after  occurrence  are  admissible;  Rothrock 
V.  Cedar  Rapids,  128  Iowa,  254,  103  N.  W.  476,  admitting  declara- 
tions of  injured  person  as  to  manner  in  which  and  place  at  which 
injuries  sustained  made  on  arrival  at  home  half  hour  after  injury; 
Pledger  v.  Chicago  etc.  Ry.  Co.,  69  Neb.  461,  9.5  N.  W.  1058,  up- 
holding exclusion  of  declaration  in  answer  to  question  of  one  in- 
jured that  he  was  on  train  and  that  brakeman  pushed  him  off; 
Murray  v.  Boston  etc.  R.  R.,  72  N.  H.  37,  101  Am.  St.  Rep.  660,  54 
Atl.  292,  61  L.  R.  A.  495,  admitting  declarations  of  one  within  two 
minutes  after  he  was  run  over  and  while  lying  between  planks  with 
legs  cut  off  that  it  happened  from  his  falling  over  planks;  Merrell 
v.  Dudley,  139  N.  C.  59,  51  S.  E.  778,  in  action  for  malicious  pros- 
ecution evidence  of  declaration  by  defendant  to  magistrate  on  ap- 
plying for  warrant  for  plaintiff's  arrest  for  stealing  shovel  that 
when  shovel  found  in  plaintiff's  possession  latter  said,  "To  he.U 
with  the  shovel";  Puis  v.  Grand  Lodge  A.  O.  U.  W.,  13  N.  D.  572, 
102   N.    W.    169,   admitting   spontaneous   declarations   of   deceased    to 


471  Notes  on  U.  S.  Keports.  8  Wall.  430-507 

attendants  as  to   cause  of  illness,  due  to  poison,  from  which  he  was 
then  suffering. 

Distinguished  in  Eoss-Lewin  v.  Germania  L.  Ins.  Co.,  20  Colo.  App. 
271,  78  Pac.  308,  in  action  on  life  policy  by  assignee,  declarations  of 
assured  after  assignment,  tending  to  show  intention  to  commit  sui- 
cide, are  inadmissible  when  not  part  of  res  gestae;  Kegnicr  v.  Ter- 
ritory, 15  Okl.  6G1,  82  Pac.  511,  where  person  shot  from  ambush 
asked  brother  if  he  knew  who  did  it,  and  brother  answered  one  of 
them  was  A,  to  which  deceased  replied,  "Yes,  and  other  was  B, " 
conversation  inadmissible. 

8    Wall.    430-439,    19    L.    495,    HOME    OF    THE    FRIENDLESS    v. 
ROUSE. 

Syl.   1    (VII,   78).     Statute   incorporating  society — Tax   exemption. 

Approved  in  Powers  v.  Detroit  etc.  Ey.  Co.,  201  U.  S.  559,  50  L. 
S()G.  2G  Sup.  Ct.  556,  upholding  contract  between  state  and  rail- 
road exempting  railroad  from  taxation  other  than  prescribed  in  cer- 
tain statute;  Hamilton  Nat.  Bank  v.  American  Loan  etc.  Co.,  6G 
Neb.  77,  92  N.  W.  192,  arguendo. 

Syl.  3   (VII,  79).     Legislative  charter  exempting  from  taxation. 

Approved  in  Powers  v.  Detroit  etc.  Ry.  Co.,  201  U.  S.  558,  50  L. 
865,  26  Sup.  Ct.  556,  upholding  contract  between  state  and  railroad 
exempting  railroad  from  taxation  other  than  prescribed  in  certain 
statute. 

Syl.  6   (VII,  79).     Consideration — Power  to  exempt   from  taxation. 

Cited  in  Heerwagen  v.  Crosstown  St.  Ry.  Co.,  179  N.  Y.  104,  71 
N.  E.  730,  arguendo. 

Distinguished  in  Rochester  v.  Rochester  Ry.  Co..  182  N.  Y.  IIG, 
74  N.  E.  958,  70  L.  R.  A.  773,  immunity  from  contribution  to  expense 
of  new  pavements  conferred  by  Laws  1S69,  p.  54,  c.  34,  on  street 
railway,  was  mere  gratuity  revocable  at  pleasure. 

8  Wall.  4S9-491,  19  L.  472,  PARISH  v.  UNITED  STATES. 

(VII,  87.)  Miscellaneous.  Cited  in  Cbisholm  etc.  Mfg.  Co.  v.  U.  S. 
Canopy  Co.,  Ill  Tenn.  211,  77  S.  W.  1064,  on  question  of  profits  as 
element  of  damages. 

8  Wall.  498-507,  19  L.  476.  KENNEDY  v.  GIBSON. 

Syl.  2  (VII,  87).  National  bank  receiver  is  instrument  of  comp- 
troller. 

Approved  in  Fish  v.  Olin,  76  Vt.  124,  125,  56  Atl.  533,  534,  receiver 
of  national  bank  may  sue   at  law  in  own  name  in  state   courts. 

Syl.  3    (VII,  88).     Enforcement  of  bank  stoekhohler 's  liability. 
Approved   in   Christopher   v.    Norvell,   201   U.   S.   222,  50   L.    735,   26 
Sup.  Ct.  502,  coverture  of  legatee  of  national  bank  shares  when  she 


8  "Wall.  513-533  Notes  on  U.  S.  Reports.  472 

received  certificate  of  stock  is  no  defense  to  personal  judgment  for 
amount  of  assessment,  irrespective  of  local  law;  Eankin  v.  Barton, 
199  U.  S.  232,  50  L.  166,  26  Sup.  Ct.  29,  reversing  69  Kan.  631,  634. 
77  Pac.  531,  532,  and  holding  state  statute  of  limitations  does  not 
begin  to  run  against  right  to  enforce  national  bank  stockholder's 
liability  until  assessment  by  comptroller;  McCIaine  v.  Rankin,  197 
U.  S.  159,  49  L.  705,  25  Sup.  Ct.  410,  personal  liability  of  stockhold- 
ers in  national  bank  for  debts  of  bank  not  contract  liability  under 
statutes  of  limitation;  Bennett  v.  Thorne,  36  Wash.  270,  78  Pac. 
941,  68  L.  R.  A.  113,  under  Const.,  art.  12,  §  11,  action  against  stock- 
holders for  additional  liability  accrues  in  bank's  insolvency  and  is 
barred  in  six  years. 

Syl.  7  (VII,  90).  National  bank  creditors'  remedy  is  through 
comptroller. 

Distinguished  in  Boyd  v.  Schneider,  131  Fed.  227,  65  C.  C.  A.  209, 
70  L.  R.  A.  264,  depositors  in  national  bank  may  sue  directors  for 
negligently  permitting  its  officers  to  loan  bank's  assets  in  violation 
of  banking  act. 

Syl.  10  (VII,  92).  Statutes  permitting  suits  against  national 
banks. 

Approved  in  United  States  v.  Eaisch,  144  Fed.  489,  Rev.  St.,  § 
5424,  prohibits  felonious  making  of  certificate  of  naturalization  by 
one  other  applicant  or  his  witnesses;  Rankin  v.  Herod,  130  Fed.  390, 
under  Comp.  St.  1901,  p.  514,  circuit  court  has  jurisdiction  over 
equity  suit  by  national  bank  receiver  where  amount  involved  ex- 
ceeded $500. 

8  Wall.  513-533,  19  L.  426,   CARPENTER  v.   DEXTER. 

Sj'l.  3  (VII,  94).  Certificates  of  acknowledgment  not  technically 
voided. 

Approved  in  Trerise  v.  Bottego,  32  Mont.  250,  108  Am.  St.  Rep. 
521,  79  Pac.  1059,  certificate  of  acknowledgment  of  mortgage  by  hus- 
band and  wife  is  sufficient  to  change  notice  though  word  "he"  in- 
stead of  "they"  is  used.     See  108  Am.  St.  Rep.  530,  532,  notes. 

Syl.  4  (VII,  95).  Aider  of  defective  certificate  of  acknowledg- 
ment. 

See  108  Am.  St.  Rep.  557,  note. 

Syl.   5    (VII,   96).     Acknoviiedgment — Statement  of  venue. 
See  108  Am.  St.  Rep.  544,  note. 

Syl.  8  (VII,  96).  Proper  acknowledgment  requisite  to  recorda- 
tion. 

Approved  in  National  etc.  Co.  v.  New  Columbus  etc.  Co.,  129  Fed. 
116,  122,  63  C.  C.  A.  616,  applying  rule  to  registration  of  assignment 
of  patent. 


473  Notes  on  U.  S.  Reports.  8  Wall.  533-574 

8  Wall.  533-556,  19  L.  482,  VEAZIE  BANK  v.  FENNO. 

Syl.  4   (VII,  97).     State  agencies  not  taxable  by  government. 

Distinguished  in  South  Carolina  v.  United  States,  199  U.  S.  459, 
50  L.  269,  26  Sup.  Ct.  110,  holding  government  may  exact  revenue 
license  from  dispensing  agent  of  state  which  has  taken  charge  of 
liquor  business. 

Syl.  6   (VII,  98).     Tax  not  void  because  oppressive. 

Approved  in  McCray  v.  United  States,  195  U.  S.  57,  49  L.  9G.  24 
Sup.  Ct.  765,  upholding  Comp.  St.  1901,  p.  2228,  as  amended  in  1902, 
taxing  artificially  colored  oleomargarine;  Kersey  v.  Terre  Haute,  151 
Ind.  474,  68  N.  E.  1029,  upholding  ordinance  taxing  vehicles  though 
omitting  automobiles  and  street-ears;  Gay  v.  Thomas,  5  Okl.  10,  46 
Pac.  581,  upholding  act  of  1895,  taxing  cattle  in  unorganized  coun- 
try in  county  to  which  country  is  attached  for  judicial  purposes; 
Kettle  V.  Dallas,  35  Tex.  Civ.  638,  80  S.  W.  878,  upholding  act  for 
creating  improvement  districts;  dissenting  opinion  in  Allen  v.  City 
of  Davenport,  132  Fed.  227,  65  C.  C.  A.  641,  70  L.  E.  A.  264,  major- 
ity holding  where  after  letting  of  street-paving  contract  by  city, 
abutting  owners  sued  to  enjoin  work  and  assessment,  and  after  work 
finished  and  city  paid  for  work,  court  decided  contract  void,  city 
cannot  enforce  lien  on  quantum  meruit  under  curative  statute. 

S  Wall.  557-574,  19  L.  501,  WILLAED  v.  TAYLOE. 

Syl.  1   (VII,  99).     Covenant  in  lease  giving  option  to  purchase. 

Approved  in  King  v.  Eaab,  123  Iowa,  634,  99  X.  W.  306,  following 
rule;  Slaughter  v.  Mallet  Laud  etc.  Co.,  141  Fed.  291,  upholding 
validity  of  option  in  lease  giving  lessee  preferential  right  to  pur- 
chase; Watkins  v.  Eobcrtson,  105  Va.  280,  5  L.  E.  A.  (X.  S.)  1194, 
54  S.  E.  37,  enforcing  specific  performance  of  option  for  sale  of 
stock  at  certain  price  if  accepted  within  certain  time  in  considera- 
tion of  $1. 

Syl.  2  (VII,  99).  Specific  performance — Option  to  purchase  in 
lease. 

Approved  in  Kentucky  Distilleries  etc.  Co.  v.  Blanton,  149  Fed. 
40,  following  rule;  Woodward  v.  Davidson,  150  Fed.  843,  granting 
specific  performance  of  contract  for  sale  of  realty  signed  by  vendor 
but  not  by  purchaser. 

Syl.  4   (VII,   100).     Specific   performance — Discretion. 

Approved  in  Sharp  v.  West,  150  Fed.  461,  where  vendor  repudiated 
alleged  contract  of  sale  before  tender  made,  tender  not  condition 
precedent  to  suit  for  specific  performance;  Jones  v.  Byrne,  149  Feil. 
461,  denying  specific  performance  of  contract  for  purchase  of  land 
where  there  was  breach  of  trust  by  purchaser;  Kentucky  Distilleries 
etc.  Co.  V.  Blanton,  149  Fed.  4(1,  applying  rule  where  delay  in 
clearing  title   due   to   fault   of  purchaser   in   not   examining  abstract; 


8  Wall.  575-639  Notes  on  U.  S.  Reports.  474 

Meehan  v.  Nelson,  137  Fed.  737,  70  C.  C.  A.  165,  granting  specific 
performance  of  contract  to  convey  interest  in  mining  claim  in  con- 
sideration of  complainant  sinking  three  holes  thereon  to  bedrock; 
Kane  v.  Luckman,  131  Fed.  621,  denying  specific  performance  of 
contract  to  purchase  cows  in  exchange  for  land;  Marks  v.  Gates,  2 
Alaska,  526,  527,  refusing  to  specifically  enforce  grubstake  con- 
tract; Norris  v.  Clark,  72  N.  H.  443,  57  Atl.  334,  upholding  refusal 
of  specific  performance  of  contract  to  convey  interest  in  estate  where 
consideration  grossly  inadequate;  McClure  v.  Leaycraft,  183  N.  Y. 
42,  75  N.  E.  963,  denying  injunction  to  enforce  covenant  against 
erection  of  apartment  houses  on  land  where  greater  part  of  limit 
of  covenant  had  expired  and  such  houses  had  been  erected  in  im- 
mediate vicinity. 

Syl.  5   (VII,  101).     Conditional  grant  of  specific  performance. 

Approved  in  King  v.  Eaab,  123  Iowa,  635,  636,  99  N.  W.  307, 
where  five  year  lease  contained  option  to  purchase  during  term  for 
specified  price,  and  after  lease  city  ordered  street  paved,  specific 
performance  granted  on  condition  that  lessee  pay  cost  of  paving. 

Syl.  10  (VII,  102).     Specific  performance — Proper  parties. 
Approved  in  Cclla  v.  Brown,  144  Fed.  755,  756,  applying  rule  with 
reference  to  right  of  removal  of  cause. 

Syl.  14  (VII,  103).  Specific  performance — Tender  of  depreciated 
notes. 

Approved  in  San  Juan  v.  St.  John's  Gas.  Co.,  195  U.  S.  520,  49 
L.  304,  25  Sup.  Ct.  108,  construing  contract  for  street  lighting  in 
Porto   Eico   with  reference  to  medium  of  payment. 

8  Wall.  575-587,  19  L.  490,  BUTZ  v.  CITY  OF  MUSCATINE. 

Svl.  7  (VII,  105).  Bondholder's  remedies  not  taken  away  by  re- 
peal. 

Approved  in  City  of  Ft.  Madison  v.  Ft.  Madison  etc.  Co.,  134  Fed. 
216,  67  C.  C.  A.  142,  Iowa  Code  1897,  §  1305,  providing  for  reduc- 
tion of  assessed  value  of  property,  is  void  in  so  far  as  it  affects 
ability  of  city  to  meet  water  rent  contract;  Columbia  Ave.  Sav. 
Fund  etc.  Co.  v.  Dawson,  130  Fed.  175,  grant  by  city  to  water  com- 
pany of  right  to  lay  pipes  in  streets  and  to  supply  city  with  wator 
for  term,  cannot  be  impaired  by  construction  of  competing  city 
works. 

8  Wall.  603-639.  19  L.  513,  HEPBURN  v.  GRISWOLD. 

Syl.   7    (VII,   108).     Statutes  upheld   unless   invalidity  clear. 

Approved  in  United  States  v.  Scott,  148  Fed.  433,  holding  void 
Comp.  St.  1901,  p.  3210,  making  it  criminal  for  interstate  carriers 
to  compel  employees  to  agree  not   to  join  labor   unions. 


475  Notes  on  U.  S.  Eeports.  9  Wall.  1-22 

8  Wall.  650-672,  19  L.  320,  MAGUIEE  v.  TYLER. 

Syl.  7  (VII,  113).  Incomplete  land  titles  not  for  courts — Sur- 
vey. 

Approved  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  175,  76 
Pac.  318,  imperfect  Mexican  grant  not  taxable  before  confirmation 
of  survey  by  court  of  private  land  claims;  United  States  v.  Mon- 
tana Lumber  etc.  Co.,  196  U.  S.  578,  49  L.  605,  25  Sup.  Ct.  367, 
arguendo. 


IX  WALLACE. 


9  Wall.   1-12,  19  L.  590,  NEALE  v.  NEALES. 

Syl.   1   (VII,  115).     Amendment  to  fit  evidence. 

Approved  in  Bulte  v.  Igleheart  Bros.,  137  Fed.  502,  70  C.  C.  A. 
76,  upholding  refusal  of  amendment  of  bill  for  infringement  of  pat- 
ent; Kinney  v.  Craig,  103  Va.  1G7.  48  S.  E.  867,  where  record  in  suit 
to  recover  debt  secured  by  vendor's  lien  showed  right  of  plaintiff  to 
recover  from  any  property  owned  by  defendant  at  time  of  debt, 
and  that  he  had  given  property  in  trust  to  children,  bill  amendable 
by  allegation  that  deed  made  to  defraud  plaintiff;  Katliff  v.  Som- 
mers,  55  W.  Va.  37,  46  S.  E.  715,  arguendo. 

Syl.  3  (VII,  IIG).  Parol  gift  of  land — Possession  and  improve- 
ments. 

Approved  in  Ilalsell  v.  Eenfrow,  14  Old.  692,  78  Pac.  123,  holding 
sending  of  surveyors  on  to  land  not  taking  of  possession  sufficient 
to  take  parol  agreement  for  sale   of  lands  out   of  statute. 

9  Wall.  13-22.  19  L.  541,  REESE  v.  UNITED  STATES. 

Syl.    2    (VII,    118).     Change   in   contract   releasing   surety. 

Approved  in  Zeigler  v.  Hallahan,  131  Fed.  208,  66  C.  C.  A.  1, 
where  lease  bound  tenant  to  keep  and  pay  rent  for  premises,  and 
at  end  of  term  deliver  them  in  good  condition,  modification  by  pro- 
vision that  in  case  of  destruction  rendering  premises  untenantable 
lease  should  be  void  releases  surety;  Orleans  etc.  Ry.  Co.  v.  Inter- 
national Const.  Co.,  113  La.  413,  37  So.  11,  applying  rule  where  stipu- 
lation in  building  contract  that  bonds  be  deposited  with  trust  com- 
pany to  be  disposed  of  to  raise  money  changed  to  another  scheme; 
Stern  v.  Sawyer,  78  Vt.  12,  13,  112  Am.  St.  Rep.  894,  61  Atl.  38,  sale 
of  portion  of  leased  premises  with  tenant's  consent  releases  tenant's 
surety. 


9  Wall.  23-56  Notes  on  U.  S.  Kcports.  476 

9  Wall.  23-32,  19  L.  545,  McGOON  v.  SCALES. 

Syl.  2  (VII,  120).     State  law  governs  transfers. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ey.  Co.,  144  Fed. 
179,  determining  title  to  Oakland  waterfront;  Hubbard  v.  Coin,  137 
Fed.  826,  70  C.  C.  A.  320,  construing  deed  to  daughter  and  children, 
with  provision  that  she  do  not  sell  or  encumber  land,  but  retain  it 
for  use  of  herself  and  children  forever,  as  not  within  Shelley's  Case. 

Syl.  4   (VII,  120).     Collateral  attack  on  attachment  proceedings. 

Approved  in  Harper  v.  Eankin,  141  Fed.  630,  judgment  in  favor  of 
national  bank  receiver,  based  on  findings  that  defendant,  while  bank 
official,  embezzled  bank  funds,  is  conclusive  of  character  of  indebt- 
edness, on  issue  as  to  whether  debt  is  released  by  discharge  in  bank- 
ruptcy; Logan  V.  Central  Iron  &  Coal  Co.,  139  Ala.  555,  36  So.  731, 
where  judgment  in  favor  of  administrator  for  wrongful  death  of  in- 
testate is  satisfied,  it  is  not  collaterally  attackable  for  fraud  in 
action  on  same  cause  by  administrator  de  bonis  non. 

9  Wall.  35-38,  19  L.  573,  GUT  v.  STATE. 

Syl.  2   (VII,  122).     Ex  post  facto  law — Changing  venue. 

Approved  in  Barry  v.  Truax,  13  N.  D.  144,  99  N.  W.  773,  upholding 
Eev.  Codes  1899,  §  8122,  providing  for  change  of  place  of  trial  on  mo- 
tion of  prosecution  where  fair  trial  cannot  be  had  in  original  county; 
State  V.  Eooney,  12  N.  D.  153,  95  N.  W.  516,  upholding  Laws  1903, 
c.  99,  substituting  penitentiary  for  county  jail  as  place  of  confine- 
ment pending  execution,  as  applied  to  one  convicted  prior  to  passage 
of  law. 

9  Wall.  41-45,  19  L.  593,  UNITED  STATES  v.  DEWITT. 

Syl.    1    (VII,   124).     Federal   regulation    of    state's   internal    police. 

Approved  in  In  re  Ileff,  197  U.  S.  50G,  49  L.  856,  25  Sup.  Ct.  506, 
sale  of  liquor  within  state  to  Indian,  to  whom  lands  allotted  under  24 
Stat.  388,  c.  119,  not  punishable  under  21  Stat.  508,  c.  109;  Ex  parte 
Dick,  141  Fed.  7,  where  government  conveyed  to  individuals  lands 
ceded  to  it  by  Indians,  and  municipality  formed  thereon,  lands  not 
subject  to  Eev.  St.,  §  2139,  prohibiting  introduction  of  liquor  into 
Indian  country;  Sanders  v.  Commonwealth,  117  Ky.  5,  111  Am.  St. 
Eep.  221,  77  S.  W.  359,  1  L.  E.  A.  (N.  S.)  932,  upholding  Ky.  St.  1899, 
§  1274,  forbidding  sale  of  milk  from  cows  fed  on  "still  slop.'' 

9  Wall.  50-56,  19  L.  594,  CHICAGO  v.  SHELDON. 

Syl.   1    (VII,   126).     Franchise  requiring  street  repairs — Assessments. 

Distinguished  in  New  York  v.  State  Board  of  Tax  Commrs.,  199 
U.  S.  43,  105  Am.  St.  Eep.  703,  50  L.  77,  25  Sup.  Ct.  715,  upholding 
N.  Y.  Laws  1899,  c.  712,  imposing  special  franchise  tax,  as  applied 
to  street  railway  given  franchise  in  consideration  of  payment  of  per- 
centage of  earnings;  American  Bonding  Co.  v.  City  of  Ottumwa,  137 


477  Notes  on  U.  S.  Keports.  9  Wall.  76-124 

Fed.  582,  70  C.  C.  A.  270,  where  street  paving  contract  required  con- 
tractor to  keep  same  in  repair,  and  experts  decided  that  on  account 
of  bad  material  and  workmanship  entire  resurfacing  necessary,  re- 
surfacing was  repairs. 

Syl.  2  (VII,  127).     Practical  interpretation  of  contracts  by  parties. 

Approved  in  Cleveland-Cliffs  Iron  Co.  v.  East  Itasca  Min.  Co.,  146 
Fed.  239,  construing  contract  relating  to  mining  leases;  Columbus  etc. 
Ey.  Co.  V.  Pennsylvania  Co.,  143  Fed.  762,  construing  agreement  be- 
tween railroads  in  contracts  relating  to  joint  use  of  terminal  prop- 
erty; Uinta  Tunnel  etc.  Co.  v.  Ajax  etc.  Min.  Co.,  141  Fed.  568,  con- 
struing stipulation  that  lode  claims  of  plaintiff  were  "located  in  com- 
pliance with  law";  Northrup  v.  Eichmond,  105  Va.  339,  53  S.  E.  963, 
construing  ordinance  requiring  street-car  companies  to  sell  school  chil- 
dren's tickets  at  reduced  rates  as  requiring  sale  of  such  tickets  to 
students  of  business  college. 

Syl.  4  (VII,  129).     Street  railway  franchise  is  contract. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  475,  50  L.  832,  26  Sup.  Ct. 
427,  construing  111.  Act,  Feb.  6,  1805,  with  reference  to  extension  of 
corporate  life  of  street  railway  created  by  acts  of  1859  and   18G1. 

9  Wall.  76-83,  19  L.  597,  SMITH  v.  MOESE. 

Syl.  2  (VII,  134).     Arbitration  decision  conclusive. 

Approved  in  Eoberts  etc.  Shoe  Co.  v.  W^estinghouse  etc.  Mfg.  Co., 
143  Fed.  224,  holding  where  contract  provided  for  reference  of  ques- 
tions to   engineer,  latter 's  decision   is   conclusive. 

9  Wall.  83-89,  19  L.  574,  UNITED  STATES  v.  KEEIILEE. 

Syl.  4  (VII,  136).     Official  bonds— Eobbery  of  funds  no  defense. 

Approved  in  Van  Trees  v.  Territory,  7  Okl.  363,  54  Pac.  498,  fact 
that  county  treasurer  deposited  funds  in  solvent  bank,  which  after- 
ward failed,  is  no  defense  to  action  on  bond. 

Distinguished  in  Sweeney  v.  Commonwealth,  118  Ky.  922,  82  S.  W. 
642,  state  auditor  not  liable  on  bond  for  moneys  paid  on  vouchers  for 
militia  expenses  signed  by  persons  wrongfully  acting  as  governor  and 
adjutant  general. 

9  Wall.  108-124,  19  L.  604,  CHEEVEE  v.  WILSON. 

Syl.  7   (VII,  145).     Federal  courts  judicially  notice  state  laws. 
See  113  Am.  St.  Eep.  873,  note. 

Syl.  8  (VII,  146).  Conclusiveness  of  divorce  decree — Finding  of 
residence. 

Approved  in  Haddock  v.  Haddock,  201  U.  S.  570,  626,  50  L.  870, 
893,  26  Sup.  Ct.  525,  mere  domicile  of  one  spouse  does  not  give  state 
court  jurisdiction  to  render  divorce  against  nonresident  nonappearing 
defendant  served  by  publication;  Sheehun  v.  Farvvell,   135  Mich.  207, 


9  Wall.  125-129  Notes  on  U.  S.  Eeports.  478 

97  N.  "W.  732,  applying  rule  in  action  on  foreign  judgment.     See  109 
Am.  St.  Eep.  259,  268,  note. 

Syl.  9  (VII,  147).     "Wife  may  acquire  separate  domicile. 

Approved  in  Haddock  v.  Haddock,  201  U.  S.  571,  583,  893,  50  L. 
870,  875,  895,  26  Sup.  Ct.  525,  mere  domicile  of  one  spouse  does  not 
give  state  court  jurisdiction  to  render  divorce  against  nonresident  non- 
appearing  defendant  served  by  publication;  Gordon  v.  Yost,  140  Fed. 
81,  wife  deserted  by  husband  may  sue  for  alienation  of  affections  in 
federal  court  of  state  other  than  that  of  husband's  residence  or  cit- 
izenship; Clark  V.  Clark,  191  Mass.  131,  77  N.  E.  703,  wife  separated 
from  husband  because  of  his  adultery  may  sue  for  divorce  in  county 
other  than  that  of  his  residence  if  she  resides  in  county  of  suit.  See 
109  Am.  St.  Eep.  259,  267,  note. 

Syl.  10  (VII,  147).  Jurisdiction — Divorce — Wife's  separate  dom- 
icile. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  449,  50  L.  821,  26  Sup. 
Ct.  427,  motive  with  which  creditor  invokes  federal  jurisdiction  is  im- 
material; Toledo  Traction  Co.  v.  Cameron,  137  Fed.  56,  69  C.  C.  A. 
28,  where  father  and  mother  of  infant  plaintiff  are  divorced,  and  cus- 
tody awarded  to  mother,  his  citizenship  and  domicile  are  determined 
by  hers,  for  purpose  of  federal  jurisdiction;  dissenting  opinion  in 
Haddock  v.  Haddock,  201  U.  S.  611,  50  L.  887,  26  Sup.  Ct.  525,  ma- 
jority holding  mere  domicile  of  one  spouse  docs  not  give  state  court 
jurisdiction  to  render  divorce  against  nonresident  nonappearing  de- 
fendant served  by  publication. 

9  Wall.  125-129,  19  L.  608,  NOEEIS  v.  JACKSON. 

Syl.  1  (VII,  148).     Trial  to  court— Special  findings. 

Approved  in  West  v.  Houston  Oil  Co.,  136  Fed.  345,  69  C.  C.  A. 
169,  applying  rule  in  trespass  to  try  title;  Anglo-American  etc.  Co. 
V.  Lombard,  132  Fed.  734,  68  C.  C.  A.  89,  applying  rule  in  action  to 
enforce  stoc]fholder's  statutory  double  liability. 

Syl.  2   (VII,  149).     Conclusiveness  of  findings  by  court. 

Approved  in  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  126,  66 
C.  C.  A.  190;  Paul  v.  Delaware  etc.  E.  Co.,  130  Fed.  953,  and  York 
v.  Washburn,  129  Fed.  566,  64  C.  C.  A.  132,  all  following  rule. 

Syl.  5  (VII,  151).     Bill  of  exceptions  on  trial  to  court. 

Approved  in  Paul  v.  Delaware  etc.  E.  Co.,  130  Fed.  954,  955,  fol- 
lowing rule;  Fitzgerald  v.  Bassford,  142  Fed.  134,  where  action  at 
law  tried  by  court,  and  there  was  no  special  finding,  assignment  of 
error  that  court  "erred  in  rendering  judgnient  in  favor  of  plaintiff," 
is  insufficient;  West  v.  Houston  Oil  Co.,  136  Fed.  350.  69  C.  C.  A.  169, 
applying  rule  in  trespass  to  try  title  where  vital  issue  was  genuine- 
ness of  deed. 


479  Notes  on  U.  S.  Keports.  9  Wall.  129-156 

Syl.  6  (VII,  152).     Eeview  in  absence  of  special  findings  by  court. 

Distiiiguislied  in  Streeter  v.  Sanitary  Dist.  of  Ciiicago,  133  Fed. 
129,  130,  66  C.  C.  A.  190,  in  cause  tried  b}^  court  where  there  is  no 
special  findings,  ruling  on  request  for  holding  that  plaintiffs  were 
entitled  to  recover  amount  claimed  is  not  reviewable. 

Syl.  7  (VIT,  153).     Bill  of  exceptions  to  review  law  rulings. 

Approved  in  Paul  v.  Delaware  etc.  E.  Co.,  130  Fed.  956,  following 
rule. 

9  Wall.  129-145,  19  L.  651,  THE  GRAPESHOT. 

Syl.  2  (VII,  154).     Master's  bond  for  supplies  in  foreign  port. 

Approved  in  The  Wyandotte,  145  Fed.  324,  325,  affirming  136  Fed. 
473,  where  master  of  vessel  in  foreign  port  without  funds  was  ready 
to  sail,  but  could  not  hear  from  owners,  draft  to  raise  money  for  sup- 
plies creates  maritime  lien;  The  Worthington,  133  Fed.  725,  70  L.  R. 
A.  353,  66  C.  C.  A.  555,  one  advancing  money  in  foreign  port  to  ship 
owner  to  be  us^d  to  load  vessel  is  entitled  to  maritime  lien  where  it 
was  loaned  on  credit  of  vessel;  The  Alcalde,  132  Fed.  578,  denying 
maritime  lien  to  bank  advancing  money  to  master  at  port  of  discharge 
to  pay  crew  where  receiver  had  been  appointed  for  vessel;  The  Sur- 
prise, 1-9  Fed.  875,  64  C.  C.  A.  309,  upholding  lien  for  supplies  and 
wharfage  furnished  vessel  in  foreign  port  on  order  of  master,  though 
ship  navigated  by  charterer. 

Syl.   5    (VII,   157).     Maritime    lien — Necessity   for   repairs. 

Approved  in  The  Wyandotte,  145  Fed.  326,  affirming  136  Fed.  473, 
where,  on  libel  on  draft  given  for  supplies,  defendants  claim  supplies 
might  have  been  obtained  on  personal  credit  of  owners,  burden  was  on 
owners  to  show  they  had  credit  in  port  where  bond  executed. 

Syl.  6  (VII,  157).     Proof  of  necessity  for  ship's  supplies. 

Approved  in  The  Surprise,  129  Fed.  876,  883,  64  C.  C.  A.  309,  uphold- 
ing lien  for  supplies  and  wharfage  furnished  vessel  in  foreign  port 
on  order  of  master,  though  ship  navigated  by  charterer. 

9  Wall.  145,  146,  19  L.  771,  LATHAM'S  AND  DEMIXG'S  APPEAL. 

Syl.  1  (VII,  158).     Appellee  cannot  object  to  dismissal  of  appeal. 

Approved  in  Darlington-Miller  etc.  Co.  v.  Hall,  4  Okl.  671,  46  Pac. 
494,  where  appellant,  on  appeal  from  judgment  of  probate  court,  has 
appeal  dismissed  in  district  court,  latter  court  cannot,  on  motion  of 
appellee,  set  aside  order  of  dismissal. 

9  Wall.  146-156,  19  L.  610,  THE  .TOHXSON". 

Syl.  2    (VII,   158).     Navigators  must   observe   navigation   rules. 

Approved  in  The  Sitka,  132  Fed.  805,  holding  steamer  leaving  ;in- 
choriige  liable  for  collision  for  failure  to  keep  eflicient  lookout  and  for 
failure    to    give   signal   required   by   rules   on   leaving    berth. 


9  Wall.  161-197  Notes  on  U.  S.  Eeporta.  480 

9  Wall.  161-175,  19  L.  629,  THE  HAEEIMAN. 

Syl.  3  (VII,  160).     Contracts — Contingencies  excusing  performance. 

Approved  in  Eeid  v.  Alaska  Packing  Assn.,  43  Or.  436,  73  Pac. 
340,  contract  to  sell  salmon  packed  in  Alaska,  fish  to  be  "exactly  like 
Puget  Sound  fancy  sockeye, ' '  not  void,  though  fish  of  that  sort  not 
found  in  Alaska;  Pearlstine  v.  Westchester  Fire  Ins.  Co.,  70  S.  C. 
80,  49  S.  E.  5,  proofs  of  loss  made  and  sworn  to  by  agent,  where  facts 
are  within  his  own  knowledge,  and  principal  is  absent,  do  not  violate 
stipulation  in  policy  that  insured  shall  make  proof;  Wheeling  etc. 
Foundry  Co.  v.  Wheeling  etc.  Iron  Co.,  58  W.  Va,  67,  51  S.  E.  131, 
under  contract  to  make  and  deliver  machinery  at  certain  time  or 
forfeit  $50  per  day,  forfeiture  not  excused  because  party  acted  in 
good  faith  and  with  due  diligence. 

9  Wall.   187-197,  19  L.   668,  FEISBEE   v.  WHITNEY. 

Syl.  3  (VII,  162).  Eights  of  pre-emptioner  neither  paying  nor  re- 
ceiving certificate. 

Approved  in  Oregon  Short  Line  E.  Co.  v.  Quigley,  10  Idaho,  781, 
80  Pac.  403,  404,  applying  rule  to  grant  of  right  of  way  to  Utah  etc. 
E.  li.  Co.;  Graham  v.  Great  Falls  etc.  Co.,  30  Mont.  400,  402,  76  Pac. 
SIO,  811,  preferential  right  given  successful  contestant  under  Comp. 
St.  1901,  p.  1392,  was  not  vested  right  enforceable  against  govern- 
ment; McDonald  V.  Union  Pac.  E.  Co.,  70  Neb.  350,  97  N.  W.  441, 
state  court  cannot  compel  conveyance  of  lands,  subject  to  entry  under 
homestead  laws,  to  person  who  has  been  denied  privilege  of  making 
entry  by  government  officials;  Wallace  v.  Adams,  143  Fed.  724,  ar- 
guendo. 

Syl.  5   (VII,  164).     Title  remains  in  government  till  payment. 

Approved  in  Eussian-American  etc.  Co.  v.  United  States,  199  U.  S. 
57S,,  50  L.  316,  26  Sup.  Ct.  157,  value  of  improvements  made  on  pub- 
lic lands  in  Alaska  by  mere  trespasser  are  not  recoverable  from  gov- 
ernment in  its  selection  of  lands  for  fish  culture  station  under  26  Stat. 
1100,  §  14;  Tegarden  v.  Le  Marchel,  129  Fed.  490,  claim  for  improve- 
ments made  before  issuance  of  patent  are  not  recoverable  in  eject- 
ment; Nickelson  v.  Cameron  Lumber  Co.,  39  Wash.  575,  81  Pac.  1061, 
one  settling  on  unsurveyed  lands  cannot  recover  for  cutting  and  re- 
moving of  timber  by  another;  State  v.  Eoss,  39  Wash.  409,  81  Pac. 
867,  mere  rejected  applicant  for  lease  of  public  land  cannot  institute 
mandamus  to  compel  land  commissioner  to  advertise  lease  of  such 
land;  dissenting  opinion  in  Bernardy  v.  Colonial  etc.  Mtg.  Co.,  17  S.  D. 
653,  106  Am.  St.  Eep.  800,  98  N.  W.  171,  majority  holding  where  en- 
tryman  before  patent  conveyed  by  deed  which  was  recorded,  and 
after  patent  he  mortgaged  land,  mortgagee  acquired  no  interest  as 
against  grantee. 

Distinguished  in  United  States  v.  Oregon  etc.  E.  Co.,  133  Fed.  955, 
lauds  pre-empted  but  not  paid  for  are  exempted  from  railroad  land 


481  Notes  on  U.  S.  lieports.  9  Wall.  203-274 

grant  of  July  25,  18G6;  Reservation  Bank  v.  Hoist,  17  S.  D.  246,  95 
N.  W.  933,  70  L.  R.  A.  799,  where  assignee  of  invalid  lease  from  Indian 
allottee  applied  for  homestead,  which  application  was  returned  without 
action  on  same,  and  another  took  up  residence  on  land  and  received 
receiver's  receipt,  former  cannot  recover  crops  planted  by  him  and 
harvested  by  latter. 

9  Wall.  203-237,  19  L.  G38,  THE  STAR  OF  HOPE. 

Syl.  3    (Vir,  ]G9).     Collision — Sacrifice  to  avoid  impending  peril. 

Approved  in  Minnesota  S.  S.  Co.  v.  Lehigh  Valley  etc.  Co.,  129  Fed. 
•'>2,  G3  C.  C.  A.  672,  determining  fault  for  collision  between  one  steamer 
having  tow  and  two  others  coming  down  channel  abreast;  Oceanic 
Steam  Nav.  Co,  v.  Aitken,  196  U.  S.  596,  49  L.  613,  25  Sup.  Ct.  317, 
arguendo. 

9  Wall.  254-274,  19  L.  554,  SWAIN  v.  SEAMENS. 

Syl.  5  (VII,  173).     Varying  writing  by  parol — Statute  of  frauds. 

Approved  in  American  Fine  Art  Co.  v.  Simon,  140  Fed.  535,  537, 
written  contract  requiring  plaintiff  to  prepare  designs  which  if  ap- 
proved by  defendant  were  to  constitute  order  for  work,  is  rescinded 
by  oral  agreement,  after  rejection  of  designs,  that  defendant  should 
sign  designs  so  that  plaintiff  could  copyright  them;  McConathy  v. 
Lanham,  116  Ky.  740,  76  S.  W.  536,  where  written  contract  for  sale  of 
mineral  rights  provided  for  forfeiture  if  payment  not  made  before 
certain  time,  parol  agreement  extending  time  is  void;  Cughan  v.  Lar- 
son, 13  N.  D.  380,  100  N.  W.  1090,  refusing  to  specifically  enforce 
parol  modification  of  written  contract  for  sale  of  land,  though  modifi- 
cation pertained  only  to  performance  of  contract;  Halsell  v.  Renfrow, 
14  Okl.  689,  78  Pac.  122,  applying  rule  where  contract  to  sell  land 
was  modified  by  parol  agreement  to  deduct  certain  sum  for  exclusion 
of  certain  lot  from  deed;  Neppaeh  v.  Oregon  etc.  R.  R.  Co.,  46  Or. 
395,  80  Pac.  486,  where  vendor's  title  was  in  doubt  and  he  requested 
postponement  of  further  payments  till  title  determined,  to  which  ven- 
dee agreed,  vendor  cannot  assert  invalidity  of  latter  agreement. 

Syl.  6   (VII,  174).     Estoppel  by  silence. 

Approved  in  Marine  Iron  Wks.  v.  Weiss,  148  Fed.  153,  owner  of  boat 
which  was  contracted  to  be  of  certain  maximum  draft  is  estopped  to 
reject  it  for  exceeding  draft  where  he  was  present  during  its  building 
and  knew  it  would  exceed  draft,  but  said  nothing;  Alston  v.  Connell, 
140  N.  C.  493,  53  S.  E.  295,  request  of  postponement  of  tender  of  price 
in  execution  of  contract  for  option  for  sale  of  land  estops  party  from 
setting  up  statute  of  frauds;  Globe  Nav.  Co.  v.  Maryland  Casualty 
Co.,  39  Wash.  309,  81  Pac.  830,  applying  rule  in  action  on  indemnity 
bond- 
Si 


9  Wall.  274-315  Notes  on  U.  S.  Eeports.  482 

9  Wall.  274-282,  19  L.  658,  THE  JUSTICES  v.  MUERAY. 

Syl.  1  (VII,  175).     Seventh  amendment  applies  to  state  court  juries. 

Approved  in  Gunn  v.  Union  R.  E.  Co.,  27  E.  I.  324,  62  Atl.  120,  up- 
holding E.  I.  Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supreme  court 
to  direct  judgment  without  further  trial  by  jury. 

9  Wall.  282-290,  19  L.  576,  PUBLIC  SCHOOLS  v.  WALKER. 

Syl.  2  (VII,  177).     Limitation  statute  is  one  of  repose. 

Approved  in  Lynchburg  etc.  Mill  Co.  v.  Travelers'  Ins.  Co.,  140  Fed. 
722,  limitation  for  bringing  suit  as  provided  in  insurance  policy  begins 
to  run  on  clear  announcement  by  company  of  its  refusal  to  settle. 

9  Wall.  290-294,  19  L.  712,  BUENETT  v.  CALDWELL. 

Syl.  2  (VII,  178).     Ejectment  on  vendee's  default  in  payment. 
See  107  Am.  St.  Eep.  724,  note. 

Syl.  3  (VII,  178).     Notice  to  quit  to  vendee  in  default  unnecessary. 
See  107  Am.  St.  Eep.  726,  note. 

9  Wall.  295-298,  19  L.  694,  LOBEANO  v.  NELLIGAN. 

Syl.  1  (VII,  178).     Statute  permitting  guardian  to  sell. 

Approved  in  State  v.  Bryan,  50  Fla.  363,  39  So.  951,  upholding  Laws 
1905,  c.  5384,  abolishing  certain  schools  and  colleges. 

9  Wall.  298-315,  19  L.  579,  THE  SECRETAEY  OP  THE  INTERIOE 
V.  McGAEEAHAN. 

Syl.  3  (VII,  179).     No  mandamus  to  control  discretion. 

Approved  in  Beebe  v.  Commissioner  of  State  Land  Office,  137  Mich. 
49,  100  N.  W.  129,  mandamus  does  not  lie  to  review  determination  of 
State  Land  Commissioner  under  Act  No.  107,  p.  154  of  1899,  requiring 
him  to  issue  certificate  of  homestead  entry  when  in  his  judgment  appli- 
cation is  made  in  good  faith;  Barnes  v.  Wilson  County  Commrs.,  135 
N.  C.  40,  47  S.  E.  742,  denying  mandamus  to  compel  county  board  to 
issue  liquor  license;  Wilbourne  v.  Baldwin,  5  Okl.  280,  47  Pac.  1050, 
refusing  to  enjoin  Indian  agent  from  removing  homestead  applicant 
from  lands  prior  to  issuance  of  patent;  Fitzgerald  v.  Keith,  5  Okl. 
264,  48  Pac.  Ill,  territorial  courts  cannot  review  action  of  Interior 
Department  in  its  disposition  of  public  lands  prior  to  issuance  of 
patent;  dissenting  opinion  in  Sproat  v.  Durland,  2  Okl.  52,  35  Pac.  888, 
majority  holding  in  proceedings  by  homestead  applicant  to  enjoin 
adverse  claimant  from  interfering  with  possession,  court  may,  on 
answer  and  cross-complaint,  enjoin  plaintiff  from  interfering  with  de- 
fendant's possession;  Adams  v.  Couch,  1  Okl.  34,  35,  26  Pac.  1015, 
ejectment  cannot  be  predicated  on  receiver's  duplicate  receipt;  Wilson 
v.  Cox,  73  S.  C.  400,  53  S.  E.  613,  mandamus  does  not  lie  to  compel 
dispenser  to  operate  dispensary  where,  in  order  to  do  so,  court  would 
Bet  aside  election  against  dispensary;  Laramie  Nat.  Bank  v.  Steinhoff, 


483  Notes  on  U.  S.  Reports.  9  Wall.  315-364 

11  Wyo.  307,  71  Pac.  994,  in  action  by  one  in  possession  of  land  claim- 
ing under  certificate  of  purchase,  where  no  patent  has  issued,  court 
cannot  determine  title.     See  98  Am.  St.  Rep.  874,  note. 

^yl.  6  (VII,  180).     Mandamus  to  olTicor  abates  on  resignation. 

Approved  in  State  v.  Board  of  State  Canvassers,  32  Mont.  15,  17, 
79  Pac.  402,  403,  where  mandamus  proceeding  has  abated  because  of 
expiration  of  term  of  office  of  official  against  whom  directed,  it  will 
be  dismissed  on  court's  own  motion;  Holdermann  v.  Schanc,  .^(3  W. 
Va.  15,  48  S.  E.  514,  where,  when  mandamus  to  compel  mayor  and 
councilmen  to  reconvene  as  canvassing  board  was  issued,  their  terms 
had  expired,  writ  cannot  be  used  against  successors. 

9  Wall.  315-326,  19  L.  714,  LYXCII  v.  BERNAL. 

Syl.  4  (VII,  182).     Public  lands— Doctrine  of  relation. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
335,  50  L.  505,  26  Sup.  Ct.  282,  protecting  bona  fide  purchaser  from 
patentee  without  notice  of  entrj-man's  fraud,  though  purchaser  ac- 
quired interest  in  lands  under  contract  for  standing  timber  prior  to 
issuance  of  patent;  United  States  v.  Anderson,  194  U.  S.  399,  48  L. 
1039,  24  Sup.  Ct.  716,  government  cannot  retain,  as  against  grantee  of 
lands  within  indemnity  limits,  money  collected  for  removal  of  stone 
from  land  between  selection  of  lands  and  approval  of  selection;  Peyton 
V.  Desmond,  129  Fed.  12,  63  C.  C.  A.  651,  homestead  patentee  may 
recover  value  of  timber  wrongfully  cut  and  removed  from  land  be-' 
tween  initiation  of  claim  and  issuance  of  patent. 

9  Wall.  339-353,  19  L.  696,  BIGELOW  v.  FORREST. 

Syl.  6  (VII,  187).     Decree  of  sale  of  remainder. 

Approved  in  Turner  v.  Barraud,  102  Va.  332,  46  S.  E.  322,  decree  of 
sale  of  remainder  is  void  where  issues  did  not  involve  interests  of 
remainderman. 

Distinguished  in  Clevenger  v.  Figley,  68  Kan.  707,  75  Pac.  1004, 
judgment  of  district  court  on  foreclosure  of  mortgage  given  by  owner 
jointly  with  guardian  of  insane  wife  deciding  issue  as  to  whether  prem- 
ises were  homestead  or  not  at  time  of  mortgage  is  not  collaterally 
attackable. 

9  Wall.  353-364,  19  L.  701,  FIRST  NATIONAL  BANK  v.  COMMON- 
WEALTH OF  KENTUCKY. 

Syl.  1  (VII,  188).     Tax  on  shares  not  tax  on  capital. 

Approved  in  People's  Sav.  Bank  v.  Layman,  134  Fed.  638,  fact  that 
bank's  assets  going  to  make  up  value  of  shares  consists  of  government 
bonds  does  not  entitle  bank  to  deduction  of  such  amount  from  assess- 
ment under  Iowa  Code,  §  1322,  assessing  savings  banks  on  shares; 
Stroh  V.  Detroit,  131  Mich.  116,  90  N.  W.  1032,  shares  in  foreign  cor- 
poration, when  its  property  is  located  and  taxable  here,  are  exempt 


9  Wall.  364-370  Notes  on  U.  S.  Eeports.  484 

from  taxation  under  statutes;  Old  Nat.  Bank  v.  State,  58  W.  Va.  562, 
52  S.  E.  495,  government  bonds  held  by  national  bank  as  part  of  its  capi- 
tal not  taxable  under  state  authority ;  First  Nat.  Bank  v.  Douglas  Co., 
124  Wis.  21,  22,  102  N.  W.  317,  318,  real  estate  belonging  to  national 
bank  which  is  acquired  with  and  constituting  part  of  its  capital  is  ex- 
empt from  taxation. 

Syl.  3  (VII,  192).     Eequiring  national  bank  to  pay  stockholder's  tax. 

Approved  in  Carstairs  v.  Cochran,  193  U.  S.  16,  48  L.  597,  24  Sup. 
Ct.  318,  upholding  Md.  Laws  1892,  c.  704,  as  amended  in  1900,  re- 
quiring owners  of  bonded  warehouses  to  pay  taxes  on  liquors  stored 
and  giving  them  lieii  on  property  therefor;  Commonwealth  v.  Citizens' 
Nat.  Bank,  117  Ky.  955,  80  S.  W.  160,  upholding  Acts  1900,  p.  65, 
c.  23,  relating  to  taxation  of  national  bank  shares. 

Syl.  4  (VII,  192).     State  regulation  of  federal  instrumentalities. 

Approved  in  Hibernia  Sav.  etc.  Soc.  v.  San  Francisco,  200  U.  S. 
314,  50  L.  496,  26  Sup.  Ct.  265,  treasury  checks  for  interest  accrued 
on  government  bonds  are  taxable  by  state  in  hands  of  owner;  Coving- 
ton V.  First  Nat.  Bank,  198  U.  S.  Ill,  49  L.  969,  25  Sup.  Ot.  562, 
holding  Ivy.  Act  March  21,  1900,  making  national  banks  liable  for 
taxes  for  past  years  on  capital  stock,  is  void,  where  previously  national 
banks  not  rcquirfd  to  return  shares  held  outside  of  state;  Corry  v. 
Baltimore,  196  U.  S.  475,  103  Am.  St.  Eep.  371,  49  L.  561,  25  Sup. 
€t.  297,  upholding  Md.  Code  Pub.  Gen.  Laws,  art.  81,  imposing  on 
nonresident  stockholder  in  domestic  corporation  personal  liability  for 
taxes  on  his  stock  enforceable  by  personal  action  by  corporation; 
State  V.  Shryaek,  179  Mo.  440,  78  S.  W.  812,  under  Laws  1895,  p.  242, 
real  estate  of  banks  mvist  be  assessed  to  corporation,  the  personalty 
not  at  all,  and  shares  in  names  of  stockholders;  Cogswell  v.  Second 
Nat.  Bank,  76  Conn.  254,  56  Atl.  575,  upholding  appointment  of  re- 
ceiver for  national  bank;  State  v.  Fleming,  70  Neb.  538,  97  N.  W. 
1068,  upholding  Laws  1903,  c.  73,  taxing  insurance  companies. 

Distinguished  in  Knoxville  Traction  Co.  v.  McMillan,  111  Tenn.  525, 
77  S.  W.  666,  65  L.  E.  A.  296,  holding  void  Acts  1903,  p.  599,  c.  257, 
making  railroad  leasing  advertising  privilege  liable  for  tax  on  business 
of  advertising  in  cars. 

9  Wall.  364-370,  19  L.  734,  JONES  v.  BOLLES. 

Syl.  1   (VII,  194).     Equity  jurisdiction  over  fraud. 

Approved  in  Levi  v.  Mathews,  145  Fed.  154,  federal  court  at  law 
cannot  entertain  defense  setting  up  fraud  in  procuring  contract  sued 
on;  Parker  v.  Black,  143  Fed.  561,  bankruptcy  trustee  may  sue  in 
equity  to  recover  payment  made  by  bankrupt  to  creditor  as  voidable 
preference;  Manning  v.  Berdan,  135  Fed.  161,  upholding  jurisdiction 
of  bill  to  enjoin  action  at  law  OQ  note  obtained  by  fraud,  and  to  cancel 
same. 


485  Notes  on  U.  S.  Reports.  9  Wall.  3S7-40S 

Distinguished  in  General  Elec.  Co.  v.  Westingliouse  Elec.  &  Mfg.  Co., 
144  Fed.  4G6,  denying  injunction  to  restrain  violation  of  contract  for 
manufacture  and  sale  of  goods  which  provided  penalty  for  violation 
thereof. 

Syl.  3  (VII,  195).  Proper  parties — Cancellation  of  corporation's 
agreement. 

See  97  Am.  St.  Rep.  46,  note. 

Syl.  4   (VII,  195).     Equity — Allegations  showing  jurisdiction. 

Approved  in  Wood  v.  Deskins,  141  Fed.  507,  where  there  is  no  con- 
troversy between  one  joint  vendor  and  purchaser  who  has  dispute 
with  others  as  to  rights  under  contract,  first  vendor  who  refused  to 
join  suit  and  was  made  defendant  cannot  be  aligned  as  complainant 
to  defeat  federal  jurisdiction. 

Distinguished  in  Shewalter  v.  Lexington,  143  Fed.  166,  denying 
federal  jurisdiction  over  suit  to  quiet  title  as  against  street  improve- 
ment certificates  amounting  to  less  than  $2,000. 

9  Wall.  387-394,  19  L.  736,  BUSHNELL  v.  KENNEDY. 

Syl.  3  (VII,  196).     Federal  suit  by  assignee. 

Distinguished  in  Kolze  v.  Hoadley,  200  U.  S.  82,  85,  50  L.  380,  382, 
26  Sup.  Ct.  220,  suit  to  foreclose  trust  deed  cannot  be  maintained  in 
federal  court  unless  assignor  could  sue  therein,  though  bill  prays 
cancellation  of  release  for  fraud;  Utah-Nevada  Co.  v.  De  Lamar,  133 
Fed.  119,  66  C.  C.  A.  179,  suit  by  assignee  of  oral  contract  to  recover 
money  due  thereon  cannot  be  brought  in  federal  court  unless  assignor 
could   sue  therein. 

Syl.  5   (VII,   198).     Defendant  removing  suit  on  assigned  cause. 

Approved  in  Greevy  v.  Jacob  Tome  Institute,  132  Fed.  409,  where 
state  court  acquired  jurisdiction  of  suit  by  attachment  against  foreign 
corporation  under  state  statute,  federal  court  had  jurisdiction  on  re- 
moval by  defendant;  Finley  v.  Chaniberlin,  46  Fla.  587,  35  So.  3, 
applying  rule  to  change  of  venue  for  disqualification  of  judge. 

9  Wall.  394-408,  19  L.  757,  NOOXAN  v.  BRADLEY. 

Syl.  1  (VII,  198).     Foreign  administrator  cannot  sue. 

Approved  in  Brooks  v.  Southern  Pac.  Co.,  148  Fed.  997,  personal 
representative  of  decedent  qualified  in  one  state  cannot  sue  in  another 
for  tort  under  state  statute  permitting  action  by  foreign  administrator 
for  debts  due  decedent;  Graham  v.  Lybrand,  142  Fed.  Ill,  applying 
rule  to  action  by  foreign  administrator  to  compel  resident  executor 
to  turn  over  to  him  assets  of  estate. 

Distinguished  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  306, 
executor  may  sue  in  another  state  to  recover  from  agent  employed 
by  him  proceeds  of  sale  of  realty  bcloughig  to  estate. 


9  Wall.  409-486  Notes  on  XJ.  S.  Reports.  486 

Syl.  8  (VII,  201).  Ambiguities  construed  against  party  preparing 
bond. 

Approved  in  Hildreth  v.  Duff,  143  Fed.  140,  construing  contract  of 
employment  to  perfect  certain  machine  as  not  binding  employee  to 
assign  patent  for  essentially  different  machine. 

9  Wall.  409-414,  19  L.  704,  THE  MAYOR  v.  LORD. 

Syl.  6  (VII,  204).     Mandamus  to  compel  tax  to  pay  bonds. 

Approved  in  Theis  v.  Commrs.  of  Washita  County,  9  Okl.  653,  60 
Pac.  508,  where  county  commissioners  issued  bridge  warrants  in  ac- 
cordance with  statute,  and  failed  to  make  tax  levy  to  liquidate  war- 
rants, remedy  of  holders  is  mandamus  and  not  action  to  recover 
money.     See    105    Am.    St.    Rep.    216,   217,   note. 

9  Wall.  415-419,  19  L.  732,  SUPERVISORS  v.  DURANT. 

Syl.  1   (VII,  204).     Mandamus  to  compel  tax  to  pay  judgment. 

Approved  in  Theis  v.  Commrs.  of  Washita  County,  9  Okl.  653,  60 
Pac.  508,  where  county  board  issued  bridge  warrants  in  accordance 
with  statute  and  failed  to  make  tax  levy  to  liquidate  them,  mandamus 
and  not   action  to  recover  money  is  remedy  of  holder. 

Syl.  2   (VII,  205).     State  injunction  as  barring  federal  mandamus. 
See  105  Am.  St.  Rep.  216,  217,  note. 

9   Wall.   435-461,   19   L.   772,   THE   MAGGIE   HAMMOND. 
Syl.  7   (VII,  209).     Rules  of  maritime  law. 
See  113  Am.  St.  Rep.  883,  note. 

Syl.  15    (VII,  210).     Fear  of  ice  justifying  delay  in  transportation. 

Approved  in  Philadelphia  etc.  Ry.  Co.  v.  Peale,  Peacock  &  Kerr, 
135  Fed.  60S,  starting  on  voyage  while  there  was  floating  ice  in  river 
which  later  injured  barge  and  caused  delay,  not  negligence. 

9  Wall.  461-467,  19  L.  739,  PHOEXIX  INSURANCE  CO.  v.  COPELIN. 

Syl.  3   (VII,  211).     Unreasonable  delay  in  repairs  by  insurer. 

Approved  in  Hume  v.  Frenz,  150  Fed.  508,  applying  rule  where 
stranded  vessel  temporarily  repaired  by  insurer,  who  five  months 
later  permanently  repaired  her  and  sold  her  for  repairs. 

9  Wall.  477-486,  19  L.  725,  THE  CITY  OF  KENOSHA  v.  LAMSON. 

Syl.  9   (VII,  216).     Interest  coupons  not  severed  till  paid. 

Approved  in  Wright  v.  East  Riverside  Irr.  Dist.,  138  Fed.  322,  326, 
where  bonds  issued  under  Cal.  St.  1877,  p.  34,  c.  34,  were  prepared  and 
coupons  lithographed  with  name  of  then  secretary  of  district,  but  not 
delivered  for  eighteen  months,  and  successor  of  secretary  signed  them, 
but  predecessor's  signature  on  coupons  not  changed,  bonds  were  void. 


487  Notes  on  U.  S.  Eeports.  9  Wall.  486-575 

9  Wall.  486-500,  19  L.  621,  INGLE  v.  JONES. 

Syl.   7    (VII,  218).     Further  time  to  take  testimony  discretionary. 

Approved  in  Long  v.  Anderson,  48  Fla.  289,  37  So.  22U,  it  is  abuse 
of  discretion  to  refuse  further  time  to  take  testimony  where  defend- 
ant prevented  from  taking  testimony  by  absence  of  master  in  chan- 
cery; Maxwell  v.  Jacksonville  Loan  etc.  Co.,  45  Fla.  457,  34  So.  265, 
arguendo. 

9  Wall.  501-504,  19  L.  762,  HOE  v.  WILSON. 

Syl.  4   (VII,  219).     No  decree  unless  indispensable  parties  present. 

Approved  in  Florida  Land  etc.  Co.  v.  Anderson,  50  Fla.  513,  39 
So.  396,  following  rule. 

9  Wall.  517-521,  19  L.  744.  THE  KEOKUK. 

Syl.  2   (VII,  222).     No  lien  to  cargo  owner  till  delivery. 

Approved  in  Guflfey  v.  Alaska  etc.  S.  S.  Co.,  130  Fed.  274,  64  C.  C. 
A.  517,  where  at  time  goods  delivered  at  wharf  under  bill  of  lading 
reciting  goods  to  be  shipped  on  board  ship  then  at  port,  complainant 
knew  ship  at  sea,  and  goods  never  delivered  to  ship,  vessel  not  liable 
to  lien  for  breach  of  contract.     See  105   Am.  St.  Eep.  350,  note. 

9  Wall.  544-554,  19  L.  763,  MICHIGAN  BANK  v.  ELDRED. 

Syl.  8   (VII,  226).     Notes— Authorization   to  fill   blanks. 

Approved  in  Mechanics'  Bank  v.  Chardavoyne,  09  N.  J.  L.  259,  101 
Am.  St.  Rep.  701,  55  Atl.  1081,  bank  receiving  from  A,  without  notice 
of  infirmity,  note,  in  payment  of  debt  due  from  him  to  bank,  which 
A's  wife  had  indorsed  in  blank  for  him  to  discount  for  her  benefit, 
is  bona  fide  holder. 

9   Wall.   554-560.   19  L.   584,  UNITED   STATES   v.   ADAMS. 

Syl.  2    (VII,  227).     Correction  on  appeal  of  mistake  in  findings. 

Approved  in  dissenting  opinion  in  State  v.  Marsh,  134  N.  C.  203, 
47  S.  E.  13,  67  L.  E.  A.  179,  majority  granting  certiorari  to  correct 
record  where  appeal  from  conviction  for  rape  reversed  because  indict- 
ment as  shown  by  record  failed  to  allege  want  of  consent,  whereas 
indictment  did  in  fact  contain  such  allegation. 

9  Wall.  560-567,  19  L.  560,  HORNTHALL  v.  THE  COLLECTOR. 

Syl.  5   (VII,  229).     No  costs  on  dismissal  for  want  of  jurisdiction. 

Approved  in  Sena  v.  United  States,  147  Fed.  490,  where  appellate 
court  is  without  jurisdiction  of  criminal  appeal,  it  cannot  direct 
marshal  to  deliver  prisoner  to  warden  to  carry  out  sentence. 

9  Wall.  567-575,  19  L.  748,  THE  ASSESSOR  v.  OSBORNE. 

Syl.  7   (VII,  230).     Repeal  of  law  conferring  jurisdiction. 

Approved  in  United  States  v.  Sena,  12  N.  M.  414,  78  Pac.  62,  repeal 
of   Laws   1901,   p.   190,   c.   99,   deprived   supreme   court   of  jurisdiction 


9  Wall.  575-630  Notes  on  U.  S.  Eeports.  488 

over  criminal  appeals  not  taken  during  term  at  which  judgment  ren- 
dered; Terry  v.  McClung,  104  Va.  601,  52  S.  E.  356,  under  Acts  1887-88, 
p.  68,  c.  58,  depriving  county  court  of  jurisdiction  in  road  cases  and 
conferring  same  on  supervisors,  pending  proceedings  lapsed. 

9  Wall.  575-579,  19  L.  681,  LITCHFIELD  v.   REGISTER  AND   RE- 
CEIVER. 

Syl.    2    (VII,    231).     Equitable   jurisdiction    over   public    lands. 

Approved  in  Laramie  Nat.  Bank  v.  Steinhoff,  11  Wyo.  307,  71  Pac. 
994,  in  action  by  one  in  possession  of  land  under  certificate  of  pur- 
chase against  claimant  under  entry,  court  cannot  determine  title; 
dissenting  opinion  in  Sproat  v.  Durland,  2  Okl.  52,  35  Pac.  888,  ma- 
jority holding,  in  proceedings  by  homestead  applicant  to  enjoin  ad- 
verse claimant  from  interfering  with  possession,  court  may,  on  answer 
and  cross-complaint,  enjoin  plaintiff  from  interfering  wit"h  defendant's 
possession. 

Syl.  3   (VII,  232).     Equity  jurisdiction  after  land  office  decision. 

Approved  in  Wilbourne  v.  Baldwin,  5  Okl.  276,  47  Pac.  1048,  re- 
fusing to  enjoin  Indian  agent  from  removing  homestead  applicant 
from  lands  prior  to  issuance  of  patent;  Fitzgerald  v.  Keith,  5  Okl. 
263,  48  Pac.  Ill,  territorial  courts  cannot  review  action  of  Interior 
Department  in  its  disposition  of  public  lands  prior  to  issuance  of 
patent;  Adams  v.  Couch,  1  Old.  34,  35,  26  Pac.  1015,  ejectment  can- 
not be  predicated  on  receiver's  duplicate  receipt. 

9  Wall.  579-592,  19  L.  792,  THOMPSON  v.  UNION  PACIFIC  R.  R. 

Syl.  5  (VII,  233).     State  tax  on  federal  agent's  property. 

Approved  in  Baltimore  Shipbuilding  etc.  Co.  v.  Baltimore,  195  U. 
S.  382,  49  L.  245,  25  Sup.  Ct.  50,  upholding  tax  on  land  conveyed  to 
corporation  for  drydock  purposes  though  government  reserved  right 
to  free  use  of  dock. 

9  Wall.  592-603,  19  L.  683,  MERRYMAN  v.  BOURNE. 

Syl.  2  (VII,  235).     Grantee  in  fee  may  deny  vendor's  title. 

Approved  in  Oregon  etc.  R.  R.  Co.  v.  Quigley,  10  Idaho,  784,  80 
Pac.  405,  and  Swain  v.  McMillan,  30  Mont.  441,  76  Pac.  946,  both 
following  rule;  Scott  v.  Mineral  Dev.  Co.,  130  Fed.  502,  64  C.  C.  A. 
659,  continuation  of  possession  of  tract  under  deed  conveying  whole 
tract  but  part  of  which  only  is  entered,  gives  adverse  title  to  whole 
as  against  one  out  of  possession;  Fountain  v.  Lewiston  Nat.  Bank, 
11  Idaho,  469,  83  Pac.  510,  arguendo. 

9  Wall.  617-630,  19  L.  800,  IRVINE  v.  IRVINE. 

Syl.  1  (VII,  238).     Estoppel  by  deed— After-acquired  title. 

Approved  in  Clark  v.  Sayers,  55  W.  Va.  527,  47  S.  E.  318,  following 
rule;  Weeks  v.  Wilkins,  139  N.  C.  218,  51  S.  E.  910,  applying  rule 
where  infant  on  attaining  majority  failed  to  disaffirm  deed. 


489  Notes  on  U.  S.  Eeports.  9  Wall.  659-672 

9  Wall.  G59-GG1,  19  L.  807,  DOWXHAM  v.  ALEXANDRIA. 
Syl.  1  (VII,  243).     Writ  of  error  to  inferior  state  court. 
Cited  in  Kentucky  v.  Powers,  201  U.  S.  38,  50  L.  650,  26  Sup.  Ct. 

387,  arguendo. 

9  Wall.  661-664,  19  L.  808,  UMITED  STATES  v.  ADAMS. 
Syl.  1  (VII,  244).     Certiorari  on  diminution  of  record. 

Approved  in  Whitney  v.  Dick,  202  U.  S.  139,  50  L.  966,  26  Sup.  Ct. 
584,  circuit  court  of  appeals  cannot  issue  certiorari  to  review  con- 
viction in  inferior  federal  court  where  only  question  is  whether  fed- 
eral courts  have  jurisdiction  over  offense. 

9  Wall.  665-G72,  19  L.  767,  THE  QUICKSTEP. 

Syl.  1  (VII,  245).     Findings  of  fact  by  two  courts. 

Approved  in  The  Tnca,  148  Fed.  367,  upholding  findings  on  conflict- 
ing evidence  as  to  liability  of  tug  for  grounding  of  tug. 

Syl.  2  (VII,  245).     Liability  for  tort— Contract  of  towage. 

Approved  in  The  Oceanica,  144  Fed.  304,  towing  vessel  liable  for 
injury  to  tow  resulting  from  negligence  notwithstanding  contract 
that  towing  should  be  at  tow's  risk;  The  W.  G.  Mason,  142  Fed.  918, 
where  two  tugs  of  same  owner  were  towing  ship  and  master  of 
leader  directed  movements  of  ship,  but  rear  tug,  as  to  own  movements, 
was  under  control  of  own  master,  rear  tug  not  liable  in  rem  for 
stranding  of  tow  through  fault  of  other  tug. 

Syl.  5  (VII,  246).     Collision— Tow  in  control  of  tug. 

Approved  in  The  Joseph  Peene,  130  Fed.  490,  holding  tug  liable 
for  injuries  to  tow  caused  by  floating  ice. 

Syl.  6   (VII,  246).     Duty  of  tug  to  properly  secure  lines. 

Approved  in  The  Britannia,  148  Fed.  499,  holding  tug  at  fault 
for  using  hawser  which  was  unsound,  and  not  having  more  than 
one;  The  Inca,  148  Fed.  368,  holding  tug  liable  for  grounding  of 
tug  on  known  mound  of  rocks  and  for  injuries  caused  by  pulling 
her  off,  instead  of  waiting  for  her  to  float  with  tide;  Mouongahela 
Eiver  etc.  Co.  v.  O'Neil,  144  Fed.  79,  holding  tug  liable  for  (;^psizing 
of  towed  dredger;  Cotton  v.  Almy,  141  Fed.  362,  upholding  finding 
of  negligence  in  towing  houseboat  between  tug  and  loaded  scows, 
thereby  subjecting  it  to  unnecessary  strain;  The  Lyndhurst,  129 
Fed.  844,  holding  tug  liable  for  injury  to  tow  from  collision  with 
moored  vessel  caused  by  towing  line  slipping. 

Distinguished  in  The  Lyndhurst,  147  Fed.  113,  holding  canal  boat 
towed  by  tug  at  fault  for  collision  where  its  master  failed  to  properly 
secure  towing  line. 


9  Wall.  G72-758  Notes  on  U.  S.  Eeports.  490 

9  Wall.  C72-G77,  19  L.  7S3,  THE  SYRACUSE. 

Syl.   2    (VII,  247).     Failure   to   slacken   speed   in   meeting  tow. 

Approved  in  The  Georgetown,  135  Fed.  858,  holding  steamer  at 
fault  for  collision  with  barge  in  tow  of  tug;  American  S.  S.  Co.  v. 
American  S.  B.  Co.,  129  Fed.  67,  63  C.  C.  A.  507,  holding  steamer 
at   fault   for   collision   while    passing   between    meeting   tows. 

9  Wall.  677-681,  19  L.  810,  INSURANCE  CO.  v.  WEIDE. 

Syl.  3   (VII,  247),     Admissibility  of  account-books  to  prove  value. 

Approved  in  Grunberg  v.  United  States,  145  Fed.  92,  applying  rule 
on  issue  as  to  contents  and  value  of  cases  of  imported  goods  alleged 
to   have  been  entered  at  undervaluation  through  conspiracy. 

9   Wall.   682-687,  19  L.   754,  THE  PORTSMOUTH. 

Syl.  1    (VII,  249).     Jettison  of  cargo — Fault  of  master. 

Approved  in  Corsar  v.  Spreckels  etc.  Co.,  141  Fed.  264,  holding 
cargo  improperly  stowed,  thereby  rendering  ship  unseaworthy  and 
vessel  liable   for  jettison  of  part  of   cargo. 

9  Wall.  740-743,  19  L.  586,  WILKINS  v.  ELLETT, 
Syl.  1  (VII,  252).  Situs  of  personalty  of  decedent. 
Approved  in  Hopkins'  Appeal,  77  Conn.  652,  60  Atl.  660,  exacting 
death  duties  under  Rev.  1902,  §§  2367-2377,  on  personalty  of  resident 
decedent  wherever  situate;  Hartley  v.  Hartley,  71  Kan.  693,  81  Pac. 
5U5,  damages  recovered  for  death  of  Kansas  resident  by  wrongful 
act  committed  in  Iowa  are  disposed  of  by  Iowa  statute;  Bates 
Machine  Co.  v.  Norton  Iron  Works,  113  Ky.  379,  68  S.  W.  425,  where 
debtor  is  resident,  fact  that  debt  is  about  to  be  collected  by  cred- 
itor and  money  removed  from  state,  not  leaving  sufficient  to  satisfy 
plaintiff's  claim  against  creditor,  is  ground  for  attachment. 

Syl.  3   (VII,  254).     Payment  to   foreign  domiciliary  administrator. 

Approved  in  O'Connor  v.  Root,  130  Iowa,  562,  107  N.  W.  611,  where 
administrator  has  collected  all  assets  of  estate  of  decedent,  who  was 
resident  of  this  state,  and  all  creditors  are  residents,  creditor  will  be 
enjoined  from  applying  for  letters  in  another  state, 

9  Wall.  J43-758,  19  L.  814,  WALKER  v.  WALKER. 

Syl.   1    (VII,   255).     Separate   maintenance   contracts   valid. 

Approved  in  Baird  v.  Connell,  121  Iowa,  284,  96  N.  W.  865,  up- 
holding separation  agreement  under  which  husband  paid  wife  $1,100 
for  her  interest  in  certain  lands;  Bailey  v.  Dillon,  186  Mass.  246,  71 
N.  E.  639,  66  L.  R.  A.  427,  upholding  separation  agreement,  through 
trustee,  by  which  wife,  in  consideration  of  payments,  agrees  to  re- 
lease husband  from  liability  for  separate  maintenance. 


491  Notes  on  U.  S.  Reports.  9  Wall.  758-804 

Syl.  5  (VII^  25G).  Federal  jurisiliction  over  administrations. 
Approved  in  Hchurnicier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  45, 
69  C.  C.  A.  22,  determining  limitation  on  contingent  claims  against 
estates  under  Minnesota  statutes;  Alice  E.  Min.  Co.  v.  Blanden, 
136  Fed.  254,  applying  rule  to  establishment  of  claim  against  admin- 
istrator of  deceased  debtor;  dissenting  opinion  in  James  v.  Gray,  131 
Fed.  415,  65  C.  C.  A.  385,  majority  holding  loan  by  wife  to  husband 
from  separate  estate  is  provable  against  his  bankrupt  estate,  irre- 
spective  of  its   enforceability   under   state   law. 

9  Wall.  758,  759,  19  L.  710,  THE  GUY. 

Syl.   1    (VII,   257),     Liens  for  supplies   to   vessel. 

Approved  in  The  Surprise,  129  Fed.  876,  64  0.  C.  A.  309,  upholding 
lien  for  supplies  and  wharfage  furnished  ship  in  foreign  port  on  order 
of  master,  though  she  is  navigated  by  charterer,  who  is  bound  to 
make    all    disbursements. 

9  Wall.  759-766,  19  L.  820,  WATKINS  v.  UNITED  STATES. 

Syl.  3   (VII,  258).     Credits  allowed  on  officers'  accounts. 

Approved  in  United  States  v.  Pierson,  145  Fed.  817,  818,  applying 
rule  in  action  on  bond  of  Indian  agent. 

9  Wall.  766-779,  19  L.  822,  BUTLER  v.  MAPLES. 

Syl.  1   (VII,  259).     General  and  special  agency  distinguished. 

Approved  in  Moore  v.  Skyles,  33  Mont.  137,  82  Pac.  799,  3  L.  R. 
A.  (N.  S.)  136,  one  to  whom  money  order  given  by  another  to  see 
if  it  was  all  right,  and  if  so,  to  cash  it,  is  special  agent. 

9  Wall.   78S-S04,  19  L.  566,  PROVIDENCE  RUBBER   CO.  v.   GOOD- 
YEAR. 

Syl.   8    (VII,   262).     Process   and   product   separate   patent   subjects. 
Cited  in  Sanitas  Nut  Food  Co.  v.  Voight,  139  Fed.  552,  arguendo. 

Syl.  10  (VII,  263).    Extension  of  patent  by  commissioner  conclusive. 

Approved  in  Eastern  Paper  Bag  Co.  v.  Continental  Paper  Bag  Co., 
142  Fed.  511,  holding  Liddell  patent  No.  558,969,  for  paper-bag  ma- 
chine, valid  and  infringed. 

Syl.  13  (VII,  264).     Time  to  object  to  omission  of  word  "patented." 
Approved  in  Pettibone  etc.   Co.  v.   Pennsylvania  Steel  Co.,   134  Fed. 
889,  objection  for  failure  to  prove  allegation,  not  denied,  that  machine 
was  marked  "patented"  cannot  be  taken  for  first  time  on  entry  of  de- 
cree. 

Syl.  14  (VII,  265).    Profits  of  infringer  of  patents. 

Approved  in  Corbin  v.  Taussig,  137  Fed.  153,  determining  expenses 
to  be  offset  from  infringing  profits  where  articles  formed  part  of 
general  business. 


10  Wall.  1-22  Notes  on  U.  S.  Eeports.  492 

9  Wall.  807-811,  19  L.  587,  PROVIDENCE  ETC.  RUBBER  CO.  v. 
GOODYEAR  ETC.  RUBBER  CO. 

S7I.  2  (VII,  267).     Cross-bill  is  auxiliary  to  original  suit. 

Approved  in  Gilmore  v.  Bort,  134  Fed.  661,  662,  in  suit  for  cancella- 
tion of  bond  to  indemnify  corporation  and  its  treasurer  for  deposit 
of  funds  in  bank,  on  ground  of  fraud  in  procurement,  cross-bill  by 
treasurer  setting  up  defense  against  corporation  does  not  entitle  bins 
to  object  to  dismissal. 

9  Wall.  812-816,  19  L.  829,  BISCHOFF  v.  WETHERED. 

Syl.  1  (VII,  268).    Judgment  on  personal  service  out  of  jurisdiction. 

Approved  in  Haddock  v.  Haddock,  201  U.  S.  568,  50  L.  869,  26  Sup. 
Ct.  525,  mere  domicile  in  state  of  one  spouse  does  not  give  state  courts 
jurisdiction  to  render  divorce  against  nonresident  nonappearing  de- 
fendant served  by  publication;  Murray  v.  Strong,  2  Alaska,  519, 
judgment  in  Yukon  Territory  against  resident  of  Alaska  on  personal 
notice  served  in  Alaska  is  void. 


X  WALLACE. 


10  Wall.  1-15,  19  L.  870,  THE  BLACKWALL. 
Syl.  4  (Vn,  271).     Salvage  defined. 

Approved  in  Spaulding  v.  Alaska  Com.  Co.,  1  Alaska,  501,  persons 
knowing  barges  driven  on  shore  by  wind  at  place  designed  by  master, 
and  reaching  them  ahead  of  owner's  employees,  and  going  aboard 
dryshod  and  attaching  line  to  anchor  ashore,  are  not  salvors. 

Syl.  8  (VII,  272).     Amount  of  salvage,  how  determined. 

Approved  in  The  Chief,  147  Fed.  877,  allowing  $1,000  salvage  for 
towing  disabled  tug  worth  $5,600,  where  she  was  in  no  great  danger; 
The  Lottie  E.  Hopkins,  133  Fed.  407,  where  fishing  vessel  valued  at 
from  $600  to  $1,000  lost  rudder  and  was  drifting  toward  rocks  in 
storm,   tug  towing  ship  to  port  entitled  to  $200  salvage. 

Syl.  9  (VII,  272).     Salvage  not  awarded  on  quantum  meruit. 

Approved  in  Spaulding  v.  Alaska  Com.  Co.,  1  Alaska,  508,  persons 
knowing  barges  driven  ashore  by  wind  at  place  designed  by  master, 
and  reaching  them  ahead  of  owner's  emploj^ees,  and  going  aboard  dry- 
shod  and  attaching  line  to  shore  anchor,  are  not  salvors. 

10  Wall.  15-22,  19  L.  875,  THE  DAVIS. 

Syl.  1   (VII,  273).     Salvage  of  government  property. 

Approved  in  The  John  McCracken,  145  Fed.  707,  vessels  owned  by 
port  of  Portland  and  used  by  it  to  improve  harbor  are  not  seizable 


493  Notes  ou   U.  S.   Reports.  10  Wall.  3,3-126 

in  admiralty  suit  in  rem;  United  States  v.  Cornell  Steamboat  Co., 
202  U.  S.  190,  50  L.  990,  26  Sup.  Ct.  648,  affirming  137  Fed.  457,  69  C. 
C.  A.  603,  and  upholding  federal  jurisdiction  over  libel  in  personam 
for  salvage  on  duties  collected  on  sugar  afterward  saved  from  fire 
while  on  lighter  in  charge  of  customs  officials;  Walker  v.  United 
States,  139  Fed.  413,  refusing  recovery  of  payments  made  by  govern- 
ment as  compensation  to  marshal  long  after  expiration  of  term  of 
office;  Rees  v.  United  States,  134  Fed.  146,  allowing  salvage  to  crew 
of  one  of  two  government  vessels  for  saving  government  property 
from  wreck  of  other. 

10  Wall.  33-38,  19  L.  882,  BATES  v.  EQUITABLE  INS.  CO. 

Syl.  3  (VII,  276).     Policy  indorsed  payable  to  third  person. 

Approved  in  Atlas  Reduction  Co.  v.  New  Zealand  Ins.  Co.,  138  Fed. 
505,  510,  indorsement  of  polic}'  as  payable  to  A  as  his  interest  may 
appear    does   not    waive    condition    against    encumbrances. 

10    Wall.    38-56,    19    L.    844,    PEOPLE'S    RAILROAD    v.    MEMPHIS 
RAILROAD  CO. 

Syl.  1  (VII,  277).     Power  to  grant  franchises  not  delegatable. 

Approved  in  Covin  v.  Chicago,  132  Fed.  854,  construing  term  of 
grant  under  Illinois  Acts  of  1859,  1801,  and  18G5,  relating  to  Chicago 
city  railways. 

Syl.  4  (A"II,  278).     Consent  by  city  to  operation  of  street  railroads. 

Approved  in  Blair  v,  Chicago,  201  U.  S.  460,  50  L.  826,  26  Sup.  Ct. 
427,  construing  terms  of  grant  under  Illinois  Acts  of  1859,  1861,  and 
1865,  relating  to  Chicago  city  railways. 

10  Wall.  68-91,  19  L.  839,  TEXAS  v.  HARDENBERG. 

Syl.  1  ("VII,  278).     Relief  under  general  prayer. 

Approved  in  Sprinkle  v.  W^ellborn,  140  N.  C.  177,  111  Am.  St.  Rep. 
837,  52  S.  E.  671,  3  L.  R.  A.  (X.  S.)  174,  where  vendee,  who  has 
obtained  deed  by  fraud,  has  conveyed  property  to  bona  fide  purchaser, 
in  suit  to  cancel  deed  original  grantor  may  have  personal  judgment 
against  his  grantee  for  profits  of  sale. 

10  Wall.  117-126,  19  L.  866,  STIMPSON  v.  WOODMAN, 

Syl.  1  (VII,  281).     Patents — Changes  involving  mechanical  skill. 

Approved  in  Daylight  Glass  Mfg.  Co.  v.  American  Pris.  Light  Co., 
142  Fed.  457,  Cummings  patent  No.  695,282,  for  machine  for  making 
prismatic  glass,  is  void  in  view  of  prior  art;  North  Jersey  St.  Ry.  Co. 
v.  Brill,  134  Fed.  584,  67  C.  C.  A.  380,  Brill  patents  Nos.  627,898  aad 
627,900,  for  car  trucks,  are  void  in  view  of  prior  art. 


10  Wall.  129-192  Notes  on  U.  S.  Eeports.  _  494 

10  Wall.  129-133,  19  L.  884,  WIGGINS  v.  BURKHAM. 

Syl.  1  (Vn,  282).     Unobjected  account  becomes  stated. 

Approved  in  Sharp  v.  Behr,  136  Fed.  798,  where  statements  of  ship- 
ments of  ore,  as  to  which  party  entitled  to  royalties,  were  without 
specifications,  and  party  had  no  figures  with  which  to  verify  account 
rendered,  failure  to  object  not  waiver  of  right  to  object;  Ketchum  v. 
Stetson  etc.  Mill  Co.,  33  Wash.  95,  73  Pac.  1127,  account  in  which 
purchaser  of  logs  listed  them  at  what  seller  claimed  was  agreed  price 
is  conclusive  evidence  that  price  of  logs  had  been  agreed  on,  though 
account  contained  counterclaim. 

10  Wall.  141-152,  19  L.  923,  FIELD  v.  FARRINGTON. 

Syl.  1  (VII,  286).     Failure  of  principal  to  object  to  factor's  delay. 

Approved  in  Mcintosh  v.  Merchant,  40  Wash.  480,  82  Pac.  754, 
where  factor,  unable  to  sell  goods  at  principal's  price,  turned  same 
over  to  another  for  sale  and  notified  principal,  latter 's  failure  to  ob- 
ject for  six  months  is  ratification. 

10  Wall.   152-158,   19   L.   897,  BANK   OF   THE   REPUBLIC   v.   MIL- 
LARD. 

Syl.  1  (VII,  287).     Bank  deposits  belong  to  bank. 

Approved  in  Burton  v.  United  States,  196  U.  S.  301,  49  L.  488,  25 
Sup.  Ct.  243,  allegation  of  payment  at  St.  Louis  not  supported  by 
evidence  that  checks  drawn  on  St.  Louis  bank  were  received  in  Wash- 
ington and  deposited  in  bank  there;  Bank  of  Blackwell  v.  Dean,  9 
Okl.  631,  60  Pac.  228,  determining  whether  or  not  deposit  was  special 
deposit  entitled  to  priority  on  insolvency  of  bank;  Guthrie  Nat.  Bank 
V.  Gill,  6  Okl.  563,  54  Pac.  435,  draft  is  not  equitable  assignment  pro 
tanto  of  funds  in  hands  of  drawee  to  credit  of  drawer  before  accept- 
ance. 

Syl.  2  (VII,  289).     Privity  between  drawer  of  check  and  bank. 

Approved  in  dissenting  opinion  in  Burton  v.  United  States,  196  U. 
S.  309,  49  L.  491,  25  Sup.  Ct.  243,  majority  holding  allegation  of  pay- 
ment at  St.  Louis  not  supported  by  evidence  that  checks  drawn  on 
St.  Louis  bank  were  received  in  Washington  and  deposited  in  bank 
there;  Eastern  Milling  etc.  Co.  v.  Eastern  Milling  etc.  Co.,  146  Fed. 
762,  holder  of  check  has  no  right  to  priority  of  payment,  on  drawer  'a 
subsequent  insolvency,  from  fund  due  from  bank. 

10  Wall.  176-192,  19  L.  909,  MEMPHIS  RAILROAD  CO.  v.  REEVES. 

Syl.  4  (VII,  296).     Carriers— Act  of  God— Burden  of  proof. 

Approved  in  Nashville  etc.  Ry.  Co.  v.  Stone,  112  Tenn.  371,  79  S. 
W.  1036,  following  rule;  Hunter  v.  Ricke,  127  Iowa,  111,  102  N.  W. 
827,  applying  nile  where  horse  in  charge  of  liveryman  was  burned  in 
fire;  Jones  v.  Minneapolis  etc.  Ry.  Co.,  91  Minn.  231,  97  N.  W.  893, 
holding  where  cattle  train  caught  in  blizzard  and  cattle  frozen,  carrier 
not  liable. 


495  Notes  on  U.  S.  Ecports.  10  Wall.  192-218 

Distinguished  in  Grier  v.  St.  Louis  etc.  Ry.  Co.,  108  Mo.  App.  570, 
84  S.  W.  159,  in  trover  against  carrier  for  failure  to  deliver  goods, 
delivery  by  consignor  and  failure  to  deliver  to  consignee  establishes 
prima  facie  case. 

Syl.  6   (VII,  297).     Carriers — Proximate  cause — Loss  by  delay. 

Approved  in  Green-'Wheeler  etc.  Co.  v.  Chicago  etc.  Ry.  Co.,  130 
Iowa,  124,  106  N.  W.  498,  and  Moffatt  Com.  Co.  v.  Union  Pac.  Ry.  Co., 
113  Mo.  App.  548,  88  S.  W.  118,  both  following  rule;  Northern  Pac. 
Ry.  Co.  v.  Kempton,  138  Fed.  997,  applying  rule  when  cattle  injured 
by  blizzard  and  separate  delays  contributed  to  injury;  Texas  &  P. 
Ey.  Co.  v.  Coutourie,  135  Fed.  475,  68  C.  C.  A.  177,  applying  rule  where 
cotton  would  not  have  been  in  sheds  and  burned  but  for  delay  in 
forwarding;  Empire  State  etc.  Co.  v.  Atchison  etc.  Ry.  Co.,  135  Fed. 
142,  where,  owing  to  floods,  carrier  could  not  deliver  cattle  but  sent 
them  to  another  place,  where  they  were  put  in  yards  which  were  after- 
ward flooded  by  storms  and  cattle  moved  to  prevent  drowning,  carrier 
not  liable  for  loss;  General  Fire  Extinguisher  Co.  v.  Carolina  etc.  Ry. 
Co.,  137  X.  C.  283,  49  S.  E.  210,  applying  rule  where  goods  destroyed 
by  fire;  Hayes  &  Cooley,  13  N.  D.  208,  100  N.  W.  252.  in  action  for 
breach  of  contract  to  thresh  grain,  loss  of  grain  by  exposure  to  storm 
is  remote  consequence. 

10   Wall.   192-204,   19  L.  906,  THE   LULU. 

Syl.  2  (VII,  301).     Foreign  port — Pledge  of  vessel's  credit. 

Approved  in  The  New  Brunswick,  129  Fed.  895,  64  C.  C.  A.  325. 
where  place  of  business  of  corporation  owning  ship  is  at  port  in  state 
other  than  that  of  its  creation,  master  cannot  impress  lien  on  vessel 
in  that  port  for  supplies. 

Syl.  4  (A^II,  302).     Burden  to  show  necessity  for  vessel's  credit. 

Approved  in  The  Wyandotte,  145  Fed.  325,  326,  affirming  136  Fed. 
473,  where  master  of  English  vessel  in  American  port  drew  draft  to 
raise  money  for  supplies,  which  was  discounted  at  instance  of  ship  "s 
agents,  discounters  had  lien  on  ship  and  burden  was  on  owners  to 
show  they  had  personal  credit;  The  Surprise,  129  Fed.  877,  64  C.  C.  A. 
309,  upholding  lien  for  supplies  and  wharfage  furnished  vessel  in 
foreign  port  on  master's  order,  though  navigated  by  charterer,  who 
was  to  make  all  disbursements. 

10  Wall.  204-218,  19  L.  941,  THE  KALORAMA. 

Syl.  1  (VII,  303).     Action  in  rem  for  maritime  contract. 

Approved  in  Bank  of  British  N.  A.  v.  Freights  etc.  of  Hutton,  137 
Fed.  538,  70  C.  C.  A.  118,  where  bank  had  maritime  lien  on  freight 
of  vessel  for  advances,  it  could  enforce  it  by  action  in  admiralty  in 
rem,  though  it  had  equitable  lien. 


10  Wall.  218-299  Notes  on  U.  S.  Eeports.  496 

Syl.  3   (VII,  304).     Supplies  in  foreign  port  on  ship's  credit. 

Approved  in  The  Wyandotte,  145  Fed.  325,  where  master  of  English 
vessel  in  American  port  drew  draft  to  raise  money  for  supplies,  which 
was  discounted  at  instance  of  ship's  agents,  discounter  had  lien  on 
ship;  The  Surprise,  129  Fed.  875,  876,  64  C.  C.  A.  309,  upholding  lien 
for  supplies  and  wharfage  furnished  vessel  in  foreign  port  on  master's 
order,  though  navigated  by  charterer,  who  was  to  make  all  disburse- 
ments. 

Syl.  5  (VII,  305).     Lien  for  supplies  in  foreign  port. 

Approved  in  The  Worthington,  133  Fed.  725,  70  L.  R.  A.  353,  66 
C.  C.  A.  555,  applying  rule  where  one  advanced  money  in  foreign 
port  on  credit  of  vessel  to  owner  of  vessel,  who  was  without  funds, 
to  be  used  for  loading  vessel;  The  Surprise,  129  Fed.  876,  64  C.  C. 
A.  309,  upholding  lien  for  supplies  and  wharfage  furnished  vessel  in 
foreign  port  on  master's  order,  though  navigated  by  charterer,  who 
was  to  make  all  disbursements. 

Syl.  6   (VII,  305).     State  action  for  advances  bars  lien. 

Distinguished  in  Northwestern  Com.  Co.  v.  Bartels,  131  Fed.  27,  28, 
65  C.  C.  A.  263,  where  one  entitled  to  maritime  lien  files  claim  in 
state  court  receivership  proceedings  and  consented  to  sale  of  ship,  and 
asserts  priority  of  claim  to  proceeds,  he  is  estopped  to  enforce  lien  in 
admiralty. 

10  Wall.  218-224,  19  L.  895,  BRAUN  v.  SAUERWEIN. 

Syl.  1   (VII,  306).     Suspension  of  limitations  by  statutory  disability. 

Approved  in  Alice  E.  Min.  Co.  v.  Blanden,  136  Fed.  255,  holding 
under  Iowa  statutes  action  on  note  given  by  decedent  not  barred 
where  administration  could  not  have  been  had  earlier;  Cobb  v.  Hous- 
ton, 117  Mo.  App.  653,  94  S.  W.  301,  statute  of  limitations  is  sus- 
pended during  defendant's  nonresidence. 

10  Wall.  224-245,  19  L.  900,  HORNSBY  v.  UNITED  STATES. 

Syl.  8   (VII,  308).     Mexican  grantee's  interest,  how  devested. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  635,  72  Pac.  33,  following 
rule. 

10  Wall.  256-263,  19  L.  893,  NEW  ORLEANS  R.  R.  v.  MORGAN. 
Syl.  1   (VII,  309).     Affirmance  where  no  error  disclosed. 
Cited  in  Cassatt  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  42,  arguendo. 

10  Wall.  273-299,  19  L.  915,  SLAUGHTER-HOUSE  CASES. 

Syl.  7  (VII,  312).    Appeal  from  injunctional  order  not  stay. 

Approved  in  Elliott  v.  Kuzek,  2  Alaska,  591,  where,  on  dismissal 
after  trial  on  merits,  injunction  pendente  lite  was  dissolved,  in  action 
on  injunction  bond,  plea  setting  up  appeal  from  dismissal  and  giving 
of  supersedeas  bond  is  demurrable;  State  v.  Superior  Court,  39  Wash. 


497  .        Notes  on   U.  S.  Reports.  10   Wall.  308-321 

117,  118,  109  Am.  St.  Rep.  862,  80  Pac.  1109,  1  L.  R.  A.  (N.  S.)  d'.i, 
defendants  restrained  from  operating  shooting-gallery  are  not  enti''iJsd, 
as  matter  of  right,  to  supersede  order  pending  appaal. 

Distinguished  in  State  v.  Dearing,  ISO  Mo.  G7,  79  S.  W.  4?.'^,  where 
trial  court  on  merits  dissolves  injunction  and  dismisses  bill,  it  may 
continue  temporary  injunction  pending  appeal. 

10  Wall.  308-321,  19  L.  931,  COOPER  v.  REYNOLDS. 

Sy].  1   (VII,  315),     Judgment — Collateral  attack  for  errors. 

Approved  in  Dye  v.  Crary,  12  N.  M.  471,  78  Pac.  533,  following 
rule;  Vicksburg  etc.  R.  Co.  v.  Tibbs,  112  La.  58,  36  So.  225,  whore 
appeal  taken  by  administrator  is  dismissed  by  consent,  fact  that  ad- 
ministrator was  discharged  prior  to  rendition  of  judgment  of  dismissal 
is  not  ground  for  collateral  attack  on  judgment;  Held  v.  Ebncr,  133 
Ped.  158,  66  C.  C.  A.  222,  averment  in  answer  of  title  through  execu- 
tion sale,  averring  judgment  sale  and  confirmation,  is  sufficient  with- 
out setting  up  in  detail  proceedings  relative  to  execution  and  sale; 
May  v.  Getty,  140  N.  C.  320,  53  S.  E.  79,  where  jurisdiction  over  non- 
resident obtained  by  attachment,  judgment  not  collaterally  attackable 
in  so  far  as  it  affects  attached  property. 

Syl.  2   (VII,  317).     Meaning  of  jurisdiction. 

Approved  in  Blevins  v.  Marledge,  5  Okl.  145,  47  Pac.  10G9,  where 
reference  is  made  to  three  referees,  two  only  of  whom  qualify,  act, 
and  report,  report  is  valid. 

Syl.  3  (VII,  318).  Jurisdiction  acquired  by  attachment  and  publica- 
tion. 

Ajiprovcd  in  May  v.  Getty,  140  N.  C.  318,  53  S.  E.  78,  where  juris- 
diction over  nonresident  obtained  by  attachment,  sale  under  general 
execution  issued  on  judgment  is  valid;  Kerns  v.  McAulay,  8  Idaho, 
565,  69  Pac.  540,  where  service  on  nonresident  is  made  by  publication 
and  his  property  attached,  personal  judgment  is  valid  only  as  against 
property  attached;  Brand  v.  Brand,  116  Ky.  791,  76  S.  W.  870,  63  L. 
R.  A.  206,  upholding  jurisdiction  where  property  of  nonresident  was 
attached;  Silver  Camp  Mining  Co.  v.  Dickert,  31  Mont.  494,  78  Pac. 
969,  service  of  summons  by  publication  on  nonresident  defendant  does 
not  warrant  decree  for  specific  performance  of  contract  to  convey 
land;  Goodwin  v.  Claytor,  137  N.  C.  230,  107  Am.  St.  Rep.  479,  49  S. 
E.  175,  69  L.  R.  A.  209,  where  service  on  nonresident  was  had  by 
publication  and  garnishment  of  debt,  plaintiff  lost  no  lien  on  debt 
by  taking  judgment  against  defendant  and  garnishee;  Saleinor.son  v. 
Thompson,  13  N.  D.  194,  101  N.  W.  323,  upholding  judgment  where 
property  attached  was  alleged  to  have  been  transferred  by  debtor  in 
fraud  of  creditors;  Ireland  v.  Adair,  12  N.  D.  33,  94  N.  W.  767,  judg- 
ment against  nonresident  served  by  publication  is  void  where  attach- 
ment return  does  not  show  delivery  of  copy  of  writ  and  of  notice 
showing  property  attached  to  defendant. 
32 


10  Wall.  327-339  Notes  on  U.  S.  Eeports.         .  498 

Distinguished  in  Parks  Co.  v.  City  of  Decatur,  138  Fed.  554, 
municipal  corporation  is  not  suable  by  attachment  in  courts  of  an- 
other state. 

Syl.  4  (VII,  320).     Jurisdiction  over  person,  how  obtained. 

Approved  in  Metropolitan  Rubber  Co.  v.  Place,  147  Fed.  94,  decree 
in  suit  for  dissolution  of  corporation  barring  all  claims  not  presented 
does  not  conclude  nonresident  creditor  not  personally  served  from 
suing  corporation  on  claim. 

Syl.  5   (VII,  322).     Levy  of  attachment  requisite  to  action  in  rem. 

Approved  in  Coyle  Mercantile  Co.  v.  Nix,  7  Okl.  270,  54  Pac.  470, 
affidavit  on  attachment  omitting  amount  of  debt,  being  amendable, 
lien  of  writ  issued  thereon  is  prior  to  that  of  junior  attachment  levied 
before  amendment;  dissenting  opinion  in  Dye  v.  Crary,  12  N.  M.  478, 
479,  480,  78  Pac.  536,  537,  majority  holding  property  levied  on  under 
alias  writ  of  attachment  gives  no  jurisdiction  over  such  property. 

Distinguished  in  Dye  v.  Crary,  12  N.  M.  473,  78  Pac.  534,  property 
levied  on  under  alias  writ  of  attachment  gives  no  jurisdiction  over 
such  property. 

10  Wall.  327-334,  19  L.  935,  JOXES  v.  ANDEEWS. 

Syl.  1   (VII,  326).     Citizenship  appearing  from  bill. 

Approved  in  Sun  Printing  etc.  Assn.  v.  Edwards,  194  U.  S.  383,  48 
L.  1030.  24  Sup.  Ct.  696,  averment  that  plaintiff  is  resident  of  certain 
state  regarded  by  appellate  court  as  averment  of  citizenship,  where 
evidence  shows  legal  domicile  therein. 

Syl.  3  (VII,  327).     Waiver  of  jurisdiction  by  motion  to  dismiss. 

Approved  in  Wetzel  etc.  Ey.  Co.  v.  Tennis  Bros.  Co.,  145  Fed.  464, 
where  in  action  by  foreign  corporation  defendant  demurred  and  an- 
swered, he  cannot  plead  in  abatement  that  plaintiff  cannot  sue  because 
he  has  failed  to  comply  with  state  laws. 

Syl.  4  (VII,  327).     Citizenship  in  ancillary  proceedings. 

Approved  in  O'Connor  v.  O'Connor,  146  Fed.  997,  federal  equity 
suit  to  set  aside  dismissal  of  law  action  being  ancillary  to  action, 
service  on  defendants  in  bill  who  were  parties  to  action  may  be  made 
on  them  though  they  reside  outside  of  district;  Hatcher  v.  Hendrie 
etc.  Supply  Co.,  133  Fed.  270,  68  C.  C.  A.  19,  equity  suit  to  enforce 
attachment  lien  obtained  in  former  action  in  same  court  to  subject 
attached  property  to  judgment  is  maintainable  irrespective  of  citizen- 
ship. 

10  Wall.  334-339,  19  L.  946,  THE  FAEEAGUT. 

Syl.  1   (VII,  329).     Collision — Absence  of  lookout. 

Approved  in  The  Pocomoke,  150  Fed.  197,  198,  small  launch  having 
only  navigator  as  lookout  is  not  negligent. 


499  Notes  on  U.  S.  Reports.  10  Wall.  339-363 

10  Wall.  339-363,  19  L.  955,  MAEBLE  CO.  v.  EIPLEY. 

Syl.  1   (VII,  330).     Restraining  violation  of  copartner's  rights. 

Distinguished  in  Lord  v.  Hull,  178  N.  Y.  19,  102  Am.  St.  Rep.  484, 
70  N.  E;  73,  denying  right  of  action  by  one  partner  for  accounting 
against  another  where  no  dissolution  is  sought. 

Syl.  5  (VII,  331).     Specific  performance  discretionary. 

Approved  in  Sharp  v.  West,  150  Fed.  461,  denying  specific  perform- 
ance of  contract  for  sale  of  land  after  three  years'  unexplained  delay; 
Jones  V.  Byrne,  149  Fed.  401,  refusing  specific  performance  of  contract 
for  purchase  of  land  where  there  was  violation  of  trust  by  attorney; 
dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  346,  majority  per- 
mitting recovery  by  one  who  was  given  double  cross  in  known  fake 
footrace. 

Syl.  6  (VII,  331).  Specific  performance — Subsequently  developed 
hardship. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  806,  upholding 
oil  and  gas  lease  in  consideration  of  $1. 

Syl.   9    (VII,   332).     Specific   performance   of   option    contract. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  812,  constru- 
ing oil  lease  with  reference  to  forfeiture  clauses;  Ormsby  v.  Graham, 
123  Iowa,  209,  98  N.  W.  727,  where  purchaser  knew  at  time  of  con- 
tract that  vendors  had  no  title  and  coupled  with  tender  of  price 
a  demand  for  good  marketable  title,  he  cannot  compel  specific  per- 
formance by  delivery  of  such  title;  Harlow  v.  Oregonian  Pub.  Co., 
45  Or.  530,  78  Pac.  740,  refusing  specific  performance  of  newspaper 
carrier    route    at    instance   of    carrier. 

Distinguished  in  Kentucky  Distilleries  etc.  Co.  v.  Blanton,  149  Fed. 
42,  enforcing  contract  by  assignee  for  creditors  of  insolvent  cor- 
poration for  sale  of  its  realty,  though  he  agreed  to  get  directors 
to   resign  'so   that   purchaser   could   elect   his   own   board. 

Syl.  10  (VII,  333).  Specific  performance — Contract  imposing  con- 
tinuous duties. 

Approved  in  General  Elec.  Co.  v.  Westinghouse  Elec.  &  Mfg.  Co., 
144  Fed.  462,  refusing  specific  performance  of  fifteen  year  contract, 
whereby  complainant  was  to  make  and  sell  to  defendant  certain 
goods  which  defendant  was  to  sell  to  exclusion  of  all  others;  Taussig 
v.  Corbin,  142  Fed.  666,  denying  specific  performance  of  contract 
giving  exclusive  right  to  sell  patented  goods  in  certain  territory, 
sale  of  which  he  agreed  to  push;  Western  Union  Tel.  Co.  v.  Penn- 
sylvania Co.,  129  Fed.  869,  870,  64  C.  C.  A,  285,  68  L.  R.  A,  968, 
decreeing  specific  performance  of  contract  between  railroad  and  tele- 
graph line  for  construction  and  operation  of  telegraph  line  along 
right  of  way;   Marks  v.   Gates,  2  Alaska,  527,  530,  refusing  specific 


10  Wall.  367-395  Notes  on  U.  S.  Keports.  500 

performance    of    contract    to    convey    all    properties    which    promisor 
may  acquire  in  Alaska. 

30   Wall.  367-383,  19  L.  948,  EAILROAD   CO  v.  TRIMBLE. 

Syl.    4    (VII,    335).     Parol    inadmissible    where    writing    clear. 

Approved  in  Delaware  Securities  Co.  v.  Metropolitan  Trust  Co., 
146  Fed.  607,  construing  trust  agreement  pledging  stocks  as  secur- 
ity for  bondholders,  reserving  grantor's  right  to  vote  stock,  with 
reference   to   right   to   require   proxy  from  grantee. 

10  Wall.  383-395,  19  L.  987,  BARNARD  v.  KELLOGG. 

Syl.  2   (VII,  337).     Usage  to  explain  clear  contract. 

Approved  in  Moore  v.  United  States,  196  U.  S.  166,  49  L.  433,  25 
Sup.  Ct.  202,  custom  at  San  Francisco  requiring  consignee  to  des- 
ignate berth  for  discharge  of  cargo  does  not  control  contract  for  de- 
livery of  coal  "on  wharf  as  customary"  at  Honolulu;  Harding  v. 
Cargo  etc.  of  Coal,  147  Fed.  975,  provision  in  charter-party  for  carry- 
ing coal  that  "vessel  to  have  turn  in  loading"  does  not  make  cus- 
tom of  port  to  prefer  steamers  part  of  contract  where  it  was  not 
known  to  parties;  Kentucky  Vermillion  etc.  Co.  v.  Norwick  etc.  Ins. 
Co.,  146  Fed.  699,  refusing  parol  evidence  of  meaning  of  term  "watch- 
man's clause"  in  insurance  policy;  The  Mary  N.  Bourke,  135  Fed. 
897,  where  it  was  custom  of  shipyard  to  add  arbitrary  per  cent  to 
net  measurement  of  timber  used  in  repairing  vessels,  for  wastage, 
contract  for  repairs  to  vessel  presumed  made  with  reference  to  cus- 
tom, in  absence  of  contrary  evidence;  Lillard  v.  Kentucky  Dist.  etc. 
Co.,  134  Fed.  173,  175,  182,  67  C.  C.  A.  74,  custom  of  contractors 
for  sale  of  feeding  slop  to  deliver  at  feeding  lot  supplied  with  cattle- 
pens  and  troughs;  Clark  v.  Allaman,  71  Kan.  232,  80  Pac.  580,  hold- 
ing custom  does  not  prevail  over  statute  with  reference  to  acqui- 
sition of  water  rights  for  irrigation;  Pennsylvania  etc.  R.  R.  Co.  v. 
Naive,  112  Tenn.  257,  79  S.  W.  128,  64  L.  R.  A.  443,  where  it  is 
general  custom  at  place  of  consignment  not  to  give  notice  of  ar- 
rival of  or  deliver  freight  on  Fourth  of  July,  it  is  not  negligence  for 
carrier  to  fail  to  give  notice  or  make  delivery  on  that  day:  McSherry 
V.  Blanehfield,  68  Kan.  312,  75  Pac.  122,  refusing  evidence  of  custom 
©f  elevator-men  as  to  disputed  items. 

Syl.  3    (VII,  337).     Custom  to  defeat  plain  intent — Caveat  emptor. 

Approved  ia  Kell  v.  Trenchard,  142  Fed.  21,  caveat  emptor  does 
not  apply  in  case  of  actual  fraud;  Troy  Grocery  Co.  v.  Potter,  139 
Ala.  368,  369,  36  So.  15,  in  an  action  for  fish  sold,  plea  setting  up 
improper  packing  so  that  they  spoiled  held  not  to  support  conclusion 
of  warranty.     See  102  Am,  St.  Rep.   611,  note. 


501  Notes  on  U.  S.  Reports.  10  Wall.  395-415 

10  Wall.  395-109,  19  L.  937,  UNITED  STATES  v.  HODSON. 

Syl.  1   (VII,  339).     Eecovery  on  bond  not  conformable  to   statute. 

Approved  in  State  v.  Paxton,  65  Neb.  123,  90  N.  W.  988,  where 
official  bond  is  filed  and  afterward  new  sureties  added,  new  con- 
sideration required  for  new  sureties;  Jones  v.  Seaboard  etc.  Ry.  Co., 
67  S.  C.  194,  45  S.  E.  192,  where  railroad  obstructed  flow  of  freshet 
waters  in  navigjable  stream  by  negligent  construction  of  bridge, 
owner  of  land  bordering  on  stream  injured  by  obstruction  may  re- 
cover therefor. 

Syl.    2    (VII,    340).     Disregard    of   illegal    conditions    in   bond. 

Approved  in  Probate  Court  of  Central  Falls  v.  Adams,  27  R.  T. 
99,  60  Atl.  770,  bond  of  executor,  who  is  also  residuary  legatee,  prop- 
erly conditioned,  as  required  by  statute,  to  pay  debts  and  legacies, 
not  invalidated  because  it  requires  executor  to  account. 

Syl.  4  (VII,  340).     Voluntary  bond — Estoppel  to  show  constraint. 

Approved  in  Utermehle  v.  Norment,  197  U.  S.  56,  49  L.  602.  25 
Sup.  Ct.  291,  ignorance  of  rule  that  one  taking  benefits  under  will 
cannot  assert  its  invalidity  does  not  prevent  application  of  rule; 
United  States  Fidelity  etc.  Co.  v.  United  States,  150  Fed.  553,  that 
Indian  agent's  bond  contained  provisions  not  required  by  statute 
does  not  affect  its  validity  where  its  conditions  were  not  in  violation 
of  law,  and  it  was  entered  into  voluntarily;  Smith  v.  United  States, 
5  Ariz.  64,  45  Pac.  344,  bond  of  receiver  of  public  moneys  increased 
by  direction  of  president  above  statutory  amount  is  not  void;  Terri- 
tory v.  Cooper,  11  Okl.  707,  69  Pac.  816,  applying  rule  where  one 
secured  release  on  bail  and  in  action  on  bail  bond  alleged  inapplica- 
bility of  statute  permitting  bail. 

Syl.  6  (VII,  341).     Laws  to  enforce  collection  of  revenue  not  penal. 

Approved  in  State  v.  Western  Union  Tel.  Co.,  96  Minn.  19,  104 
N.  W.  570,  construiug  statutes  for  taxation  of  tangible  and  intan- 
gible propert}-  of  telegraph  companies  as  a  system. 

10  Wall.  410-415,  19  L.  972,  DUCAT  v.  CHICAGO. 

Syl.  1   (VII,  341).     Corporations  not  citizens — Equal  protection. 

Approved  in  In  re  Estate  of  Speed,  216  III.  29,  108  Am.  St.  Rep. 
189,  74  N.  E.  811,  holding  act  of  May  10,  1901,  exempting  religious 
bequests  from  transfer  taxes,  does  not  apply  to  legatee,  which  was 
foreign  corporation;  Prewitt  v.  Security  etc.  Ins.  Co.,  119  Ky.  327, 
83  S.  W.  612,  upholding  Ky.  St.  1903,  §  631,  providing  for  revocation 
of  license  of  foreign  insurance  company  removing  suit  to  federal 
court;  Humphreys  v.  State,  70  Ohio  St.  86,  101  Am.  St.  Rep.  888, 
70  N.  E.  962,  65  L.  R.  A.  776,  charitable  societies  organized  under 
laws  of  other  states  are  subject  to  collateral  inheritance  tax  under 
Eev.  St.,  §  2331;    dissenting  opiuion  in  Security  etc.  Ins.  Co.  v.  Prcw- 


10  Wall.  416-436  Notes  on  U.  S.  Eeports.  502 

itt,  202  IT.  S.  261,  50  L.  1020,  26  Sup.  Ct.  619,  majority  upholding 
Kentucky  statute  providing  for  revocation  of  license  of  foreign  in- 
surance company  removing  suit  to  federal  court;  Metropolitan  Life 
Ins.  Co.  v.  Board  of  Assessors,  115  La.  706,  39  So.  849,  arguendo. 

Syl.  3  (VII,  343).     Commerce — License  tax  on  foreign  corporations. 

Approved  in  Pisher  v.  Traders'  Mut.  Life  Ins.  Co.,  136  N.  C.  223. 
48  S.  E.  669,  upholding  Pub.  Laws  1901,  p.  66,  relating  to  service  of 
process  on  agent  of  foreign  corporations;  Standard  Oil  Co.  v.  Com-, 
monwealtb  etc.,  104  Va.  685,  52  S.  E.  390,  construing  Va.  Code  1904, 
p.  2214,  imposing  license  fee  on  foreign  transportation  companies. 

10  Wall.  416-418,  19  L.  953,  MASTEESON  v.  HEENDON. 
Syl.  1   (VII,  344).     Appeal  by  one  defendant  alone. 

Approved  in  Port  v.  Schloss  Bros.  &  Co.,  149  Fed.  732,  where  two 
partners  are  jointly  sued  on  firm  debt,  and  judgment  entered  against 
both,  Sne  alone  cannot  maintain  writ  of  error  without  severance. 

10  Wall.  419,  420,  19  L.  963,  THE  MABEY. 

Syl.  1   (VII,  345).     Admiralty — Additional  testimony  on  appeal. 

Approved  in  The  San  Eafael,  141  Ped.  280,  where  exceptions  to 
libel  against  vessel  and  its  owner  were  sustained  for  misjoinder, 
libel  may  be  amended  so  as  to  declare  against  vessel  alone. 

10   Wall.   421-423,   19  L.   973,  CAMPBELL  v.  WILCOX. 

Syl.  1   (VII,  346).     Failure  to  stamp  note — Fraudulent  intent. 

Approved  in  Baunihoff  v.  Oklahoma  City  etc.  Co.,  14  Okl.  138,  77 
Pac.  42,  complainant  in  action  on  contract  need  not  allege  instrument 
was  stamped  as  required  by  Comp.  St.  1901,  p.  2300. 

10  Wall.  423-427,  19  L.  954,  UNITED  STATES  v.  VIGIL. 

Syl.  2   (VII,  347).  Nunc  pro  tunc  entry  of  appeal. 

Distinguished  in  Gagnon  v.  United  States,  193  U.  S.  456,  48  L. 
747,  24  Sup.  Ct.  510,  judgment  of  naturalization  which  has  never 
been  recorded  cannot  be  entered  nunc  pro  tunc  thirty-three  years 
after  its  rendition,  where  no  entry  appeared  on  records  at  time  orig- 
inal judgment  is  supposed  to  have  been  rendered. 

10  Wall.  427-436,  19  L.  947,  TAPPAN  v.  BEAEDSLEY. 
'     Syl.  1   (VII,  347).     Depositions  in  another  action. 

Approved  in  In  re  Alphin  etc.  Cotton  Co.,  131  Fed.  827,  testimony 
of  one  not  member  of  bankrupt  corporation,  taken  generally  under 
Bankr.  Act,  c.  541,  §  21a,  and  not  directed  to  any  defined  issue,  is 
not  admissible  in  subsequent  proceedings  against  corporation's  offi- 
cers to  compel  surrender  of  property  of  estate. 


503  Notes  on  U.  S.  Reports,  10  Wall.  454-507 

]0  Wall.  454-4G3,  19  L.  9G9,  THE  CLINTON  BRIDGE. 

Syl.  1  (VII,  347).  Bridge  over  navigable  stream  as  post  road. 
Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  386,  up- 
holding Comp.  St.  1901,  p.  3345,  requiring  alteration  of  bridges  on 
determination  by  Secretary  of  War  that  they  do  or  will  obstruct 
navigable  waters;  State  v.  Van  Huse,  120  Wis.  21,  97  N.  W.  505, 
Laws  1903,  p.  234,  c.  160,  legalizing  attempted  organization  of  school 
district  is  not  void  as  retroacting  on  pending  controversy. 

(VII,  347.)  Miscellaneous.  Cited  in  United  States  v.  Cincinnati 
etc.  R.  Co.,  134  Fed.  357,  67  C.  C.  A.  335,  construing  word  "bridge" 
in  25  Stat.  74. 

10  Wall.  483-497,  19  L.  992,  IN  RE  PASCHAL. 

Syl.  1  (VII,  350).     Attorney's  lien  on  client's  papers. 

Approved  in  Nodine  v.  Hannum,  1  Alaska,  303,  following  rule; 
State  v.  District  Court,  30  Mont.  110,  75  Pac.  962,  contempt  pro- 
ceedings for  violation  of  injunction  restraining  trespasses  on  mining 
property  cannot  be  resorted  to  for  purpose  of  determining  title  to 
veins. 

10  Wall.  497-507  19  L.  984,  YATES  v.  MILWAUKEE. 

Syl.  1   (VII,  352).     Riparian  owner's  right  of  access  to  wharf. 

Approved  in  United  States  v.  Roth,  2  Alaska,  262,  263,  where  land 
abuts  on  waters  of  navigable  stream,  homesteader  has  exclusive 
right  to  use  and  occupation  of  shore  between  high  and  low  water, 
as  against  trespasser;  Sutter  v.  Heckman,  1  Alaska,  88,  owner  of 
upland  has  no  proprietorship  in  tide  lands  immediately  in  front  of 
his  property;  Richards  v.  New  York  etc.  R.  Co.,  77  Conn.  505,  60 
Atl.  297,  69  L.  R.  A.  929,  determining  amount  of  damages  for  im- 
pairment of  right  of  access  of  riparian  owner  by  construction  of 
railroad;  Thousand  Island  Steamboat  Co.  v.  Visger,  179  N.  Y.  210,  71 
N.  E.  764,  grant  of  lands  under  navigable  waters  upon  which  riparian 
owner  had  erected  docks  for  purpose  of  promoting  commerce  gave 
no  exclusive  right  to  use  of  dock;  Matheny  v.  Aiken,  68  S.  C.  177, 
47  S.  E.  61,  private  persons  whose  property  outside  city  is  damaged 
by  sewage  emptying  into  stream  cannot  abate  nuisance,  but  are 
limited  to  statutory  remedy  for  compensation;  Taylor  v.  Common- 
wealth, 102  Va.  771,  102  Am.  St,  Rep.  865,  47  S.  E.  880,  title  to 
bed  of  navigable  river  between  low-water  mark  and  line  of  naviga- 
bility is  in  state,  who  may  lease  same. 

Syl.  2  (VII,  354).     Riparian  rights  are  vested. 

Approved  in  Sutter  v.  Heckman,  1  Alaska,  192,  owner  of  uplands 
bordering  on  sea  cannot  be  deprived  of  littoral  rights  in  fronting 
tide  flats  without  compensation;  San  Francisco  Savings  Union  v. 
R.  G.   li.  Petroleum   etc.  Co.,   144   CaL   137,   103   Am.   St.   Rep.   72,   77 


10  Wall.  519-537  Notes  on  U.  S.  Eeports.  504 

Pac.  824,  66  L.  E.  A.  242,  erection  of  obstructions  below  high-water 
mark  in  front  of  land  of  littoral  proprietor  whose  lands  abut  on 
ocean  may  be  abated  by  proprietor  whose  access  to  ocean  is  pre- 
vented thereby;  Crawford  Co  v.  Hathaway,  67  Neb.  335,  108  Am. 
St.  Eep.  654,  93  N.  W.  784,  riparian  owner  whose  property  rights 
are  impaired  by  appropriation  of  water  is  entitled  to  compensation; 
Lathrop  v.  Eacine,  119  Wis.  473,  97  N.  W.  196,  holding  void  Eacine 
charter  provisions  for  erection  of  docks  at  cost  of  waterfront  owners 
as  not  providing  for  special  benefits  accruing  to  land  owners. 

Syl.  5   (VII,  356).     Eiparian  rights  not  destroyed  by  statutes. 

Approved  in  Hume  v.  Laurel  Hill  Cemetery,  142  Fed.  565,  refusing 
to  enjoin  burials  in  cemetery  which  is  not  nuisance,  though  ordinance 
prohibits  burials  in  county;  Small  v.  Harrington,  10  Idaho,  521, 
79  Pac.  468,  refusing  to  enjoin  construction  of  log  boom  in  navigable 
stream;  Frostburg  v.  Winelaud,  98  Md.  244,  103  Am.  St.  Eep.  399, 
56  Atl.  812,  64  L.  E.  A.  627,  holding  shade  trees  in  street  not  per  se 
a  nuisance;  Bryan  v.  Chester,  212  Pa.  St.  262,  108  Am.  St.  Eep.  870, 
61  Atl.  895,  holding  void  ordinance  prohibiting  erection  of  billboards 
on  private  property;  Newport  News  S.  Co.  v.  Jones,  105  Va.  510, 
54  S.  E.  316,  rights  of  dock  company  previously  acquired  under  char- 
ter to  dredge  river  for  shipyard,  covering  part  area  assigned  for 
oysterbed,  are  prior  to  those  of  assignee. 

Distinguished  in  Helena  v.  Kent,  32  Mont.  289,  80  Pac.  260,  up- 
holding city  ordinance  making  it  duty  of  occupant  of  premises  to 
keep  sidewalk  free  from  ice  and  snow. 

Syl.  7  (VII,  358).  Eestraining  taking  property  without  compensa- 
tion. 

Approved  in  Wheeling  etc.  E.  E.  Co.  v.  Town  of  Triadelphia,  58 
W.  Va.  509,  52  S.  E.  508,  enjoining  forfeiture  of  street  railway 
franchise  for  alleged  failure  to  perform  conditions.  See  107  Am.  St. 
Eep.  221,  note. 

(VII,  352.)  Miscellaneous.  Cited  in  Matheny  v.  Aiken,  68  S.  C. 
177,  47  S.  E.  61,  city  is  corporate  entity  capable  of  being  sued. 

10  Wall.  519-537,  19  L.  1002,  BEOBST  v.  BEOCK. 

Syl.  6  (VII,  362).     Mortgage  sale  passes  mortgagee's  title. 

Approved  in  Chesapeake  Beach  Ey.  Co.  v.  Washington  etc.  E.  R. 
Co.,  199  U.  S.  251,  50  L.  178,  26  Sup.  Ct.  25,  deed  from  trustee  in 
mortgage  conveys  whatever  title  he  had,  though  it  recites  foreclos- 
ure decree;  Equitable  Mortgage  Co.  v.  Gray,  68  Kan.  102,  74  Pac. 
615,  mortgage  foreclosure  purchaser  is  subrogated  to  mortgagee's 
rights. 


505  Notes  on  U.  S.  Keports.  10  Wall.  537-566 

10  Wall.  537-540,  19  L.  1007,  BETHELL  v.  DEMAEET. 

Syl.  1   (VII,  363).     Review  of  state  decisions — Federal  question. 

Approved  in  Chicagro  etc.  R.  E.  Co.  v.  Newell,  198  U.  S.  579,  49  L. 
1171,  25  Sup.  Ct.  801,  following  rule;  French  v.  Taylor,  199  U.  S. 
277,  50  L.  192,  26  Sup.  Ct.  76,  state  decision  that  formalities  required 
by  tax  laws  were  fully  observed  does  not  present  federal  question. 
See  97  Am.  St.  Rep.  720,  note. 

10  Wall.  541-543,  19  L.  981,  EX  PARTE  GRAHAM. 
Syl.  2   (VII,  364).     Review  of  confiscation  proceedings. 
See  111  Am.  St.  Rep.  934,  note. 

10   Wall.   553-556,   19   L.   998,   PENNSYLVANIA   v.   QUICKSILVER 
MIN.  CO. 

Syl.  1   (VII,  365).     Averment  of  citizenship  of  corporation. 

Approved  in  Knight  v.  Lutcher  etc.  Lumber  Co.,  136  Fed.  406, 
69  C.  C.  A.  248,  for  purposes  of  federal  jurisdiction  it  must  be  al- 
leged that  corporation  is  created  by  laws  of  other  state, 

Syl.  2   (VII,  365).     Supreme  court— Suit  by  state. 

Approved  in  Oregon  v.  Hitchcock,  202  U.  S.  68,  50  L.  938,  26  Sup. 
Ct.  568,  state  cannot  sue  Secretary  of  Interior  in  supreme  court  to 
restrain  allotment  and  patenting  in  severalty  swamp  lands  in  In- 
dian reservation. 

10  Wall.  557-506,  19  L.  999,  THE  DANIEL  BALL. 

Syl.  2   (VII,  365).     Test  of  navigable  waters. 

Approved  in  Minnesota  Canal  etc.  Co.  v.  Koochiching  Co.,  97  Minn. 
443,  107  N.  W.  410,  following  rule;  United  States  v.  Wishkah  Boom 
Co.,  136  I'ed.  45,  48,  68  C.  C.  A.  592,  river  navigable  for  some  distance 
by  small  boats  is  navigable,  though  used  chiefly  for  floating  logs; 
State  V.  Twiford,  136  N.  C.  606,  48  S.  E.  587,  applying  rule  in  up- 
holding instructions   in  prosecution  for  obstructing  navigable  stream. 

Syl.  6   (VII,  369).     When  interstate  commerce  commences. 

Approved  in  United  States  v.  Geddes,  131  Fed.  453,  65  C.  C.  A. 
320,  holding  local  railroad  refusing  interstate  traffic  except  under 
local  bill  of  lading,  by  which  road  assumed  payment  of  other  roads' 
charges,  not  engaged  in  interstate  commerce. 

Syl.  7  (VII,  369).  Interstate  commerce — Employment  of  independ- 
ent agencies. 

Approved  in  United  States  v.  Geddes,  131  Fed.  454,  65  C.  C.  A. 
320,  holding  local  railroad  refusing  interstate  traffic  except  under 
bill  of  lading,  by  which  road  assumed  payment  of  other  roads' 
charges,  not  engaged  in  interstate  commerce. 


10  Wall.  566-676  Notes  on  U.  S.  Eeports.  506 

10  Wall.  566-577,  19  L.  1029,  LIVERPOOL  INS.  CO.  v.  MASSACHU- 
SETTS. 

Syl.  2   (VII,  371).     Equal  protection — Corporation  not  citizen. 

Approved  in  Miller  v.  Ahrens,  150  Fed.  656,  under  West  Virginia 
laws  relating  to  foreign  religious  societies,  trust  created  by  will  for 
benefit  of  foreign  religious  corporation,  involving  grant  of  land  in 
West  Virginia,  is  void;  Kirven  v.  Virginia-Carolina  Chemical  Co., 
145  Fed.  292,  failure  of  foreign  corporation  to  comply  with  state 
statute  imposing  conditions  on  right  to  do  business  in  state  does  not 
make  contracts  void. 

Syl.  3   (VII,  372).     Foreign  corporation  as  corporation  here. 

Approved  in  dissenting  opinion  in  Warren  v.  Pim,  66  N.  J.  Eq. 
418,  59  Atl.  797,  majority  holding  void,  voting  trust  in  stock  of  local 
corporation  claimed  by  foreign  corporation;  Metropolitan  Life  Ins. 
Co.  V.  Board  of  Assessors,  115  La.  706,  39  So.  849,  arguendo. 

10  Wall.   583-589,   19  L.   1036,  STOVALL  v.  BANKS. 

Syl.  3   (VII,  374).     Conclusiveness  of  decree  against  administrator. 

Approved  in  Conway  v.  Carter,  11  N.  M.  433,  68  Pac.  944,  and 
Greer  v.  McNeal,  11  Okl.  529,  69  Pac.  894,  both  following  rule; 
United  Brethren  v.  Akin,  45  Or.  250,  77  Pac.  748,  66  L.  R.  A.  654, 
sureties  on  executor's  bond  who  executed  same  without  knowledge 
of  his  indebtedness  to  testator  are  liable  under  decree  of  distribution 
for  such  debt  which  was  charged  against  him  in  account  as  money 
in   liis  hands. 

10  Wall.  589-593,  19  L.  1038.  STAGG  v.  CONN.  MUT.  INS.  CO. 

Syl.  3  (VII,  375).     Insurance  agents — Right  to  renewal  premiums. 

Approved  in  Chase  v.  N.  Y.  Life  Ins.  Co.,  188  Mass.  273,  74  N.  E. 
326,  where  insurance  agency  contract  providing  for  payment  of  com- 
missions or  renewals  for  five  years,  if  agency  continued  so  long,  agent 
fired  before  five  years  not  entitled  to  such  commissions. 

10    Wall.    604-676,    19    L.    1008,    MERCHANTS'    BANK    v.    STATE 
BANK. 

Syl.   1    (VII,  376).     When  directed  verdict  proper. 

Approved  in  Parks  v.  Southern  Ry.  Co.,  143  Fed.  278,  and  Huntt 
V.  MeNamee,  141  Fed.  294,  both  upholding  refusal  of  voluntary  non- 
suit after  plaintiff  had  concluded  his  evidence  and  defendant's  mo- 
tion for  direction  of  verdict  had  been  sustained. 

Syl.  4  (VII,  377).     Estoppel  of  corporation  to  deny  contract. 

Approved  in  Sturdevant  Bros.  &  Co.  v.  Farmers'  etc.  Bank,  69 
Neb.  240,  95  N.  W.  826,  holding  cashier  cannot  obligate  bank  by 
signing  replevin  bond  in  action  between  third  parties. 


507  Notes  on  U.  S.  Eeports.  10  Wall.  G76-684 

Syl.  5   (VII,  379).     Liability  of  corporation  for  acts  of  agents. 

Approved  in  Hier  v.  Miller,  68  Kan.  268,  75  Pac.  80,  63  L.  E.  A. 
952,  where  bank  cashier  attempts  to  pay  individual  debts  by  enter- 
ing same  upon  passbook  of  creditor,  who  is  depositor,  so  that  they 
are  checked  out,  bank  may  recover  amount  from  creditor. 

Syl.  6   (VII,  380).     Corporation's  liability  for  agents'  torts. 

Approved  in  Stewart  v.  Wright,  147  Fed.  328,  applying  rule  where 
bank  officials  participated  in  conspiracy  to  swindle  by  means  of  fake 
footrace. 

Syl.  7  (VII,  380).     Liability  created  by  certified  check. 

Approved  in  Union  Trust  Co.  v.  Preston  Nat.  Bank,  136  Mich. 
462,  99  N.  W.  399,  holding  certified  check  valid  in  hands  of  bona 
fide  holder,  though  drawer  had  no  funds  in  bank  when  certified; 
Johnston  etc.  Co.  v.  National  Bank  of  Guthrie,  4  Okl.  26,  44  Pac. 
195,  applying  rule  where  president  of  national  bank  entered  into 
conspiracy  to  defraud  third  persons,  and  carried  out  fraudulent  de- 
sign, through  his  relations  with  bank;  State  v.  Miller,  47  Or.  566, 
85  Pac.  82,  applying  rule  in  prosecution  of  bank  cashier  for  drawing 
and  certifying  personal  check  when  he  had  no  deposits. 

Syl.  8  (VII,  381).     When  bank  check  due. 

Approved  in  Elliott  v.  Capital  City  State  Bank,  128  Iowa,  278, 
103  N.  W.  778,  certificate  of  deposit  is  not  due  and  payable  until 
actual  demand  is  made. 

Syl.  9  (VII,  381).     Bank  check  not  bill  of  exchange. 

Approved  in  United  States  v.  Green,  136  Fed.  645,  646,  650.  bank 
check  is  not  "obligation  for  payment  of  money"  within  Rev.  St., 
§  5451,  punishing  bribery. 

Syl.  11   (VII,  382).     Evidence  of  usage  to  explain  ambiguities. 

Approved  in  Harding  v.  Cargo  etc.  of  Coal,  147  Fed.  976,  provision 
of  charter  to  carry  coal  that  vessel  to  have  turn  in  loading  does  not 
make  part  of  contract  port  custom  of  giving  preference  to  steamers 
filling  bunkers. 

10  Wall.  676-684,  19  L.   1040,  MARSH  v.  FULTON  COUNTY. 

Syl.  3   (VII,  383).     Purchaser  of  bonds  must  examine  officers'  acts. 

Approved  in  Green  Co.  v.  Shortell,  116  Ky.  126,  75  S.  W.  254, 
holding  county  could  plead  noncompliance  with  statute  in  defense 
to  action  by  bona  fide  holder  of  aid  bonds  containing  no  recital  as 
to   authority   of  officers  to   issue   same. 

Syl.  5  (VII,  386).     Compelling  municipality  to  restore  loan. 

Approved  in  Luther  v.  Wheeler.  73  S.  C.  95,  52  S.  E.  878,  upholding 
right  to  recover  of  town  money  received  on  note  for  erecting  public 
building,  though  note  was  invalid. 


11  Wall.  1-65  Notes  on  U.  S.  Ecports.  508 

Syl.  6  (VII,  387).     Eatification  of  illegal  county  bonds. 

Approved  in  Wormstead  v.  Lynn,  184  Mass.  428,  68  N.  E.  843, 
where  one  entered  into  contract  with  official  undertaking  to  act  for 
city,  city  not  estopped  to  deny  official's  authority  by  proof  that 
same  officer  had  made  similar  contracts  which  had  been  ratified. 

Syl.  7  (VH,  387).  Agency — Eatification  is  equivalent  to  prior  au- 
thority. 

■    Approved  in  Marion  Water  Co.  v.  City  of  Marion,  121  Iowa,  322, 
96  N.  W.  888,  holding  city  liable  on  hydrant  rental  contract. 


XI  WALLACE. 


11  Wall.  1-36,  20  L.  90,  NEW  ENGLAND  ETC.  INS.  CO.   v.  DUN- 
HAM. 
Syl.  4  (VII,  388).     Scope  of  admiralty  jurisdiction. 

Approved  in  Erie  etc.  Transp.  Co.  v.  Erie  E.  Co.,  142  Fed.  12, 
upholding  admiralty  jurisdiction  over  suit  to  enforce  contribution 
in  favor  of  one  of  two  colliding  vessels  against  other  for  damages 
to   cargo  owner,  paid  by  libelant. 

Syl.  6   (VII,  389).     Admiralty — What  are  maritime  contracts. 

Approved  in  North  German  F.  Ins.  Co.  v.  Adams,  142  Fed.  440, 
following  rule;  Bowers  Hyd.  D.  Co.  v.  Federal  Cont.  Co.,  148  Fed. 
293,  upholding  admiralty  jurisdiction  over  suit  for  hire  of  dredge 
generally  used  for  maritime  purposes,  though  temporarily  used  for 
land  transaction  in  dredging  stream;  The  Conveyor,  147  Fed.  590, 
where  proceeds  of  insurance  money  paid  to  custodian  to  pay  for 
raising  boat,  repairs  and  supply  liens,  and  pay  remainder  to  mort- 
gagee, and  boat  raised  but  not  repaired,  and  sold  by  his  claimants, 
contract  was  maritime;  United  States  Shipping  Co.  v.  United  States, 
146  Fed.  919,  upholding  admiralty  jurisdiction  over  suit  against 
United  States  under  Comp.  St.  1901,  p.  752,  based  on  maritime  con- 
tract  of   affreightment. 

Syl.  7   (VII,  391).     Marine  insurance  is  maritime  contract. 

Distinguished  in  Graham  v.  Oregon  etc.  Nav.  Co.,  134  Fed.  464, 
denying  admiralty  jurisdiction  of  suit  for  breach  of  traffic  agree- 
ment between  railroad  and  steamship  company. 

11  Wall.  39-65,  20  L.  67,  VIEGINIA  v.  WEST  VIEGINIA. 

Syl.  1  (VII,  392).  Supreme  court's  original  jurisdiction  in  boun- 
daries. 

Cited  in  State  v.  Faudre,  54  W.  Va.  125,  133,  102  Am.  St.  Eep. 
927,  46  S.  E.  270,  274,  63  L.  E.  A.  877,  arguendo.     . 


609  Notes  on  U.  S.  Reports.  11  Wall.  88-112 

11  Wall.  88-95,  20  L.  153,  UNITED  STATES  v.  TYNEN. 

Syl.  2   (VII,  398).     Statutes — Repeals  by  implication. 

Approved  in  United  States  v.  Cardish,  145  Fed.  245,  construing  23 
Stat..  385,  and  Rev.  St.,  §  2143,  relating  to  arsop  on  reservation 
within  state;  Utter  v.  Franklin,  7  Ariz.  309,  64  Pac.  430,  Laws 
1899,  Act  No.  32,  repealing  territorial  acts  creating  funding  debt 
commission,  is  void;  Pratt  Institute  v.  City  of  New  York,  183  N. 
Y.  157,  75  N.  E".  1121,  Laws  189G,  p.  797,  c.  908,  §  4,  subd.  7,  ex- 
empting realty  of  educational  institutions  used  exclusively  for  cor- 
porate purposes  repeals  special  act  granting  tax  exemption  to  edu- 
cational corporations;  dissenting  opinion  in  Lang  v.  United  States, 
133  Fed.  207,  66  C.  C.  A.  255,  majority  holding  §  28  of  Immigration 
Act  of  1903  applies  to  prosecutions  thereafter  begun  under  old  law, 
based  on  acts  committed  prior  to  its  repeal. 

Syl.  3    (VII,  400).     Repeal  of  statute   ends  jurisdiction. 

Approved  in  United  States  v.  Sena,  12  N.  M.  414,  78  Pac.  62,  re- 
peal of  Laws  of  1901,  p.  190,  c.  99,  deprived  supreme  court  of  juris- 
diction over  criminal   appeals  not   taken  during  term. 

11  Wall.  96-108,  20  L.  155,  CITY  OF  NEW  ALBANY  v.  BURKE. 
Syl.  7   (VII,  403).     Limitations — Means  of  detecting  fraud. 

Approved  in  German  Sav.  Bank  v.  Des  Moines  Nat.  Bank,  122  lown, 
745,  98  N.  W.  609,  where  bank  cashier  gave  notes  in  individual  capacity 
and  as  treasurer  of  a  company  to  third  party  with  bank's  guaranty, 
and  bank  paid  them  before  maturity,  four  years'  delay  by  bank  in 
suing  to  recover  money  so  paid  because  it  was  represented  to  it  that 
notes  had  been  discounted  in  usual  course  was  laches. 

11  Wall.  108-112,  20  L.  65,  DOWS  v.  CITY  OF  CHICAGO. 

Syl.  1  (VII,  403).  Illegality  of  tax  not  ground  for  enjoining  col- 
lection. 

Approved  in  Illinois  Life  Ins.  Co.  v.  Newman,  141  Fed.  451,  452, 
refusing  to  enjoin  collection  of  illegal  state  tax;  dissenting  opinion  in 
San  Francisco  Nat.  Bank  v.  Dodge,  197  U.  S.  110,  111,  49  L.  686,  687, 
25  Sup.  Ct.  384,  majority  holding  taxation  of  national  bank  shares  at 
market  value  under  Cal.  Pol.  Code,  §§  3608-3610,  is  discriminatory  in 
view  of  exclusion  of  in^'.angible  elements  of  value  in  assessing  state 
banks. 

Syl.  5   (VII,  407).     Effect  of  dismissal  on  cross-bill. 

Approved  in  Gilmore  v.  Bort,  134  Fed.  662,  in  suit  for  cancellation 
of  bond  given  to  indemnify  corporation  and  its  treasurer,  cross-bill  by 
treasurer  setting  up  validity  of  bond  and  praying  for  roleaso  on  liis 
own  bond  if  it  is  valid  does  not  entitle  treasurer  to  object  to  disiuissaJ 
of  suit. 


11  Wall.  113-135  Notes  on  U.  S.  Eeports.  610 

11  WaU.  113-129,  20  L.  222,  THE  COLLECTOR  v.  DAY. 

Syl.  1  (VII,  407).     State  taxes  on  government  instrumentalities. 

Approved  in  Mosely  v.  State,  115  Tenn.  59,  86  S.  W.  716,  interest 
on  government  bonds  not  taxable  by  states  as  income;  dissenting  opin- 
ion in  South  Carolina  v.  United  States,  199  U.  S.  468,  50  L.  272,  26 
Sup.  Ct.  110,  majority  holding  government  may  exact  revenue  license 
from  dispensing  agent  of  state  vphich  has  taken  charge  of  liquor  busi- 
ness. 

Limited  in  South  Carolina  v.  United  States,  199  U.  S.  459,  50  L.  269, 
26  Sup.  Ct.  110,  government  may  exact  revenue  license  from  dispensing 
agent  of  state  which  has  taken  charge  of  liquor  business. 

Distinguished  in  Sackett  v.  McCaffrey,  131  Fed.  222,  65  C.  C.  A.  205, 
notary's  certificate  of  acknowledgment  of  homestead  declaration  is  sub- 
ject to  stamp  tax  under  War  Revenue  Act,  §  13. 

Syl.  2  (VII,  408).     Federal  tax  on  state  officer's  salary. 

Approved  in  dissenting  opinion  in  South  Carolina  v.  United  States, 
199  U.  S.  466,  50  L.  272,  26  Sup.  Ct.  110,  majority  holding  government 
may  exact  revenue  license  from  dispensing  agent  of  state  which  has 
taken  charge  of  liquor  business. 

Limited  in  South  Carolina  v.  United  States,  199  U.  S.  453,  50  L.  266, 
26  Sup.  Ct.  110,  government  may  exact  revenue  license  from  dispens- 
ing agents  of  state  which  has  taken  over  liquor  business. 

11  Wall.  129-135,  20  L.  160,  WESTERN  TRANSPORTATION  CO.  v. 
DOWNER. 

Syl.  3   (VII,  410).     Carriers — Avoidable  danger  presumes  negligence. 

Approved  in  Cau  v.  Texas  etc.  Ry.  Co.,  194  U.  S.  432,  48  L:  1057,  24 
Sup.  Ct.  663,  burden  of  showing  fire  causing  loss  was  due  to  negligence 
of  carrier  is  on  shipper  where  bill  of  lading  exempts  from  loss  by  fire ; 
The  Folmina,  143  Fed.  639,  under  bill  of  lading  exempting  from  loss 
by  sea  water  or  sweating,  evidence  that  vessel  was  seaworthy  and  cargo 
properly  stowed,  and  that  damage  caused  by  seawater,  shows  good 
defense. 

Syl.  4   (VII,  411).     Presumption  of  negligence  from  accident. 

Approved  in  Burr  v.  Knickerbocker  etc.  Towage  Co.,  132  Fed.  249, 
65  C.  C.  A.  554,  holding  presumption  of  negligent  towing  shown  where 
tow  grounded  on  calm  day;  Rebstock  v.  Gilchrist  Transp.  Co.,  132  Fed. 
180,  holding  collision  of  steamer  in  tow  of  two  tugs  with  moored  vessel 
due  to  fault  of  rear  tug  in  failing  to  properly  assist  steamer;  The  W. 
G.  Mason,  131  Fed.  637,  where  steamer  in  tow  of  two  tugs  stranded, 
though  she  obeyed  signals  of  leading  tug,  presumption  is  that  stranding 
due  to  fault  of  tugs;  Nashville  etc.  Ey.  Co.  v.  Stone.  112  Tenn.  371,  7£ 
6.  W.  1036,  applying  rule  where  part  of  shipment  of  hogs  dead  when 
delivered.     See  113  Am.  St.  Rep.  990,  992,  note. 


511  Notes  on  U.  S.  Keports.  11  Wall.  136-178 

11  Wall.  136-139,  20  L.  101,  AMY  v.  SUPERVISOES. 

Syl.  2  (VII,  413).     Federal  court  cannot  enjoin  state. 

Approve:]  in  Ingraliam  v.  National  Salt  Co.,  139  Fed.  690,  where, 
pending  attachment  proceedings  in  federal  court,  state  insolvency  pro- 
ceedings begun  and  receiver  took  attached  property  and  sold  it,  and 
then  plaintiff  recovered  in  federal  court  and  marshal  advertised  execu- 
tion sale  of  attached  property,  state  injunction  suit  against  sale  not  en- 
joined. 

Syl.  6  (VII,  414).     Honest  intentions  no  excuse  for  officer. 

Approved  in  State  v.  McClellan,  113  Tcnn.  622,  85  S.  W.  269,  register 
of  deeds  is  liable  on  bond  for  failure  to  correctly  register  conveyance. 

11  Wall.  139-164,  20  L.  102,  SMITH  v.  SAC  COUNTY. 

Syl.  2   (VII,  414).     Notes — Fraud  as  shifting  burden  of  proof. 

Approved  in  Toledo  etc.  R.  R.  Co.  v.  Star  etc.  Mills  Co.,  146  Fed. 
959,  determining  degree  of  proof  required  of  railroad  in  action  under 
Ohio  statute  making  fact  of  fire  caused  by  locomotive  sparks  prima 
facie  negligence;  Gamble  v.  Rural  Ind.  School  Dist.,  132  Fed.  521,  one 
receiving  school  bond  from  jirior  holder  for  legal  services  rendered  to 
full  value  of  bond  is  bona  fide  holder  where  bond  not  due  and  contained 
nothing  on  face  to  show  illegality;  Gibbs  v.  Farmers'  etc.  Rank,  123 
Iowa,  742,  99  N.  W.  706,  in  action  to  recover  overpayments  on  note 
where  indorsements  show  such  overpayments,  burden  is  on  plaintiff 
throughout  case;  Klunk  v.  Hocking  Valley  Ry.  Co.,  74  Ohio  St.  134, 
77  N.  E.  754,  applying  rule  in  action  by  fireman  for  personal  injuries 
received  in  consequence  of  defect  in  water  gauge  attached  to  his  loco- 
motive. 

11  Wall.  164-171,  20  L.  127,  THE  SAPPHIRE. 

Syl.  8  (VII,  417).     Collision  between  anchored  vessels. 

Approved  in  The  City  of  Birmingham,  138  Fed.  559,  holding  dredge 
anchored  at  night  near  center  of  narrow  channel  liable  for  collision 
with  passing  steamer. 

11    Wall.    172-178.    2    L.    179,    SUSQUEHANNA    ETC.    COAL    CO.    v. 
BLATCHFORD. 

Syl.  1   (VII,  418).     Jurisdiction — Diversity  of  citizenship. 

Approved  in  Sweeney  v.  Carter  Oil  Co.,  199  U.  S.  257,  50  L.  ISO,  26 
Sup.  Ct.  55,  two  citizens  of  different  states  may  sue  in  federal  court 
citizen  of  another  state;  Anderson  v.  Bassman,  140  Fed.  11,  denying 
federal  jurisdiction  over  suit  to  enjoin  diversion  of.  water  by  means 
of  irrigation  ditches,  where  one  of  defendants  is  citizen  of  same  state 
as  plaintiff. 

Syl.  2   (VII,  419).     Diversity  of  citizenship  of  trustees. 
Approved  in  In  re  E.  T.  Kcnney  ('o.,   13G  Fed.   455,  beneficial  inter- 
est of  assignors  in  net  proceeds  of  claims  assigned  to  comuxitLce  to  set- 


11  Wall.  193-243  Notes  on  U.  S.  Eeports.  512 

tie  affairs,  after  administering  trust,  are  not  provable  in  bankruptcy. 
Virginia  etc.  Power  Co.  v.  Fisher,  104  Va.  135,  136,  51  S.  E.  203,  bond- 
holder cannot  bring  suit  to  foreclose  mortgage  securing  railroad  bonds, 
unless  trustee  refuses  to  do  so. 

11  Wall.  193-199,  20  L.  110,  GENERES  v.  CAMPBELL. 

Syl.  2    (VII,  425).     Seal  not  necessary  to  bill  of  exceptions. 

Distinguished  in  Kipp  v.  Burton,  29  Mont.  102,  101  Am.  St.  Eep.  544, 
74  Pac.  87,  63  L.  R.  A.  325,  execution  issued  without  seal  may  be 
amended  nunc  pro  tunc. 

11  Wall.  199-203,  2  L.  134,  CASE  v.  TERRELL. 

Syl.  2  (VII,  425).     National  bank  receiver  represents  bank. 

Approved  in  Murphy  v.  Gumaer,  18  Colo.  App.  190,  70  Pac.  802, 
where  national  bank  had  made  loan  to  corporation  in  excess  of  legal 
amount,  and  its  principal  stockholder  induced  defendant  to  execute  note 
payable  to  bank  and  others  indorsed  to  it,  unavithorized  loans  being 
released  accordingly,  release  of  claim  on  loans  was  on  good  considera- 
tion. 

11  Wall.  217-238,  20  L.  50,  MAY  v.  LE  CLAIRE, 

Syl.  2   (VII,  429).     Quitclaim  deed — Bona  fide  purchaser. 

Approved  in  Lindblom  v.  Rocks,  146  Fed.  663,  applying  rule  in  eject- 
ment; Mosier  v.  Momsen,  13  Okl.  50,  74  Pac.  908,  arguendo. 

Distinguished  in  Martin  v.  Ragsdale,  71  S.  C.  77,  50  S.  E.  674,  fact 
that  land  conveyed  by  several  quitclaim  deeds,  where  last  two  grantors 
held  under  warranty  deeds,  does  not  affect  bona  fide  purchaser,  where 
inquiry  under  record  facts  would  not  have  discovered  facts  relied  on 
to  defeat  his  title. 

Syl.  7  (VII,  432).     Remedy  of  cestui  on  abuse  of  trust. 

Approved  in  Southern  Pac.  R.  Co.  v.  United  States,  133  Fed.  657,  66 
0.  C.  A.  581,  upholding  equity  jurisdiction  over  suit  by  government  to 
ascertain  wiiat  portion  of  lands  erroneously  patented  to  railroad  have 
been  sold  to  bona  fide  purchasers  and  for  cancellation  of  lands  not  so 
'lisposed  of,  and  for  accounting. 

Syl.  8  (VII,  432).     Specific  performance — Adequacy  of  law  remedy. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Blair,  130  Fed.  976,  granting 
specific  performance  where  life  policy  provided  that  on  assured 's  death 
settlement  should  be  had  by  issuance  of  annuity  policy. 

11  Wall.  238-243,  20  L.  114,  THE  FANNIE. 

Syl.   1    (VII,  433).     Collision — Steamer   should   avoid   schooner. 

Approved  in  Brighara  v.  Luckenbach,  140  Fed.  333,  holding  tug  liable 
for  collision  with  steamer  caused  by  jamming  of  wheel  where  it  would 
not    have    happened   if   proper   lookout   kept;    The   W.   G.   Mason,    131 


513  Notes  on  U.  S.  Keports.  11  Wall.  244-331 

Fed.  635,  determining  liability  for  stranding  of  tow  in  charge  of  two 
tugs. 

Syl.  2   (VII,  433).     Want  of  lookout  immaterial,  when. 

Approved  in  The  Pocomoke,  150  Fed.  197,  holding  launch  not  liable 
for  daytime  collision  for  failure  to  have  lookout  other  than  navigator; 
The  Fannie  Hayden,  137  Fed.  283,  284,  schooner  at  fault  where  only 
two  men  on  deck  were  furling  sail,  though  privileged  vessel  had  no 
proper  lookout. 

11  Wall.  244-256,  20  L.  86,  LEVY  v.  STEWART. 

Syl.  1   (VII,  434).     Limitation  statutes  are  of  repose. 

Approved  in  Lynchburg  etc.  Mill  Co.  v.  Travelers'  Ins.  Co.,  140  Fed. 
724,  conduct  of  insurance  company  inducing  delay  in  bringing  suit 
beyond  time  limit  in  policy  for  stated  purpose  of  investigating  claim 
suspends  operation  of  time  limit. 

11  Wall.  259-268,  20  L.  80,  McVEIGH  v.  UNITED  STATES. 

Syl.  2  (VII,  435).     Alien    enemy  entitled  to  all  judicial  remedies. 

Approved  in  Keele  v.  Keele,  118  Mo.  App.  275,  94  S.  W.  780,  heir 
whose  application  to  be  heard  in  opposition  to  allowance  of  claim 
against  decedent's  estate  may,  under  Rev.  St.  1899,  §  214,  move  to 
vacate  order  allowing  claim;  Youst  v.  Willis,  5  Okl.  416,  49  Pac.  1014, 
upholding  act  of  1895,  providing  for  entry  of  judgment  on  appeal  bond 
on  motion  and  notice,  when  applied  to  appeal  bond  executed  prior  to 
passage  of  act;  dissenting  opinion  in  Daniels  v.  Homer,  139  X.  C.  268, 
51  S.  E.  1010,  3  L.  R.  A.  (N.  S.)  997,  majority  upholding  Acts  1905, 
c.  292,  regulating  fisheries  and  providing  for  seizure  of  illegal  fish  nets. 

Distinguished  in  Bennett  v.  Bennett,  16  Okl.  184,  83  Pac.  556,  up- 
holding default  divorce  decree  where  alimony  pendente  lite  not  paid  and 
defaulting  defendant  without  answering  asks  leave  to  defend  on  merits, 
which  leave  is  denied  unless  alimony  paid. 

Syl.  3  (VII,  437).     Alien  may  sue  and  be  sued. 

Distinguished  in  Bennett  v.  Bennett,  16  Okl.  180,  83  Pac.  555,  uphold- 
ing default  divorce  decree  where  defendant  not  answering  was  denied 
leave  to  defend  on  merits  unless  alimony  order  complied  with. 

11  Wall.  268-331,  20  L.  135,  MILLER  v.  UNITED  STATES. 
Syl.  10   (VII,  439).     Effect  of  default  in  admiralty. 

Approved  in  Dowdell  v.  United  States  District  Court,  139  Fed.  446, 
where  proceedings   for  limitation   of  liability  have  been  terminated   by 
final    decree,   court    cannot   reopen   proceedings    to   allow    nonappearing 
claimants  to  prove  claims. 
33 


11  Wall,  356-378  Notes  on  U.  S.  Eeports.  514 

11  Wall.  356-369,  20  L.  167,  THE  DISTILLED  SPIEITS. 

Syl.  4  (VII,  442).     Statutes  in  pari  materia  construed  together. 

Approved  in  Christie  Street  etc.  Co.  v.  United  States,  136  Fed.  333, 
69  C.  C.  A.  464,  action  against  government  on  claim  to  recover  internal 
taxes  illegally  exacted,  which  has  been  presented  but  not  approved  by 
commissioner,  is  barred  in  two  years. 

Syl.  6   (VII,  443).     Agent's  knowledge  is  principal's. 

Approved  in  Aetna  Indemnity  Co.  v.  Ladd,  135  Fed.  647,  68  C.  C.  A. 
274,  upholding  instructions  relative  to  presumption  of  authority  of  gen- 
eral agent  of  surety  company;  Modern  Woodmen  of  America  v.  Colman, 
68  Neb.  664,  94  N.  W.  816,  applying  rule  to  knowledge  of  agent  of 
mutual  benevolent  association. 

Syl.  7  (VII,  445).     Presumption  that  agent  has  told  principal. 

Approved  in  Dight  v.  Chapman,  44  Or.  278,  75  Pac.  589,  65  L.  R.  A. 
793,  knowledge  of  bankruptcy  proceedings  acquired  by  cashier  of  bank, 
which  is  bankrupt's  creditor,  is  imputed  to  creditors  of  insolvent  cor- 
poration, of  which  bankrupt  is  stockholder  and  of  which  cashier  is  re- 
ceiver. 

Syl.  8  (VII,  445).     Notice  to  agent  is  notice  to  principal. 

ApproTed  in  American  Bonding  Co.  v.  Spokane  etc.  Loan  Society, 
130  Fed.  741,  65  C.  C.  A.  121,  knowledge  of  president  of  loan  society 
that  secretary  was,  at  time  of  indemnity  policy,  indebted  to  com- 
pany is  not  breach  of  warranty  in  policy  that  secretary  was  not  so 
indebted;  In  re  Pease,  129  Fed.  455,  where  trust  company,  through  its 
attorney,  who  also  acted  for  certain  creditors  of  merchant,  who  was 
actually  insolvent,  loaned  merchant  money  on  borrower's  stock,  with 
which  certain  creditors  paid  in  full,  mortgage  was  void  as  preference 
under  Bankr.  Act,  §  67e;  Schollay  v.  Mofiit-West  Drug  Co.,  17  Colo. 
App.  134,  67  Pac,  184,  applying  rule  w-here  agent  of  seller  at  time 
of  sale  to  another  agent  was  advised  of  latter  agent's  lack  of  au- 
thority to  purchase. 

11  Wall.  369-378,  20  L.  172,  FIEST  NAT.  BANK  v.  LANIER. 

Syl.  6  (VII,  448),  National  bank  shareholder  selling  during  in- 
solvency. 

Approved  in  McDonald  v.  Dewey,  202  U.  S.  520,  535,  50  L.  1132. 
1139,  26  Sup.  Ct.  731,  stockholder  in  national  bank,  who,  with  knowl- 
edge of  its  insolvency,  transfers  shares  to  financially  irresponsible 
vendee,  cannot  escape  stockholder's  liability;  Third  Nat.  Bank  v. 
Buffalo  German  Ins.  Co.,  193  U.  S.  591,  48  L.  804,  24  Sup.  Ct.  524, 
national  bank  cannot  forbid  transfer  of  its  shares,  without  consent 
of  directors,  by  stockholder  while  he  is  indebted  to  bank. 

Distinguished  in  Bridge  v.  National  Bank  of  Troy,  185  N.  Y.  150, 
77   N.   E,    1006,   national   bank    acquires   no    equitable   lien   as   against 


515  Notes  on  U.  S.  Eeports.  11  Wall.  391-411 

indebted   stockholder   on   his   distributive   share   of   assets   on  liquida- 
tion of  bank's  affairs. 

Syl.  7  (VII,  448).  Stock  certificates  approximate  negotiable  in- 
struments. 

Approved  in  Easton  Nat.  Bank  v.  American  Brick  etc.  Co.,  69  N. 
J.  Eq.  335,  60  Atl.  58,  bona  fide  transferees  of  stock  certificates  re- 
citing that  they  are  fully  paid  up  are  not  liable  to  creditors  where 
they  were  ignorant  that  original  subscribers  had  not  paid  in  full. 

Syl.  10  (VII,  451).  National  banks — Stock  transfers  without  sur- 
render. 

Approved  in  First  Nat.  Bank  v.  Strfbling,  16  Okl.  56,  57,  86  Pac. 
517,  corporate  shares  cannot  be  reissued  without  surrender  of  original 
certificate;  dissenting  opinion  in  Monahan  v.  Monahan,  77  Vt.  151, 
59  Atl.  174,  70  L.  R.  A.  935,  majority  holding  complainant  seeking  tc 
impress  with  trust  securities  which  had  been  secretly  obtained  from 
him,  not  denied  relief  because  securities  put  in  defendant's  name  to 
evade  taxation. 

11  Wall.  391-395,  20  L.  190,  SECOND  NAT.  BANK  v.  HUNT. 

Syl.  1  (VII,  453).     Instructions  cannot  assume  what  not  proven. 

Approved  in  Semet-Solway  Co.  v.  Wilcox,  143  Fed.  840,  applying 
rule  in  action  for  breach  of  contract  of  employment. 

Syl.  2  (VII,  453).     Oral  agreement  by  debtors  to  sell  personalty. 

Approved  in  Feely  v.  Bryan,  55  W.  Va.  588,  47  S.  E.  308,  where 
one  loaned  money  to  another  on  agreement  that  certain  property  was 
to  be  mortgaged  to  secure  loan,  and  later  borrower  makes  mortgage, 
it  is  not  good,  preference  as  other  debts  existing  at  date  of  mortgage. 

Syl.  4  (VII,  453).     Chattel'mortgage  permitting  sale  of  goods. 

Distinguished  in  In  re  Burnham,  140  Fed.  929,  provision  of  mort- 
gage permitting  sale  of  mortgaged  goods  in  usual  course  of  business 
does  not  render  it  void  as  to  after-acquired  goods. 

11  Wall.  395-411,  20  L.   116,  MISSOURI  v.  KENTUCKY. 

Syl.  2   (VII,  454).     Bouudary  of  Kentucky  middle  of  Mississippi. 

Approved  in  Louisiana  v.  Mississippi,  202  U.  S.  54,  50  L.  932,  26 
Sup.  Ct.  408,  long  acquiescence  in  assertion  of  particular  boundary 
between  states  and  exercise  of  sovereignty  over  territory  within  it 
is  conclusive. 

Syl.  3   (VII,  455).     State  boundary  once  fixed — Changes  in  river. 

Approved  in  Missouri  v.  Nebraska,  196  U.  S.  35,  49  L.  375,  25  Sup. 
Ct.  155,  applying  rule  in  determining  boundary  between  Missouri 
and  Nebraska;  Moore  v.  McGuire,  142  Fed.  791,  792,  799,  determining 
boundary   between   Arkansas   and   Mississippi,   with   reference   to   sover- 


11  Wall.  411-432  Notes  on  U.  S.  Eeports.  516 

eignty  over  island  in  river;  Foppiano  v.  Speed,  113  Tenn.  173,  82 
S.  W.  223,  one  engaged  In  selling  liquor  on  steamer  making  regular 
trips  to  port  in  another  state  is  subject  to  tax  imposed  by  Acts 
1901,  p.  214,  while  boat  was  in  this  state. 

Syl.  4   (VII,  455).     Maps  and  books  as  evidence. 

Approved  in  Moore  v.  McGuire,  142  Fed.  793,  determining  bound- 
ary between  Arkansas  and  Mississippi,  with  reference  to  sovereignty 
over  island  in  river. 

11  Wall.  411-416,  20  L.  191,  THE  MONTELLO. 

Syl.  2   (VII,  455).     What  is  navigable  water  of  United  States. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  378,  Alle- 
gheny river  is  navigable  waterway  of  the  United  States;  State  v. 
Twiford,  136  N.  C.  606,  48  S.  E.  587,  upholding  instructions  defining 
navigable  stream,  in  prosecution  for  obstructing  same;  Birch  v. 
King,  71  N.  J.  L.  394,  59  Atl.  11,  plea  to  jurisdiction  averring  that 
cause  of  action  arose  upon  navigabile  waters,  is  insufficient;  Mani- 
gault  V.  Springs,  199  U.  S.  478,  50  L.  277,  26  Sup.  Ct.  127,  arguendo. 

11  Wall.  423-432,  20  L.  192,  ST.  LOUIS  v.  WIGGINS  FERRY  CO. 

Syl.  1  (VII,  457).  Bill  of  exceptions  unnecessary  where  speci.al 
findings. 

Approved  in  Webb  v.  National  Bank  of  Republic,  146  Fed.  719, 
following  rule. 

Syl.  3  (VII,  457).  Exercise  of  corporate  franchise  extraterri- 
torially. 

Cited  in  Kansas  City  etc.  Ry.  Co.  v.  Stevenson,  135  Fed.  554, 
arguendo. 

Syl.  4  (VII,  458).  Legislature  decides  mode  and  extent  of  taxa- 
tion. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  205, 
50  L.  154,  26  Sup.  Ct.  36,  holding  void  Kentucky  tax  on  Kentucky 
railroad's  rolling  stock  permanently  located  in  other  state;  Flowei- 
ree  etc.  Co.  v.  Lewis  &  Clark  Co.,  33  Mont.  38,  81  Pac.  400,  where 
corporation  owning  cattle  which  grazed  in  county  where  its  business 
manager  resided  drove  them  elsewhere  for  feeding  with  intention  to 
return  them,  cattle  not  taxable  in  latter  county;  Harrell  v.  Speed, 
113  Tenn.  228,  106  Am.  St.  Rep.  814,  81  S.  W.  841,  one  running  bar 
on  vessel  belonging  to  Arkansas  corporation  and  plying  between 
Arkansas  and  Tennessee  is  liable  to  Tennessee  license  tax  while 
running  bar  in  Tennessee. 

Distinguished  in  Prairie  Cattle  Co.  v.  Williamson,  5  Okl.  494,  49 
Pac.  939,  where  cattle  owned  in  another  state  grazed  in  this  state 
during  entire  year,  they  are  taxable  here  though  already  listed  in 
other  state. 


517  Notes  on  U.  S.  Eeports,  11  Wall.  438-507 

Syl.  7  (VII,  458).     What  is  home  port  of  vessel. 

Approved  in  Aver  etc.  Tie  Co.  v.  Kentucky,  202  U.  S.  421,  50  L. 
1087,  26  Sup.  Ct.  678,  rule  not  changed  by  Comp.  St.  1901,  p.  2831, 
§  21. 

11  Wall.  438-442,  20  L.  197,  INSUEANCE  CO.  v.  WEIDE. 

Syl.  2  (VII,  460).     What  evidence  should  go  to  jury. 

Approved  in  Texas  &  P.  Ey.  Co.  v.  Coutourie,  135  Fed.  469,  68  C. 
C.  A.  177,  where  destruction  of  cotton  by  fire  while  piled  on  dock  was 
alleged  to  have  been  caused  by  negligent  method  of  piling,  evidence 
of  habitual  intoxication  of  superintendent  is  admissible. 

Syl.  4  (VII,  461).     Presumption  defined. 

Approved  in  Wabash  E.  Co.  v.  De  Var,  141  Fed.  934,  applying  rule 
to  instructions  as  to  presumption  of  negligence  in  action  for  death 
caused  by  collision. 

11  Wall.  459-483,  20  L.  199,  GALVESTON  E.  E.  v.  COWDEEY. 

Syl.  10  (VII,  465).  Corporation  mortgage  of  after-acquired  prop- 
erty— Estoppel. 

Approved  in  Pere  Marquette  E.  E.  Co.  v.  Graham,  136  Mich.  449, 
99  N.  W.  410,  construing  railroad  mortgage  covering  present  and 
after-acquired  property,  as  covering  after-acquired  lot  adjacent  to 
main  line. 

Syl.   14   (VII,  467).     Mortgage  covers  rails  put  on  subsequently. 

Approved  in  Missouri  Pac.  Ey.  Co.  v.  Bradbury,  106  Mo.  App.  458, 
79  S.  W.  968,  where  railroad  granted  right  of  way  afterward  aban- 
dons road  without  removing  rails,  they  become  property  of  owner 
of  land. 

11  Wall.  484-488,  20  L.  207,  FOESYTH  v.  WOODS. 

Syl.  1  (VII,  471).     Partner's  joint  contract  not  firm  liability. 

Approved  in  In  re  Weisenberg,  131  Fed.  518,  joint  debts  of  part- 
ners comprising  bankrupt  firm  are  not  provable  against  firm  estate 
to  share  equally  with  firm  creditors. 

Syl.  2  (VII,  471).     Priority  of  firm  debts  on  firm's  bankruptcy. 

Approved  in  In  re  Weisenberg,  131  Fed.  519,  520,  joint  debts  of 
partners  composing  bankrupt  firm  are  not  provable  against  firm  es- 
tate to  share  equally  with  firm  creditors. 

11  Wall.  493-507,  20  L.  176,  STEWAET  v.  KAHN. 

Syl.  2   (VII,  473).     Omitted  parts  in  Eevised  Statutes. 

Approved  in  Succession  of  Dupre,  116  La.  1094,  41  So.  325,  apply- 
ing rule  in  construing  statutes  relating  to  adoption;  Dry  den  v.  Pitts- 


11  Wall.  508-560  Notes  on  U.  S.  Reports.  618 

burg  etc.  Ey.   Co.,  208   Pa.   St.   323,  57  Atl.   713,  construing  statutes 
and  holding  railroad  in  widening  lines  may  condemn  dwelling. 

Syl.  6  (VII,  474).     Effect  of  Rebellion  on  statute  of  limitations. 
See  111  Am.  St.  Rep.  455,  note. 

11  Wall.  508-515,  20  L.  211,  UNITED  STATES  v.  WILEY. 

Syl.  2  (VII,  476).     Statutes  of  limitation  are  of  repose. 

Approved  in  Lynchburg  etc.  Mill  Co.  v.  Travelers'  Ins.  Co.,  140 
Fed.  724,  conduct  of  insurance  company  inducing  delay  in  bringing 
suit  beyond  time  limit  in  policy,  for  stated  purpose  of  investigating 
claim,  suspends  operation  of  time  limit. 

Syl.  3   (VII,  476).     Suspension  of  statute  of  limitations. 

Approved  in  Alice  E.  Min.  Co.  v.  Blanden,  136  Fed.  255,  applying 
principle  to  suit  on  note  where  maker  died  after  maturity;  Cobb  v. 
Houston,  117  Mo.  App.  653,  94  S.  W.  301,  statute  of  limitations  is 
suspended  during  defendant 's  nonresidence. 

11  Wall.  516-560,  20  L.  33,  SEYMOUR  v.  OSBORNE. 

Syl.  15   (VII,  482).     Amendment  of  reissue  patent. 

Approved  in  United  States  AVhip  Co.  v.  Hassler,  134  Fed.  402, 
Turner  reissue  No.  12,058,  for  tension  for  racers  of  braiding  machine, 
void  as  not  being  for  same  device  as  original. 

Syl.  19  (VII,  484).  Patents — Construction  with  reference  to  spec- 
ifications. 

Approved  in  Comptograph  Co.  v.  Universal  etc.  Mach.  Co.,  142  Fed. 
543,  upholding  Felt  patent  No.  628,176,  for  improvement  in  comput- 
ing machine;  O.  H.  Jewell  Filter  Co.  v.  Jackson,  140  Fed.  345,  con- 
struing Jewell  patent  No.  509,126,  for  improvements  in  filtering  ap- 
paratus; Scott  V.  Fisher  etc.  Mach.  Co.,  139  Fed.  145,  Bellis  patent 
No.    561,559,   for  improvements  in   knitting   machines   not   infringed. 

Syl.  20  (VII,  484).     Patents — New  and  useful  improvements. 

Approved  in  United  States  Fastener  Co.  v.  Meyers,  145  Fed.  537, 
Pringle  patent  No.  580,001,  for  separable  button,  limited  and  not 
infringed  by  device  of  Kerngood  patent  No.  645,624. 

Syl.  24   (VII,  485).     Patent— Effect  of  foreign  patent. 

Approved  in  Columbus  Chain  Co.  v.  Standard  Chain  Co.,  148  Fed. 
627,  Carroll  patent  No.  620,826,  for  swaging  device  for  regulating 
dimensions  of  chain  links,  anticipated  by  Swiss  patent  to  Goerke  No. 
9592;  Keasbey  etc.  Co.  v.  Philip  Carey  Mfg.  Co.,  139  Fed.  576,  Han- 
more  patent  No.  545,843,  for  nonconducting  cover  for  steam  pipes  not 
anticipated;  Crown  Cork  etc.  Co.  v.  Standard  Stopper  Co.,  136  Fed. 
204,  69  C.  C.  A.  519,  Painter  patents  No.  468,258  and  No.  582,762,  for 
bottle-stoppers,  infringed  by  device  of  Patterson  patent  No.  082,995; 


519  Notes  on  U.  S.  Eeporta.  11  Wall.  5C0-616 

Valvona  v.  D'Adamo,  135  Fed.  545,  Valvona  patent  No.  701,776,  for 
mold  for  biscuit  cups  used  for  holding  ice-cream,  not  anticipated; 
Pettibone  v.  Pennsylvania  Steel  Co.,  133  Fed.  737,  Strom  patent  No'. 
498,190,  for  railroad  switch-stand,  not  anticipated. 

Distinguished  in  Wclsbach  etc.  Co.  v.  Cremo  etc.  Co.,  145  Fed.  525. 
Heald  patent  No.  423,317,  for  gas-lamp  appliance  construed. 

Syl.   26    (VII,  487).     Patents— Doctrine   of  equivalents. 

Approved  in  Cortis  v.  iVmerican  etc.  Supply  Co.,  145  Fed.  519, 
Cortis  patent  No.  613,648,  for  lamp  and  mantle  supporting  device, 
not  infringed  by  device  of  Momand  patent  No.  781,613, 

11  Wall.  560-566,  20  L.  214,  HOLLIDAY  v.  HAMILTON. 

Syl.  1  (VII,  488).     Bill  of  lading  in  consignee's  name — Title. 

Approved  in  Easton  v.  Geo.  Wostenholm  &  Son,  137  Fed.  532,  70  C. 
C.  A.  108,  where  firm  employed  complainant  to  buy  goods  in  England, 
he  to  advance  money,  title  to  goods  passed  on  delivery  to  carrier, 
irrespective  of  time  of  delivery  of  bill  of  lading. 

11  Wall.  581-590,  20  L.  216,  LUDLOW  v.  EAMSEY. 

Syl.  1  (VII,  491).  Judicial  sale  not  collaterally  attackable  for 
errors. 

Approved  in  Heid  v.  Ebner,  133  Fed.  158,  66  C.  C.  A.  222,  answer 
setting  up  title  through  execution  sale,  containing  averments  of 
judgment,  execution  and  sale  thereunder  and  confirmation,  is  good 
without  setting  out  proceedings  relative  to  execution  and  sale. 

11  Wall.  591-609,  20  L.  220,  EEED  v.  UNITED  STATES. 

Syl.  1  (VII,  493).     Affreightment  and  letting  of  ship  distinguished. 

Approved  in  Grimberg  v.  Columbia  Packers'  Assn.,  47  Or.  262,  263, 
83  Or.  196,  construing  charter  of  vessel  as  one  of  affreightment 
merely. 

Syl.  3   (VII,  493).     Demise  of  vessel — Hirer  responsible  for  crew. 

Approved  in  Hills  v.  Leeds,  149  Fed.  880,  construing  charter  for 
yacht  for  portion  of  year,  hirer  to  control  and  pay  captain  as  a  let- 
ting of  ship;  Auten  v.  Bennett,  183  N.  Y.  501,  76  N.  E.  610,  where, 
under  charter,  owner  agreed  to  deliver  vessel  at  certain  port,  and 
charterer  was  to  have  control  of  vessel,  there  was  lease  of  vessel 
though  owner  paid  wages. 

11  Wall.  610-616,  20  L.  223,  DUNPHY  v.  KLEINSMITII. 

Syl.  5  (VII,  496).  Decree  in  suit  for  recovery  of  fraudulent  con- 
veyance. 

Cited  in  Harrigan  v.  Gilchrist,  121  Wis.  252,  99  N.  W.  912, 
arguendo. 


11  Wall.  616-672  Notes  on  U.  S.  Reports.  520 

Syl.  6  (VII,  496).     Verdict  by  three-fourths  of  jury. 

Approved  in  Bradford  v.  Territory,  1  Okl.  374,  34  Pac.  68,  holding 
void  St.  Okl.,  c,  70,  art.  18,  §  22,  providing  that  nine  jurors  may 
return  verdict. 

11  Wall.  616-624,  20  L.  227,  THE  CHEROKEE  TOBACCO. 

Syl.  8  (VH,  498).     Treaty  supersedes  prior  statute. 

Approved  in  Hijo  v.  United  States,  194  U.  S.  324,  48  L.  996,  24 
Sup.  Ct.  727,  United  States  not  suable  under  Tucker  Act  of  1887,  on 
claim  for  value  of  use  by  army  of  Spanish  merchant  vessel  captured 
during  war. 

11  Wall.  624-632,  20  L.  82,  FOURTH  NAT.  BANK  v.  N.  O.  &  CAR- 
ROLLTON  R.  R.  CO. 

Syl.  2  (VII,  499).     Partner  entitled  only  to  share  in  net  profits. 
Approved  in  Moore  v.  Rawson,  185  Mass.  272,  70  N.  E.  66,  follow- 
ing rule. 

Syl.  6   (VII,  500).     Indispensable  party  necessary  to  equity  suit. 

Approved  in  United  States  v.  Northern  Pac.  R.  Co.,  134  Fed.  719, 
67  C.  C.  A.  269,  suit  by  government  to  annul  contract  between  cor- 
porations, not  "within  circuit  court's  jurisdiction,  where  it  has  not 
jurisdiction  over  one  of  corporations. 

11  Wall.  652-659,  20  L.  235,  HENDERSON'S  TOBACCO. 

Syl.  1   (VII,  502).     Statutes — Repeal  by  implication. 

Approved  in  United  States  v.  Cardish,  145  Fed.  244,  under  23  Stat. 
385,  arson  may  be  committed  on  reservation,  irrespective  of  race  of 
defendant  or  of  possessor  of  building;  Christie  Street  Com.  Co.  v. 
United  States,  136  Fed.  333,  69  C.  C.  A.  464,  action  against  United 
States  on  claim  to  recover  back  internal  taxes  illegally  collected  is 
barred  in  two  years;  United  States  v.  Foreman,  5  Okl.  257,  48  Pac. 
98,  one  suing  in  territorial  district  court  for  recovery  of  money  paid 
for  land  on  which  entry  erroneously  allowed  and  afterward  canceled, 
nepd  not  show  surrender  of  duplicate  receipt  or  execution  of  relin- 
quishment of  claims  to  land. 

11  Wall.  659-672,  20  L.  29,  COOK  v.  BURNLEY. 

Syl.  2  (VII,  504).     Plea  in  abatement  too  late  after  answer. 

Approved  in  Wetzel  etc.  Ry.  Co.  v.  Tennis  Bros,  Co.,  145  Fed.  464, 
following  rule. 


XII  WALLACE. 


12  Wall.  1-18,  20  L.  272,  THE  COLLECTOR  v.  HUBBARD. 

Syl.  9  (VII,  507).     Recovery  of  taxes  illegally  collected. 

Approved  in  Kahn  v.  Herold,  147  Fed.  580,  where,  at  time  executors 
paid  internal  revenue  inheritance  tax  on  life  estate  under  protest, 
they  did  not  know  life  tenant  had  died,  payment  was  not  volun- 
tary. 

12  Wall.  47-65,  20  L.  265,  PHILADELPHIA  ETC.  RAILROAD  CO.  v. 
DUBOIS. 

Syl.  4  (VII,  511).  Infringement — Fraud  in  procuring  patent  no  de- 
fense. 

Approved  in  Eastern  etc.  Bag  Co.  v.  Continental  etc.  Bag  Co.,  142 
Fed.  511,  upholding  Liddell  patent  No.  588,969,  for  paper-bag  ma- 
chine. 

12  Wall.  65-86,  20  L.  354,  BALTIMORE  &  O.  R.  R.  CO.  v.  HARRIS. 

Syl.  1   (VII,  511).     Chartering  foreign  corporation  is  mere  license. 

Approved  in  Baltimore  etc.  R.  R.  Co.  v.  Allen,  58  W,  Va.  398,  112 
Am.  St.  Rep.  985,  52  S.  E.  469,  3  L.  R.  A.  (N.  S.)  608,  applying  prin- 
ciple in  garnishment  proceedings;  Kansas  City  etc.  Ry.  Co.  v.  Steven- 
son, 135  Fed.  554,  arguendo. 

S}'1.  3  (VII,  513).     Consent  of  foreign  corporation  to  suit. 

Approved  in  Kibbler  v.  St.  Louis  etc.  R.  Co.,  147  Fed.  881,  for- ' 
eign  corporation  which,  under  state  laws,  can  be  sued  in  state  courts 
only  in  counties  where  it  does  business,  cannot  be  sued  in  federal 
court  unless  it  does  business  in  county  within  district;  Old  Wayne 
etc.  Life  Assn.  v.  McDonough,  164  Ind.  328,  73  N.  E.  706,  upholding 
Pennsylvania  statute  requiring  foreign  insurance  companies  to  desig- 
nate insurance  commissioner  or  other  agent  for  service  of  process;  Groll 
V.  United  Elec.  Co.,  69  N.  J.  Eq.  412,  414,  60  Atl.  828,  determining  that 
foreign  corporation  was  doing  business  in  state. 

Syl.  6  (VII,  518).     Domestication  of  foreign  corporation. 

Approved  in  Russell  v.  St.  Louis  etc.  Ry.  Co.,  71  Ark.  454,  457,  75 
S.  W.  727,  728,  foreign  corporation  complying  with  Acts  1889,  p.  43, 
c.   34,  became  domestic  corporation  with  power  of  eminent  domain. 

Syl.  7  (VII,  519).     Service  of  process  on  corporation. 
Approved   in   Sidway   v.   Missouri   Land    etc.   Co.,    187   Mo.   673,   86 
S.   W.   156,   where   foreign   cor^joration   was    licensed   to    do    business   in 

[521] 


12  Wall.  86-159  Notes  on  U.  S.  Reports.  522 

Missouri  and  there   maintained  office   and   process   agent,  it   was   not 
nonresident  witMn  statute  of  limitations. 

Syl.  8  (VII,  519).     Exercise  of  functions  by  foreign  corporations. 

Approved  in  Old  Wayne  etc.  Life  Assn.  v.  McDonough,  164  Ind.  326, 
327,  73  N.  E.  705,  upholding  Pennsylvania  statute  requiring  foreign 
insurance  companies  to  designate  insurance  commissioner  or  other 
agent  for  service  of  process. 

Syl.  10  (VII,  520).     Plea  in  bar  waives  plea  in  abatement. 

Approved  in  McFadden  v.  Heisen,  150  Fed.  570,  agreement  to  dis- 
miss pending  suit  made  out  of  court  is  waived  by  answering  on  merits 
amended  bill  filed  thereafter. 

12  Wall.  86-102,  20  L.  270,  FRENCH  v.  SHOEMAKER. 

Syl.  1  (VII,  520).     When  decree  final  and  appealable. 

Approved  in  Stout  v.  Stout,  104  Va.  484,  51  S.  E.  834,  decree  in 
suit  to  construe  will  striking  cause  from  docket  with  leave  to  re- 
instate it  and  seek  proper  relief  at  foot  of  decree  is  final. 

12    Wall.    130-136,   20   L.   249,   NEW   ORLEANS   ETC.   MAIL   CO.   v. 
FLANDERS. 

Syl.  1  (VII,  524).     Appellant  alone  can  claim  reversal. 

Approved  in  Field  v.  Barber  Asphalt  Paving  Co.,  194  U.  S.  621, 
48  L.  1153,  24  Sup.  Ct.  784,  cross-appeal  to  review  only  nonfederal 
questions  decided  against  defendant  may  be  taken  directly  to  su- 
preme court,  where  circuit  court's  jurisdiction  invoked  because  of 
constitutional  grounds  and  of  diverse  citizenship. 

■12  Wall.  150-159,  20  L.  262,  BAKER  v.  MORTON. 

Syl.  5  (VII,  526).     Duress  sufficient  to  invalidate  contract. 

Approved  in  Burnes  v.  Burnes,  132  Fed.  493,  where  surviving  part- 
ner threatened  to  administer  estate  as  survivor  unless  corporation 
formed  and  stock  divided  between  heirs,  there  was  no  duress;  First 
Nat.  Bank  v.  Sargent,  65  Neb.  601,  91  N.  W.  597,  59  L.  R.  A.  296, 
upholding  instruction  defining  duress. 

Syl.  7  (VII,  526).  Judgment  lien  constitutes  no  right  in  land 
levied. 

Distinguished  in  Lewis  v.  Atherton,  5  Okl.  94,  47  Pac.  1072,  un- 
der Stat.  1893,  c.  21,  §  13,  judgment  against  parties  who  had  been 
seised  of  realty,  and  in  whom  title  still  appears  of  record,  becomes  lien 
on  property  though  debtors  had  previously  executed  deed  to  third 
party. 


523  Notes  on  U.  S.  Ecports.  12  Wall.  167-193 

12  Wall.  167-173,  20  L.  382,  THE  STEAMER  SYEACUSE. 

Syl.  1   (VII,  527).     Collision  caused  by  towboat's  negligence. 

Approved  in  The  Oceanica,  144  Fed.  305,  following  rule;  The  W.  G. 
Mason,  142  Fed.  91?,  where  two  tugs  belonging  to  same  owner  were 
towing  steamer  under  contract  with  such  owner,  and  master  of  leader 
directed  ship's  movements,  rear  tug,  whose  movements  controlled  by 
own  master,  not  liable  in  rem  for  stranding  of  tow  through  fault  of 
leader;  Cotton  v.  Almy,  141  Fed.  362,  where  lessees  of  houseboat  at 
termination  of  lease  undertook  to  deliver  it  at  port  other,  than  named 
in  lease  at  owner's  request,  they  are  liable  fcfr  negligent  towing; 
Winslow  V.  Thompson,  134  Fed.  449,  550,  551,  67  C.  C.  A.  363,  hold- 
ing acts  of  tugs  in  attempting  to  pull  grounded  vessel  over  bar  neg- 
ligence for  which  consignee  who  employed  them  was  liable. 

Syl.  2  (VII,  528).     Towboat  must  use  care  and  skill. 

Approved  in  The  Britannia,  148  Fed.  499,  holding  tug  liable  for 
loss  of  scows  where  it  had  but  one  hawser  which  parted  three  times; 
The  Naos,  144  Fed.  296,  where  charterer  employed  tug  to  tow  ves- 
sel and  detained  tow  until  full  tide,  both  charterer  and  tug  liable 
for  grounding  of  tow. 

Syl.  3    (VII,  528).     Collision  avoidable  by  timely  precaution. 

Approved  in  The  Inca,  130  Fed.  42,  holding  tug  liable  for  ground- 
ing of  tug  on  known  obstruction  where  he  did  not  warn  bark  which 
was  badly  steered. 

Syl.  6  (VII,  529).     No  technical  variance  in  admiralty. 

Approved  in  The  Minnetonka,  146  Fed.  515,  upholding  power  of  ad- 
miralty court  in  libel  for  value  of  jewelry  stolen  by  employee  of 
ship,  to  permit  amendment  of  libel  to  conform  to  proof  as  to  value. 

12  Wall.  181-193,  20  L.  366,  HOFFMAN  v.  BANK  OF  MILWAU- 
KEE. 

Syl.  5  (VII,  531).  Innocent  holder  of  draft  accompanied  by  bill  of 
lading. 

Approved  in  Bank  of  Indian  Territory  v.  First  Nat.  Bank,  109  Mo. 
App.  672,  83  S.  W.  538,  payment  of  draft  by  drawee  cannot  be  avoided 
by  him  by  showing  he  was  mistaken  in  supposing  he  had  money  in 
his  hands  to  pay  it. 

Syl.  7  (VII,  531),  Drafts — Failure  of  consideration — Eemote  par- 
ties. 

Approved  in  Morrison  v.  Farmers'  etc.  Bank,  9  Okl.  700,  60  Pac. 
274,  where  bank  purchased  draft  from  drawer  before  maturity  and 
gave  drawer  credit  on  deposit  account  for  face  of  draft,  it  is  pur- 
chaser for  value  unless  it  is  shown  that  amount  of  deposit  had  not 
been  paid  prior  to  acceptance  of  draft.  See  105  Am.  St.  Eep.  359, 
note. 


12  Wall.  194-254  Notes  on  U.  S.  Keports.  524 

12  Wall.  194-201,  20  L.  378,  HOWAKD  ETC.  IXS.  CO.  v.  NORWICH 
ETC.  TRANSP.  CO. 

Syl.  6  (VII,  533).     Insurance — Proximate  and  remote  cause. 

Approved  in  Ellyson  v.  International  etc.  E.  E.  Co.,  33  Tex.  Civ. 
5,  75  S.  W.  870,  where  evidence  showed  intestinal  trouble  was  prom- 
inent efficient  cause  of  death,  and  that  injuries  only  slightly  con- 
tributed to  it,  error  to  charge  that  jury  might  consider  injuries  as 
cause  of  death,  if  they,  in  part,  operating  concurrently  with  disease, 
brought  about  result. 

12  Wall.  204-226,  20  L.  370,  STATE  TONNAGE  TAX  CASES. 

Syl.  12   (VII,  536).     Tax  on  steamers  as  tonnage  tax. 

Approved  in  Way  v.  New  Jersey  S.  B.  Co.,  133  Fed.  192,  holding 
void  Laws  N.  Y.  1897,  p.  701,  providing  for  payment  of  wharfage  at 
Albany  based  on  tonnage  of  ship. 

12   Wall.    226-232,   20   L.   385,   JUNCTION   E.   E.    CO.   v.   BANK   OF 
ASHLAND. 

Syl.  4  (VII,  537).     Judicial  notice  of  state  laws. 

See  113  Am.  St.  Eep.  874,  note. 

Syl.  10  (VII,  538).  Payment  of  bonds  guaranteed  by  third  party 
as  sale. 

Approved  in  Weed  v.  Gainesville  etc.  R.  E.  Co.,  119  Ga.  591,  46 
S.  E.  894,  defense  of  usury  is  not  good  as  against  bona  fide  purchaser 
of  corporate  bonds. 

12  Wall.  232-246,  20  L.  360,  UNITED  STATES  v.  CHILD. 

Syl.  1  (VII,  538).  Claims — Receipt  of  amount  of  partial  allow- 
ance. 

Approved  in  County  Commrs.  v.  Seawell,  3  Okl.  287,  41  Pac.  594 
applying  rule  to  claim  against  county.  See  100  Am.  St.  Rep.  431, 
note. 

Svl.  2  (VII,  539).     Compromise  of  controverted  claim — Duress. 

Approved  in  Earle  v.  Berry,  27  R.  I.  231,  61  Atl.  675,  applying  rule 
to  compromise  of  stock  transaction. 

12  Wall.  246-254,  20  L.  388,  UNITED  STATES  v.  BURNS. 

Syl.  6  (VII,  540).     Patents — Illegal  use  by  government. 

Approved  in  dissenting  opinion  in  International  Postal  Supply  Co. 
V.  Bruce,  194  U.  S.  608,  48  L.  1138,  24  Sup.  Ct.  820,  majority  hold- 
ing patentee  of  improvements  in  stamp-canceling  machine  cannot 
enjoin  postmaster  from  using  infringing  machine  of  which  govern- 
ment is  lessee. 


525  Notes  on  U.  S.  Reports.  12  Wall.  259-285 

Syl.  9  (VII,  540).     Court  of  claims— Rules  of  pleading. 

Approved  in  District  of  Columbia  v.  Barnes,  197  U.  S.  154,  49  L. 
702,  25  Sup.  Ct.  401,  following  rule. 

12  Wall.  259-261,  20  L.  392,  GERMAIN  v.  MASON. 

Syl.  2  (Vir,  541).     Appeal  by  one  codefendant  alone. 

Approved  in  Amadeo  v.  Northern  Assur.  Co.,  201  U.  S.  201,  50  L. 
72G,  2G  Sup.  Ct.  507,  death  of  insured  after  judgment  for  defend- 
ant in  action  on  policy,  where  insured  originally  named  as  sole  plain- 
tiff, not  ground  for  dismissal  of  writ  of  error  where  insured  had  «iO 
interest  in  action  and  caption  of  declaration  had  been  amended  t<, 
show  assignment;  Grunbcrg  v.  United  States,  145  Fed.  84,  arguendo. 

12  Wall.  2G2-275,  20  L.  423,  HANNIBAL  R.  R.  CO.  v.  SWIFT. 

Syl.  8   (VIT,  543).     Baggage — Liability  for  other  property. 

Approved  in  New  Orleans  etc.  R.  R.  Co.  v.  Shackelford,  87  Miss. 
615,  61G,  40  So.  428,  carrier  is  liable  for  loss  of  sample  case  checked 
as  baggage  with  knowledge  of  its  character;  Trouser  v.  Seaboard  Air 
Line  Rv.,  139  N.  C.  384,  51  S.  E.  973,  holding  carrier  liable  for  dam- 
age  to  drummer's  samples  carried  as  baggage,  though  no  extra  charges 
paid.     See  99  Am.  St.  Eep.  355,  note. 

Syl.  10  (VII,  544).     What  baggage  must  be  carried. 

Approved  in  Clioctaw  etc.  R.  R.  Co.  v.  Zwirtz,  13  Okl.  41S,  73  Pac. 
943,  carrier  need  not  carry  articles  intended  for  business  use,  as 
baggage.     See  99  Am.  St.  Rep.  347,  note. 

Syl.  11   (VII,  544).     Surgeon's  instruments  as  baggage. 

Approved  in  Yazoo  etc.  Railroad  Co.  v.  Baldwin.  113  Tenn.  213,  81 
S.  W.  G02,  female's  clothing,  ornaments,  bankbook  and  contents  and 
zither  key,  carried  in  trunk,  constitute  baggage,  though  household 
goods  are  not.     See  99  Am.  St.  Rep.  350,  note. 

12  Wall.  275-285,  20  L.  395,  KEARNEY  v.  CASE. 

Syl.  3   (VII,  545).     Bill  of  exceptions  necessary  to  review  facts. 

Approved  in  Fitzgerald  v.  Bassford,  142  Fed.  134,  where  action  at 
law  tried  without  jury  and  no  special  findings  made,  assignment  that 
court  erred  in  rendering  judgment  in  favor  of  plaintiff  presents  no 
reviewable  question. 

Syl.  5  (VII,  545).     Issues  of  fact  triable  by  jury. 

Approved  in  Swift  v.  Jones,  145  Fed.  493,  circuit  judge  has  no 
power,  even  with  consent  of  parties,  to  order  trial  of  issues  in  ac- 
tion at  law  before  special  master  authorized  to  hear  and  pass  on  facts 
and  report  findings  to  court. 


12  Wall.  285-342  Notes  on  U.  S.  Reports.  526 

12  Wall.  285-304,  20  L.  398,  MILLER  v.  LIFE  INSURANCE  CO. 

Syl.  2  (VII,  547).     Findings  may  be  general  or  special. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  734,  68 
C.  C.  A.  89,  determining  suiSciency  of  special  finding  of  court  in  ac- 
tion at  law. 

Syl.  5  (Vn,  548),  No  review  of  general  finding  without  excep- 
tions. 

Approved  in  West  v.  Houston  Oil  Co.,  136  Fed.  350,  69  C.  C.  A.  169, 
applying  rule  in  trespass  to  try  title. 

Syl.  9  (VII,  548).     Presumption  of  credit  from  delivery  of  policy. 

See  107  Am.  St.  Rep.  136,  note. 

Syl.  10  (VU,  549).     Insurance — Credit  by  agent  as  payment. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Abbey,  76  Ark.  331,  88  S.  W. 
951,  upholding  recovery  where  general  agent  accepted  premium  notes 
in  lieu  of  cash,  though  notes  not  paid;  Aetna  Life  Ins.  Co.  v.  Fal- 
low, 110  Tenn.  732,  733,  77  S.  W.  940,  where  insured  had  been  in- 
structed by  general  agent  not  to  pay  premiums  until  collector  called, 
and  he  ffaid  collector,  but  general  agent  did  not  transmit  premium 
to  company  until  after  accident,  company  liable;  Virginia  Fire  etc. 
Ins.  Co.  v.  Richmond  Mica  Co.,  102  Va.  437,  102  Am.  St.  Rep.  846, 
46  S.  E.  466,  where  agent,  with  knowledge  of  contract  to  sell  prem- 
ises and  that  vendee  was  in  possession,  renewed  policy,  company 
estopped  to  assert  forfeiture  though  policy  provided  that  only  cer- 
tain officers  could  waive  provisions. 

Distinguished  in  Pennsylvania  Casualty  Co.  v.  Bacon,  133  Fed.  909, 
67  C.  C.  A.  497,  where  deceased  accepted  accident  policy  providing 
that  it  was  not  to  be  effective  unless  premium  paid  prior  to  acci- 
dent, and  waivers  must  be  signed  by  officers,  and  insurer  did  not 
charge  premiums  to  agents  until  actually  received,  subagent  could 
not,  by   accepting  note   for   premium,   waive   conditions. 

12  Wall.  304-307,  20  L.  405,  AVERY  v.  UNITED  STATES. 

Syl.  4  (VII,  550).     Audita  querela  where  opportunity  to  defend. 
Cited  in  King  v.  Davis,  137  Fed.  235,  arguendo. 

12  Wall.  323-342,  20  L.  406,  VILLA  v.  RODRIGUEZ. 

Syl.  4  (VII,  552).     Quitclaim  deed — Bona  fide  purchaser. 

Approved  in  Lindblom  v.  Rocks,  146  Fed.  663,  where,  in  ejectment 
to  recover  lot  on  public  domain,  court  instructed  as  to  other  defenses, 
instruction  that  defendant  had  burden  of  establishing  plaintiff's 
abandonment  set  up  as  defense  does  not  withdraw  other  defenses. 

Syl.  5  (VII,  552).     Sale  of  redemption  to  mortgagee — Good  faith. 
Approved   in   Hursev   v.   Hursey,   56   W.   V:i.    157.   49   S.    E.   370,   ap- 
plying principle  where  deed  intended  to  be  mortgage  was  contended 


527  Notes  on  U.  S.  Eeports.  12  "Wall.  342-358 

to  have,  by  subsequent  agreement,  changed  to  deed  absolute;  dissent- 
ing opinion  in  Staart  v.  Hauser,  9  Idaho,  77,  72  Pac.  727,  majority- 
holding  in  equity  suit  by  grantor  to  have  deed  declared  mortgage, 
findings  against  grantor    not  disturbed  where   evidence  conflicts. 

Syl.  6   (VII,  553).     Sale  of  redemption — Confidential   relations. 

Approved  in  Liskey  v,  Snyder,  56  W.  Va.  623,  49  S.  E.  520,  follow- 
ing rule. 

12  Wall.  342-349,  20  L.  439,  HANAUER  v.  DOANE. 

Syl.  7  (VII,  554).     Recovery  of  money  lent  for  illegal  purpose. 

Approved  in  McKinnon  v.  Watcrbury,  136  Fed.  491,  fact  that  lender 
caused  note  and  mortgage  taken  for  loan  to  be  made  payable  to 
alien  in  order  to  escape  taxation,  cannot  be  set  up  as  defense  to  fore- 
closure; Merchants'  etc.  Bank  v.  Ohio  Valley  etc.  Co.,  57  W.  Va. 
632,  50  S.  E.  882,  70  L.  R.  A.  312,  applying  principle  where  bank 
discounting  negotiable  paper  knew  person  from  whom  it  took  it  was 
mere  agent. 

Distinguished  in  Schirm  v.  Wieman,  103  Md.  544,  63  Atl.  1057, 
where  defendant  agreed  to  pay  for  return  of  stolen  watch  and  gave 
check  to  plaintiff,  who  indorsed  it  and  cashed  it  at  bank  other  than 
drawer  and  obtained  watch  with  proceeds  and  gave  it  to  defendant, 
who  stopped  check,  which  plaintiff  made  good  on  indorsement,  con- 
tract to  pay  was  valid. 

12  Wall.  349-358,  20  L.  453,  THOMAS  v.  CITY  OF  RICHMOND. 

Syl.  4  (VII,  556).  Rescission  of  illegal  contract  before  execu- 
tion. 

Approved  in  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  340, 
majority  permitting  recovery  by  participant  in  fake  footrace  where  he 
was  given  double  cross. 

Syl.  5  (VII,  556).     Recovery  under  executed  illegal  contract. 

Approved  in  Haniman  v.  Northern  Securities  Co.,  197  U.  S.  296, 
49  L.  763,  25  Sup.  Ct.  493,  original  stockholders  in  two  competing 
interstate  railroads  cannot  reclaim  specific  shares  they  delivered  to 
holding  company  in  exchange  for  its  stock  pursuant  to  illegal  com- 
bination; Padilla  v.  Padilla,  11  N.  M.  547,  70  Pac.  504,  where  brother 
recovered  judgment  on  Indian  depredation  claim  for  property  jointly 
owned  with  sister,  sister  maj^  recover  share  of  proceeds  from  him  where 
he  had,  before  judgment,  agreed  to  pay  her;  dissenting  opinion  in 
Stewart  v.  Wright,  147  Fed.  343,  majority  permitting  recovery  by 
participant  in  fake  footrace  where  he  was  double  crossed. 

Syl.  7  (VII,  556).     Parties  in  pari  delicto  unrelievable. 

Approved  in  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  339, 
347,  majority  permitting  participant  in  fake  footrace  swindle  to  re- 
cover money  where  he  was  given  double  cross. 


12  Wall.  358-443  Notes  on  U.  S.  Eeports.  528 

Syl.  9  (VII,  556).     Eecovery  of  money  paid  for  illegal  city  biiiS. 

Distinguished  in  Stewart  v.  Wright,  147  Fed.  336,'*permitting  partici- 
pant in  fake  footrace  swindle  to  recover  money  where  he  was  given 
double  cross. 

12  Wall.  358-362,  20  L.  430,  SMITH  v.  SHEELEY. 

Syl.  3  (VII,  559).     Estoppel  of  vendor  of  land  to  corporation. 

Approved  in  Iowa  etc.  Min.  Co.  v.  United  States  etc.  Co.,  146  Fed. 
440,  defendant  sued  by  foreign  corporation  on  contract  made  with 
it  cannot  defend  because  corporation  has  not  complied  with  laws  re- 
lating to  such  corporations;  Southern  Trust  etc.  Co.  v.  Yeatman,  130 
Fed.  800,  where,  on  organization,  corporation  received  stock  in  an- 
other corporation  in  payment  for  its  stock  and  received  dividends 
thereon  for  two  years,  it  is  for  jury  to  say  whether  stockholders  had 
ratified  transaction;  State  v.  American  Book  Co.,  69  Kan.  10,  13,  76 
Pac.  414,  415,  1  L.  E.  A.  (N.  S.)  1041,  contracts  with  foreign  cor- 
poration before  it  has  obtained  statutory  permission  to  do  business  in 
state  are  not  voidable  at  suit  of  one  of  contracting  parties. 

12  Wall.  362-365,  20  L.  434,  UNITED  STATES  v.  NEW  ORLEANS 
E.  E. 

Syl.  3   (VII,  560).     Mortgage  of  after-acquired  property. 

Approved  in  Cummings  v.  Consolidated  etc.  Water  Co.,  27  E.  I. 
204,  61  Atl.  356,  where  mortgage  provided  that  mortgagor  should  not 
suffer  mechanic's  lien  on  property  which  might  be  held  prior  to 
mortgage,  and  that  after-acquired  property  might  be  mortgaged  for 
improvements,  mechanic's  lien  for  improvents  on  after-acquired  realty 
had  priority.     See  109  Am.  St.  Eep.  513,  note. 

12  Wall.  379-384,  20  L.  414,  KNOX  v.  EXCHANGE  BANK. 

Syl.  4  (VII,  564).  Impairment  of  contracts — Assignment  for 
creditors. 

Cited  in  State  ex  rel.  Louisiana  Imp.  Co.  v.  Board  of  Assessors,  111 
La.  1001,  36  So.  98,  arguendo. 

12  Wall.  418-433,  20  L.  449,  WAED  v.  MAEYLAND. 

(VII,  569.)  Miscellaneous.  Cited  in  State  v.  Weber,  96  Minn.  431, 
105  N.  W.  493,  upholding  state  constitutional  provision  limiting  right 
of  suffrage  as  respects  naturalized  citizens  to  those  admitted  three 
months  prior  to  election. 

12  Wall.  440-443,  20  L.  429,  WALKEE  v.  DEEVILLE. 

Syl.  3  (VII,  576).     Equity  decrees  reviewable  by  appeal. 

Approved  in  Bessette  v.  W.  B.  Conkey  Co.,  ,194  U.  S.  338,  48  L. 
1006,  24  Sup.  Ct.  665,  writ  of  error  and  not  appeal  is  mode  of  re- 
viewing federal  order  finding  one  not  party  to  suit  guilty  of  con- 
tempt in  violating  restraining  order. 


529  Notes  on  U.  S.  Reports.  12  Wall.  443-700 

Syl.  4  (VII,  577).     Foreclosure  decree  reviewable  by  appeal. 
Approved  in  Behn  v.  Campbell,  200  U.  S.  611,  50  L.   619,  26  Sup. 
Ct.  753,  following  rule. 

12  Wall.  443-445,  20  L.  438,  SCOTT  v.  UNITED  STATES. 

Syl.  2  (VII,  577).     Contracts — Situation  of  parties. 

Approved  in  dissenting  opinion  in  Atlas  Red.  Co.  v.  New  Zealand 
Ins.  Co.,  138  Fed.  513,  majority  refusing  parol  evidence  to  show 
agents  knew  of  encumbrance,  where  policy  indorsed  "loss  payable 
to  A"  as  his  interest  may  appear. 

12  Wall.  457-681,  20  L.  287,  THE  LEGAL  TENDER  CASES. 

Syl.   2   (VII,  580).     Statutes  presumed  constitutional. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Feu.  767,  uphold- 
ing Laws  N.  C.  1885,  p.  439,  c.  233,  incorporating  railroad  and  au- 
thorizing issuance  of  county  aid  bonds;  Ex  parte  Anderson,  46  Tex. 
Cr.  380,  81  S.  W.  976,  city  court  has  no  jurisdiction  to  try  one  for  vio- 
lation of  state  penal  statute. 

Syl.  5    (VII,  580).     Power  as  aid  to  execution  of  power. 

Approved  in  Ex  parte  Riggins,  134  Fed.  410,  upholding  indictment 
for  conspiracy  under  Rev.  St.,  §§  5508,  5509,  for  lynching  negro  charged 
with  crime  to  prevent  Ms  trial. 

12  Wall.  681-686,  20  L.  436,  BRONSON  v.  CHAPPELL. 

Syl.  3  (VII,  584).     Ratification  of  agent's  acts  by  conduct. 

Approved  in  City  Bank  v.   Thorp.   78  Conn.  217,  61  Atl.   430,   where 

complainant   permitted    assigned   claims   to   be    paid   to  assignor    before 

payment  of  loans  for  which  assignment  made,  payment  is  good  defense 
to  claims. 

12  Wall.  687-700,  20  L.  460,  TREBILCOCK  v.  WILSON. 

Syl.  2   (VII,  586).     Specie  means  coined  dollars. 

Approved  in  San  Juan  v.  St.  John's  Gas  Co.,  195  U.  S.  520,  49  L.  304, 
25  Sup.  Ct.  108,  determining  medium  of  payment  on  contract  for  light- 
ing Porto  Rico  street  lamps. 

34 


XIII  WALLACE. 


13  Wall.  1-3,  20  L.  556,  BETHEL  v.  MATHEWS. 

Syl.   1    (VII,   589).     Appellant  cannot   complain   of   favorable   errors. 

Approved  in  Pearce  v.  Albright,  12  N.  M.  209,  76  Pac.  287,  appellant 
cannot  complain  because  court  did  not  pass  on  appellee's  demurrer  and 
motion  to  strike  out. 

13  Wall.  3-6,  ?0  L.  556,  NORWICH  ETC.  TRANSP.  CO.  v.  FLINT. 

Syl.  1   (VII,  589).     Shipping — Statements  of  officers  as  res  gestae. 

Approved  in  Northern  Commercial  Co.  v.  Nestor",  138  Fed.  386,  where 
officers  of  ship  permitted  passengers  to  discharge  firearms  on  board  in 
reckless  manner,  owner  is  liable  to  passenger  injured. 

13  Wall.  17-25,  20  L.  527,  BOYDEN  v.  UNITED  STATES. 
Syl.  1   (VII,  591).     Public  officer  insurer  of  moneys. 

Approved  in  Poole  v.  Burnet  County,  97  Tex.  84,  76  S.  W.  427,  county 
treasurer  liable  on  bond  for  loss  of  funds  wliich  he  bad  deposited  in  bank 
which  turned  out  to  be  insolvent. 

13  Wall.  40-51,  20  L.  481,  TOOF  v.  MARTIN. 

Syl.  2   (VII,  596).     Insolvency  defined. 

Approved  in  Suffel  v.  McCartney  Nat.  Bank,  127  Wis.  214,  106  N.  W. 
839,  preferential  payment  by  one  subsequently  becoming  bankrupt  is  not 
recoverable  by  his  trustee  merely  because  creditor  knew  of  facts  caus- 
ing doubt  as  to  debtor's  solvency. 

Distinguished  in  Hussey  v.  Richardson  etc.  Co.,  148  Fed.  600,  where 
creditor  had  sold  bankrupt  goods  and  sent  attorney  to  look  after  claim, 
and  on  being  told  that  debtor  was  solvent  and  doing  good  business,  took 
.chattel  mortgage  on  stock,  and  debtor  became  bankrupt,  mortgage  not 
preference;  Hardy  v.  Gray,  144  Fed.  925,  determining  that  preference 
made  where  insolvent  returned  goods  to  creditor  in  payment  of  debt. 

Syl.  4  (VII,  598).     Bankruptcy — Transfer  by  debtor  as  preference. 

Approved  in  In  re  Moody,  134  Fed.  632,  where  merchant  sold  entire 
stock  to  local  firm,  receiving  in  return  farm  which  was  taken  in  wife 's 
name,  and  purchasers  paid  debt  to  liank  of  which  they  were  stockholders, 
transfer  was  void,  under  Bankr.  Act,  §  67e;  Crandall  v.  Coats,  133  Fed. 
y69,  where  sureties  on  obligations  of  bankrupt  obtained  transfer  of  prop- 
erty from  him  in  consideration  of  payment  of  debts  which  they  had 
secured,  and  they  executed  new  obligations  to  creditors,  conveyance  was 

[530] 


531  Notes  on  U.  S.  Eeports.  13  Wall.  31-72 

preference;  Eex  Buggy  Co.  v.  Hearick,  132  Fed.  311,  65  C.  C.  A.  676, 
insolvent  merchant  who,  within  four  months  of  involuntary  bankruptcy, 
pays  certain  creditors  in  full  and  refuses  others,  commits  act  of  bank- 
ruptcy within  Bankr.  Act,  §  3a,  cl.  2. 

Syl.  6  (VII,  601).  Bankruptcy — Transfer  by  insolvent  creditor  as 
preference. 

Approved  in  Keegan  v.  Hamilton  Nat.  Bank,  163  Ind.  226,  71  N.  E. 
651,  where  corporation's  directors  borrowed  money  which  was  used  by 
company,  and  thereafter,  when  it  was  insolvent,  paid  debt  with  money 
borrowed  on  individual  notes,  there  was  no  preference ;  Jackmann  v.  Eau 
Claire  Nat.  Bank,  125  Wis.  486,  104  N.  W.  105,  giving  of  chattel  mort- 
gage, within  time  limited,  by  bankrupt  to  creditor  to  secure  claim  con- 
stitutes preference  where  undue  advantage  over  other  creditors  is  there- 
by obtained. 

(VII,  596.)  Miscellaneous.  Cited  in  Goldberg  v.  Harlan,  33  Ind. 
App.  475,  67  N.  E.  711,  demand  unnecessary  before  action  by  bank- 
ruptcy trustee  to  recover  property  unlawfully  transferred  by  bankrupt. 

13  Wall.  51-56,  20  L.  531,  WHEELER  v.  HARRIS. 

Syl.  1   (VII,  601).     Affirmance  without  specifying  sum  not  final. 

Approved  in  Northern  Pac.  Ry.  Co.  v.  Ely,  197  U.  S.  3,  49  L.  640, 
25  Sup.  Ct.  302,  writ  of  error  to  state  court  which  incorrectly  states 
date  of  judgment  below  may  be  dismissed  without  prejudice  to  second 
writ  correctly  giving  date. 

13  Wall.  66-68,  20  L.  484,  RICE  v.  HOUSTON. 

Syl.  1   (VII,  604).     Citizenship — Suit  by  administrator. 

Approved  in  Wiemer  v.  Louisville  Water  Co.,  130  Fed.  245,  fact  that 
complainant  moved  to  another  state  to  acquire  right  to  sue  in  federal 
court  does  not  defeat  jurisdiction  if  there  was  bona  fide  intention  to  ac- 
([uire  new  citizenship. 

13  Wall.  68-72,  20  L.  513,  CURTIS  v.  WHITNEY. 

Syl.  2   (VII,  606).     Statute  impairing  contracts. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  36,  50  L. 
ed.  3G0,  26  Sup.  Ct.  224,  establishment  of  municipal  waterworks  does 
not  impair  obligation  of  agreement  by  city  to  give  exclusive  franchise  for 
thirty  years;  Boggs  v.  Ganeard,  148  Cal.  721,  84  Pac.  199,  upholding 
Stat.  1903,  p.  67,  amending  Pol.  Code,  §  3443,  and  providing  additional 
method  of  contesting  right  to  purchase  public  land,  as  applied  to  ap- 
plication made  and  certificate  issued  prior  to  act;  Atwood  v.  Buckingham, 
78  Conn.  427,  62  Atl.  618,  upholding  Pub.  Acts  1905,  p.  413,  relating 
to  amount  recoverable  in  actions  pending  to  recover  against  adminis- 
trator for  failure  to  file  inventory;  Miners'  etc.  Bank  v.  Snyder,  100 
Md.  65,  108  Am.  St.  Rep.  390,  59  Atl.  708,  68  L.  R.  A.  312,  upholding 


13  Wall.  72-91  Notes  on  U.  S.  Eeports.  532 

Acts  1904,  p.  597,  substituting  remedy  by  bill  in  equity  in  behalf  of 
all  creditors  against  all  stockholders,  as  applied  to  one  who  has  sued  in- 
dividually under  old  law  but  has  not  obtained  judgment;  Eauen  v.  Pru- 
dential Ins.  Co.,  129  Iowa,  731,  106  N.  W.  200,  arguendo. 

Syl.  3  (VII,  606).     Eetroactive  laws — Notice  of  tax  sale. 

Approved  in  Lamb  v.  Powder  Eiv.  etc.  Co.,  132  Fed.  438,  67  L.  E.  A. 
558,  65  C.  C.  A.  570,  Colo.  Sess.  Laws  1895,  p.  239,  changing  limitation 
of  actions  on  foreign  judgments  is  void  as  to  foreign  judgment  rendered 
prior  to  its  passage;  Harrison  v.  Thomas,  103  Va.  335,  49  S.  E.  486, 
under  Acts  1901,  p.  779,  four  months'  notice  required  therein  to  be  given 
by  purchaser  at  tax  sale  need  not  be  given  where  two  years  for  redemp- 
tion expired  before  act  took  effect. 

13  Wall.  72-91,  20  L.  485,  JOHNSON  v.  TOWSLEY. 
Syl.  3  (VII,  608).     Land  officer's  action  conclusive. 

Approved  in  Miller  v.  Margerie,  149  Fed.  697,  under  Comp.  St.  1901, 
p.  1467,  deed  of  Alaska  towusite  trustee  not  set  aside  for  fraud,  unless 
particular  facts  which  prevented  complainants  from  having  notice  of 
proceedings  and  opportunity  to  protect  rights;  Peyton  v.  Desmond,  129 
Fed.  9,  63  C.  C.  A.  651,  homestead  patentee  may  recover  value  of  tim- 
ber wrongfully  cut  from  land  between  initiation  of  claim  and  issuance 
of  patent;  Semer  v.  Auditor  General,  133  Mich.  574,  95  N.  W.  734, 
where  lands  bid  off  to  state  for  taxes  without  application  to  redeem 
and  town  board  requested  examination  by  proper  officers,  who  filed  stat- 
utory report,  laud  owner  cannot  object  to  report;  Cagle  v.  Dunham,  14 
Okl.  615,  78  Pac.  562,  refusing  to  set  aside  decision  of  Land  Department 
on  allegation  of  perjury  by  witnesses  at  trial  before  department;  Okla- 
homa City  V.  Hill,  6  Okl.  129,  50  Pac.  247,  under  act  opening  Oklahoma, 
one  entering  lot  for  townsite  purpose  in  violation  of  act,  who  is  unlaw- 
fully dispossessed  by  city  authorities,  cannot  claim  damages  for  tres- 
pass; Barnes  v.  Newton,  5  Okl.  431,  48  Pac.  192,  enjoining  unsuccessful 
claimant  before  Land  Department  from  interfering  with  occupation  of 
disputed  premises;  Calhoun  v.  Violet,  4  Okl.  325,  47  Pac.  481,  applying 
rule  in  suit  to  declare  holder  of  legal  title  of  homestead  a  trustee  for 
benefit  of  claimant  of  superior  equitable  title;  Woodruff  v.  Wallace,  3 
Okl.  361,  378,  41  Pac.  359,  365,  one  whose  homestead  entry  has  been 
canceled  for  fraud  in  its  inception  cannot  avail  himself  of  occupying 
claimant's  act,  and  district  court  may  enjoin  him  from  interfering  with 
successful  applicant;  Laramie  Nat.  Bank  v.  Steinhoff,  11  Wyo.  308,  71 
Pac.  994,  where  no  patent  issued,  court  in  action  by  possessor  undey 
certificate  of  purchase  against  entryman,  cannot  determine  title. 

Syl.  4  (VII,  613).     Equity  jurisdiction  to  correct  mistakes  in  patents. 

Approved  in  Paine  v.  Foster,  9  Okl.  223,  53  Pac.  112,  following  rule; 
Southern  Cross  etc.  Co.  v.  Sexton,  147  Cal.  762,  82  Pac.  424,  where,  by 
mistake  of  Land  Department,  notice  to  adverse  claimants  of  applica- 
tion for  mining  patent   did  not  contain   sufficient   description,   but   cer- 


533  Notes  on  U.  S.  Reports.  13  Wall.  72-91 

tificate  of  purchase  ii5sued,  and  long  after  republication  order  made,  or- 
der canceling  certificate  as  of  date  of  republication  order  was  erroneous. 

Limited  in  dissenting  opinion  in  Paine  v.  Foster,  9  Okl.  274,  60  Pac. 
29,  majority  following  rule. 

Syl.   5    (VII,   613).     Decision   of  land   receiver — Vested   rights. 

Approved  in  Bockfinger  v.  Foster,  10  Okl.  502,  62  Pac.  803,  townsite 
trustees  are  not  trustees  for  use  of  one  claiming  adversely  to  trust 
created  by  act  of  Congress  under  which  patent  was  issued  to  them. 

Syl.  6  (VII,  614).     Equitable  trustee — Mistake  in  passing  of  title. 

Approved  in  Smith  v.  Townsend,  1  Okl.  122,  29  Pac.  82,  and  Adams 
T.  Couch,  1  Okl.  39,  26  Pac.  1016,  both  following  rule;  Humbird  v. 
Avery,  195  U.  S.  503,  49  L.  297,  25  Sup.  Ct.  123,  refusing,  prior  to 
final  action  of  Land  Department,  to  determine  rights  of  grantee  of 
railroad  of  land  claimed  within  indemnity  limits  and  purchasers  from 
government;  Jones  v.  Hoover,  144  Fed.  220,  under  23  Stat.  340,  and  32 
Stat.  730,  relating  to  Umatilla  Indian  lands,  purchaser  of  one  hundred 
and  sixty  acres  untimbcred  land  under  first  act  could  not  buy  under 
second;  Tegarden  v.  Le  Marchel,  129  Fed.  488,  in  ejectment  in  federal 
court  equitable  title  cannot  be  set  up  to  defeat  legal  title  by  impeach- 
ing government  patent;  Johnson  v.  Pacific  Coast  S.  S.  Co.,  2  Alaska,  238, 
upholding  jurisdiction  to  set  aside  townsite  patent;  Thompson  v.  Ferry, 
6  Ariz.  306,  56  Pac.  743,  holding  parties  barred  by  laches  to  claim  trust; 
Love  v.  Flahive,  33  Mont.  354,  83  Pac.  883,  where  applications  for  home- 
stead entry  on  same  land  were  filed  simultaneously,  finding  of  Secretary 
of  Interior  that  applicant  who  had  preserved  right  to  land  intact  since 
should  be  preferred  over  other  who  had  abandoned  right  was  proper; 
McDonald  v.  Tnion  Pac.  By.  Co.,  70  Keb.  350,  97  N.  W.  441,  denying 
jurisdiction  to  compel  conveyance  of  lands  subject  to  homestead  entry 
to  one  who  has  been  denied  privilege  of  entry  by  land  department; 
Wilbourne  v.  Baldwin,  5  Okl.  280,  47  Pac.  1050,  refusing  to  enjoin 
Indian  agent  from  removing  homestead  applicant  from  land;  Brown 
V.  Parker,  2  Okl.  266,  39  Pac.  569,  filing  certificates  issued  by  probate 
judge  prior  to  entry  have  no  legal  force;  dissenting  opinion  in  Sproat 
v.  Durland,  2  Okl.  52,  35  Pac.  888,  majority  holding  court  may,  on 
answer  and  cross-complaint,  enjoin  homestead  claimant  from  interfering 
with  adversary's  possession;  Laramie  Xat.  Bank  v.  Steinhoff,  11  Wyo. 
306,  310,  71  Pac.  994,  995.  where  no  patent  has  issued,  court,  in  action 
by  possessor  under  certificate  of  purchase  against  entryman,  cannot 
determine  title. 

Distinguished  in  Watt  v.  Amos.  14  Okl.  ISO,  79  Pac.  109,  declaring 
holder  of  legal  title  a  trustee  though  no  fraud  shown. 

Syl.  7   (VII,  618).     Land  officer's  decision  final — Equitable  relief. 

Approved  in  Hartwell  v.  Ha\ighorst,  196  V.  S.  635,  49  L.  629,  25 
Sup.  Ct.   793,   Estes  v.   Timmons,   12  Okl.  540,  544,   73   Pac.   304,   3U5, 


13  W.Jl.  92-104  Notes  on  U.  S.  Keports.  534 

and  Adams  v.  Coucli,  1  Okl.  34,  35,  40,  26  Pac.  1015,  1017,  all  following 
rule;  Kerns  v.  Lee,  142  Fed.  988,  applying  principle  under  swamp  land 
act  of  1850;  Le  Marchel  v.  Tecgarden,  133  Fed.  827,  one  attacking 
land  patent  must  plead  and  prove  evidence  before  Land  Department 
from  which  mistake  resulted,  particular  mistake  made,  and  how  it  oc- 
curred; Smith  V.  Love,  49  Fla.  239,  38  So.  379,  applying  rule  where 
fraud  alleged;  Cook  v.  McGord,  9  Okl.  209,  60  Pac.  500,  applying 
rule  to  finding  of  Land  Department  that  lot  had  been  abandoned  by 
claimant;  Black  v.  Jackson,  6  Okl.  754,  52  Pac.  407,  where  Land 
Department  makes  final  award  of  adverse  claims,  loser  cannot  continue 
residence  on  land  to  bring  suit  to  declare  trust  against  adversary ; 
Cummings  v.  McDermid,  4  Okl.  280,  44  Pac.  278,  applying  rule  where 
award  of  townsite  trustees  attacked;  King  v.  Thompson,  3  Okl.  647,  39 
Pac.  467,  applying  principle  to  acts  of  townsite  trustees;  dissenting 
opinion  in  Paine  v.  Foster,  9  Okl.  261,  60  Pac.  25,  majority  following 
rule. 

13  Wall.  92-104,  20  L.  534,  GIBSON  v.  CHOUTEAU. 

Syl.   1    (VII,   624).     Limitations   against   state. 

Approved  in  Hagerman  v.  Territory,  11  N.  M.  160,  66  Pac.  526,  action 
in  name  of  territory  for  delinquent  taxes  which  are  property  of  county 
in  which  they  are  assessed  is  not  barred  by  limitations.  See  101  Am. 
St.  Rep.  151,  152,  153,  165,  182,  note. 

Syl.  3   (VII,  627).     State  statutes  cannot  impair  patent. 

Approved  in  Tegarden  v.  Le  Marchel,  129  Fed.  488,  490,  following 
rule;  Tyee  Consol.  Min.  Co.  v.  Langstedt,  136  Fed.  127,  69  C.  C.  A. 
548,  there  is  no  disseisin  sufficient  to  start  limitations  as  against  locator 
of  mining  claim  prior  to  issuance  of  patent;  Peyton  v.  Desmond,  129 
Fed.  10,  63  C.  C.  A.  651,  homestead  patentee  may  recover  value  of  tim- 
ber wrongfully  cut  after  initiation  of  claims  and  prior  to  issuance 
of  patent;  Cook  v.  McCord,  13  Okl.  510,  75  Pac.  295,  unsuccessful 
contestant  for  townsite  lot,  who,  pending  contest,  made  improvements 
thereon,  cannot  hold  possession  until  improvements  paid  for  under 
state  occupying  claimant 's  land. 

Syl.  4   (YII,  628).     Equity— Doctrine  of  relation. 

Approved  in  Peyton  v.  Desmond,  129  Fed.  11,  63  C.  C.  A.  651,  home- 
steader may  recover  value  of  timber  wrongfully  cut  after  initiation 
of  claim  and  prior  to  issuance  of  patent;  Krakow  v.  Wille,  125  Wis. 
288,  103  N.  W.  1123,  where  contract  for  sale  of  land  provides  for  de- 
livery of  deed  after  certain  portion  of  jniee  paid,  title  vests  as  of  date 
of  contract. 

Distinguished  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  1  Alaska,  443, 
445,  447,  ten  year  statute  of  limitations  begins  to  run  in  favor  of  ad- 
verse possessor  of  part  of  mining  claim  from  time  of  location. 


535  Notes  on  U.  S.  Reports.  13  Wall.  104-128 

Syl.   5    (VIT,   628).     Title   to   public   land  commences   when. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
335,  50  L.  505,  26  Sup.  Ct.  282,  applying  rule  to  purchaser  of  timber 
land  from  patentees  for  value  and  without  notice  of  fraud  on  part 
of  original  entrymen;  United  States  v.  Anderson,  194  U.  S.  399,  48 
L.  1039,  24  Sup.  Ct.  716,  government  cannot,  as  against  its  grantees 
of  land  within  indemnity  limits  of  railroad  grant,  retain  sum  col- 
lected from  trespassers  for  removal  of  stone  between  selection  and  ap- 
proval of  selection. 

Syl.  6  (VII,  629).     Doctrine  of  relation— Public  lands. 

Approved  in  Peyton  v.  Desmond,  129  Fed.  11,  63  C.  C.  A.  651,  home- 
steader may  recover  value  of  timber  wrongfully  cut  after  initiation  of 
claim  and  prior  to  issuance  of  patent;  Gilbert  v.  McDonald,  94  Minn. 
291,  110  Am.  St.  Rep.  370,  102  N.  W.  713,  interest  of  assignee  of 
soldier's  additional  homestead  certificate,  upon  filing  of  application 
for  specific  tract,  may  be  transferred  by  quitclaim. 

Syl.  7    (VII,   631).     Ejectment — Legal  title   necessary. 

Approved  in   Tegarden  v.  Le  Marchel,   129  Fed.  488,   following  rule. 

Syl.  8   (VII,  631).     Patent  passes  government  title — Superior  equities. 

Approved  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  136  Fed.  126,  69 
C.  C.  A.  548,  there  is  no  disseisin  sufficient  to  start  limitations  as  against 
locator  of  mining  claim  prior  to  issuance  of  patent;  Tegarden  v.  Le 
Marchel,  129  Fed.  489,  491,  defendant  in  ejectment  cannot  recover 
for  Improvements  made  before  patent  issued  to  plaintiff;  Smith  v. 
Love,  49  Fla.  239,  38  So.  379,  upholding  jurisdiction  to  convert  holder 
of  legal  title  into  trustee  for  true  owner  where  patent  should  have 
gone  to  another. 

Distinguished  in  Blunier  v.  Iowa  E.  E.  Land  Co..  129  Iowa.  38,  105 
N.  W.  344,  as  against  railroad  entitled  to  land  under  grant  limitations 
run  in  favor  of  timber-culture  occupant  from  time  of  latter 's  entry 
under  receiver 's  certificate. 

Syl.   11    (VII,  632).     Occupation   for  statutory  period — Public  lands. 

Approved  in  Tegarden  v.  Le  Marchel,  129  Fed.  491,  defendant  in 
ejectment  cannot  recover  for  improvements  made  before  jiatent  issued 
to  plaintifi:;  Slaght  v.  Northern  Pac.  Ry.  Co.,  39  Wash.  582.  81  Pac. 
1064,  limitations  do  not  run  against  settler  on  government  land  till 
patent  issues. 

Distinguished  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  1  Alaska,  4G4, 
mining  locator  acquires  present  vested  estate  in  claim  which  he  may 
defend  by   ejectment. 

13    Wall.     104-128,    20   L.     585,     NORWICH     ETC.    TRANSP.    CO.    v. 
WRIGHT. 

Syl.    2    (VII,   633).     Ship    owner's    liability    for   master's   neglisjenee. 
Aj>proved   in    The   W.   G.   Mason,    142    Fed.    919,    where   two    tugs    be- 
longing   to    same    owner    were    towing    ship,    rear    tug,    which    did    not 


13  Wall.  128-165  Notes  on  U.  S.  Eeports.  536 

control  tow,  was  not  liable  in  rem  for  stranding  of  tow  through 
fault  of  leader;  The  Sacramento,  131  Fed.  374,  where  petition  in 
admiralty  to  limit  liability  of  vessel  and  cargo  for  collision  failed 
to  state  facts,  by  reason  of  which  exemption  claimed,  it  was  insuffi- 
cient to  permit  contest  of  question  of  vessel 's  fault. 

Syl.  2   (VII,  633).     Ship  owner's  limitation  of  liability. 

Approved  ia  The  Lotta,  150  Fed.  221,  where  there  was  only  one  claim- 
ant against  vessel  for  negligent  death,  owner  could  set  up  limited  lia- 
bility as  defense  in  state  court;  Hagan  v.  City  of  Eiehmond,  104  Va. 
733,  52  S.  E.  389,  3  L.  E.  A.  (N.  S.)  1120,  holding  void  city  ordinance 
declaring  harbor  commissioners  shall  remove  wrecks  injurious  to  harbor 
at  owner's  expense. 

13  Wall.  128-150,  20  L.  519,  UNITED  STATES  v.  KLEIN. 
Syl.  3   (VII,  639).     Pardon  blots  out  offense. 
See  111  Am.  St.  Eep.  109,  note. 

13  Wall.  154-156,  20  L.  614,  AEMSTEONG  v.  UNITED  STATES. 

Syl.   2    (VII,   641).     Judicial   notice  of   executive   proclamation. 

Approved  in  Sprinkle  v.  United  States,  141  Fed.  820,  in  prosecution 
of  violation  of  internal  revenue  laws,  rules  and  regulations  of  Internal 
Eevenue  Department  are  admissible. 

13  Wall.  158-162,  20  L.  490,  SEMMES  v.  HAETFOED  INS.  CO. 

Syl.  2  (VII,  642).  Insurance — Limitation  as  to  suit — Impossibility 
of  performance. 

Approved  in  Lynchburg  etc.  Mill  Co.  v.  Travelers'  Ins.  Co.,  149  Fed. 
957,  where  insured  in  employer's  liability  policy  participated  in  nego- 
tiations for  settlement  for  three  months  after  expiration  of  time 
limit  in  policy,  contract  limitation  was  absolutely  waived. 

Distinguished  in  Lynchburg  etc.  Co.  v.  Travelers'  Ins.  Co.,  140  Fed. 
721,  723,  where  insurer  negotiated  for  settlement  after  expiration  of 
contract  limitation,  such  limitation  not  absolutely  waived  but  merely 
suspended. 

13  Wall.  162-165,  20  L.  566,  EEICHE  v.  SMYTHE. 

Syl.  2   (VII,  644).     Statutory  construction. 

Approved  in  State  v.  Eldredge,  27  Utah,  488,  76  Pac.  341,  con- 
struing proviso  in  Const.,  art.  13,  §  11,  that  board  of  equalization 
shall  ' '  also  perform  such  other  duties  as  may  be  prescribed  by  law. ' ' 

Syl.  3  (VII,  644).     Statutes — Construction  of  words. 

Approved  in  United  States  v.  Boden,  133  Fed.  840,  canned  pineapples 
containing  sugar  for  flavoring  only  are  liable  for  lower  rate  provided 
for  by  par.   263  of  Act  of   1897;   Brennan  v.  United  States,   129  Fed, 


537  Notes  on  U.  S.  Eeports.  13  Wall.  16<5-222 

838,  pickled  limes  are  dutiable  under  par.  266   of  Tariff  Act  of  1897, 
and  not  free  under  par.  559. 

13    Wall.   166-182,   20  L.   557,    PUMPELLY    v.   GREEN    BAY    ETC. 
CANAL  CO. 

Syl.  2    (VII,  646).     Eminent  domain — Right  to   compensation. 

Approved  in  dissenting  opinion  in  Chicago  etc.  Ry.  Co.  v.  Illinois, 
200  U.  S.  598,  50  L.  611,  26  Sup.  Ct.  341,  majority  holding  imposition 
on  railroad  of  entire  cost  of  removing  and  rebuilding  of  bridge  made 
necessary  by  widening  of  channel  by  autl^orized  officials  not  a  "taking." 

Syl.  3  (VII,  647).  Eminent  domain— W^hat  is  "taking." 
Approved  in  Barron  v.  Memphis,  113  Tenn.  92,  106  Am.  St.  Rep. 
810,  80  S.  W.  833,  where  city  enlarged  bridge  pier  and  thereby  diverted 
current  S9  that  water  overflowed  land  and  eroded  it,  there  was  a  "tak- 
ing"; Town  of  Nahaut  v.  United  States,  136  Fed.  285,  69  L.  R.  A.  723, 
70  C.  C.  A.  641,  arguendo. 

Syl.    4     (VII,    648).     Eminent    domain — Flooding    land    as    taking. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  484,  50  L.  280,  26  Sup. 
Ct.  127,  flooding  of  lands  consequent  on  erection  of  dam  under  statu- 
tory authority  is  not  "taking"  where  flooding  can  be  prevented  by  rais- 
ing height  of  dikes;  Wright  v.  Austin,  143  Cal.  242,  101  Am.  St.  Rep. 
97,  76  Pac.  1025,  65  L.  R.  A.  649,  county  cannot  bore  wells  in  highway 
and  use  subterranean  water  for  sprinkling  it;  Baltimore  etc.  R.  R.  Co. 
V.  Sattler,  100  Md.  329,  59  Atl.  658,  owner  of  property  injured  by 
smoke  and  vibration  of  passing  trains  may  recover  without  proof  of 
negligence  by  railroad;  Matheny  v.  Aiken,  68  S.  C.  177,  47  S.  E.  Gl, 
owner  of  land  outside  city  whose  property  is  damaged  by  sewage 
emptying  into  stream  is  limited  to  statutory  action  for  compensation, 
and  cannot  sue  city  to  abate  nuisance;  Stockdale  v.  Rio  Grande  etc. 
Ry.  Co.,  28  Utah,  212,  77  Pac.  852,  applying  rule  where  switch-track 
erected  on  adjoining  lands  caused  loss  and  inconvenience;  Tracewell 
V.  Wood  County  Court,  58  W.  Va.  290,  52  S.  E.  188,  where  municipal 
corporation  by  drainage  ditch  made  along  road  collects  surface  water 
and  casts  it  on  land,  it  is  liable  for  damage  caused  thereby;  Lathrop 
V.  Racine,  119  Wis.  473,  97  N.  W.  196,  Racine  charter  provisions  requir- 
ing land  owners  along  river  to  build  docks  void  as  not  providing 
for  determination  of  special  benefits.  See  109  Am.  St.  Rep.  905,  906, 
916,  note. 

(VII,  645).  Miscellaneous.  Cited  in  Matheny  v.  Aiken,  68  S.  C. 
174,  47  S.  E.  60,  fifth  amendment  is  limitation  on  federal  and  not  state 
government. 

13  Wall.   190-222,  20  L.  550,  PENNSYLVANIA  COLLEGE  CASES. 

Syl.  5  (VII,  657).     Amendment  of  corporate  franchises. 

Approved  in  State  v.  U.  S.  Grant  University,  115  Tenn.  247,  249, 
250,    90    S.    W.    297,    where    educational    institution    transferred    all    its 


13  Wall.  222-236  Notes  on  U.  S.  Reports.  538 

property  and  corporate  franchises  to  charitable  society  to  transfer  prop- 
erty to  new  corporation,  and  then  ceased  to  perform  its  functions,  its 
trustee   cannot   sue   in   its   behalf. 

13  Wall.  222-236,   20  L.  617,  INSURANCE  CO.  v.  WILKINSON. 

Syl.  2   (VII,  658).    .Insurance — Disclosure  of  injuries. 

Approved  in  Rupert  v.  Supreme  Court  tJ.  O.  F.,  94  Minn.  298,  102 
N.  W.  717,  when  questions  to  insurance  applicant  are  in  such  terms 
as  to  include  trivial  ailments  unconnected  with  any  specific  disease,  they 
refer  only  to  ailments  affecting  risk. 

Syl.  4  (VII,  658).     Reformation  of  instruments  for  mistake  by  parol. 

Approved  in  Lyon  v.  United  Moderns,  148  Cal.  476,  83  Pac.  807, 
where  insured  in  good  faith  made  truthful  answers  to  questions  in  ap- 
plication, but  answers  were  not  correctly  transcribed  by  mec]ical  ex- 
aminer, insurer  could  not  assert  falsity  of  answers  as  defense;  Far- 
mers' etc.  Ins.  Co.  v.  Jackman,  35  Ind.  App.  18,  73  N.  E.  736,  where 
at  time  of  policy  insured  owned  property  in  fee  but  later  conveyed 
it  to  son,  retaining  life  interest,  and  officers  said  no  change  in  policy 
necessary,  condition  as  to  character  of  title  waived. 

Limited  in  Connecticut  Fire  Ins.  Co.  v.  Buchanan,  141  Fed.  891,  892, 
refusing  parol  evidence  of  statements  of  agent  as  to  necessity  for 
obtaining  vacancy  permit  where  policy  provided  for  cancellation  if 
premises  became  vacant. 

Syl.  5   (VII,  661).     Estoppel  by  conduct. 

Approved  in  Frels  v.  Lillie  Black  F.  M.  Ins.  Co.,  120  Wis.  598.  98 
N.  W.  524,  where  insurer  ordered  payment  of  loss  in  ninety  days 
and  in  ten  days  was  informed  that  policy  held  by  assignee,  and  they 
notified  latter  that  garnishment  proceedings  were  pending,  insurer 
estopped  to  set  up  contract  limitation  where  garnishment  proceedings 
dismissed  after  expiration  of  limit. 

Limited  in  Dimick  v.  Metropolitan  Life  Ir.s.  Co.,  69  N.  J.  L.  399, 
55  Atl.  297,  62  L.  R.  A.  774,  untrue  answers  entered  by  medical  examiner 
and  signed  by  applicant  render  policy  void  where  answers  are  war- 
ranties under  contract. 

Syl.  6  (VII,  662).     Powers  of  insurance  agent. 

Approved  in  American  Tel.  etc.  Co.  v.  Green,  164  Ind.  357,  73  N.  E. 
709,  applving  rule  where  agent  arranged  consideration  for  release  of 
claims  for  damages;  Cullinan  v.  Bowker,  180  N.  Y.  97,  72  N.  E.  912, 
where  clerk  of  agent  authorized  to  execute  liquor  law  bonds  for 
his  company  issued  bond,  certificate  for  which  had  been  forfeited,  and 
later  agent,  in  ignorance  of  forfeiture,  signed  bond,  company  not  liable; 
Starr  v.  Mutual  Life  Ins.  Co.,  41  W^ash.  233,  83  Pac.  118,  where 
solicitor  executed  receipt  to  apidicant  making  insurance  in  force  from 
date   of   receipt  if   application  accepted   and   policy   issued,   insurer   es- 


539  Notes  on  U.  S.  Reports.  13  Wall.  236-243 

topped  to  deny  agent's  authority;  Medley  v.  German  etc.  Tns.  Co.,  55 
W.  Ya.  349,  350,  47  S.  E.  104,  applying  rule  where  title  of  fee  to 
property  M'as  not  in  insured. 

Syl.  7   (VII,  6G3).     Insurance — Declarations  and  acts  of  local  agent. 

Approved  in  State  Mut.  Ins.  Co.  v.  Latourette,  71  Ark.  247,  100  Am. 
St.  Rep.  63,  74  S.  W.  302,  where  local  agent,  who  forwards  applica- 
tions, receives  policies  an'd  accepts  premiums,  is  informed  by  applicant, 
prior  to  delivery  of  policy,  that  title  is  in  another,  delivery  waives 
condition  requiring  title  to  be  in  insured;  Nute  v.  Hartford  Fire  Ins. 
Co.,  309  Mo.  App.  596,  83  S.  W.  86,  where  applicant  correctly  informed 
agent  of  state  of  title,  insurer  cannot  defeat  recovery  because  policy 
misstated  title;  German  Ins.  Co.  v.  Shader,  68  Neb.  8,  93  N.  W.  975,  60 
L.  R.  A.  918,  admitting  parol  evidence  of  waiver  of  conditions  in 
policy  by  agent;  Aetna  Life  Ins.  Co.  v.  Fallow,  110  Tenn.  734,  77  S.  W. 
940,  applying  rule  where  agent  waived  provision  as  to  payment  of 
premium  in  advance.     See  107  Am.  St.  Rep.  122,  note. 

Distinguished  in  Deming  Inv.  Co.  v.  Shawnee  Ins.  Co.,  16  Okl.  11, 
83  Pac.  921,  holding  company  not  liable  where  agent's  limited  autliority 
was  known  to  applicant  who  made  false  statement  as  to  encumbrances, 
though  condition  of  title  known  to  agent. 

Syl.  8  (VII,  668).     Insurance — Agent  preparing  application. 

Approved  in  Connecticut  Fire  Ins.  Co.  v.  Buchanan,  141  Fed.  893, 
refusing  parol  evidence  of-  statements  of  agents  as  to  necessity  for 
obtaining  vacancy  permit  where  policy  provided  for  cancellation  if 
premises  became  vacant;  Bushnell  v.  Farmers'  etc.  Ins.  Co.,  110  Mo. 
App.  228,  85  S.  W.  103,  applying  rule  where  there  were  encumbrances 
on  property  not  mentioned  in  application. 

13  Wall.  236-243,  20  L.  624,  EX  PARTE  McXEIL. 

Syl.  4   (VII,  G73).     State  pilotage  laws  valid. 

Approved  in  Olsen  v.  Smith,  195  U.  S.  341,  49  L.  229,  25  Sup.  Ct. 
52,  upholding  Texas  pilotage  laws. 

Syl.  7   (VII,  674).     Right  created  by  state  statute — Federal  courts. 

Approved  in  Mathews  Slate  Co.  v.  Mathews,  148  Fed.  493,  fed- 
eral court  has  no  jurisdiction  over  suit  brought  under  Massachusetts 
statute  giving  courts  equity  jurisdiction  over  suit  by  creditor  to 
apply  in  payment  of  debt  property  of  debtor  which  cannot  be  at- 
tached at  law;  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  949,  67  L. 
R.  A.  761,  66  C.  C.  A.  55,  provision  of  city  charter  for  appeals  from 
allowance  or  rejection  of  claims  to  district  court  and  prohibiting  pay- 
ment of  claims  pending  appeal  does  not  restrict  federal  jurisdiction; 
Madisonville  etc.  Co.  v.  St.  Bernard  Min.  Co.,  130  Fed.  792,  uphold- 
ing removability  of  suit  for  condemnation  of  railroad  right  of  way 
by  Kentucky  corporation  against  citizen  of  another  state;  The  Sue 
137  Fed.  135,  arguendo. 


13  Wall.  244-263  Notes  on  U.  S,  Eeports.  540 

Distinguished  in  Illinois  Life  Ins.  Co.  v.  Newman,  141  Fed.  450, 
denying  federal  equity  jurisdiction  to  enjoin  collection  of  state  tax 
on  ground  of  its  illegality,  though  such  power  is  conferred  by  state 
statute;  Anthony  v.  Burrow,  129  Fed,  789,  denying  federal  equity 
jurisdiction  to  require  state  officer  to  certify  nomination  of  certain 
person  as  candidate  for  Congress. 

13  Wall.  244-251,  20  L.  539,  BATH  COUNTY  v,  AMY. 

Syl.  1  (VII,  676).     Circuit  court's  power  to  issue  mandamus. 

Approved  in  Ex  parte  Massachusetts,  197  U.  S.  488,  49  L.  848,  25 
Sup.  Ct.  512,  denying  jurisdiction  to  issue  extraordinary  writs  to  re- 
strain proceedings  in  equity  cause;  Ex  parte  Moran,  144  Fed.  596, 
upholding  jurisdiction  of  circuit  court  of  appeals  to  issue  habeas 
corpus  to  determine  power  of  Oklahoma  court  to  imprison  one  con- 
victed of  capital  crime;  United  States  v.  Norfolk  etc.  Ey.  Co.,  138 
Fed.  851,  denying  mandamus  to  compel  interstate  railroad  to  equita- 
bly distribute  cars  according  to  contract;  Barber  Asphalt  etc.  Co.  v. 
Morris,  132  Fed.  953,  67  L.  K.  A.  761,  66  C.  C.  A.  55,  granting  man- 
damus to  compel  circuit  judge  to  vacate  order  staying  proceedings 
pending  state  court  appeal;  Mystic  Milling  Co.  v.  Chicago  etc.  Ey. 
Co.,  132  Fed.  292,  denying  jurisdiction  of  mandamus  proceeding  on 
removal;  Kelly  v.  Grand  Circle,  W.  O.  W.,  129  Fed.  831,  proceeding 
for  mandamus  by  motion  and  affidavits  as  authorized  by  Bal.  (Wash.) 
Code,  §  5765,  authorizing  assessment  of  damages  on  judgment  for 
applicant,  is  not  removable. 

Syl.  2  (VII,  677).     Mandamus  issuable  by  circuit  court. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  952,  67 
L.  E.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to  compel  circuit 
judge  to  vacate  order  staying  proceedings  pending  state  court  ap- 
peal. 

13  Wall.  254-257,  20  L.  681,  UNITED  STATES  v.  WILDEE. 

Syl.  3  (VII,  679).     Part  payment  as  affecting  limitations. 

Approved  in  Good  v.  Ehrlieh,  67  Kan.  97,  72  Pac.  546,  applying 
rule  where  payment  made  on  note. 

13  Wall.  257-263,  20  L.  635,  KLINGEE  v.  MISSOUEL 
Syl.  1  (VII,  680).  State  record  showing  federal  question. 
Approved  in  Allen  v.  Arguimbau,  198  U.  S.  155,  49  L.  993,  25  Sup. 
Ct.  662,  defense,  in  action  on  note  given  for  promise  to  have  cigars 
under  certain  contract,  that  it  was  contemplated  that  cigars  were  to 
be  taken  from  factory  without  complying  with  federal  statute,  raises 
no  federal  question. 


541  Notea  onU.  S.  Eeports.  13  Wall.  264-297 

13  Wall.  264-268,  20  L.  568,  WILMINGTON  R.  R.  CO.  v.  REID. 

Syl.  4  (VII,  683).  Taxation — Scope  of  exemption  of  corporation's 
property. 

Approved  in  Southwestern  Tel.  etc.  Co.  v.  San  Antonio,  32  Tex. 
Civ.  102,  73  S.  W.  860,  franchises  of  corporation  exercised  by  it  in 
city  are  property,  within  city's  charter  taxing  all  property. 

13  Wall.  270-291,  20  L.  571,  CHICAGO  &  N.   W.  RY.  CO.  v.  WHIT- 
TON. 

Syl.  1   (VII,  686).     Corporation  citizen  of  state  of  creation. 

Approved  in  Lee  v.  Atlantic  etc.  R.  Co.,  150  Fed.  796,  where  Vir- 
ginia railroad  was  merged  with  foreign  railroad  and  stock  in  lat- 
ter canceled  for  stock  in  former,  former  continued  to  exist  as  Vir- 
ginia corporation;  Western  Union  Tel.  Co.  v,  Pittsburg  etc.  R}^  Co., 
137  Fed.  437,  in  federal  suit  for  specific  performance  of  right  of 
way  contracts  with  consolidated  railroad  comjianies,  it  is  immate- 
rial that  portion  of  property  affected  is  outside  district;  Baltimore 
etc.  R.  R.  Co.  V.  Allen,  58  W.  Va.  398,  112  Am.  St.  Rep.  985,  52  S. 
E.  469,  3  L.  R.  A.  (N.  S.)  608,  railroads  chartered  by  other  states 
but  operating  roads  here  may  be  proceeded  against  as  garnishees  ir- 
respective of  situs  of  debts. 

Syl.    2    (VII,    687).     Citizenship    of    corporation    chartered    by    two 

states. 

Approved  in  United  States  v.  Milwaukee  etc.  Transit  Co.,  142  Fed. 
254,  upholding  sufficiency  of  bill  to  enjoin  rebating  where  officers 
of  corporation  formed  transit  company  which  made  carriage  con- 
tracts for  it  and  received  commissions  for  obtaining  business;  Dodd 
V.  Louisville  Bridge  Co.,  130  Fed.  195,  denying  removal  whore  con- 
solidated railroad  sued  citizen  of  one  of  states  of  incorporation  of  one 
of  constituent  companies;  Russell  v.  St.  Louis  etc.  Ry.  Co.,  71  Ark. 
457,  75  S.  W.  728,  foreign  railroad  complying  with  Acts  1889,  p.  43, 
c.  34,  becomes  domestic  and  may  exercise  right  of  eminent  domain. 

Syl.  4  (VII,  691).  State  statute  cannot  restrict  federal  jurisdic- 
tion. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  949,  67 
L.  R.  A.  761,  66  C.  C.  A.  55,  city  charter  prohibiting  payment  of 
claims  pending  appeal  from  their  allowance  or  rejection  does  not  af- 
fect federal  jurisdiction. 

13  Wall.  291-297,  20  L.  562,  MYERS  v.  CROFT. 

Syl.  2  (VII,  697).     Vendor  cannot  question  vendee's  capacity. 

Approved  in  Clark  v.  Sayers,  55  W.  Va.  526,  47  S.  E.  318,  where 
one  conveys  land  with  general  warranty,  and  he  afterward  acquires 
good  title,  acquisition  inures  to  grantee's  benefit. 


13  Wall.  297-328  Notes  on  U.  S.  Eeports.  542 

Syl.  3   (VII,  697),     Assignment  of  right  of  pre-emption. 

Approved  in  United  States  v.  Clark,  200  U.  S.  607,  50  L.  616,  26 
Sup.  Ct.  340,  purchaser  of  timber  lands  after  issuance  of  receiver's 
final  receipts  is  bona  fide  purchaser  as  against  cancellation  for  frauds 
of  entryman;  McEIhaney  v.  McElhaney,  125  Iowa,  282,  101  N.  W. 
91,  where,  after  husband  contracted  to  give  wife  half  of  all  after- 
acquired  property,  he  entered  timber  claim,  and  both  spouses  re- 
sided on  land  till  after  patent  issued,  agreement  valid  as  to  such 
land;  Flanagan  v.  Forsythe,  '.)  Okl.  236,  50  Pac.  155,  lands  entered 
as  homestead  are  not  exempt  from  liability  for  debts  after  final  proof 
made  and  final  or  patent  certificate  issued;  Tecumseh  State  Bk.  v. 
Maddox,  4  Okl.  594,  46  Pac.  567,  relinquishment  of  preferential  right 
to  enter  on  public  lands  and  agreement  to  sell  personalty  and  im- 
provements thereon  are  good  consideration  for  assignment  of  moneys; 
dissenting  opinion  in  Hafemann  v.  Gross,  199  U.  S.  352,  50  L.  226, 
26  Sup,  Ct,  80,  majority  upholding  contract  by  which  pre-emptioner 
agreed  in  consideration  of  advances  to  pay  sum  for  locating  him  on 
land  and  percentage  of  proceeds  of  sale  made  after  acquiring  title. 

Syl.  4  (VII,  699).     Alienability  of  lands  prior  to  patent. 

Approved  in  Adams  v.  Church,  193  U.  S.  517,  48  L.  772,  24  Sup.  Ct. 
512,  argument  by  entryman  under  timber  culture  act  to  convey 
claim  to  proposed  partnership  as  soon  as  he  should  acquire  title  is 
not  void. 

33  Wall.  297-306,  20  L.  579,  PENDLETON  COUNTY  v.  AMY, 

Syl.  1  (VII,  699).     Action  by  bearer  of  bonds — Denial. 

Approved  in  Berry  v.  Barton,  12  Old.  23G,  71  Pac.  1079,  66  L.  E. 
A.  513,  where  petition  in  action  on  note  recites  execution  to  plain- 
tiff for  valuable  consideration  and  default  in  payment,  answer  deny- 
ing that  plaintiff  is  owner  and  holder  and  alleging  that  he  is  not 
real  party  in  interest  states  no  defense, 

13  Wall.  306-311,  20  L.  683,  WILLIAMS  v.  KIRTLAND, 

Syl.  2  (VII,  702).     Binding  effect  of  state  statutory  construction. 
Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry,  Co.,  144  Fed. 

179,  determining  title  to  Oakland  waterfront, 

13    Wall.    311-328,    20    L,    581,    DELAWARE    ETC,    CANAL    CO.    v. 
CLARK. 

Syl.  1  (VII,  702),     Protection  of  words  used  as  trademark. 
Approved  in   Gruber   Almanack   Co.   v,   Swingley,   103   Md.   376,   63 
Atl.    686,    holding   misrepresentations    on   book    did    not    deprive    com- 
plainant of  right  to  enjoin  infringement  of  trademark. 

Distinguished  in  Smith-Dixon  Co.  v.  Stevens.  100  Md.  124.  50  Atl. 
404,  refusing  to  restrain  sale  of  bags   containing  imitation   of   plain- 


543  Notes  on  U.  S.  Eeports.  13  Wall.  311-328 

tiff's  advertisement  where  plaintiff  had  printed  form  of  label  which 
he  had  registered  for  another  company  for  long  time  prior  to  filing  it 
with  Secretary  of  State. 

Syl.  2  (VII,  703).     Object  of  trademark  stated. 

Approved  in  Hygeia  etc.  Water  Co.  v.  Consolidated  Ice  Co.,  144 
Fed.  141,  word  "Hygeia"  as  name  for  distilled  water  used  for  long 
time  becomes  trademark;  Dennison  Mfg.  Co.  v.  Scharf  etc.  Co.,  135 
Fed.  628,  68  C.  C.  A.  2G3,  series  of  numbers  used  by  label-maker  in 
catalogues  and  in  connection  with  name  on  boxes  containing  labels,  to 
designate  style  of  label,  is  not  trademark. 

Syl.  3  (VII,  704).     Essence  of  wrong  in  trademark  infringement. 

Approved  in  Dennison  Mfg.  Co.  v.  Scharf  Tag  etc.  Co.,  135  Fed. 
634,  68  C.  C.  A.  263,  series  of  numbers  used  by  label-maker  in  cata- 
logues and  in  connection  with  name  on  boxes  containing  labels,  to 
designate  style,  is  not  trademark;  Galena  etc.  Oil  Co.  v.  Fuller,  142 
Fed.  1007,  trademark  consisting  of  five-pointed  star  with  word 
"Galena"  above,  and  word  "Oil"  below  it,  and  letter  "G"  in 
center,  not  infringed  by  six-pointed  star  made  of  triangles  and  hav- 
ing words  "Extra  Star";  Scriven  v.  North,  134  Fed.  370,  67  C.  C. 
A.  348,  applying  rule  where  elastic  seam  drawers  were  imitated  and 
advertised  and  sold  as  complainant's;  Woodcock  v.  Guy,  33  Wash. 
242,  74  Pac.  360,  where  petition  to  enjoin  infringement  of  nonrogis- 
tered  trademark  asked  protection  of  plaintiff  in  exclusive  use  of 
word,  but  failed  to  charge  that  defendant  had  simulates  labels,  it  was 
insufficient. 

Syl.  4  (VII,  705).  Trademark  cannot  give  monopoly  of  other's 
goods. 

Approved  in  Diamond  Watch  Co.  v.  Saginaw  Match  Co.,  142  Fed. 
729,  manufacturer,  without  patent,  of  tipped  matches,  head  and  tip 
are  of  different  colors,  is  not  entitled  to  monopoly  of  colors. 

Syl.  5   (VII,  707).     Trademarks — Geographical  name. 

Approved  in  Buzby  v.  Davis,  150  Fed.  278,  use  of  word  "Ivovstonc" 
by  one  manufacturer  in  his  trade  name  to  palm  them  off  as  those  of 
another  is  enjoinable. 

Distinguished  in  Ncsne  v.  Sundet,  93  Minn.  302,  101  N.  W.  492, 
corporation  enjoined  from  using  trade  name  lawfully  adopted  prior  to 
its  incorporation  by  partnership  engaged  in  like  business  at  same 
place.      . 

Syl.  6  (VII,  709).     Application  as  truthful  when  used  by  defendant. 

Approved  in  Howe  Scale  Co.  v.  Wyckoff,  198  U.  S.  140,  49  L.  9S6, 
25  Sup.  Ct.  609,  maker  of  typewriters  under  name  "Eemington" 
cannot  enjoin  Eemington  and  Sholes  from  using  name  "Kemington- 
Sholes"   on   machines. 


13  Wall.  329  357  Notes  on  U.  S.  Eeports.  544 

(VII,  702.)  Miscellaneous.  Cited  in  Saxlehner  v.  Eisner,  140  Fed. 
940,  there  is  little  analogj  between  trademark  property  rights  and 
patents    for   inventions. 

13  Wall.  329-335,  20  L.  696,  THE  PATAPSCO. 

Syl.  1   (VII,  709).     Supplies  to  ship  in  foreign  port. 

Approved  in  The  Wyandotte,  136  Fed.  473,  where  charterer's  agent 
in  foreign  port  procured  libelant  to  purchase  master's  draft  for  pay- 
ment of  necessaries,  owners  cannot  offset  against  same  demurrage 
claims  against  charterers;  The  Surprise,  129  Fed.  875,  64  C.  C.  A.  309, 
supplies  furnished  vessel  on  order  of  master  in  foreign  port  create 
lien  though  vessel  navigated  by  charterer,  who  is  bound  to  make  dis- 
bursements and  protect  vessel  from  liens. 

Distinguished  in  The  New  Brunswick,  129  Fed.  895,  64  C.  C.  A.  325, 
where  place  of  business  of  corporation  which  is  owner  of  vessel  is 
at  port  in  state  other  than  that  of  its  creation,  master  cannot  impress 
lien  for  supplies  in  that  port,  where  furnisher  knew  facts. 

13  Wall.  335-357,  20  L.  646,  BRADLEY  v.  FISHER. 

Syl.  3   (VII,  713).     Liability  of  judges  for  official  acts. 

Approved  in  Mitchell  v.  Galen,  1  Alaska,  341,  where  justice  of 
peace  collusively  issues  warrant  for  arrest  of  mine  owner  for  trespass 
on  his  own  property,  so  that  he  may  be  removed  therefrom,  and  others 
acting  with  judge  may  take  possession,  he  is  civilly  liable;  McVeigh 
V.  Ripley,  77  Conn.  141,  58  Atl.  703,  where  theft  of  horse  punishable 
by  imprisonment,  and  theft  of  property  of  value  of  $15  punishable  by 
fine  of  not  over  $7,  where  justice  fined  horse  thief  $5  and  committed 
him  until  fine  paid,  justice  not  liable  for  false  imprisonment;  Com- 
stock  v.  Eagleton,  11  Okl.  492,  69  Pac.  957,  probate  judge,  in  rendering 
judgment  in  bastardy  case,  is  not  liable  for  false  imprisonment  though 
judgment  is  erroneous. 

Syl.   4    (VII,   714).     Judge's   liability    for   action   within   jurisdiction. 

Approved  in  Bohri  v.  Barnett,  144  Fed.  390,  false  imprisonment 
based  on  arrest  and  conviction  for  violation  of  void  ordinance  does 
not  lie  against  trial  judge,  constable  and  prosecuting  attorney  where 
magistrate  had  jurisdiction  over  violations  of  ordinances;  United 
States  v.  Bell,  135  Fed.  338,  68  C.  C.  A.  144,  where  plaintiff's  claim 
offered  for  filing  in  federal  court  against  state  judge  of  general  juris- 
diction showed  on  face  lack  of  cause  of  action  against  them,  he  was 
not  injured  by  clerk's  refusal  to  file  papers;  Rush  v.  Buckley,  100  Me. 
331,  61  Atl.  778,  70  L.  R.  A.  464,  municipal  judge  issuing  warrants 
and  trying  case  for  violation  of  ordinance  which  never  was  legally 
passed  is  not  liable  for  damages. 

Syl.  5  (VII,  715).     Inherent  power  to  disbar  attorneys. 
Approved   in   dissenting  opinion   in  In  re  Waugh,   32   Wash.    59,   72 
Pac.   713,   majority   holding   supreme   court   has   no   inherent   original 


545  Notes  on  U.  S.  Keports.  13  Wall.  363-373 

jurisdiction  of  proceedings  to  disbar  an  attorney  for  fraud  on  superior 
court  in  procuring  admission  to  practice. 

13  Wall.  363-3G6,  20  L.  653,  ROBINSON  v.  UNITED  STATES. 

Syl.  1   (VII,  717).     Evidence  of  custom  to   explain  contract. 

Approved  in  Snoqualmi  Realty  Co.  v.  Moynihan,  179  Mo.  643,  78 
S.  W.  1018,  where  building  contract  required  "San  Domingo  mahog- 
any," evidence  admissible  that  such  phrase  meant  mahogany  equal  in 
density  to  that  grown  in  San  Domingo. 

Syl.  2  (VII,  718).     Usage  considered  when  contract  made. 

Approved  in  Cleveland-Cliffs  etc.  Co.  v.  East  Itasca  etc.  Min.  Co., 
146  Fed.  235,  construing  contract  for  assignment  of  mining  leases 
with  reference  to  manner  of  conducting  explorations;  Northern  Pac. 
Ry.  Co.  V.  Kempton,  138  Fed.  995,  where  stock  carriage  contract  was 
silent  as  to  time  and  manner  of  performance,  evidence  of  custom  to 
furnish  independent  train  transportation  of  stock  of  over  ten  carloads 
is  admissible;  Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  174,  175, 
G7  C.  C.  A.  74,  evidence  of  custom  is  admissible  to  show  that  contract 
for  delivery  of  distillery  slop  at  cattle-feeding  lot  contemplated  that 
lot  be  supplied  with  suitable  pens  equipped  with  troughs  and  pipes; 
Security  Trust  Co.  v,  Eobb,  142  Fed.  84,  arguendo. 

Distinguished  in  Lillard  v.  Kentucky  Distilleries  etc.  Co..  134  Fed. 
183,  185,  67  C.  C.  A.  74,  evidence  of  custom  is  inadmissible  to  show 
that  contract  for  delivery  of  distillery  slop  at  cattle-feeding  lot  con- 
templated that  lot  be  supplied  with  suitable  pens  equipped  witp 
troughs  and  pipes. 

Syl.  4  (VII,  719).     Evidence  sufficient  to  establish  usage. 

Approved  in  Chicago  etc.  Ry.  Co.  v.  Lindeman,  143  Fed.  949,  where 
plaintiff's  witnesses  testify  that  there  was  custom  of  doing  act  in 
certain  way,  and  that  they  followed  custom,  and  defendants'  wit- 
nesses say  they  performed  same  act  at  same  time  in  different  way, 
custom  not  shown  to  be  uniform;  Penland  v.  Ingle,  138  N.  C.  458, 
50  S.  E.  851,  holding  custom  of  real  estate  brokers  to  charge  five  per 
cent   commission   not   sufficiently   shown. 

13  Wall.  3C7-373,  20  L.  594,  HALL  v.  RAILROAD  COS. 

Syl.  1  (VII,  719).     Insurer's  liability  secondary  to  carrier. 

Approved  in  Firemen's  Fund  Ins.  Co.  v.  Oregon  Ry.  etc.  Co.,  45 
Or.  62,  76  Pac.  1077,  67  L.  R.  A.  161,  where  insurer  pays  loss  under 
policy  in  sum  less  than  insured's  loss,  and  takes  subrogation  assign- 
ment for  sum  paid,  insurer  and  insured  may  sue,  in  joint  names, 
wrongdoer  causing  loss. 

35 


IS  Wall.  373-3S6  Notes  on  U.  S.  Reports.  546 

Syl.  2  (VII,  719).  Payment  of  loss  by  marine  insurers — Abandon- 
ment. 

Approved  in  The  Livingstone,  130  Fed.  748,  65  C.  C.  A.  610,  bill  of 
sale  of  vessel  sunk  in  collision  and  which  is  actual  total  loss  and  is 
abandoned  does  not  vest  insurer  with  right  of  action  against  vessel 
in  fault  for  collision. 

13   Wall.   373-379,   20   L.   611,   EAST   SAGINAW   ETC.   SALT   CO.   v. 
SAGINAW. 

Syl.  6   (VII,  724).     Bounties  are  repealable. 

Approved  in  Powers  v.  Detroit  etc.  Ey.  Co.,  201  U.  S.  557,  50  L. 
865,  26  Sup.  Ct.  556,  Mich.  Laws  1855,  p.  305,  §  9,  providing  that  rail- 
road shall  pay  tax  based  on  percentage  of  capital  stock  in  lieu  of 
other  taxes,  creates  contract  between  state  and  railroad;  Houghton 
V.  Payne,  194  U.  S.  99,  48  L.  891,  24  Sup.  Ct.  590,  construing  Comp. 
St.  1901,  p.  2646,  with  reference  to  second-class  mail  matter. 

13  Wall.  379-386,  20  L.  627,  SLAUGHTER  v.  GEESON. 

Syl.   1   (VII,  724).     What  misrepresentation  vitiates  contract. 

Approved  in  Chamberlayne  v.  American  Law  Book  Co.,  148  Fed.  317, 
representation  to  law-writer  that  he  can  complete  certain  treatise 
within  time  limit  of  contract  is  not  basis  of  action  for  deceit;  Kimber 
v.  Young,  137  Fed.  747,  70  C.  C.  A.  178,  in  action  for  deceit  in  sale 
of  corporate  bonds  allegations  of  false  representations  by  defendant 
that  he  knew  bonds  were  good  and  that  they  would  be  paid  create 
no  liability;  Gardner  v.  Mann,  36  Ind.  App.  698,  76  N.  E.  418,  where 
owner  of  city  property  exchanged  it  for  land  in  another  state  on 
representation  that  it  was  raw  prairie  land,  whereas  it  was  desert, 
and  neither  party  had  seen  it,  city  owner  entitled  to  rescind. 

Syl.  3  (VII,  725).  Misrepresentation — Means  of  knowledge  avail- 
able to  both. 

Approved  in  Curran  v.  Smith,  149  Fed.  950,  affirming  Smith  v.  Cur- 
ran,  13S  Fed.  157,  holding  where  contracting  engineers  enteretl  into 
provisional  contract  to  investigate  pipe-line  project,  and  if  satisfactory 
to  contract  for  its  construction,  and  they  investigated  it  for  one  month 
flnd  then  entered  into  final  contract,  they  cannot  defend  breach  on 
ground  of  misrepresentation;  Heck  v.  Missouri  etc.  Ey.  Co.,  147  Fed. 
780,  one  signing  release  of  cause  of  action  for  damages  on  receipt  of 
money,  without  reading  it,  cannot  avoid  release  on  ground  of  mis- 
representation of  contents;  Burk  v.  Johnson,  146  Fed.  215,  one  pur- 
chasing ri^ht  to  use  copyrighted  plan  for  establishment  of  mutual 
burial  associations  cannot  rescind  sale  for  misrepresentations  as  to 
rights  under  copyright  where  he  had  opportunity  to  ascertain  rights; 
Pittsburg  Life  etc.  Co.  v.  Northern  etc.  Ins.  Co.,  140  Fed.  893,  where, 
in  examination  of  condition  of  concern  which  purchaser  bought,  state- 
ment prepared  by  seller's  officers  for  its  own  use  was  used,  and  after 


547  Notes  on  U.  S.  Eeports.  13  Wall.  418-449 

sale  it  was  found  that  there  were  errors  in  it,  action  for  deceit  docs 
not  lie. 

Distinguished  in  Mather  v.  Barnes,  146  Fed.  1004,  where  purchasera 
of  coal  land  who  sent  experts  into  field  to  examine  same  were  deceived 
by  acts  of  agent  of  seller,  sale  set  aside;  Kell  v.  Trenchard,  142  Fed. 
23,  where  land  and  standing  timber  estimated  at  not  less  than  thirty- 
\We  million  feet  sold,  and  buyer's  agent  deceived  by  seller's  agent  as 
to  quantity  by  false  representations  as  to  boundaries,  principal  was 
liable  for  fraud  of  agent;  Davis  v.  Moore,  46  Or.  155,  79  Pac.  416, 
where  one  employed  to  select  land  for  homestead  selected  piece  which 
plaintiff  could  not  secure  on  account  of  mining  claims,  he  cannot 
defend  on  ground  that  plaintiff  saw  evidence  of  mines  on  ground, 
where  defendant  represented  they  had  been  abandoned. 

13  Wall.  418-432,  20  L.  655,  DAVENPORT  v.  LAMB. 

Syl.  4  (VII,  731).  Under  territorial  laws  settlors  have  possessory 
right. 

Approved  in  Price  v.  Brockway,  1  Alaska,  236.  one  who  erects  cabin 
on  town  lot  in  Alaska  and  acquires  undisj)uted  possession  and  occu- 
panc}'^  thereof,  may  maintain  ejectment  against  one  who  ousts  him 
therefrom. 

13  Wall.  434-449,  20  L.  659,  CLINTON  v.  ENGLEBRECHT. 

Syl.  3  (VII,  733).     Selection  of  juries  left  to  territorial  legislature. 

Approved  in  Ex  parte  Moran,  144  Fed.  604,  selection  of  grand  jurors 
in  way  not  authorized  by  territorial  statute  does  not  entitle  prisoner 
to  discharge  on  habeas  corpus;  Allen  v.  Reed,  10  Okl.  Ill,  60  Pac.  784, 
holding  void  election  law  providing  for  change  in  location  of  county 
scat;  Cullins  v.  Overton,  7  Okl.  485,  54  Pac.  706,  under  act  of  Con- 
gress (29  Stat.  113),  appellate  court  may  determine  cause  jicnding 
therein  on  appeal  from  Greer  county  court  taken  prior  to  March  16, 
1896,  but  not  decided  till  after  that  date;  Territory  v.  Stroud,  6  Okl. 
114,  50  Pac.  267,  upholding  act  providing  for  prosecution  of  misde- 
meanors by  information  without  preliminary  examination;  Ex  parte 
Hally,  1  Okl.  16,  25  Pac.  515,  under  Organic  Act,  §  10,  United  States 
commissioner  may  commit  one  charged  with  assault  to  custody  of 
United  States  marshal;  dissenting  opinion  in  Allen  v.  Reed,  10  Okl. 
130,  152,  63  Pac.  869,  876,  majority  holding  void  election  law  provid- 
ing for  change  in  location  of  county  seat. 

Syl.  7   (VII,  735).     Territorial  courts  not  United  States  courts. 

Approved  in  Cochran  v.  United  States,  147  Fed.  207,  on  trial  in 
territorial  court  of  offense  against  United  States,  questions  relating 
to  severance  and  number  of  peremptory  challenges  are  determined  by 
territorial  laws;  Ex  parte  Moran,  144  Fed.  598,  circuit  court  of  ap- 
peals may  issue  habeas  corpus  to  inquire  into  power  of  Oklahoma 
court  to  imprison  one  convicted  of  capital  crime;  Wallace  v.  Adams, 


13  Wall.  456-479  Notes  on  U.  S.  Eeports.  548 

143  Fed.  725,  United  States  courts  in  Indian  territory  have  equitable 
jurisdiction  to  charge  titld  to  land  evidenced  by  Dawes  Commission 
certificate  of  allotment  with  trust  in  favor  of  rightful  claimant;  Welty 
V.  United  States,  14  Okl.  15,  16,  76  Pac.  123,  in  criminal  prosecution  in 
territorial  court  sitting  with  powers  of  federal  court,  territorial  pro- 
cedure governs;  Fuller  v.  Johnson,  8  Okl.  605,  58  Pac.  747,  United 
States  court  of  Indian  territory  is  not  "United  States  court"  within 
Okl.  St.  1890,  p.  930,  §  2,  relating  to  limitation  of  actions;  Ex  parte 
Murphy,  1  Okl.  290,  29  Pac.  653,  bail  pending  appeal  in  criminal  case 
on  federal  side  of  territorial  court  is  allowed  as  provided  by  territorial 
statute. 

13  Wall.  456-465,  20  L.  629,  BUTLER  v.  WATKINS. 

Syl.  4  (VII,  739).     Requisites  to  show  fraud. 

Approved  in  Rogers  v.  Virginia-Carolina  etc.  Co.,  149  Fed.  19, 
upholding  sufficiency  of  complaint  in  action  for  fraud  in  inducing 
contract  for  sale  of  options  for  purchase  of  phosphate  lands. 

Syl.  6   (VII,  739).     Corporation  liable  for  agent's  fraud. 

Approved  in  Stewart  v.  Wright,  147  Fed.  328,  where  bank  knew 
that  defendant  was  engaged  in  confidence  game  and  represented  him 
as  man  of  credit  to  victims,  and  its  officers  drew  drafts  for  victims, 
bank  liable  as  party  to  scheme. 

Syl.  7   (VII,  739).     Inference  of  fraudulent  motive. 

Approved  in  Exchange  Bank  v.  Moss,  149  Fed.  343,  where  petition 
in  action  for  recovery  of  money  obtained  by  conspiracy  between  bank 
and  others  to  swindle  strangers,  alleged  existence  of  conspiracy  for 
long  time,  evidence  of  acts  of  bank's  cashier  with  respect  to  similar 
transactions  is  admissible;  Brooks  v.  United  States,  146  Fed.  231, 
in  trial  for  mailing  certain  letters  with  intent  to  defraud,  other  letters 
from  defendant's  company  relating  to  company's  transactions,  admis- 
sible to  show  existence  of  fraudulent  scheme;  Olson  v.  United  States, 
133  Fed.  854,  67  C.  C.  A.  21,  on  indictment  for  conspiracy  to  defraud 
government  by  causing  illegal  entry  of  certain  tract  by  certain  per- 
son, evidence  of  inducement  of  entry  by  others  of  other  tracts  is  ad- 
missible; Yakima  VaJIey  Bank  v.  McAllister,  37  Wash.  574,  107  Am.  St. 
Rep.  823,  79  Pac.  1122,  where,  in  action  on  note,  defendant  alleges  in- 
dorsement procured  by  trick,  evidence  of  similar  trick  played  on  others 
is  admissible  even  as  against  bona  fide  holder. 

13  Wall.  475-479,  20  L.  542,  THE  ARIADNE. 

Syl.    1    (VII,   741).     Collision — Duty   to   have   lookout. 

Approved  in  The  Cypromene,  135  Fed.  565,  holding  steamer  navi- 
gating river  at  night  without  lookout  liable  for  collision  with  ship 
anchored  in  customary  anchorage;  The  Sitka,  132  Fed.  864,  holding 
steamer  liable  for  collision  with  passing  vessel  where  she  had  no 
efficient  lookout;  The  Echo,  131  Fed.  631,  holding  steamer  navigating 


549  Notes  on  U.  S.  Reports.  13  Wall,  506-517 

river    opposite    New    Orleans    liable    for    collision    where    she    had    no 
lookout  other  than  master. 

13  Wall.  506-517,  20  L.  702,  FRENCH  v.  EDWARDS. 

Syl.  1  (VII,  744).     Statutory  requisitions  for  officers,  when  directory. 

Approved  in  Western  Electric  Co.  v.  North  Electric  Co.,  135  Fed. 
82,  67  C.  C.  A.  553,  where,  under  Rev.  St.,  §  4885,  by  reason  of  accumu- 
lation of  work,  patent  cannot  be  prepared  within  six  months  after 
allowance,  and  it  is  reallowed  and  issued  on  later  date,  it  is  not  void; 
Allen  V.  City  of  Davenport,  132  Fed.  215,  65  C.  C.  A.  641,  under  Iowa 
25th  Gen.  Assem.  Acts,  c.  7,  p.  18,  providing  that  all  street  improve- 
ments shall  be  made  by  contract,  special  assessment  cannot  be  levied 
unless  valid  contract  made;  Montana  Ore  etc.  Co.  v.  Mahcr,  32  Mont. 
487,  81  Pac.  15,  ten  days'  notice  to  taxpayer  of  increase  in  assess- 
ment required  by  Pol.  Code,  §  3789,  is  jurisdictional;  Hertzler  v. 
Freeman,  12  N.  D.  190,  96  N.  W.  285,  assessment  of  realty  in  name  of 
another  than  true  owner  does  not  render  tax  void;  Frazier  v.  Prince, 
8  Okl.  258,  58  Pac.  752,  under  Okl,  St.  1893,  §  5618,  where  three  con- 
tiguous lots  are  listed  separately,  but  valued  together,  assessment  is 
void;  Sweet  v.  Boyd,  6  Okl.  711,  52  Pac.  943,  refusing  to  enjoin  col- 
lection of  taxes  for  mere  irregularities  in  tax  proceedings  which  did 
not  affect  substantial  rights;  Sharpe  v.  Engle,  2  Okl.  628,  39  Pac. 
385,  taxpayer  cannot  enjoin  collection  of  taxes  because  levied  few 
days  after  time  provided  by  Okl.  St.  1893,  §  5627;  Tefft  v.  Lewis,  27 
R.  I.  17,  60  Atl.  246,  under  Pub.  Laws  1903,  p.  33,  c.  1101,  vesting 
title  to  property  of  abolished  school  districts  in  towns,  and  providing 
for  appraisement  of  property  and  levy  of  tax  to  pay  therefor,  assess- 
ment without  appraisal  is  void;  Dickson  v.  Burckmyer,  07  S.  C.  533, 
46  S.  E.  346,  determining  validity  of  tax  sale. 

Syl.  2   (VII,  746).     Tax  sale— Sale  of  smallest  portion. 

Distinguished  in  dissenting  opinion  in  Jacobs  v.  Buckalcu,  4  Ariz. 
357,  42  Pac.  621,  majority  holding  under  Rev.  St.,  par.  2694,  requiring 
collector  to  designate  what  portion  less  than  whole  he  will  sell,  inquiry 
"who  will  take  lowest  quantity  of  said  block  and  pay  taxes  and  costs 
due"  is  not  sufficient. 

Syl.  3  (VII,  746).     Presumptions  as  to  regularitj'  of  official  acts. 

Approved  in  United  States  v.  Cornell  Steamboat  Co.,  202  U.  S.  192, 
50  L.  991,  26  Sup.  Ct.  648,  upholding  liability  of  government  for  sal- 
vage on  duties  collected  by  it  on  cargo  afterward  saved  from  fire 
while  in  possession  of  customs  officers;  Wabash  R.  Co.  v.  De  Tar, 
141  Fed.  934,  applying  rule  to  instructions  as  to  presumption  of  exer- 
cise of  due  care  by  one  approaching  railroad  crossing. 


13  Wall.  517-604  Notes  on  U.  S.  Eeports.  5o0 

13  Wall.  517-523,  20  L.  543,  MILWAUKEE  ETC.  EAILROAD  CO.  v. 
SOUTTER. 

Syl.  4  (VII,  748).     Recovery  of  money  paid  under  mistake  of  law. 

Approved  in  German  Sav.  &  L.  Soc.  v.  Tull,  136  Fed.  5,  69  C.  C.  A. 
1,  tenant  in  common  who  purchases  entire  interest  through  foreclosure 
not  bona  fide  purchaser  where  he  had  knowledge  of  fraudulent  pro- 
bate proceedings;  dissenting  opinion  in  Thomas  v.  Provident  Life  etc. 
Co.,  138  Fed.  371,  majority  holding  where  property  charged  with 
legacy  was  sold,  and  proceeds  paid  to  legatee,  neither  she  nor  judgment 
creditor  of  residuary  legatees  can  object  to  mortgage  of  estate's 
lauds  executed  without  authority  in  will. 

13  Wall.  526-531,  20  L.  631,  COMMONWEALTH  v.  BOUTWELL. 

Syl.  1  (VII,  749).     Mandamus — Payment  of  claim  after  time. 

Approved  in  Bosworth  v.  Shuck',  118  Ky.  462,  81  S.  W.  241,  denying 
mandamus  to  compel  treasurer  to  pay  warrant  for  auditor's  clerk 
issued  pursuant  to  judgment,  where  appropriation  was  exhausted; 
Wilson  V.  Cox,  73  S.  C.  400,  53  S.  E.  613,  denying  mandamus  to  compel 
county  dispenser  to  open  dispensary  where  election  had  decided  against 
dispensary. 

13  Wall.  531-508,  20  L.  491,  STOCKWELL  v.  UNITED  STATES. 

Syl.  2  (VII,  750).     When  debt  lies. 

Approved  in  United  States  v.  Alcorn,  145  Fed.  1001,  in  action  on 
projiosal  bond  given  by  bidder  for  mail  contract  under  Comp.  St. 
1901,  p.  2695,  actual  damages  cannot  be  inquired  into. 

Syl.  4   (VII,  750).     Knowledge  of  one  partner  as  knowledge  of  all. 

Approved  in  In  re  Hardie,  143  Fed.  609,  materially  false  statement 
by  One  partner  in  course  of  firm's  business  for  purpose  of  obtaining 
credit  for  firm  bars  other  partner  from  right  to  discharge  in  bank- 
ruptcy. 

13  Wall.  568-5S0.  20  L.  707,  TWENTY  PER  CENT  CASES. 

(VII,  752.)  Miscellaneous.  Cited  in  State  v.  Loechner,  65  Neb. 
818,  91  N.  W.  875,  59  L.  E.  A.  915,  member  of  board  of  education  of 
school  district  in  city  is  ministerial  ofiicer  within  Cr.  Code,  §  180, 
punishing  malfeasance  in  office. 

13  Wall.  603,  604,  20  L.  708,  HOME  ETC.  INS.  CO.  v.  BARTON. 

Syl.  1  (VII,  753).     Discretion  to  grant  or  refuse  new  trial. 

Approved  in  Newport  News  etc.  Electric  Co.  v.  Youut,  136  Fed. 
590,  69  C.  C.  A.  363,  following  rule. 


551  Notes  on  U.  S.  Eeports.  13  Wall.  608  C23 

13  Wall.   608-616,  20  L.   709,  PAIGE  v.  BANKS. 

Syl.  2  (VII,  754).  Assignment  of  copyright  forever — Effect  of 
statutory  limit. 

Approved  in  New  York  Life  Ins.  Co.  v.  Smith,  139  Ala.  309,  35 
So.  lOOG,  note  for  premium  on  policy  stipulating  for  its  deduction 
from  policy  if  it  becomes  claim  is  not  indebtedness  on  account  of 
policy  witliin  provision  for  extended  insurance  for  face  of  policy  on 
payment  of  debt  within  thirty  days  of  lapse  of  premium. 

13   Wall.  616-623,  20  L.  501,  PHOENIX    MUT.    LIFE    INS.    CO.  v. 
BAILEY. 

Syl.   3    (VII,   755).     Equitable   relief — Adequate   law   remedy. 

Approved  in  United  States  v.  Bitter  Eoot  etc.  Co.,  133  Fed.  278, 
66  C.  C.  A.  652,  denying  equitable  jurisdiction  over  suit  by  United 
States  against  number  of  corporations  for  joint  trespass  on  public 
Luids  and  unlawful  cutting  of  timber  therefrom;  Gulf  Eed  Cedar  Co. 
V.  Crenshaw,  138  Ala.  141,  35  So.  51,  upholding  jurisdiction  over  suit 
by  tenants  in  common  against  cotenants  for  accounting  of  timber 
taken,  discovery  and  injunction  against  future  waste. 

Syl.  5   (VII,  757).     Where  law  gives  complete  relief  no  equity. 

Approved  in  Ames  Realty  Co.  v.  Big  Indian  etc.  Min.  Co.,  146  Fed. 
176,  in  federal  equity  suit  to  protect  water  rights  in  stream  against 
other  separate  appropriators,  all  of  whom  are  citizens  of  different 
states  from  complainant,  court  may  entertain  cross-bill  setting  up 
priority,  irrespective  of  citizenship;  General  Elec.  Co.  v.  Westinghouse 
Elec.  &  Mfg.  Co.,  144  Fed.  466,  where  contract  for  manufacture  of 
goods  provided  for  liquidated  damages  at  half  of  sale  price  in  case 
of  breach,  violation  thereof  not  enjoined;  American  Lighting  Co.  v. 
Public  Service  Corp.  134  Fed.  131,  refusing  to  punish  as  contempt  the 
disregard  of  restraining  order  issued  in  case  where  adequate  remedy- 
at  law  existed;  American  Alkali  Co.  v.  Salom,  131  Fed.  50,  65  C.  C. 
A.  284,  subscriber  to  corporate  stock  may  plead  rescission  of  sale  for 
fraud  as  defense  to  action  for  assessment  on  subscription. 

Syl.  6   (VII,  757).     Defense  at  law  to  legal  demand  bars  equity. 

Approved  in  Scottish  Union  etc.  Ins.  Co.  v.  Bowland,  196  U.  S. 
633,  49  L.  628,  25  Sup.  Ct.  345,  refusing  to  enjoin  prosecution  of  suits 
against  foreign  corporation  for  personal  property  taxes  on  ground  that 
corporation  is  not  personally  liable  therefor;  Des  Moines  Life  Ins. 
Co.  v.  Seifert,  210  111.  159,  71  N.  E.  350,  refusing  to  cancel  insurance 
policy  because  of  false  statements  by  insured  in  application;  Seymour 
Water  Co.  v.  Seymour,  163  Fed.  127,  70  N.  E.  516,  refusing  to  cancel 
contract  between  city  and  water  company  granting  latter  exclusive 
right  to  furnish  water  at  exorbitant  rate;  Security  Sav.  Bank  v. 
Carroll,  128  Iowa,  233,  103  N.  W.  380,  receipt  of  notice  ffom  treasurer 
of  intent  to  assess  property  alleged  to  have  been  omitted  is  no  ground 
for  injunction  prior  to  time  fixed  for  hearing;  Lynch  v.  United  States, 


13  Wall.  664-738  Notes  on  U.  S.  Eeporta.  652 

13  Okl.  145,  73  Pac.  1097,  refusing  at  suit  of  government,  to  cancel 
patent  obtained  by  bribery  and  perjury  of  cntryman  who  has  sold 
to  bona  fide  purchaser;  Johnson  v.  Swanke,  128  Wis.  73,  107  N.  W. 
482,  5  L.  E.  A.  (N.  S.)  1048,  maker  of  non-negotiable  note  procured 
by  fraud  is  not  entitled  to  its  cancellation  or  to  injunction  againsi 
its  transfer. 

13  Wall.  664-672,  20  L.  632,  EX  PAETE  EUSSELL. 

Syl.  2  (VII,  765).     New  trial  after  receipt  of  appellate  mandate. 

Approved  in  Chambliss  v.  Hass,  125  Iowa,  488,  101  N.  W.  155,  68 
L.  E.  A.  126,  where  defendant  appealed  and  judgment  was  affirmed, 
and  it  was  paid  on  execution,  defendant's  motion  for  new  trial  on 
ground  of  new  evidence  made  within  statutory  period. 

13  Wall.  679-738,  20  L.  666,  WATSON  v.  JONES. 

Syl.  2  (VH,  767).     Abatement — Identity  of  other  suit  pending. 

Approved  in  In  re  Chandler,  135  Fed.  893,  bankruptcy  proceedings 
are  still  pending  in  district  court  notwithstanding  dismissal  of 
petition  to  revoke  discharge  so  as  to  authorize  order  restraining 
bankrupt's  arrest  while  cause  stands  on  review  in  circuit  court  of 
appeals;  Loewe  v.  Lawlor,  130  Fed.  634,  pendency  of  state  suit  is 
not  ground  for  abatement  of  federal  suit  to  recover  treble  damages 
under  Anti-trust  Act,  §  7;  Mares  v.  Dillon,  30  Mont.  138,  75  Pac. 
967,  pendency  of  action  in  support  of  one  mining  claim  not  bar  to 
suit  in  support  of  another  claim. 

Syl.  3   (VII,  767).     Interfering  with  possession  of  state  court. 

Approved  in  Cobe  v.  Eicketts,  111  Mo.  App.  110,  85  S.  W.  132, 
where,  after  suit  brought  in  federal  court  to  dissolve  loan  society, 
state  court  attempted  to  transfer  its  jurisdiction  previously  attached 
in  similar  suit  to  federal  court,  which  assumed  jurisdiction,  decree 
of  sale  of  assets  not  collaterally  assailable  in  suit  on  society's  note. 

Syl.  10  (VII,  771).  Eeligious  societies — Determination  of  ques- 
tions  of   discipline. 

Approved  in  Shaeffer  v.  Klee,  100  Md.  271,  59  Atl.  852,  members  of 
religious  society  cannot  sue  to  restrain  trustees  from  changing 
language  of  service;  First  Presbyterian  Church  v.  Myers,  5  Okl.  820, 
50  Pac.  74,  38  L.  E.  A.  687,  determining  whether  "call"  made  by 
Presbyterian  church  is  proposition  for  a  contract  effective  only  on 
concurrency   of   presbytery. 

Explained  in  Hendryx  v.  People's  United  Church,  42  Wash.  340, 
84  Pac.  1125,  where  members  of  church  are  expelled  in  pursuance  of 
fraudulent  scheme  to  divert  property  from  its  original  purpose, 
expelled  members  may  sue   to   protect   church  property. 


553  Notes  on  U.  S.  Eeportg,  14  Wall.  44-84 

Syl.  11  (Vn,  773).  Eeligious  societies — judicial  review  of  de- 
cisions. 

Approved  in  Morris  St.  Baptist  Church  v.  Dart,  G7  S.  C.  341,  100  Am. 
St.  Eep.  727,  45  S.  E.  754,  majority  of  members  of  Baptist  church 
may,  at  regular  meeting  properly  called,  dismiss  pastor  vpithout 
notice  or  trial  on  charges;  Christian  Church  v.  Church. of  Christ,  219 
III.  511,  76  N.  E.  705,  arguendo. 

(VII,  766.)  Miscellaneous.  Cited  in  Sumner  v.  Milford,  214  HI. 
394,  73  N.  E.  744,  explaining  meaning  of  word  "jurisdiction." 


XIV  WALLACE. 


14  Wall.  44-69,  20  L.  815,  HENDEESON'S  DISTILLED  SPIEITS. 

Syl.   2    (VII,   778).     Forfeitures — Subsequent   payment   no   defense. 

Approved  in  United  States  v.  One  Dark  Bay  Horse,  130  Fed.  241, 
where  claimant  of  property  had  owned  it  for  over  five  j'ears  without 
suspicion  of  its  illegal  importation,  proceeding  for  forfeiture  is 
barred;  Daniels  v.  Homer,  139  N.  C.  230,  51  S.  E.  996,  3  L.  E.  A. 
(N.  S.)  997,  upholding  Acts  Gen.  Assem.  1905,  e.  292,  §  9,  providing 
for  seizure  and  sale  of  property  used  in  illegal  fishing. 

(VII,  778.)  Miscellaneous.  Cited  in  Leigh  v.  Green,  193  U.  S.  88, 
101  Am.  St.  Eep.  606,  48  L.  627,  24  Sup.  Ct.  390,  holding  of  lien  on 
realty  not  denied  due  process  by  statute  providing  for  service  by  publi- 
cation of  notice  of  p)endency  in  rem  to  enforce  lien  of  purchaser  at  tax 
sale. 

14  Wall.  69-84,  20  L.  762,  CHEISTMAS  v.  EUSSELL. 

Syl.  4   (VII,  780).     Eequisites  of  equitable  assignment. 

Approved  in  Weiss  v.  Gullett,  18  Colo.  App.  128,  70  Pac.  444,  con- 
tract between  mine  owners  and  attorneys  to  pay  certain  sum  of  pur- 
chase money  of  mine  when  sold  gives  no  right  of  action  by  attorneys 
against  purchaser;  Eeviere  v.  Chambliss,  120  Ga.  716,  48  S.  E.  123, 
unaccepted  check  is  not  assignment  of   money  to  credit  of  drawer. 

Syl.  6  (VII,  781).     Assignment — Agreement  to  pay  out  of  fund. 

Approved  in  Cogan  v.  Conover  Mfg.  Co.,  69  N.  J.  Eq.  364,  60  Atl. 
411,  reaffirming  rule;  Long  v.  Farmers'  State  Bank,  147  Fed.  363, 
where  debtor  agreed  to  carry  insurance  on  stock  to  protect  bank's 
claim,  assigning  insurance  to  bank  as  collateral,  there  was  no  as- 
signment of  policies  in  praesenti;  In  re  Cramond,  145  Fed.  977,  whore 
paving  contractor  assigned  right  to  moneys  due  to  bank  to  obtain 
advances    to    complete    work,   bank   acquired   equitable    lien   superior 


14  Wall.  87-120  Notes  on  U.  S.  Reports.  554 

to  priority  right  of  payment  given  by  Bankr.  Act,  §  64  to  laborers; 
Johnston  v.  Huff,  133  Fed.  706,  66  C.  C.  A.  534,  where  one  contracting 
to  board,  track  gang  agreed  with  supply  firm  for  credit,  giving  it 
order  on  railroad  for  sums  due  him,  which  was  not  to  be  presented 
unless  he  fell  short  in  payments,  and  order  not  presented  till  one  day 
prior  to  petition  in  bankruptcy,  it  was  preference. 

Syl.  7  (VII,  782).     Assignment — Order  to  pay  out  of  specified  fund. 

Approved  in  Gillette  v.  Murphy,  7  Okl.  105,  54  Pae.  417,  order  given 
by  ex-sheriff  to  creditors  on  county  for  warrants  due  from  it  to  such 
sheriff  for  fees  is  equitable  assignment  of  account. 

14  Wall.  87-98,  20  L.  832,  TEADERS'  BANK  v.  CAMPBELL. 

Syl.  4  (VII,  784).  Bankruptcy — Preference  to  bank  setoff  of  de- 
posits. 

Approved  in  Tomlinson  v.  Bank  of  Lexington,  145  Fed.  826,  where 
concern  had  agreement  with  bank  as  to  overdrafts,  deposits  applied 
to  such  overdrafts  not  preferences  which  must  be  surrendered  before 
bank  could  prove  notes  against  bankrupt's  estate. 

14  Wall.  98-109,  20  L.  804,  THE  THAMES. 

Syl.   3    (VII,  785).     Duty  of  carrier  to   hold  goods  for  consignees. 

Approved  in  Arkansas  etc.  Ry.  Co.  v.  German  Nat.  Bank,  77  Ark. 
487,  92  S.  W.  524,  following  rule;  dissenting  opinion  in  Clegg  v. 
Southern  Ry.  Co.,  135  N.  C.  156,  47  S.  E.  670,  majority  holding  where 
railroad  refused  to  deliver  fruit  to  owner  on  his  refusal  to  pay 
freight  in  excess  of  that  due,  and  before  discovery  of  error  fruit 
frozen,  fact  that  at  time  of  demand  bill  of  lading  had  not  been  de- 
livered by  consignee  is  no   defense. 

Syl.  5  (VII,  785).     Bill  of  lading— Title  to  goods. 

Approved  in  The  Nimrod,  141  Fed.  217,  where  owners  of  tug  con- 
tracted for  repairs  in  name  of  company  under  which  tug  operated, 
but  there  was  no  corporation  of  that  name,  owners  as  individual 
could  sue  for  breach  of  contract;  General  Electric  Co.  v.  Southern 
Ry.,  72  S.  C.  254,  110  Am.  St.  Rep.  603,  51  S.  E.  696,  where  freight 
shipped  under  bill  of  lading  with  draft  attached,  bill  of  lading  run- 
ning to  order  of  shipper,  and  to  notify  third  party,  carrier  could  not 
deliver  without  bill  of  lading. 

14  Wall.  116-120,  20  L.  787,  THE  BRIDGEPORT. 

Syl.  1   (VII,  786).     Collision — Deviation  from  usual  course. 

Approved  in  The  Degama,  150  Fed.  324,  moving  vessel  colliding 
with  moored  vessel  cannot  be  exonerated  on  ground  that  tugs  con- 
trolled movements  unless  such  defense  is  pleaded  and  proved. 


555  Notes  on  U.  S.  Reports.  14  Wall.  120-252 

14  Wall.  120-151.  20  L.  765,  ARMSTEONG  v.  MORRILL. 

(VII,  787.)  Miscellaneous.  Cited  in  King  v.  Hatfield,  130  Fed. 
578,  arguendo. 

14  Wall.  170-189,  20  L.  822,  THE  SCOTIA. 

Syl.  2  (VII,  790).  Collision — Precautions  where  danger  not  appre- 
hended. 

Approved  in  The  Kaiserin  Maria  Theresa,  149  Fed.  99,  steamer  is 
not  required  to  maintain  speed  so  low  as  to  enable  her  to  avoid 
collision  without  other  vessel  navigating  without  proper  lights. 

Syl.   3    (VII,   790).     Law  governing  whether   act   tortious. 

Approved  in  In  re  Clyde  S.  S.  Co.,  134  Fed.  99,  upholding  admiralty 
jurisdiction  over  suit  for  death  due  to  collision  on  high  seas,  where 
recovery  for  wrongful  death  is  given  by  statutes  of  state  in  which 
both  vessels  belonged. 

Syl.  6  (VII,  791).     Rules  of  navigation  part  of  maritime  law. 
See  113  Am.  St.  Rep.  872,  note. 

14  Wall.   199-204,  20   L.  873,  THE  MERRIMAC. 

Syl.  1  (VII,  792).  Liability  for  negligent  sailing  where  pilot 
aboard. 

Approved  in  The  Robert  Rickmers,  131  Fed.  642,  vessel  liable  for 
damage  to  another  by  drifting  though  anchorage  chosen  by  master 
of  her  tug. 

14   Wall.  204-216,  20  L.  881,  THE  MABEY  AXD  COOPER. 

Syl.  2   (VII,   793).     Collision— Inevitable   accident  defined. 

Approved  in  New  York  etc.  S.  S.  Co.  v.  New  York  etc.  Ry.  Co.,  143 
Fed.  993,  defense  of  inevitable  accident  not  made  out  where  collision 
between  tug  and  steamer  caused  by  floating  ice  which  was  not  seen 
because  of  absence  of  proper  lookout  on   tug. 

14   Wall.   244-252,  20   L.   797.     GIBSON  v.   WARDEN. 

Syl.  3    (VII,  794).     Assignees  stand  in  place  of  bankrupt. 

Approved  in  Smith  v.  An  Gres  Twp.  150  Fed.  264,  witness  mav 
testify  after  death  of  bankrupt  to  admissions  made  by  bankrupt 
concerning  his  estate  while  he  was  yet  owner  thereof;  Tatman  v. 
Humphrey,  184  Mass.  362,  100  Am.  St.  Rep.  562,  68  N.  E  845,  63 
L.  R.  A.  738,  in  case  of  preference  by  way  of  unrecorded  chattel 
mortgage,  transfer  dates  from  acquisition  of  possession  under  mort- 
gage. 

Syl.    4    (VII,    795).     Bankruptcy — Transfers    in    fraud    of    creditors. 

Approved  in  In  re  Pease,  129  Fed.  450,  where  trust  company  through 

its  attorney,  who  also  represented  creditors  of  merchant,  loaned  money 


14  Wall.  252-335  Notes  on  U.  S.  Keports.  556 

on  chattel  mortgage  on  his  stock,  with  which  he  paid  attorney's 
clients,  and  next  day  company  sold  stock  under  mortgage,  mortgage 
was  void   under  Bankr.   Act,   §    67e. 

14  Wall.  252-257,  20  L.  887,  HOOK  v.  PAYNE. 

Syl.  1  (VII,  796).  Administrators — Parties — Suit  to  recover  dis- 
tributive share. 

Approved  in  O'Callaghan  v.  O'Brien,  199  U.  S.  101,  50  L.  107,  25 
Sup.  Ct.  727,  denying  federal  jurisdiction  on  ground  of  diversity  of 
citizenship,  over  bill  seeking  declaration  of  nonexistence  of  will 
and  nullity  of  its  state  probate,  where  state  proceeding  to  contest 
will  is  only  ancillary  to  original  proceeding. 

]4   Wall.   270-279,   20   L.   828,   THE   CAYUGA. 

Syl.   4    (Vn,   799).     Demurrage   for  injuries   caused  by   collision. 

Approved  in  The  Mary  N.  Bourke,  145  Fed.  911,  allowing  owner  of 
vessel  to  set  off,  against  cost  of  repairs,  demurrage  because  of  unnec- 
essary de^Ty  in  their  completion. 

14  Wall.  282-297,  20  L.  809,  CITY  OF  LEXINGTON  v.  BUTLER. 

Syl.  3  (VII,  800).  Municipal  negotiable  securities — Bona  fide  pur- 
chasers. 

Approved  in  In  re  Troy  &  Cohoes  Shirt  Co.,  136  Fed.  433,  where 
oflScers  of  corporation  drew  note  payable  to  corporation's  order,  which 
they  indorsed  in  name  of  corporation  and  individually  and  delivered 
it  to  another  officer  for  use  of  firm  of  which  all  were  members,  and 
it  was  indorsed  in  firm  name,  knowledge  of  discounter  that  officers 
were   members   of  firm  not  notice  of   true   character  of  notes. 

14   Wall.   297-308,  20   L.   891,   BIGLEE   v.   WALLER. 

Sy].  1   (VII,  803).     Deed  of  trust  requiring  notice  of  sale. 

Approved  in  Chace  v.  Morse,  189  Mass.  561,  76  N.  E.  144,  fact 
that  notice  of  sale  under  power  in  mortgage,  and  sale  itself,  included 
land  not  mortgaged,  renders  sale  voidable  only;  Moore  v.  Dick,  187 
Mass.  211,  72  N.  E.  968,  applying  rule  where  deed  of  trust  provided 
for  notice  of  sale  in  certain  paper  and  notice  given  in  another  paper. 

14   Wall.    314-335,   20   L.    852,   FRENCH    v.    SHOEMAKER. 
Syl.   2    (VII,   804).     Duress   to   avoid   contract. 

Approved  in  First  Nat.  Bank  v.  Sargent,  65  Neb.  601,  91  N.  W. 
597,  59  L.  R.  A.  296,  where  one  gave  bank  deed  to  land  as  security 
for  debt,  and  debtor  being  broke  procured  pureliaser  at  good  price, 
but  bank  refused  to  consent  to  sale,  unless  big  bonus  paid  it,  bonus 
procured  under  duress. 


557  Notes  on  U.  S.  Eeporta,  14  Wall.  336-402 

Syl.  3   ("VII,  805).     Setting  aside  contract — Financial   distress. 

Approved  in  Burnes  v.  Burncs,  132  Fed.  493,  refusing  to  set  aside 
agreement  for  division  of  stock  in  corporation  formed  out  of  busi- 
ness of  decedent  where  decedent's  partner  threatened  to  administer 
estate    as   survivor   unless    corporation    formed. 

14  Wall.  336-345,  20  L.  813,  THE  LAURA. 

Syl.   1    (VII,    805).     Abandoned   vessel   is   derelict. 

Approved  in  The  Myrtle  Tunnel,  146  Fed.  330,  where  vessel 
stranded  and  contract  made  for  floating  her,  but  effort  unsuccessful 
and  she  was  abandoned  by  crew,  and  later  she  was  moved  off  by 
high  wind  and  found  drifting  by  tug,  and  towed  to  port,  tug  en- 
titled to  half  proceeds  for  salving  her  as   derelict. 

14  Wall.  375-383,  20  L.  894,  INSURANCE  COS.  v.  WEIDES. 

Syl.  1  (Vn,  800).  Insurance — Copy  of  original  burned  inventory 
admissible. 

Approved  in  Grunberg  v.  United  States,  145  Fed.  96,  97,  per- 
mitting use  of  entries  in  ledger  showing  gross  amount  of  invoices 
of  goods  sold  and  pajanents  made  thereon,  to  refresh  memory  of 
member  of  firm,  M'hcre  ledger  posted  at  end  of  month;  United  States 
v.  Ninety-nine  Diamonds,  139  Fed.  968,  2  L.  R.  A.  (N.  S.)  185,  con- 
struing Comp.  St.  1901,  p.  1895;  relating  to  false  statements  of  en- 
try of  merchandise;  St.  Louis  etc.  Ey.  Co.  v.  White  S.  M.  Co.,  78 
Ark.  5,  93  S.  W.  60,  where,  on  issue  as  to  whether  telegram  sent, 
operator's  testimony  that  he  did  not  himself  send  message,  but  that 
service  notation  marks  on  original  made  by  him  and  that  from 
such  memorandum  he  knew  at  time  of  making  it  that  message  was 
sent,  is  admissible;  Meyers  v.  McAllister,  94  Minn.  512,  103  N.  W. 
565,  upholding  admission  of  list  of  personalty  involving  numerous 
items,  shown  to  be  correct  by  testimony  of  party  who  made  it, 
without  direct  proof  that  he  could  testify  to  details  independently 
of  list;  Manning  v.  School  District  No.  6,  124  Wis.  99,  102  N.  W. 
361,  permitting  witness  to  refresh  memory  from  memorandum  made 
by  him  at  time  of  occurrence  and  remembered  by  him  to  have  been 
then  known  to  be  correct,  though  he  has  no  present  recollection  of 
facts,  and  admitting  memorandum  in  evidence. 

14  Wall.  383-402,  20  L.  840,  BANK  OF  BETHEL  v.  PAHQUIOQUE 
BANK. 

Syl.  3  (VII,  809).     Status  of  national  bank  in  hands  of  receiver. 

Approved  in  Gerard  v.  Duncan,  84  Miss.  735,  36  So.  1035,  66  L. 
R.  A.  461,  notes  and  solvent  credits  of  insolvent  state  bank  passing 
to  assignee  by  general  assignment  before  February  1st  in  any  year 
are  taxable  in  hands  of  assignee;  Fish  v.  Olin,  76  Vt.  125,  56  Atl. 
533,    receiver    of   national    bank   may   sue    at   law   in    own    name    in 


14  Wall.  402-433  Notes  on  U.  S.  Reports.  558 

state  courts;  Muir  v.  Citizens'  Nat.  Bank,  39  Wash.  58,  80  Pac. 
1007,  where  national  bank  went  into  voluntary  liquidation,  it  was 
not  thereafter  required  to  register  subsequent  transfer  of  its  stock 
and  to  issue  new  stock  to  transferee. 

Syl.  4  (VII,  809).     Appointment  of  receiver  does  no.t  dissolve  bank. 

Approved  in  Cogswell  v.  Second  National  Bank,  76  Conn.  259, 
56  Atl.  577,  appointment  of  temporary  receiver,  though  erroneous, 
under  U.  S.  Rev.  St.,  §  5242,  is  not  ground  for  reversal,  where  ap- 
pointment made  to  fill  vacancy  caused  by  death. 

14  Wall.  402-405,  20  L.  857,  O'DOWD  v.  RUSSELL. 

Syl.  3  (VII,  811).     Erroneous  date  on  writ  of  error  not  fatal. 

Approved  in  In  re  McCall,  145  Fed.  903,  applying  rule  where  or- 
der overruling  application  for  rehearing  of  order  confirming  bank- 
rupt's composition  was  entered  on  journal  for  October  10th,  which 
contained  filing  indorsement  of  same  date,  and  judge's  direction  to 
enter   order  was  dated  October   16th. 

14  Wall.  406-418,  20  L.  774,  THE  STEAMER  WEBB. 

Syl.  2   (VII,  812).     Care  required  of  towing  tug. 

Approved  in  The  Britannia,  148  Fed.  497,  holding  tug  towing 
scows  at  fault  where  its  only  hawser  parted  thrice  and  scows  lost; 
The  Oceanica,  144  Fed.  303,  where  steamer  towing  barge  broke  pro- 
peller and  cast  barge  loose,  so  that  it  drifted  against  pier,  barge  not 
in  fault  for  not  dropping  anchor  when  cast  adrift;  The  W.  G.  Ma- 
son, 142  Fed.  915,  where  steamer  towed  by  two  tugs  promptly  obeyed 
signals  of  leader,  but  stranded  against  channel,  burden  of  disproving 
negligence  is  on  tugs;  Burr  v.  Knickerbocker  etc.  Co.,  132  Fed.  249, 
65  C.  C.  A.  554,  where  vessel  being  towed  from  dock  up  channel  in 
calm  weather  stranded  after  going  few  lengths,  negligence  of  tug 
presumed ;  The  W.  G.  Mason,  131  Fed.  636,  applying  rule  where 
steamer  in  tow  of  tugs  promptly  obeyed  signals  of  leader,  but  stranded 
against  one  side  of  channel;  Williams  v.  Alaska  Commercial  Co.,  2 
Alaska  64,  where  tow-line  broke  outside  of  three-mile  limit  and  tow 
left  to  its  fate,  and  wrecked  on  shore,  where  decedent's  death  hap- 
pened, cause  of  action  accrued  in  Alaska. 

14  Wall.  419-433,  20  L.  748,  SMITH  v.  MASON. 

Syl.  4  (VII,  814).  Bankruptcy — Proceedings  to  recover  property 
conveyed. 

Approved  in  First  Nat.  Bank  v.  Chicago  Title  etc.  Co.,  198  U.  S. 
289,  49  L.  1054,  25  Sup.  Ct.  693,  no  appeal  lies  from  decree  of  bank- 
ru]itey  court  in  proceeding  begun  by  receiver's  petition  for  direc- 
tions respecting  sale  by  which  question  of  his  possession  decided, 
sale  decreed  and  rights  of  adverse  claimants  determined. 


559  Notes  on  U.  S.  Eeports.  14  Wall.  434-491 

14  Wall.  434-441,  20  L.  858,  MOWEY  v.  WHITNEY. 

Syl.  1  (VII,  815).     Suit  to  annul  patent  by  whom  brought. 

Approved  in  Allen  v.  Consolidated  Fruit  Jar  Co.,  145  Fed.  949, 
denying  jurisdiction  over  suit  for  accounting  for  profits,  damages, 
or  royalties  based  on  contract  granting  license  under  patent,  or  for 
cancellation  of  patent;  Eastern  etc.  Bag  Co.  v.  Continental  etc.  Bag 
Co.,  142  Fed.  511,  alleged  infringer  cannot  collateralh^  attack  patent 
on  ground  that  patentee's  solicitor  contributed  substantial  part  of 
invention  and  embodied  it  in  application  after  patentee  had  made 
oath  to  same;  Calculagraph  Co.  v.  Wilson,  132  Fed.  21,  validity  of 
patent  regular  on  its  face  cannot  be  collaterally  attacked  on  ground 
that  final  fee  was  not  paid  within  six  months  required  by  statute. 

Syl.  2  (VII,  816),  Equity  jurisdiction  to  try  conflicting  claims  on 
patents. 

Approved  in  Boston  etc.  Power  Co.  v.  Eureka  Patents  Co.,  139 
Fed.  31,  where  identity  of  patent  claims  not  shown,  court  cannot 
declare  later  patent  invalid  for  want  of  patentability. 

14   Wall.  442-452,  20  L.   807,  SCHUYLKILL  ETC.  IMPROVEMENT 
&  RY.   CO.  V.  MUNSON. 

Syl.  2  (A'll,  817).    Trial— Prima  facie  case. 

Approved  in  Swift  v.  Johnson,  138  Fed.  875,  where  father  willfully 
abandoned  family,  evidence  that  prior  to  death,  son  said  that  if 
father  were  in  need  he  would  give  him  something,  does  not  warrant 
recovery  of  more  than  nominal  damages  for  wrongful  death  of  son ; 
Minahan  v.  Grand  Trunk  etc.  Ry.  Co.,  138  Fed.  45,  70  C.  C.  A.  403. 
holding  evidence  in  action  for  injuries  to  passenger  by  derailment 
of  car  as  it  passed  over  defective  switch  presented  question  for  jury; 
Chicago  etc.  Ry.  Co.  v.  Andrews,  130  Fed.  74,  G4  C.  C.  A.  399,  apply- 
ing rule  in  action  for  injuries  at  railroad  crossing  where  plaintiff's 
evidence  showed  culpable  negligence;  Gunn  v.  Union  R.  R.  Co.,  27 
E.  I.  327,  02  Atl.  121,  upholding  Gen.  Laws  1S96,  e.  251,  §  11.  au- 
thorizing supreme  court  to  direct  judgment  without  further  trial  by 
jury. 

Syl.  4  (VII,  819).     Proof  of  loss  of  first  survey  to  admit  second. 

Approved  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  301,  refus- 
ing secondary  evidence  of  contents  of  record-book  on  proof  that 
it  had  been  taken  to  revenue  office  from  collector's  office,  and  that 
search  had  been  made  in  revenue  office  for  it. 

14  Wall.  484-491,  20  L.  722,  DIRST  v.  MORRIS. 

Syl.  2   (VII,  822).     Review  of  evidence  as  to  weight  or  sufficirn^^^ 
Approved  in  Coulter  v.  B.  F.  Thompson  Lumber  Co.,  142  Fed.   708, 

court    cannot    instruct    as    to    which    class    of    evidence    is    preferred; 


14  Wall.  491-535  Notes  on  U.  S.  Keports,  660 

J.  W.  Bishop  Co.  V.  Shelhorse,  141  Fed.  618,  applying  principle  in 
action  for  wrongful  death;  Streeter  v.  Sanitary  Dist.  of  Chicago, 
133  Fed.  126,  128,  129,  66  C.  C.  A.  190,  in  case  tried  to  court  where 
there  were  no  special  findings  nor  stipulation  of  facts,  ruling  in  re- 
quest that  as  matter  of  law  plaintiff  was  entitled  to  recover  amount 
claimed  is  not  reviewable;  Paul  v.  Delaware  etc.  E.  Co.,  130  Fed. 
955,  where  general  verdict  is  rendered  only,  such  rulings  in  progress 
of  trial  are  reviewable  as  are  presented  by  bill  of  exceptions,  or  as 
may  arise  on  pleadings. 

14  Wall.  491-493,  20  L.  723,  COLLINS  v.  EIGGS. 

Syl.  1  (YII,  823).     Eedemption  where  sale  for  less  than  debt. 

Approved  in  Dougherty  v.  Kubat,  67  Neb.  274,  93  N.  W.  319, 
mortgagee  may  insist  upon  tenant  in  common  redeeming  only  to 
extent  of  his  interest. 

14  Wall.  493-504,  20  L.  726,  UNITED  STATES  v.  POWELL. 

Syl.  1  (VII,  823).     Bond  conditioned  to  comply  with  distillery  laws. 

Approved  in  National  Surety  Co.  v.  United  States,  129  Fed.  72, 
G3  C.  C.  A.  512,  letter  carrier's  bond  for  performance  of  duties  as 
carrier  imposed  by  postal  laws  or  regulations  of  department  binds 
surety  for  discharge  of  duty  of  collecting  letters  to  be  registered 
imposed  by  order  of  department  during  term  of  bond. 

14  Wall.  511-531,  20  L.  731,  GOEHAM  CO.  v.  WHITE. 

Syl.  1   (VII,  824).     Patent  for  designs. 

Approved  in  West  Disinfecting  Co.  v.  Frank,  146  Fed.  3'^9.  up- 
holding Taussig  patent  No.  33,633,  for  design  for  casing  for  disin- 
fecting apparatus. 

Syl.  2   (VII,  825).     Design  patents — What  protected. 

Approved  in  General  Gaslight  Co.  v.  Matchless  Mfg.  Co.,  129  Fed. 
138,  upholding  Humphrey  design  patent  No.  35,481,  for  cluster  gas 
lamp. 

Syl.  3   (VII,  825).     Patents — When  designs  identical. 

Approved  in  Baker  v.  Puritan  Pure  Food  Co.,  139  Fed.  683,  hold- 
ing label  used  as  trademark  infringed;  Williams  Calk  Co.  v.  Never- 
slip  Mfg.  Co.,  130  Fed.  215,  217,  holding  void  Williams  design  patent 
No.  29,793,  for  horseshoe  calk,  and  not  infringed. 

14  Wall.  531-535,  20  L.  738,  MOEGAN  v.  UNITED  STATES. 

Syl.  1   (VII,  826).     Belief  for  government  official's  tort. 

Cited  in  Christie-Street  Com.  Co.  v.  United  States,  129  Fed.  507, 
arguendo. 


561  Notes  on  U.  S.  Eeports.  14  Wall.  579-620 

14  Wall.  579-606,  20  L.   779,  THE  DELAWARE. 

Syl.  5  (VII,  830).     Carriers  not  liable  where  goods  not  delivered. 

Approved  in  Guffey  v.  Alaska  etc.  S.  S.  Co.,  130  Fed.  274,  64  C. 
C.  A.  517,  where,  at  time  of  delivery  of  goods  on  wharf  under  bill 
of  lading  providing  for  shipment  on  certain  vessel  then  at  port, 
owner  knew  ship  was  at  sea,  and  goods  never  delivered  to  ship's 
officers,  vessel  not  subject  to  maritime  lien  for  breach  of  contract. 
See  105  Am,  St.  Eep.  351,  note. 

Syl.  6   (VII,  830).     Evidence  of  usage — Mercantile  contracts. 

Approved  in  Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  174,  1S2, 
67  C.  C.  A.  74,  admitting  evidence  of  custom  to  show  that  contract  for 
delivery  of  distillery  slop  at  distiller's  cattle-feeding  lot  contemplated 
that  lot  be  supplied  with  pens,  troughs  and  pipes;  Portland  etc.  Co.  v. 
British  etc.  Ins.  Co.,  130  Fed.  863,  65  C.  C.  A.  344,  refusing  evidence  of 
custom  of  doing  business  where  bill  of  lading  is  unambiguous. 

Syl.  7   (VII,  831).     Parol  evidence  inadmissible  to   vary  writing. 

Approved  in  Connecticut  Fire  Ins.  Co.  v,  Buchanan,  141  Fed.  889, 
applying  rule  to  conditions  in  insurance  policy  relating  to  use  and 
occupancy  of  building;  Eonan  v.  155,453  Feet  of  Lumber,  131  Fed. 
348,  349,  memorandum  delivered  by  carrier  to  master  of  barge  after 
lumber  loaded  thereon,  apparently  to  be  signed  by  consignee  as  re- 
ceipt, and, which  contained  incomplete  provisions  as  to  demurrage,  but 
was  unsigned,  does  not  exclude  evidence  of  parol  agreement  with 
respect  thereto. 

14  Wall.  607-613,  20  L.  756,  LEARY  v.  UNITED  STATES. 
Syl.  1   (VII,  831).     Charter-party  when  lease  of  vessel. 

Approved  in  Golcar  S.  S.  Co.  v.  Tweedie  Trading  Co.,  146  Fed.  569, 
charter  of  vessel  at  monthly  hire  for  vessel  and  crew,  captain  ap- 
pointed by  owners  to  be  under  charterer's  orders,  is  demise  of  ship; 
Grimberg  v.  Columbia  Packers'  Assn.,  47  Or.  264,  265,  83  Pac.  196,  197, 
construing  charter-party  giving  charterer  sole  use  of  vessel  except 
master's  cabin,  and  providing  that  no  goods  shall  be  laden  except 
for  charterer,  is  not  a  demise. 

14  Wall.  613-620,  20  L.  745,  ERSKINE  v.  HOHNBACK. 
Syl.  2   (VII,  833),     Process — Ministerial  officer's  liability. 

Approved  in  Rush  v.  Buckley,  100  Me.  329,  61  Atl.  777,  70  L.  R.  A, 
464,  holding  magistrate  issuing  warrant  and  trying  case  and  officer 
serving  warrant  not  liable  for  false  imprisonment  though  ordinance 
violated  by  plaintiff  was  void. 

36 


14  ^Yall.  020-670  Notes  on  U.  S.  Eeports.  562 

14  Wall.  020-653,  20  L.  860,  MOWRY  v.  WHITNEY. 

Syl.  2  (VII,  834).     Process  patent. 

Approved  in  Johnson  v.  Foos  Mfg.  Co.,  141  Fed.  84,  Johnson  patent 
No.  506,268,  for  process  and  apparatus  for  separating  cotton-sccd  and 
hulls  from  fiber  is  valid  as  to  process  claim,  but  void  as  to  mechanical 
claim. 

Syl.  2  (VII,  834).    Patents — Construction  of  specifications. 

Distinguished  in  Universal  Brush  Co.  v.  Sonn,  146  Fed.  520,  Mor- 
rison patent  No.  717,014,  claim  1  for  method  of  making  brushes,  is 
infringed  by  method  of  Sonn  patent  No.  791,510. 

Syl.  3  (VII,  834).    Damages — Profits  of  infringer  of  improvement. 

Approved  in  Brown  v.  Lanyon,  148  Fed.  839,  action  cannot  be 
maintained  for  sole  purpose  of  recovering  profits  which  infringer  of 
patent  has  made;  New  York  Bank  Note  Co.  v.  Hamilton  Bank  Note 
Co.,  180  N.  Y.  296,  73  N.  E.  53,  where  press  manufacturer  having 
agreement  not  to  attach  certain  device  to  presses  already  sold,  did 
so  sell,  buyer  liable  for  difference  between  profits  made  from  use  of 
device  and  those  made  without  it. 

14  Wall.  653-661,  20  L.  896,  THE  KEY  CITY. 

Syl.  3  (VII,  838).  Consolidation  of  corporations — Purchaser  with- 
out   notice. 

See  103  Am.  St.  Eep.  557,  note. 

14  Wall.  661-670,  20  L.   757,  DELMAS  v.  MERCHANTS'  MUTUAL 
INSURANCE  CO., 
Syl.  2   (VII,  839).     State  statute— Contracts— Violation   of   federal 

constitution. 

See  97  Am.  St.  Eep.  720,  not*. 


XV  WALLACE. 


15  Wall.  1-3,  21  L.  113,  PORTLAND  CO.  v.  UNITED  STATES. 
Syl.   1   (VII,  842).     Appeal   dismissed  where  brief  not  in  form. 
Approved  in  Fitch  v.  Eichardson,  147  Fed.  196,  following  rule. 

15  Wall.  3-7,  21  L.  118,  DUBUQUE  ETC.  R.  R.  CO.  v.  RICHMOND. 

Syl.  1   (VIT,  842).     Record  showing  federal   question. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  19,  50  L.  352,  26  Sup.  Ct.  216, 
following  rule. 

15  Wall.  9-28,  21  L.  73,  DEXTER  v.  HALL. 

Syl.  3  (VII,  843).     Lunatic's  power  of  attorney  is  void. 

Approved  in  White  v.  Martin,  2  Alaska,  502,  where  residence  of 
Fairbanks,  who  owned  property  there,  became  insane  and  wandered 
away,  there  is  no  presumption  of  intent  to  abandon  possessory  claims 
on  public  lands;  Weber  v.  Delia  Mountain  Min.  Co.,  11  Idaho,  275,  81 
Pac.  934,  applying  principle  where  part  of  stock  of  controlling  member 
of  corporation  was  obtained  from  lunatic. 

Denied  in  Wolcott  v.  Connecticut  etc.  Ins.  Co.,  137  Mich.  313,  100 
N.  W.  571,  assignment  of  contract  to  purchase  land  by  insane  person 
is   voidable   only. 

15  Wall.  36-51,  21  L.  107,  SMOOT'S  CASE. 

Syl.  4  (VII,  844.)  Refusal  to  perform  contract  warranting  termina- 
tion. 

Approved  in  McBath  v.  Jones  Cotton  Co.,  149  Fed.  386,  where  con- 
tract called  for  delivery  of  goods  on  or  before  certain  date,  and  prior 
to  that  date  part  of  shipment  refused  as  not  up  to  contract,  purchaser 
could  not  refuse  further  offers  made  prior  to  date  called  for  in  con- 
tract; Wells  v.  Hartford  Manilla  Co.,  76  Conn.  34,  55  Atl.  601,  where 
contract  provided  for  certain  amount  of  pulp  before  certain  time,  as 
ordered,  and  for  some  time  no  orders  given,  and  later  purchaser 
telegraphed  that  no  shipments  be  made,  there  was  no  breach  war- 
ranting seller's  rescission  and  suing  for  damages;  Swiger  v.  Hayman, 
56  W.  Va.  126,  107  Am.  St.  Rep.  901,  48  S.  E.  840,  applying  rule  where 
renunciation  of  contract  was  retracted  before  other  party  had  acted 
on  it;  Barker  etc.  Lumber  Co.  v.  Edward  Ilines  Lumber  Co.,  137 
Fed.   309,   arguendo. 

[563] 


15  Wall.  51-94  Notes  on  U.  S.  Eeports.  564 

15  Wall  51-57,  21  L.  41,  KEAENEY  v.  DENN. 

Syl.  2  (VII,  846).     Conclusiveness  of  judgment  of  illegitimacy. 

Approved  in  Sorensen  v.  Sorensen,  68  Neb.  496,  98  N.  W.  839, 
decree  on  appointment  of  administrator  that  mother  was  not  de- 
cedent's wife  is  not  conclusive  on  petition  for  distribution,  where 
petitioner  was  not   party  in   former  proceedings'. 

15  Wall.  63-67,  21  L.  45,  GRAY  v.  DARLINGTON. 

Syl.   1    (VII,  847).     Advance  in   value  as  gain   or   profit. 

Approved  in  Mercer  v.  Buchanan,  132  Fed.  508,  where  owner  of  stock 
in  manufacturing  corporation  conveyed  stock  in  trust  to  pay  net 
income  to  grantor  for  life,  and  then  to  daughter  for  life,  and  after 
grantor's  death  company  sold  plant  for  fifty  per  cent  cash,  and  stock 
in  purchasing  company  equal  to  six  times  its  capital  stock,  which  was 
distributed  as  dividends,   dividend  was  not  net   income. 

15  Wall.  75-77,  21  L.  63,  ERSKINE  v.  VAN  ARSDALE. 

Syl.   3   (VII,  849).     Interest  on  illegal  tax  collected. 

Approved  in  Herold  v.  Shanley,  146  Fed.  24,  affirming  141  Fed.  430, 
following   rule. 

15  Wall.  77-94,  21  L.  82,  THE  YOSEMITE  VALLEY  CASE  (HUTCH- 
ING S  v.   LOW). 

Syl.  1   (VII,  850).     Vested  rights  of  settler  on  public  lands. 

Approved  in  Oregon  etc.  R.  R.  Co.  v.  Quigley,  10  Idaho,  781,  80 
Pac.  403,  404,  construing  17  Stat.  612,  granting  railroad  right  of  way 
and  requiring  filing  of  map  of  definite  location;  Graham  v.  Great  Falls 
etc.  Co.,  30  Mont.  402,  76  Pac.  811,  812,  preferential  right  given 
successful  claimant  under  Comp.  St.  1901,  p.  1392,  was  not  vested 
right,  and  his  privilege  was  cut  off  by  26  Stat.  1098;  McDonald  v. 
Union  P.  Ry.  Co.,  70  Neb.  350,  97  N.  W.  441,  state  courts  cannot 
compel  conveyance  of  lands  subject  to  homestead  entry,  to  one  who 
has  been  denied  privilege  of  making  such  entry  by  land  officials. 

Syl.   2    (VII,   851).     Settler   acquires   vested   right,   when. 

Approved  in  Russian-American  etc.  Co.  v.  United  States,  199  U.  S. 
578,  50  L.  316,  26  Sup.  Ct.  157,  all  rights  previously  acquired  under 
Comp.  St.  1901,  pp.  1467,  1468,  by  settlement  and  survey  of  public 
lands  in  Alaska,  were  terminated  by  President's  proclamation  reserv- 
ing land  in  question  for  fish  culture  station;  Wallace  v.  Adams,  143 
Fed.  724,  upholding  32  Stat.  641,  whereby  citizenship  court  created 
and  empowered  to  review  final  judgments  of  United  States  courts; 
United  States  v.  Oregon  etc.  R.  Co.,  133  Fed.  955,  railroad  grant  ex- 
empting land  granted,  reserved  or  pre-empted,  excluded  lands  upon 
which  pre-emption  filed  and  accepted  by  land  office  though  lands  not 
paid  for;  Graham  v.  Great  Falls  etc.  Co.,  30  Mont.  400,  76  Pac.  810, 
preferential   right   given   successful    claimant    under   Comp.    St.    1901, 


565  Notes  on  U.  S.  Eeports.  15  Wall.  94-105 

p.   1392,  was  cut  off  by  26  Stat.   1098;   Tegarden  v.  Le  Marchel,  129 
Fed.  490,  arguendo. 

Distinguished  in  Eeservation  Bank  v.  Hoist,  17  S.  Dak.  246,  95 
N.  W.  933,  70  L.  R.  A.  799,  where  application  for  homestead  was  re- 
turned unacted  upon  and  applicant  sowed  part  of  land  and  mort- 
gaged crop,  and  another  made  homestead  thereon  and  received  re- 
ceiver's certificate  and  former  started  contest,  latter  acquired  title 
to  crop. 

Syl.  5  (VII,  853).     Officer's  neglect  no  bar  to  individual's  recovery. 

Approved  in  Smith  v.  Bonifer,  132  Fed.  891,  where  selection  of  lands 
for  allotment  made  by  Indian,  act  of  allotment  commissioners  in 
wrongfully  allotting  them  to  another  does  not  cut  off  heirs  of  person 
entitled. 

15  Wall.  94-105,  21  L.  64,  CHESAPEAKE  ETC.  CANAL  CO.  v.  HILL. 

Syl.  2  (VII,  853).  Contracts — Consideration  of  surrounding  cir- 
cumstances. 

Approved  in  United  States  v.  Utah  etc.  Stage  Co.,  199  U.  S.  423,'  50 
L.  255,  26  Sup.  Ct.  69,  increase  in  service  required  on  mail  route  as 
result  of  establishment  of  new  distributing  station  amounting  to  more 
than  three  hundred  thousand  miles  of  additional  transfer  service 
cannot  be  acquired  without  additional  compensation;  American  Bond- 
ing Co.  v.  Pueblo  Inv.  Co.,  150  Fed.  27,  construing  lease  and  bond; 
United  States  etc.  Co.  v.  Board  of  Commrs.,  145  Fed.  148,  constru- 
ing bond  to  indemnify  county  for  loss  suffered  through  acts  of  public 
depository;  Luhrig  Coal  Co.  v.  Jones  etc.  Co.,  141  Fed.  622,  constru- 
ing contract  of  sale  of  coal  for  future  delivery  providing  for  furnish- 
ing of  proportionate  number  of  cars  if  there  were  not  sufficient  cars; 
Ward  V.  Foley,  141  Fed.  365,  contract  by  which  vendor  agrees  to 
sell  his  interest  in  three  hundred  and  twenty  acres  of  land  at  rate 
of  $14  per  acre  means  sale  of  interest  in  land  at  rate  of  $14  for 
each  acre  in  entire  tract;  Stadler  v.  Missouri  River  Power  Co.,  139 
Fed.  308,  construing  lease  of  lands  permitting  lessor  to  flood  lands 
by  means  of  dam  as  not  releasing  lessor  from  damages  for  flooding 
other  lands  owned  by  plaintiff  and  not  mentioned  in  lease;  Vocalion 
Organ  Co.  v.  Wright,  137  Fed.  317,  construing  contract  for  interest 
in  future  inventions;  Armour  Packing  Co.  v.  Metropolitan  Water  Co., 
130  Fed.  855,  65  C.  C.  A.  335,  where  city  ordinance  granting  water 
franchise  provides  that  rates  shall  not  exceed  those  charged  in  ad- 
joining city  in  which  same  company  furnished  water,  it  did  not  include 
prices  charged  in  such  adjoining  city  after  it  had  bought  out  corpora- 
tion's water  plant. 

Syl.  3   (VII,  854).     Grant  of  water  as  will  pass  through  aperture. 

Approved  in  Oakland  Woolen  Co.  v.  Union  Gas  etc.  Co.,  101  Me. 
198,  210,  G3  Atl.   920,  construing  grant  of   right   to   take  water  from 


15  Wall.  111-165  Notes  on  U.  S.  Eeports.  566 

dam  for  carrying  on  tannery  business;   Muscogee  Mfg.   Co.  v.  Eagle 
etc.  Mills,  126  Ga.  224,  54  S.  E.  1034,  arguendo. 

15  Wall.  111-123,  21  L.  49,  UNITED  STATES  v.  SINGER. 

Syl.  4  (VII,  856).     Duties  covered  by  official  bond. 

Approved  in  United  States  v.  Kauhoe,  147  Fed.  186,  where  sureties 
on  postmaster's  bond  were  given  extension  of  time  to  pay  liability 
by  inspector  on  condition  that  they  execute  note  for  amount'  of  lia- 
bility, note  was  void;  National  Surety  Co.  v.  United  States,  129  Fed. 
72,  63  C.  C.  A.  512,  bond  of  letter-carrier  for  faithful  discharge  of 
duties  imposed  by  law  and  departmental  rules  binds  surety  to  faithful 
discharge  of  additional  duty  of  receiving  letters  for  registration  im- 
posed by  departmental  order. 

15  Wall.  131-140,  21  L.  69,  BOULDIN  v.  ALEXANDER. 

Syl.   8   (VII,  859).     Judicial  inquiry  as   to   expulsion   from   church. 
See  100  Am.  St.  Rep.  738,  note. 

15  Wall.  146-151,  21  L.  121,  MARSHALL  v.  VICKSBURG. 

Syl.   1    (VII,   860).     Equity  does   not   enforce   forfeiture. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  818,  canceling  oil 
and  gas  lease,  where  it  had  been  terminated  by  breach  of  covenant, 
but  still  appeared  of  record;  Duff  v.  Gilliland,  135  Fed.  585,  refusing 
to  cancel  contract  for  assignment  of  patent  in  consideration  of 
royalties  on  ground  of  breach  of  contract;  Wheeling  etc.  R.  R.  Co.  v. 
Town  of  Triadelphia,  58  W\  Va.  520,  52  S.  E.  512,  enjoining  forfeiture 
of  street  railway  franchise  where  municipal  officers  are  acting  un- 
fairly in  forfeiture  proceedings. 

15   Wall.   151-165,   21  L.   123,  SHUTTE   v.   THOMPSON. 

Syl.    2    (VII,    801).     Waiver    of    statutory    right. 

Approved  in  Shepard  v.  Barron,  194  U.  S.  567,  48  L.  1120,  24  Sup. 
Ct.  737,  abutting  owners  who  petitioned  for  street  improvement  can- 
not object  that  front-foot  rule  denies  due  process  of  law;  Mutual 
Life  Ins.  Co.  v.  Hill,  193  U.  S.  560,  48  L.  794,  24  Sup.  Ct.  528,  declara- 
tion in  policy  that  it  is  to  be  construed  according  to  New  York  laws 
does  not  make  controlling  New  York  law  relating  to  notice  of  for- 
feiture for  nonpajnnent  of  premiums  where  policy  contains  stipulation 
as  to  notice;  Womack  v.  Gross,  135  N.  C.  380,  47  S.  E.  465,  where 
objections  to  irregularities  in  taking  of  deposition  not  made  till  after 
trial  begun,  they  are  waived;  United  States  v.  Foreman,  5  Okl.  257, 
48  Pac.  98,  one  suing  in  territorial  district  court  for  money  paid  for 
land  on  which  entry  was  erroneously  allowed  and  afterward  cancelea 
need  not  show  surrender  of  duplicate  receipt  and  execution  of  relin- 
quishment of  claims  to  land  as  provided  by  act  of  1880;  Lone  v. 
Mutual  Life  Ins.  Co.,  33  Wash.  581,  74  Pac.  690,  where  insured  paid 
uo  premiums  for  over  twelve  years,  administrators  could  not  recover 


567  Notes  on  U.  S.  Keports.  15  Wall.  165-231 

on  policj,  though  statute  provided  against  forfeiture  for  nonpayment 
notice  given  prior  to   day  when  premium  payable. 

15  Wall.  165-177,  21  L.   142,  DUNCAN  v.  JAUDON. 

Syl.  6  (VII,  .865).     Pledge  of  trust  stock— Notice. 

Approved  in  Sternfels  v.  Watson,  139  Fed.  508,  applying  rule  to 
mortgage  of  trust  lands;  Ford  v.  Brown,  114  Tenn.  475,  88  S.  W.  1038, 
where  certificate  of  deposit  was  paj-able  to  one  as  "trustee,"  and  he 
wrongfully  indorsed  same,  indorsee  was  chargeable  with  notice  of 
trust  character;  dissenting  opinion  in  State  v.  Omaha  Nat.  Bank,  66 
Neb.  915,  93  N.  W.  339,  majority  holding  where  person  having  lawful 
custody  of  property  consents  to  its  receipt  or  disposition  by  another, 
guilty  intent  is  essential  element  of  conversion. 

Distinguished  in  Interstate  Nat.  Bank  v.  Claxton,  97  Tex.  578,  80 
!S.  W.  607,  65  L.  E.  A.  820,  where  trustee  deposits  cestui 's  money  in 
bank,  latter  not  liable  for  his  misappropriation  thereof,  though  it  knew 
he   was   violating    trust. 

15  Wall.  211-231,  21  L.  43,  OELEICHS  v.  SPAIN. 

Syl.  1  (VII,  871).     Equity — Objection  of  adequacy  of  law  remedy. 

Approved  in  Levi  v.  Mathews,  145  Fed.  154,  denying  federal  juris- 
diction over  offense,  where,  in  action  at  law  to  recover  money  due  on 
contract,  answer  alleges  fraud  in  procurement  of  contract. 

Distinguished  in  Southern  Pac.  E.  Co.  v.  United  States,  133  Fed. 
G55,  66  C.  C.  A.  581,  objection  to  jurisdiction  of  equity  on  ground 
of  adequacy  of  remedy  at  law,  where  bill  shows  equity  jurisdiction  to 
grant  relief  sought,  and  court  has  jurisdiction  over  subject  matter,  is 
waived,  if  not  taken  by  answer  to  merits. 

Syl.   3    (VII,   873).     Equity— Multiplicity   of   suits. 

Approved  in  Southern  Pac.  E.  Co.  v.  United  States,  133  Fed.  656, 
1)6  C.  C.  A.  581,  upholding  jurisdiction  over  suit  by  government 
against  railroad  and  others  to  determine  what  portion  of  lauds  errou- 
eously  patented  to  railroad  have  been  sold  to  bona  fide  purchaser,  and 
to  cancel  patents  to  lands  not  so  sold,  and  for  accounting  for  moneys 
received  for  lands  sold;  United  Cigarette  etc.  Co.  v.  Wright,  13- 
Fed.  197,  bill  to  require  accounting  from  defendant  is  not  multifarious 
because  different  and  separate  transactions  growing  out  of  agency  are 
set  out,  and  discovery  and  accounting  demanded  as  to  each;  Mutual 
Life  Ins.  Co.  v.  Blair,  130  Fed.  977,  upholding  equity  jurisdiction  over 
suit  to  cancel  for  fraud,  insurance  policy  provitling  that  on  insurer's 
death  settlement  should  be  made  by  issuance  of  annuity  policy  to  in- 
sured's wife,  annuity  payable  to  wife  or  her  children;  Baer  v.  Fidelity 
&  Deposit  Co.,  130  Fed.  98,  64  C.  C.  A.  42S,  where  bond  to  secure  de- 
posit as  condition  of  setting  aside  injunction  and  appointment  of  re- 
ceiver was  to  indemnify  against  damage  sustained  by  reason  of  d<- 
posit,  words  "as  court  might  determine"  meant  court  then  having 
jurisdiction  of  case. 


15  Wall.  232-2S2  Notes  on  U.  S.  Eeports.  568 

Syl.  4  (VII,  874).     Equity  jurisdiction  over  trusts. 

■  Approved  in  George  v.  Wallace,  135  Fed.  292,  68  C.  C.  A.  40,  where 
assets  of  insolvent  bank  placed  in  hands  of  trustee  for  benefit  of 
another  bank  which  assumed  debts  of  first,  holder  of  note  execut  /d 
by  first  bank  as  part  of  assumption  contract  could  sue  to  assert  pledge 
lien  without  first  reducing  claim  to  judgment. 

Syl.   8    (Vn,   875).     Liability  on   injunction  bond. 

Approved  in  Sheets  v.  Hays,  36  Ind.  App.  Ill,  112,  75  N.  E.  22,  con- 
tractor who  is  admitted  as  defendant  in  suit  to  enjoin  county  com- 
missioners from  paying  him  money  or  completing  contract  is  entitled 
to  benefit  of  injunction  bond. 

Syl.  10   (VII,  875).     Counsel  fees  not  allowed  on  injunction  bond. 

Approved  in  Frantz  v.  Saylor,  12  Okl.  41,  42,  69  Pac.  795,  following 
rule;  Lindeberg  v.  Howard,  146  Fed.  470,  471,  attorney's  fees  ex- 
pended in  obtaining  dissolution  of  injunction  not  proper  element  of 
damages  in  action   on  injunction  bond. 

15  Wall.  232-282,  21  L.  146,  CASE  OF  THE  STATE  FEEIGHT  TAX. 

Syl.  5  (VII,  878).     Object  of  Congressional  regulation  of  commerce. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  884,  Laws 
Wis.  1905,  p.  37,  c.  19,  as  amended  in  1905,  providing  for  inspection 
and  grading  of  grain,  is  void  as  to  interstate  commerce. 

Syl.  6  (VII,  878).     Transportation  is  constituent  part  of  commerce. 

Approved  in  Farris  v.  Henderson,  1  Okl.  393,  33  Pac.  383,  holding 
void  Okl.  Stat.,  c.  3,  art.  1,  providing  for  inspection  of  cattle  driven 
into  certain  county  and  providing  for  collection  of  certain  fees  per 
head. 

Syl.  11   (VII,  884).     State  tax  on  corporate  franchises. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
40,  105  Am.  St.  Eep.  701,  50  L.  76,  25  Sup.  Ct.  715,  New  York  special 
franchise  tax  does  not  impair  obligation  of  contract  by  which  state 
or  city  granted  right  to  construct  and  operate  street  railway  in  con- 
sideration of  percentage  of  gross  earnings;  State  v.  Savage,  65 
Neb.  747,  91  N.  W.721,  in  assessment  of  railroad  and  telegraph  prop- 
erties, board  of  equalization  should  include  value  of  franchises. 

Syl.  15  (VII,  885).  Exclusive  congressional  regulation  of  national 
commerce. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  879,  883,  Laws 
Wis.  1905,  p.  37,  c.  19,  as  amended  in  1905,  providing  for  inspection 
a.nd  grading  of  grain,  is  void. 


569  .  Notes  on  U.  S.  Eeports,  15  Wall.  284-328 

15  Wall.  284  299,  21  L.  164,  STATE  TAX  OX  RAILWAY  GROSS 
RECEIPTS  (READING  R.  R.  CO.  v.  PENNSYLVANIA). 

Syl.  1  (VII,  887).     What  is  regulation  of  commerce. 

Approved  in  Howard  v.  Illinois  Central  Ry.  Co.,  148  Fed.  1001,  hold- 
ing void  34  Stat.  232,  c.  3073,  making  carriers  liable  to  employees  for 
damages  by  reason  of  negligence;  Noble  v.  Amoretti,  11  Wyo.  252,  71 
Pac.  881,  state  tax  on  stock  of  goods  licensed  Indian  trader,  located 
on  reservation,  is  not  regulation  of  commerce  with  Indians;  dissenting 
opinion  in  People  v.  Miller,  178  N.  Y.  205,  70  N.  E.  476,  earnings  of 
domestic  corporation,  whose  sole  business  is  transportation  of  products 
from  other  states  to  this  state,  and  vice  versa,  are  not  subject  to 
franchise  tax. 

Syl.  4  (Vn,  889).     State  tax  on  imports  after  package  broken. 

Distinguished  in  Southern  Ry.  Co.  v.  Greensboro  etc.  Coal  Co.,  134 
Fed.  92,  where  cars  of  coal  shipped  from  one  state  into  another,  state 
railroad  corporation  commission  cannot  order  railroad  to  place  them 
on    certain    tracks    for    unloading. 

Syl.  6  (VII,  891).     State  tax  on  corporate  franchises. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
40,  105  Am.' St.  Rep.  701,  50  L.  76,  25  Sup.  Ct.  715,  New  York  special 
franchise  tax  does  not  impair  obligation  of  contract  by  which  state 
or  city  granted  right  to  construct  and  operate  street  railway  in  con- 
sideration of  percentage  of  gross  earnings;  State  v.  Savage,  65  Neb. 
747,  91  N.  W.  721,  in  assessment  of  railroad  and  telegraph  properties, 
board  of  equalization  should  include  value  of  franchises. 

15  Wall.  300-328,  21  L.  179,  STATE  TAX  ON  FOREIGX-IIELD 
BONDS  (CLEVELAND  ETC.  RAILROAD  CO.  v.  PENNSYL- 
VANIA). 

Syl.  2  (VII,  892).  State's  taxing  power  limited  to  territorial 
jurisdiction. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  202,  204, 
50  L.  153,  26  Sup.  Ct.  36,  state  taxation  of  rolling  stock  of  domestic 
corporation  permanently  located  in  other  states  and  there  employed 
denies  due  process  of  law;  Goodsite  v.  Lane,  139  Fed.  594,  under  Ohio 
St.  1890,  §  2731,  taxing  all  property  in  state  and  all  moneys,  credits 
or  investments  in  stocks  or  otherwise  of  residents,  where  trust  estate 
and  beneficiaries  were  both  outside  of  state,  estate  not  taxable  though 
trustee  resident  of  state  where  he  did  not  act  as  trustee  in  state; 
Buck  V.  Beach,  164  Ind.  41,  108  Am.  St.  Rep.  272,  71  N.  E.  965,  where 
New  Yorker  loaned  money  in  Ohio  secured  by  mortgages  on  property 
there  situated,  and  notes  and  mortgages  were  kept  by  agent  in  Indiana, 
they  were  taxable  in  Indiana;  Metropolitan  Life  Ins.  Co.  v.  Board  of 
Assessors,  115  La.  706,  39  So.  849,  arguendo. 


15  Wall.  328-355  Notes  on  U.  S.  Eeporta.  570 

Syl.  3   (VII,  893).     Limits  of  state  taxing  power. 

Approved  in  Carstairs  v.  Cochran,  193  U.  S.  16,  48  L.  597,  24  Sup. 
Ct.  318,  upholding  state  tax  on  liquors  in  bonded  warehouse  under 
statute  requiring  warehousemen  to  pay  tax,  and  giving  them  lien 
on  property  therefor;  State  v.  Western  Union  Tel.  Co.,  96  Minn.  23, 
104  N.  W.  572,  upholding  Laws  190,  c.  180,  p.  251,  providing  for 
taxation  of  tangible  and  intangible  property  of  telegraph  companies 
situated  in  state,  as  system;  People  v.  Wells,  184  N.  Y.  279,  77  N.  E. 
20,  where  foreign  corporation  maintained  office  in  state  for  sale 
of  its  products,  which  are  sold  in  original  package,  and  took  bills 
receivable,  which  are  held  in  state  until  maturity  and  proceeds  re- 
mitted  to   home    office,   bills   are    taxable. 

Syl.  5  (VII,  894).     Debts  taxable  at  situs  of  creditor. 

Approved  in  Pennsylvania  etc.  Ins.  Co.  v.  Meyer,  197  U.  S.  416,  49 
L.  815,  25  Sup.  Ct.  483,  cause  of  action  on  insurance  policy  issued 
by  foreign  company  arises  within  state  within  meaning  of  statute  relat- 
ing to  service  of  summons  on  foreign  corporations,  where  property  there 
situated  and  loss  was  adjustable  there;  Buck  v.  Beach,  1G4  Ind.  42,  51, 
108  Am.  St.  Rep.  272,  71  N.  E.  965,  968,  where  New  Yorker  loaned 
money  in  Ohio,  secured  by  mortgages  on  property  there  situated,  and 
notes  and  mortages  were  kept  by  agent  in  Indiana,  they  were  taxable 
in  Indiana;  State  ex  rel.  Louisiana  Imp.  Co.  v.  Board  of  Assessors,  111 
La.  999,  36  So.  97,  municipal  certificates  of  indebtedness  are  not  sub- 
ject to  taxation;  Commonwealth  v.  Williams,  102  Va.  785,  47  S.  E. 
869,  under  Code  1887,  §§  491,  492,  relating  to  assessment  of  personalty, 
shares  of  stock  are  located  at  domicile  of  creditor,  though  evidence 
of  same  be  without  jurisdiction  of  court, 

Syl.  6  (VII,  896).     State  tax  on  bonds  held  by  nonresident. 

Qualified  in  State  v.  Fidelity  etc.  Co.,  35  Tex.  Civ.  218,  80  S.  W.  547, 
municipal  securities  deposited  by  foreign  corporation  in  accordance 
with  state  statute  are  taxable  in  state. 

Syl.  9  (VII,  897).     Taxation  of  mortgage  held  by  nonresident. 

Approved  in  Adams  v.  Colonial  etc.  Mortg.  Co.,  82  Miss.  397,  100  Am. 
St.  Ecp.  633,  34  So.  530;  loan  made  by  nonresident  is  not  taxable  in 
state  though  negotiations  for  it  made  in  state,  and  it  is  secured  by 
mortgage  on  land  in  state. 

15  Wall.   328-337,  51  L.  35,  FOWLER  v.  RAPLEY. 

(VII,  898.)  Miscellaneous.  Cited  in  State  ex  rel.  Louisinna  Imp. 
Co.,  V.  Board  of  Assessors,  111  La.  995,  36  So.  96,  discussing  situs  of 
bonds  for  purposes  of  taxation. 

15  Wall.  337-355,  21  L.  89,  UNITED  STATES  v.  THOMAS. 

Syl.  7  (VII,  900).     Liability  on  bond  of  public  depository. 

Approved  in  Johnson  v.  Fleming,  116  Ky.  682,  50  S.  W.  S55,  where 
court  has  failed  to  select  bank  as  depository,  commissioner  is  liable 


571  Notes  on  U.  S.  Kcports.  15  Wall.  355-377 

only  for  ncgligonce  in  selection  of  bank  for  deposit  of  money  paid  into 
court. 

Syl.  9  (VII,  901).     Official  bonds — Moneys  taken  by  public  enemy. 

Distinguished  in  Van  Trees  v.  Territory,  7  Okl.  363,  369,  54  Pac. 
498,  500,  fact  that  county  moneys  deposited  in  solvent  bank  which 
subsequently  failed,  resulting  in  loss  to  county  without  fault  of 
treasurer,  is  no  defense  to  action  on  bond. 

15  Wall.  355-373,  21  L.  170,  GEAND  CHUTE  v,  W^INEGAR. 

Syl.  1   (VII,  903).     Direction  of  verdict. 

Approved  in  Gunn  v.  Union  R.  R.  Co.,  27  R.  I.  32G,  62  Atl.  120, 
upholding  Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supremo  court  to 
direct  judgment  without  further  trial  by  jury. 

15  Wall.  373  377,  21  L.  174,  GRAND  CHUTE  v.  WINEGAR. 

Syl.  1    (VIT,  905).     When  party  deprived  of  jury. 

Approved  in  Ames  Realty  Co.  v.  Big  Indian  Min.  Co.,  146  Fed.  176, 
Civ.  Code  Mont.,  §  1891,  providing  that  in  actions  for  protection  of 
water  rights  all  parties  who  divert  water  from  same  stream  may  be 
made  parties  and  court  may  settle  rights  of  all,  is  enforceable  in 
federal  equity  court;  General  Elec.  Co.  v.  Westinghouse  Elec.  &  Mfg. 
Co.,  114  Fed.  466,  refusing  to  restrain  violation  of  contract  for  man- 
ufacture and  sale  of  goods  which  provides  for  payment  of  fifty  per 
cent  of  regular  sale  price  as  liquidated  damages  in  case  of  breach; 
Allen  V.  Myers,  1  Alaska,  117,  denying  equity  jurisdiction  over 
suit  to  quiet  title  after  applicant  for  patent  has  initiated  proceedings 
in  land  office;  American  Lighting  Co.  v.  Public  Service  Corp.,  134 
Fed.  131,  refusing  to  punish  as  contempt  violation  of  restraining  order 
against    violation    of    lighting    contract. 

Syl.  2  (VII,  905).  Adequacy  of  law  remedy — Restraining  suit  on 
bonds. 

Approved  in  Scottish  Union  etc.  Ins.  Co.  v.  Bowland,  196  U.  S.  633, 
49  L.  628,  25  Sup.  Ct.  345,  refusing  to  enjoin  prosecution  of  suits 
against  foreign  corporation  for  recovery  of  personal  property  taxes, 
on  ground  that  corporation  is  not  personally  liable  therefor;  Glenn  v. 
West,  103  Va.  524,  49  S.  E.  672,  holder  of  equitable  title,  out  of  posses- 
sion, cannot  sue  to  quiet  title  possessor  under  tax  title,  between  whom 
and  himself  there  is  no  privity;  dissenting  opinion  in  Barnes  v.  Newton, 
5  Okl.  458,  460,  49  Pac.  1080,  1081,  majority  holding  successful  party 
in  contest  before  Land  Department  may  enjoin  adversary  from  further 
interfering    with    his    possession. 

Distinguished  in  Ritterhoff  v.  Puget  Sound  Nat.  Bank,  37  Wash.  82, 
107  Am.  St.  Rep.  791,  79  Pac.  602,  refusing  to  restrain  collection  of 
note  or  to  declare  it  void  where  complainant  alleges  it  is  forged. 


15  Wall.  377-426  Notes  on  U.  S.  Eeports.  572 

15  Wall.  377-379,  21  L.  176,  KIMBALL  v.  WEST. 

Syl.  2   (VII,  907).     Eoscission  of  executed  sale. 

Approved  in  Lynch  v.  United  States,  13  Okl.  145,  73  Pac.  1097,  re- 
fusing to  cancel  land  patent  for  fraud  in  procurement  where  govern- 
ment not  injured. 

Syl.  3  (VII,  907).     Rescission — Compensation  for  defective  title. 

Approved  in  Kentucky  Distilleries  etc.  Co.  v.  Blanton,  149  Fed. 
41,  decreeing  specific  performance  where  slight  defects  in  title  re- 
moved before  decree. 

15  Wall.  384-387,  21  L.  131,  EX  PAETE  EGBERTS. 

Syl.  1  (VII,  908).     Eevocation  of  allowance  of  appeal. 

Approved  in  Mackenzie  v.  Pease,  146  Fed.  744,  circuit  court  of 
appeals  may  vacate  order  allowing  appeal  inadvertently  entered. 

Syl.  2  (VII,  908).     Mandamus  to  hear  and  decide  new  trial. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  954,  956, 
67  L.  E.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to  command 
circuit  judge  to  vacate  order  staying  proceedings  pending  state  court 
appeal;   In   re   Dowd,   133   Fed.   751,   arguendo. 

15  Wall.  401-410,  21  L.   114,  WASHINGTON  ETC.  RAILROAD  CO. 
V.  GLADMON. 

Syl.   2    (VII,   910).     Burden   of  proving   contributory   negligence. 

Approved  in  Armour  v.  Carlas,  142  Fed.  722,  upholding  refusal  to 
direct  verdict  for  defendant  in  action  for  injuries  caused  by  collision 
between  two  teams:  Wabash  Ey.  Co.  v.  De  Tar,  141  Fed.  934,  applying 
rule  to  instructions  as  to  presumption  of  due  care  used  by  traveler 
injured  at  railroad  crossing;  The  Nellie,  730  Fed.  215,  applying  rule 
where  vessel  injured  by  submerged  pile  near  wharf;  Southern  Pac. 
Co.  V.  Tomlinson,  4  Ariz.  134,  33  Pac.  712,  applying  rule  in  action 
for  wrongful  death  at  railroad  crossing. 

Syl.  3   (VII,  912).     Negligence — Care  required  of  infant. 

Approved  in  Mundhenke  v.  Oregon  City  Mfg.  Co.,  47  Or.  133,  81 
Pac.  979,  1  L.  E.  A.  (N.  S.)  278,  question  whether  servant  of  im- 
mature years  assumed  risk  of  exposed  gearing  and  slippery  floor  is 
for  jury;  Dubiver  v.  City  Ey.  Co.,  44  Or.  236,  74  Pac.  918,  applying 
rule  where  child  of  fifteen  years  injured  by  collision  between  street- 
car  and   wagon    which    he    was   driving. 

15   Wall  410-426,  21  L.   198,  TIFFANY  v.  LUCAS. 

Syl.   1    (VII,  914).     Sale   within   six  months  of  bankruptcy. 

Approved  in  Empire  State  Trust  Co.  v.  Fisher  Co.,  67  N.  J.  Eq. 
100,   57    Atl.    507,   holding   company    executing    mortgage    to    creditojt 


573  Notes  on  U.  S.  Keports.  15  Wall.  427-470 

was  not  insolvent  at  time  of  its  execution,  though  it  was  adjudged 
bankrupt  one  month  afterward. 

Distinguished  in  In  re  Pease,  129  Fed.  451,  452,  where  trust  com- 
pany through  its  attorney,  who  also  represented  some  creditors  of 
bankrupt,  made  loan  with  which  he  paid  some  creditors,  including 
clients  of  attorney,  in  full,  and  loan  was  secured  by  chattel  mortgage 
on  stock  under  which  lender  sold  it  mortgage  was  void  as  preference. 

15  Wall.  427-429,  21  L.  177,  GEAHAM  v.  NORTON. 

Syl.  1  (VII,  915).     Federal  mandamus  to  state  officer. 

Approved  in  United  States  v.  Norfolk  etc.  Ry.  Co.,  138  Fed.  851, 
denying  mandamus  at  suit  of  shipper  to  compel  interstate  railroad 
to  make  equitable  distribution  of  cars  as  per  contract. 

15  Wall.  429-439,  21  L.  200,  CITY  OF  RICHMOND  v.  SMITH. 

Syl.   1    (VII,   915).     Waiver  of  jury  in   civil   action. 

Approved  in  Swift  &  Co.  v.  Jones,  145  Fed.  494,  circuit  court,  in 
action  at  law,  cannot  even  by  consent  of  parties  order  trial  before 
special  master  authorized  to  hear  and  pass  on  issues  of  fact  and  re- 
port findings  to  court. 

15   Wall.   439-449,   21   L.   224,   HANAUER  v.   WOODRUFF. 

Syl.  1  (VII,  916).  Consideration  for  note — Bonds  of  Confederate 
state. 

Approved  in  dissenting  opinion  in  Mouahan  v.  Monahan,  77  Vt. 
151,  59  Atl.  174,  70  L.  R.  A.  935,  majority  holding  complaint  seeking 
to  impress  securities  with  trust  and  alleging  that  they  were  taken 
in  defendant's  name  without  his  knowledge  cannot  be  denied  re- 
lief because  securities  put  in  defendant's  name  to  avoid  taxation. 

15   Wall.   454-459,   21   L.   204,   TOMLINSON   v.  .JESSUP. 

Syl.  4   (VII,  918).     Charter  reservation  of  right  to  alter. 

Approved  in  Prewitt  v.  Security  etc.  Ins.  Co.,  119  Ky.  328,  83  S. 
W.  613,  upholding  Ky.  St.  1903,  §  631,  providing  for  revocation  of 
authority  of  foreign  insurance  company  to  do  business  in  state  if  it 
removes  suit  to  federal  court. 

Syl.  5   (VII,  919).     Charter  reservation — Repeal   of  tax  exemption. 

Distinguished  in  Omaha  Water  Co.  v.  City  of  Omaha,  147  Fed.  6, 
where  city  contractor  for  construction  and  operation  of  waterworks 
for  term,  and  ordinance  fixed  maximum  rates,  it  could  not  reduce 
specified  rates. 

15  Wall.  460-470,  21  L.  189,  TOMLINSON  v.  BRANCH. 

Syl.    1    (VII,   920).     Privileges   on   consolidation   of   corporations. 

Distinguished  in  .lones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  775, 
776,  where  holders  of  majority  of  stock  of  corporation,  against  pro- 


15  Wall.  471-523  Notes  on  U.  S.  Eeports.  574 

test  of  owners  of  majority  of  preferred  stock,  consolidated  with 
corporation  whose  stock  was  owned  by  majority,  and  ratio  of  pre- 
ferred stock  to  assets  as  thereby  reduced,  minority  eould  attack 
consolidation  for  fraud. 

Syl.  2   (VII,  921).     Tax  exemption — Consolidation  of  corporations. 

Approved  in  Lee  v.  Atlantic  etc.  R.  Co.,  150  Fed.  790,  where  Vir- 
ginia railroad  was  consolidated  and  merged  with  another  under  agree- 
ment providing  that  stock  of  latter  canceled  and  stock  of  former 
issued  in  its  place,  agreement  was  merger  and  not  consolidation. 

15  Wall.  471-477,  21  L.  58,  PROUT  v.  EOBY. 

■  Syl.  8  (VII,  924).     Re-entry  by  land  for  nonpayment  of  rent. 

Approved  in  American  Bonding  Co.  v.  Pueblo  Inv.  Co.,  150  Fed.  21, 
surrender  between  rent  days  releases  tenant  and  his  sureties  for 
rent  to  accrue  but  not  as  to  rent  due  arid  accrued. 

15  Wall.  478-499,  21  L.  98,  MILLER  v.  STATE. 

Syl.  4   (VII,  925).     Reserved  power  to   alter  corporate  charter. 

Approved  in  McKee  v.  Chautauqua  Assembly,  130  Fed.  540,  65  C. 
C.  A.  8,  upholding  act  consolidating  corporations  whose  management 
has  been  in  board  of  trustees  of  one  of  them. 

15    Wall.   500-523,   21   L.    133,   HOLYOKE   WATER   POWER    CO.    v. 
LYMAN. 

Syl.   2    (VII,   926).     Right   of   fishery   subject   of   ownership. 

Approved  in  De  Wilt  v.  Bissell,  77  Conn.  536,  60  Atl.  144,  69  L. 
R.  A.  933,  where  in  natural  use  of  millpond  it  is  necessary  in  sum- 
mer to  draw  water  so  that  portions  of  bottom  are  exposed,  pur- 
chasers of  property  near  pond  cannot  object  to  such  use  on  account 
of  odors. 

Syl.  5  (VII,  927).     Ambiguous  grants  construed  in  favor  of  public. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  34,  50 
L.  359,  26  Sup.  Ct.  227,  municipal  grant  of  waterworks  franchise  does 
not  devest  city  of  power  to  construct  own  system;  Minnesota  Canal 
etc.  Co.  V.  Koochiching  Co.,  97  Minn.  435,  107  N.  W.  407,  in  pro- 
ceedings to  condemn  private  property  all  reasonable  doubts  as  to  au- 
thority  are   resolved   in   favor   of  land   owner. 

Syl.  7  (VII,  927).     Right  to  regulate  fisheries. 

Approved  in  People  v.  Bootman,  180  N.  Y.  9.  72  N.  E.  507.  uphold- 
ing power  of  state  to  make  possession  of  imported  game  unlawful. 


575  Notes  on  U.  S.  Keports.  15  Wall.  524-549 

15  Wall.  524-539,  21  L.  206,  THE  NITRO-GLYCEEINE  CASE. 

Syl.  2  (VII,  929).  Presumption  as  to  carrier's  knowledge  of  pack- 
ages. 

Approved  in  Clark  v.  Missouri  etc.  Ej.  Co.,  179  Mo.  94,  77  S.  W. 
890,  common  carrier  is  not  chargeable  with  notice  that  Texas  cattle 
carried  by  it  are  dangerous  and  vicious  and  liable  to  injure  servants. 

Syl.  3  (VII,  929).  Negligent  handling  by  carrier — Knovfledge  of 
contents. 

Approved  in  Skinn  v.  Reutter,  135  Mich.  59,  106  Am.  St.  Rep. 
384,  97  N.  W.  153,  63  L.  R.  A.  743,  purchaser  of  hogs  from  dealer, 
who  bought  and  sold  them  to  him  without  knowledge  of  their  dis- 
eased condition,  may  recover  of  original  seller  for  death  of  own  hogs 
which  he   placed  with  diseased  ones. 

Syl.  4   (VII,  930).     Injury  to   passenger   prima  facie   negligence. 

See   113   Am.   St.  Rep.   988,   note. 

Syl.    6    (VII,   930).     Burden   of   proving   negligence. 

Approved  in  Greeley  v.  Foster,  32  Colo.  299,  75  Pae.  353,  no  pre- 
sumption of  negligence  arises  from  accident  to  city  employee  ex- 
cavating trench  in  street;  Chicago  etc.  R.  R.  Co.  v.  Reilly,  212  111. 
511,  103  Am.  St.  Rep.  243,  72  N.  E.  455,  where  one  standing  at  cross- 
ing is  injured  by  scantling  projecting  from  passing  flat-car,  negli- 
gence of  railroad  not  presumed;  East  Tennessee  etc.  R.  R.  Co.  v. 
Lindamood,  111  Tenn.  463,  78  S.  W.  100,  applying  rule  in  action  for 
injuries  to  brakeman  caused  by  alleged  defects  in  brakes.  See  113 
Am.  St.  Rep.  1005,  note. 

Syl.  7   (VII,  931).     Negligence — Measure  of  care   against  accident. 

Approved  in  Southern  Ry.  Co.  v.  Chatman.  124  Ga.  1036,  53  S.  E. 
697,  determining  liability  of  railroad  for  accident  at  street  crossing; 
Johnson  v.  Union  Pac.  Coal  Co.,  28  Utah,  51,  76  Pac.  1090,  67  L.  R. 
A.  506,  employer  building  track  in  mine  shaft  who  lowers  rails  with- 
out fastening  them  to  ear  so  that  one  fell  over  side  and  injured 
employee  working  at  bottom,  is  liable,  in  absence  of  proof,  that  mode 
of  work  was  as  safe  as  mode  in  general  use;  Globe  Nav.  Co.  v.  Mary- 
land Casualty  Co.,  39  Wash.  308,  81  Pac.  829,  where  surety  agreed 
to  indemnify  vessel  owners  against  damages  for  injuries  suffered 
by  employees  through  owner's  negligence,  and  judgment  against  own- 
ers was  based  on  failure  to  supply  medical  assistance,  surety  could 
not  set  up  ignorance  of  facts  exempting  it  from  liability  where  it 
had  copy  of  complaint  in  suit. 

15  Wall.  547-549,  21  L.  231,  HANNEWINKLE  v.  GEORGETOWN. 

Syl,  1  (VII,  932).     Restraining  collection  of  illegal  tax. 

Approved  in  Devine  v.  Los  Angeles,  202  U.  S.  335,  50  L.  1054,  26 
Sup.  Ct.  652,  verbal  assertions  of  ownership  do   not  constitute   cloud 


15  Wall.  549-573  Notes  on  U.  S.  EeportB.  576 

on  title,  which  equity  will  remove;  Illinois  Life  Ins.  Co.  v.  Newman, 
141  Fed.  451,  denying  power  of  federal  equity  court  to  enjoin  col- 
lection of  state  tax  on  ground  of  its  illegality,  though  such  power  is 
conferred  in  state  courts. 

Syl.  3   (VII,  933).     Cloud  on  title — Void  tax  sale. 
Approved  in  Ashburn  v.   Graves,   149  Fed.  972,  refusing  to   cancel 
deed  void  on  its  face   as  cloud   on   title. 

15  Wall.  549-552,  21  L.  232,  EIGGIN  v.  MAGUIEE. 

Syl.    1    (VII,    933).     Contract    liability   provable    in   bankruptcy. 

Approved  in  In  re  Ellis,  143  Fed.  106,  subcontractor  has  no  prov- 
able claim  against  contractor  under  Bankr.  Act.,  c.  541,  §  59b,  for 
work  for  which  contractor  has  not  been  paid  by  owner,  where  con- 
tract provides  that  contractor's  liability  does  not  accrue  till  con- 
tractor paid;  In  re  Pettingill,  137  Fed.  146,  claim  based  on  liability 
of  bankrupt  on  guaranty  executed  by  him  of  payment  by  corporation 
of  certain  rate  of  dividends  on  stock  held  by  another  is  not  provable 
debt  as  to  dividends  not  due  at  time  of  bankruptcy;  Conklin  v. 
United  States  Shipbuilding  Co.,  136  Fed.  1008,  surety  on  bond  of 
insolvent  corporation  has  no  claim  provable  as  debt  in  insolvency 
proceedings  against  corporation  merely  because  of  pendency  of  suit 
on  bond;  Dight  v.  Chapman,  44  Or.  272,  75  Pac.  587,  65  L.  E.  A.  793, 
where  there  was  decree  establishing  indebtedness  of  corporation  and 
awarding  recovery  against  it  for  that  amount  and  against  stockhold- 
ers for  their  proportion  of  capital  stock,  decree  as  against  nonresident 
stockholder  not  party  to  suit,  made  liability  debt  provable  on  his 
subsequent  bankruptcy. 

15  Wall.  552-555,  21  L.  60.     FEOW  v.  DE  LA  VEGA. 

Syl.  1  (VII,  935).  Decree  against  one  joint  defendant  pending 
suit. 

Approved  in  First  Baptist  Church  v.  Harper,  191  Mass.  210,  77  N. 
E.  781,  where,  under  E.  Laws,  c.  182,  §§  6-10,  certain  defendants  to 
bill  to  quiet  title  failed  to  appear  and  no  interlocutory  decree  taking 
bill  pro  confesso  was  ordered  case  not   ready  for  final  disposition. 

15   Wall.   562-566,   21   L.   250,  YOUNG  v.   GODBE. 

Syl.  3  (VII,  936).     Interest,  when  recoverable. 

Approved  in  Harding  v.  York  Knitting  Mills,  142  Fed.  229,  allow- 
ing  interest  on   claim  for  goods   sold   on   definite   term   of   credit. 

15  Wall.  566-573,  21  L.  251,  POLICE  JUEY  v.  BEITTON. 

Syl.    1    (VII,    937).     Negotiable    refunding    securities. 

Approved  in  Glass  v.  Parish  of  Concordia,  113  La.  554,  37  So.  192, 
following  rule. 


577  Notes  on  U.  S.  Eeports.  15  Wall.  573-624 

Syl.  2  (VII,  937).  Municipalities  maj  incur  debts  through  con- 
tracts. 

Approved  in  Luther  v.  Wheeler,  73  S.  C.  91,  52  S.  E.  876,  where 
town  of  less  then  one  thousand  inhabitants  under  municipal  resolu- 
tion gave  note  for  money  used  for  necessary  public  building,  it  is 
invalid,  but  holder  may  recover  of  town  amount  received  and  used 
as  money  had  and  received. 

Syl.  3  (VII,  937).  Municipal  contracts  creating  debts  subject  to 
equities. 

Approved  in  Morrison  v.  Austin  State  Bank,  213  111.  484,  104  Am. 
St.  Eep.  225,  72  X.  E.  1113,  municipal  warrants,  though  negotiable 
in  form,  are  not  within  rule  guarding  commercial  paper  in  hands 
of  bona  fide  purchaser. 

Syl.   5    (VII,   937).     Issuance   of   negotiable   parish   bonds. 

Cited  in  Glass  v.  Parish  of  Concordia,  113  La.  547,  37  So.  189, 
arguendo. 

15  Wall.  573-580,  21  L.  229,  PAKTKIDGE  v.  THE  INSURANCE  CO. 

Syl.  1  (VII,  940).     Parol  to  incorporate  custom  into  contract. 

Approved  in  Harding  v.  Cargo  etc.  of  Coal,  147  Fed.  976,  provision 
in  charter-party  for  ship  to  carry  coal,  "vessel  to  have  turn  in  load- 
ing," does  not  make  port  custom  to  give  steamers  preference  in  filling 
bunkers  part  of  contract,  where  custom  unknown  to  parties;  Lillard 
V.  Kentucky  Distilleries  etc.  Co.,  134  Fed.  182,  67  C.  C.  A.  74,  evi- 
dence of  custom  is  admissible  to  show  that  contract  to  deliver  dis- 
tillery slop  at  distiller's  cattle-feeding  lot,  contemplated  compliance 
with  custom  to  supply  lot   with  pens   and   troughs. 

Syl.  3   (VII,  940).     State  rules  of  setoff  in  federal  courts. 

Distinguished  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  732, 
68  C.  C.  A.  89,  in  federal  action  at  law  to  enforce  stockholder's  statu- 
tory liability  defendant  cannot  set  off  indebtedness  from  corporation 
to  him. 

15  Wall.  580-591,  21  L.  236,  MUTUAL  LIFE  INS.  CO.  v.  TERRY. 

Syl.  4   (VII,  941).     Insurance — Suicide  while  insane. 

Approved  in  Knapp  v.  Order  of  Pendo,  36  Wash.  606,  79  Pac.  211, 
following  rule. 

15  Wall.  610-624,  21  L.  212,  GUNN  v.  BARRY. 

Syl.  3    (VII,  944).     Remedies  as  part   of   contract   obligation. 

Approved  in  Ex  parte  Goldsmith,  68  S.  C.  538,  47  S.  E.  987,  de- 
termining right  of  widow  in  balance  of  proceeds  of  mortgage  fore- 
closure on  lands  which  they  had  abandoned  as  home. 

37 


15  Wall.  643-649  Notes  on  U.  S.  Keporta.  578 

Syl.  5   (VII,  946).     Statute  increasing  amount  of  exempt  property. 

Approved  in  Welsh  v.  Cross,  146  Cal.  633,  106  Am.  St.  Eep.  63, 
81  Pac.  233,  amendment  of  1897  to  Code  Civ.  Proc,  §  702,  extend- 
ing time  for  redemption  from  execution  sale,  is  void  as  to  judg- 
ments existing  at  time  of  its  passage. 

Distinguished  in  Lewis  v.  Goldthwaite  Nat.  Bank,  36  Tex.  Civ.  440, 
81  S.  W.  799,  Laws  1897,  p.  131,  c.  101,  exempting  from  garnishment 
for  six  months  after  sale  proceeds  of  voluntary  sale  of  homestead, 
applies  to  debts  existing  prior  to  its  passage. 

(VII,  944.)  Miscellaneous.  Cited  in  In  re  Mullen,  140  Fed.  206, 
bankrupt  who  is  registered  hunting  guide  under  Maine  laws,  is  en- 
titled, under  Kev.  St.  Me.,  c.  83,  §  64,  par.  6,  to  exemption  of  canoe 
but   not   to  rifle. 

15   Wall.   643-649,  21  L.   244,  CAMMACK  v,  LEWIS. 
Syl.  1  (VII,  948).     Life  insurance — Wager  policy. 

Approved  in  Gould  v.  New  York  Life  Ins.  Co.,  132  Fed.  931,  where 
bankrupt's  life  policy,  payable  to  his  administrator,  had  no  sur- 
render value,  and  his  trustee  allowed  it  to  lapse  by  failing  to  pay 
]iremium,  on  bankrupt's  death,  policy  passed  to  administrator;  Gor- 
don V.  Ware  Nat.  Bank,  132  Fed.  446,  67  L.  E.  A.  550,  65  C.  C.  A. 
580,  purchaser  of  policy  from  pledgee  thereof  takes  good  title  to  pol- 
icy and  its  proceeds  though  he  has  no  insurable  interest  in  in- 
sured's life;  Metropolitan  etc.  Ins.  Co.  v.  Elison,  72  Kan.  204,  S3 
Pac.  412,  3  L.  R.  A.  (N.  S.)  934,  assignment  of  half-interest  in  pol- 
icy to  one  having  no  insurable  interest,  in  consideration  that  as- 
signee pays  premiums,  is  void. 

Distinguished  in  Mechanics'  Nat.  Bank  v.  Comins,  72  N.  H.  19, 
101  Am.  St.  Eep.  650,  55  Atl.  195,  upholding  assignment  of  life  pol- 
icy to  one  having  no  insurable  interest  where  assignment  bona  fide. 

Syl.  2  (VII,  948).     Assignment  of  life  policy  to  creditor  of  assured, 

Approved  in  Wilton  v.  New  York  Life  Ins.  Co.,  34  Tex.  Civ.  158, 
78  S.  W.  404,  niece  having  no  expectation  of  pecuniary  benefit  from 
uncle  further  than  probability  of  occasional  gift  has  no  insurable  in- 
terest in  his  life. 

Distinguished  in  Hinton  v.  Mutual  Reserve  etc.  Life  Assn.,  135 
N.  C.  323,  102  Am.  St.  Rep.  545,  65  L.  E.  A.  161,  47  S.  E.  477,  where 
policy  payable  to  estate  of  insured  was  secured  under  agreement 
between  insured  and  one  having  no  insurable  interest  tliat  latter 
would  pay  premiums  and  take  proceeds,  and  policy  was  assigned  to 
him.  he  could  not  sue  on  it  as  administrator. 


579  Notes  on  U.  S.  Eeports.  15  Wall.  649-671 

15  Wall.  649-660,  21  L.  220,  NEW  ORLEANS  EAILROAD  CO.  v. 
BANNING. 

Syl.  2    (VII,  950).     Liability   of  principal   for  agent's   acts. 

Approved  in  Arthur  v.  Texas  etc.  Ry.  Co.,  139  Fed.  131,  where 
railroad  gave  receipt  for  cotton  delivered  by  plaintiff  to  independent 
compress  company  on  compress  receipt,  and  cotton  burned  while  on 
compress  company's  platform,  railroad  not  liable  for  negligence  of 
compress  company. 

Syl.  3  (VII,  951).     Master  and  servant — Contract  to  furnish  labor. 

Distinguished  in  Kelleher  v.  Schmidt  &  Henry  Mfg.  Co.,  122  Iowa, 
638,  98  N.  W.  483,  when  manufacturing  corporation  let  out  part  of 
work  to  firm,  which  occupied  part  of  corporation's  building  and  used 
its  machinery,  but  controlled  its  own  employees,  corporation  not  lia- 
ble  for  injuries   to   employee   of  firm. 

15  Wall.  664-671,  21  L.  246,  MERCHANTS'  ETC.  INSURANCE  CO. 
V.  LYMAN. 

Syl.  3    (VII,  952).     Parol  to  show  prior  parol  insurance  contract. 

Approved  in  Connecticut  Fire  Ins.  Co.  v.  Buchanan,  141  Fed.  889, 
892,  applying  rule  where  policy  provided  for  cancellation  if  occu- 
pants be  changed  or  use  be  changed,  and  use  of  building  as  normal 
school  had  been  suspended  at  time  of  loss  and  new  school  tenant 
had   not    taken   possession. 

Syl.  5  (Vn,  952).     Merger  of  prior  negotiations  in  writings. 

Approved  in  Young  v.  St.  Paul  etc.  Ins.  Co.,  68  S.  C.  390,  47  S.  E. 
682,  following  rule;  Liverpool  etc.  Ins.  Co.  v.  Richardson  Lumber 
Co.,  11  Okl.  581,  601,  69  Pac.  936,  943,  fact  that  local  and  state 
agents  examined  property  and  knew  its  situation  is  no  waiver  of 
written  clauses  in  policy. 


XVI  WALLACE. 


16  Wall.  1-6,   21  L.  491,  DATE   v.   UNITED   STATES. 

Syl.  1    (VII,  954).     Surety — Bond  to  be  executed  bv  others. 

Approved  in  City  of  Butte  v.  Cook,  29  Mont.  95,  74  Pac.  69,  where 
names  of  two  sureties  appear  in  body  of  bond,  which  is  signed  by 
one  only,  surety  signing  may  defend  on  ground  that  liability  was 
conditioned  on  cosurety  signing;  Eollins  v.  Ebbs,  138  N.  C.  146,  147, 
153,  50  S.  E.  579,  581,  where  sureties  in  guardian's  bond  from  which 
penalty  was  omitted,  gave  it  to  another  for  deliver}'-,  and  when  filed 
penalty  was  inserted,  sureties  estopped  to  assert  its  invalidity;  Baker 
County  V.  Huntington,  46  Or.  282,  283,  79  Pac.  190,  191,  where  sher- 
iff's bond  did  not  show  sheriff's  name  as  principal  and  name  of  only 
one  of  six  signing  sureties  appeared  in  body,  and  entries  opposite 
names  showed  they  had  signed  only  for  $7,000,  whereas  bond  called 
for  $10,000,  sureties  could  deny  sheriff's  want  of  authority  to  deliver 
bond. 

Syl.  2   (VII,  956).     Estoppel — Contradiction  injuring  others. 

Approved  in  Newman  v.  Scarborough,  115  La.  866,  40  So.  250,  where 
person  signs  guaranty  thinking  it  is  for  eleven  hundred  dollars,  when 
in  reality  it  is  for  so  many  thousands,  guaranty  is  binding  only  for 
eleven  hundred. 

16  Wall.  6-16,  21  L.  272,  LYNDE  v.  WINNEBAGO  COUNTY. 

Syl.  1   (VII,  956).     Special  tax  levy  for  courthouse. 

Approved  in  Thcis  v.  Commissioners  of  Washita  Co.,  9  Okl.  650, 
60  Pac.  508,  under  Stat.  1890,  where  county  commissioners  are  au- 
thorized by  vote  of  people  to  construct  bridges  and  levy  tax  for  snch 
purpose,  they  may  make  contract  therefor  and  issue  warrants  in  pay- 
ment thereof  in  anticipation  of  fund. 

Syl.  4   (VII,  958).     Absent  judge  not  functus  officio. 

Approved  in  Watkins  v.  Mooney,  114  Ky.  656,  71  S.  W.  625,  presi- 
dent of  board  of  aldermen  cannot  appoint  police  commissioner  while 
mayor  was  absent  for  day  at  another  town  twenty-five  miles  away. 

16  Wall.   36-130,  21  L.  394,  SLAUGHTER-HOUSE  CASES. 

Syl.  3   (VII,  900).     Extent  of  police  power. 

Approved  in  Bland  v.  People,  32  Colo.  323,  105  Am.  St.  Rep.  80, 
76  Pac.  360,  65  L.  B.  A.  424,  upholding  Laws  1899,  p.  175,  prohibiting 

[580i 


581  Notes  on  U.  S.  Reports.  16  Wall.  36-130 

use  ©f  unregistered  docked  horses;  State  v.  Eobb,  100  Me.  186,  60 
Atl.  876,  upholding  city  ordinance  giving  exclusive  privilege  of  col- 
lecting garbage  to  persons  specially  appointed;  Squire  v.  Tellier,  185 
Mass.  20,  102  'Am.  St.  Eep.  322,  69  N.  E.  313,  upholding  Stat.  1903, 
p.  389,  providing  that  sale  of  stock  goods  is  void  as  to  creditors  un- 
less inventory  made  and  buyer  notify  creditors;  O'Neil  v.  State,  115 
Tenn.  444,  90  S.  W.  631,  upholding  Acts  1901,  p.  115,  prohibiting 
practice  of  medicine  without  license,  as  applied  to  one  who  diagnosed 
diseases  by  microscopic  examination  of  drop  of  blood  and  treated 
them  by  electric  lights;  dissenting  opinion  in  "Wright  v.  Hart,  182 
N.  Y.  354,  75  N.  E.  413,  2  L.  R.  A.  (N.  S.)  338,  majority  holding 
void  Laws  1902,  p.  1249,  making  sale  of  stock  of  merchandise  in 
bulk,  fraudulent  as  to  creditors  unless  seller  makes  inventory  five 
days  prior  to  sale  and  buyer  notifies  creditors. 

Syl.    4    (VII,    962).     Police    power    exclusive   in    states. 

Approved  in  Ex  parte  Dick,  141  Fed.  7,  where  government  has 
conveyed  lands  within  state  ceded  to  it  by  Indians,  and  lands  have 
passed  to  individuals  and  municipality  of  state  formed  thereon,  they 
are  not  subject  to  laws  against  introduction  of  liquor  into  Indian 
country. 

Syl.  5   (VII,  962).     Police  power — Slaughter  monopoly. 

Approved  in  Leigh  v.  Green,  193  U.  S.  89,  101  Am.  St.  Rep.  606,  48 
L.  627,  24  Sup,  Ct.  390,  holder  of  lien  on  realty  not  denied  due 
process  b}^  lack  of  personal  service  of  notice  of  proceeding  in  rem 
to  enforce  tax  sale  purchaser's  lien  whose  notice  is  given  by  publi- 
cation; Grainger  v.  Douglas  Park  Jockey  Club,  148  Fed.  521,  522,  523, 
529,  542,  upholding  Act  Ky.  March  26,  1906,  creating  state  racing 
commission  and  giving  it  exclusive  control  over  regulation  of  racing 
of  running  horses;  O'Reilly  De  Camara  v.  Brooke,  135  Fed.  388,  389, 
where  Spanish  subject  owned  perpetual  exclusive  right  to  slaughter 
of  cattle  in  Havana  under  Spanish  grant,  franchise  was  private  prop- 
erty protected  by  Spanish  treaty;  State  v.  Robb,  100  Me.  188,  60 
Atl.  877,  upholding  municipal  ordinance  giving  exclusive  privilege 
of   collecting  garbage  to  persons   specially  appointed. 

Distinguished  in  "White  v.  Holman,  44  Or.  184,  74  Pac.  934,  Laws 
1903,  p.  238,  creating  sailor's  boarding-house  commission  with  power 
to  license  or  reject  applicants,  does  not  authorize  grant  of  but  one 
license  so  as  to  create  monopoly. 

Syl.   7   (VII,  904).     Involuntary  servitude  includes   peonage. 

Approved  in  Clyatt  v.  United  States,  197  U.  S.  218,  49  L.  730,  25 
Sup.  Ct.  429,  upholding  Rev.  St.,  §§  1990,  5526,  prohibiting  peonage 
in  any  state  or  territory;  Ex  parte  Riggins,  134  Fed.  406,  407,  423, 
negro  in  charge  of  sheriff  who  is  taken  out  and  lynched  by  con- 
spirators because  of  his  race  is  denied  rights  and  privileges  secured 


16  Wall.  36-130  Notes  on  U.  S,  Reports.  582 

by  constitntion:  United  States  v.  Moore,  129  Fed.  634,  denying  fed- 
eral jurisdiction  to  punish  conspiracy  to  oppress  citizen  to  prevent 
his  forming  miners'  union,  in  furtlierance  of  which  he  was  assaulted. 

Syl.   8    (VII,   965).     Construction    of   constitutional    amendments. 

Approved  in  Pope  v.  Williams,  98  Md.   71,   103   Am.   St.  Rep.  379, 

56  Atl.  545,  66  L.  R.  A.  398,  upholding  Acts   1902,  p.  204,  providing 

no  one  coming  from  another  state  shall  register  as  voter  until  one 
year   after  declaration  of  intention. 

Syl.  9  (VII,  965).  Fourteenth  amendment — Citizenship  of  United 
States. 

Approved  in  In  re  Heff,  197  U.  S.  504,  49  L.  855,  25  Sup.  Ct.  506, 
Indian  allottee,  on  receipt  of  first  patent  under  24  Stat.  388,  c.  119, 
is  within  provision  of  §  6,  of  that  act,  subject  to  laws  of  state  where 
he  resides;  Pope  v.  Williams,  98  Md.  67,  103  Am.  St.  Rep.  379,  56 
Atl.  544,  66  L.  R.  A.  398,  upholding  Acts  1902,  p.  204,  providing  that 
no  one  coming  from  another  state  shall  register  as  voter  until  one 
year  after  declaration  of  intention. 

Syl.    11    (VII,    9G6).     Privileges    and    immunities    of    citizens. 

Approved  in  United  States  v.  Moore,  129  Fed.  635,  denying  federal 
jurisdiction  to  punish  conspiracy  to  oppress  citizen  to  prevent  him 
from  forming  miners'  union,  in  furtherance  of  which  he  was  as- 
saulted; Sanders  v.  Commonwealth,  17  Ky.  6,  111  Am.  St.  Rep.  221, 
77  S.  W.  359,  1  L.  R.  A.  (N.  S.)  932,  upholding  Ky.  St.  1899,  §  1274, 
prohibiting   sale   of   milk   from   cows   fed   on   "still   slop." 

Syl.  15   (VII,  969).     Due  process — Slaughter-house  monopoly. 

Approved  in  In  re  Zehizhuzza,  147  Cal.  335,  81  Pac.  958,  upholding 
Oakland  ordinance  giving  city  exclusive  right  to  remove  garbage 
and   providing   fee  for  removal   thereof,   recoverable   by   civil   action. 

Syl.   18   (VII,  970).     Extent  of  police  power. 

Approved  in  Block  v.  Schwartz,  27  Utah,  405,  76  Pac.  28,  holding 
void  act  of  1901,  regulating  sales  of  stocks  of  merchandise  in  bulk; 
State  v.  Brown,  37  Wash.  100,  107  Am.  St.  Rep.  798,  79  Pac.  636,  68 
L.  R.  A.  889,  holding  void  Laws  1891,  p.  314,  requiring  examination 
and  license  by  dental  board  before  one  may  own,  run  or  manage 
dental  office;  In  re  Aubrey,  36  Wash.  315,  104  Am.  St.  Rep.  952,  78 
Pac.  902,  holding  void  Sess.  Laws  1901,  p.  116,  providing  for  ex- 
amination   and    registration    of    horseshocrs    in    certain    cities. 

Syl.  22    (VII,  971).     Scope  of  guaranty  of  life  and  pi-opcrty. 

Approved  in  Martell  v.  White,  185  Mass.  263,  102  Am.  St.  Rep.  341, 
69  N.  E.  1089,  where  manufacturers  formed  association,  by-law  of 
which  provided  for  assessment  of  members  doing  business  with  non- 
members,  and  plaintiff's  business  thereby  ruined,  members  were  lia- 


583  Notes  on  U.  S.  Reports.  16  Wall.  130-177 

ble;  State  v.  Chapman,  69  N.  J.  L.  466,  55  Atl.  95,  upholding  Pub, 
Law,  1898,  p.  119,  regulating  practice  of  dentistry:  Schnaier  v.  Xa- 
varre  Hotel  etc.  Co.,  182  N.  Y.  89,  108  Am.  St.  Eep.  790,  74  N.  E. 
562,  70  L.  R.  A.  722,  holding  void  Laws  1896,  p.  1052,  prohibiting 
firms  in  New  York  from  engaging  as  master  plumbers  unless  each 
member  is  registered  after  examination. 

(VII,  960.)  Miscellaneous.  Cited  in  Ex  parte  Moebus,  137  Fed. 
156,  upholding  federal  jurisdiction  over  petition  for  habeas  corpus 
alleging  that  petitioner  since  extradition  has  been  confined  only  on 
governor's   warrant. 

16   Wall.    130-142,   21   L.   442,   BRADWELL   v.   STATE. 

Syl.  1   (VII,  972).     Privileges  and  immunities  of  citizens. 

Approved  in  Wadleigh  v.  Newhall,  136  Fed.  946,  upholding  Cal. 
Code  Civ.  Proc,  §  1747,  authorizing  proceedings  for  appointment  of 
guardians  for  persons  and  estates  of  minors  having  no  guardians  by 
will  or  deed. 

Syl.  2  (VII,  973).     Right  to  practice  law — Privilege  of  citizenship. 

Approved  in  In  re  Branch,  70  N.  J.  L.  548,  57  Atl.  431,  act  of 
1903,  relieving  registered  law  students,  whose  clerkship  began  more 
than  three  years  prior  to  passage  of  act,  from  examination,  is  void. 

16  Wall.  147-156,  21  L.  426,  CARLISLE  v.  UNITED  STATES. 

Syl.   2    (VII,   974).     Pardon  obliterates  offense. 

Approved  in  State  v.  Lewis,  111  La.  696,  35  So.  817,  person  par- 
doned cannot  be  reinstated  as  member  of  gi-and  jury  whose  term  has 
expired. 

Syl.  3  (VII,  975).     General  terms  in  statute  limited  to  application. 

Approved  in  Mottley  v.  Louisville  etc.  R.  Co.,  150  Fed.  411,  34 
Stat.  5S4,  c.  3591,  prohibiting  interstate  passes,  did  not  invalidate 
contract  made  prior  to  its  passage,  by  which  interstate  carrier  agreed 
to  issue  free  passes  for  life  of  complainant  in  consideration  of  release 
of  claim  for  damages. 

Svl.    6    (VII,    976).     Claims    against    government. 
See  103  Am.  St.  Rep.  311,  note. 

16  Wall.  166-177,  21  L.  350,  HAXRICK  v.  BARTON. 

Svl.  1    (VII,  977).     Mexican  grant — Inurement  of  grant  to  attorney. 

Approved  in  Allen  v.  Parma  lee,  142  Fed.  363,  where  grantee  of 
Texas  land  to  be  located  as  vacant  land  executed  power  of  attorney 
to  locate  such  lands  and  also  act  of  sale,  to  attorney,  and  latter 
executed  substitution  to  another,  giving  him  same  powers,  and  latter 
located  land,  substitution  was  act  of  sale. 


16  Wall.  177-233  Notes  on  U.  S.  Eeports.  584 

Syl.  6   (VII,  977),     Admissibility  of  certified  copy  of  lost  deed. 

Approved  in  Surghenor  v.  Ranger,  133  Fed.  459,  where  purchaser  of 
concession  land  in  Texas  agreed  to  sell  to  another,  who  agreed  to  perform 
conditions  of  grant  and  latter  transferred  to  another,  who  had  land 
surveyed  and  got  title  of  possession,  there  was  act  of  sale. 

16  Wall.  177-185,  21  L.  354,  THE  CAYUGA. 

Syl.   2    (VII,   978).     Collision — Towing   with   long   hawser. 

Approved  in  The  Inca,  148  Fed.  368,  holding  tug  liable  for  sinking 
of  lumber  bark  in  tow  by  being  grounded  on  rock  in  channel  known 
to  be  there  by  navigators  but  not  known  to  tug. 

16  Wall.  196-203,  21  L.  465,  KOONTZ  v.  NORTHERN  BANK. 

Syl.  1  (VII,  979).     Inquiry  by  purchaser  at  receiver's  sale. 

Approved  in  Threadgill  v.  Colcord,  16  Okl.  470,  85  Pac.  710,  following 
rule. 

16  Wall.  203-233,  21  L.  447,  DAVIS  v.  GRAY. 

Syl.  1  (VII,  980).     Receiver  appointed  for  benefit  of  all. 

Approved  in  Vila  v.  Grand  Island  etc.  Co.,  68  Neb.  240,  110  Am. 
St.  Rep.  416,  97  N.  W.  616,  denying  jurisdiction  to  appoint  receiver 
for  corporation  at  suit  of  private  parties  where  sole  object  is  to  se- 
questrate property  and  business  of  corporation. 

Syl.  2   (VII,  980).     Leave  of  court  required  to  sue  receiver. 

Approved  in  Commonwealth  Roofing  Co.  v.  North  American  Trust  Co., 
135  Fed.  989,  68  C.  C.  A.  418,  where  building  contractor  had  finished 
one  building  and  was  working  on  another  at  time  receiver  appointed, 
and  four  months  after  receiver  appointed  he  attached  by  leave  of  court 
and  submitted  claim  for  liens  in  receivership  suit,  he  did  lose  right  to 
liens  by  failure  to  attach  with  statutory  time;  Ridge  v.  Manker,  132 
Fed.  602,  67  C.  C.  A.  596,  decree  against  receiver  of  another  court 
is  not  nullity  attackable  collaterally  merely  because  record  fails  to 
show  affirmatively  grant  of  permission  to  sue ;  Hampton  Roads  etc. 
Co.  V.  Newport  News  etc.  Co.,  131  Fed.  536,  where  federal  court  has 
jurisdiction  of  assets  of  street  railroad  operating  same  through  re- 
ceiver, it  may,  at  suit  of  receiver,  restrain  competitor  from  obstructing 
highway  in  such  way  as  to  destroy  receiver's  property,  irrespective  of 
citizenship. 

Syl.   3    (VII,  981).     Equity  receiver's   powers. 

Approved  in  Mason  v.  Wolkowich,  150  Fed.  701,  federal  bankruptcy 
court  may  enforce  summarily  completion  of  sale  of  assets  made  by  re- 
ceiver; Bay  State  Gas  Co.  v.  Rogers,  147  Fed.  559,  where  receiver 
appointed  in  domiciliary  district  of  corporation  and  thereafter  an- 
cillary appointment  made  in  other  district,  receiver  could  sue  in  latter 
district   in   name   of   corporation    to    recover   profits   made   by   corpora- 


585  Notes  on  U.  S.  Eeports.  16  WaU.  203-233 

tion's  trustee;  Johnson  v.  Southern  B.  &  L.  Assn.,  132  Fed.  543,  544, 
tax  deed  executed  after  property  has  passed  into  custody  of  court 
by  its  appointment  of  receiver  for  mortgagee  is  void  and  ineffective 
to  cut  off  receiver's  right  of  redemption. 

Syl.  4  (VII,  982).     State  as  party  to  action. 

Approved  in  State  v.  Mortensen,  69  Neb.  385,  95  N.  W.  834,  denying 
jurisdiction  over  mandamus  to  compel  board  of  public  lands  and  build- 
ings to  perform  contract  for  leasing  of  convict  labor.  See  108  Am. 
St.  Rep.  832,  note. 

Distinguished  in  Sanders  v.  Saxton,  182  N.  Y.  480,  481,  108  Am. 
St.  Eep.  826,  75  N.  E.  530,  no  action  lies  at  suit  of  land  owner 
against  land  commissioner  and  comptroller  to  have  comptroller's  deed 
to  state  on  delinquent  tax  sale  declared  void. 

Syl.  5   (VII,  982).     Suit  against  officer  not  against  state. 

Approved  in  Smith  v.  Alexander,  146  Fed.  108,  refusing  preliminary 
injunction  in  suit  against  board  of  state  commissioners,  real  purpose 
of  which  is  enforcement  of  contract  between  state  and  complainant. 

Syl.  6   (VII,  984).     Injunction  against  land  officials. 

Approved  in  Walker  v.  United  States,  139  Fed.  413,  where  marshal 
rendered  accounts  against  government  for  services  of  deputies,  which 
were  audited,  allowed  and  paid  in  accordance  with  recognized  rules, 
government  cannot  recover  same  years  after  he  has  gone  out  of  office ; 
dissenting  opinion  in  Henry  v.  State,  87  Miss.  89,  39  So.  882,  majority 
refusing  to  restrain  prison  board  of  control  from  carrying  out  contract 
to  work  plantation  with  convicts.     See  108  Am.  St.  Eep.  838,  839,  note. 

Distinguished  in  Do  Laittre  v.  Board  of  Commrs.,  149  Fed.  802,  re- 
fusing to  compel  state  land  commissioners  to  issue  deeds  for  state 
land;  Sanders  v.  Saxton,  182  N.  Y.  479,  108  Am.  St.  Eep.  826,  75  N.  E. 
529,  action  by  owner  of  laud  against  land  commissioner  and  comptroller 
to  have  deed  executed  by  comptroller  to  state  on  delinquent  tax  sale 
declared  void  cannot  be  maintained. 

Syl.  7  (VII,  986).     Federal  suit  loses  no  state  remedies. 

Approved  in  Harrison  v.  Eemington  Paper  Co.,  140  Fed.  399,  under 
Kan.  Civ.  Code,  §  23,  where  there  is  voluntary  dismissal  without  preju- 
dice of  state  action, new  suit  is  maintainable  in  federal  court;  Frank  v. 
Butler  County,  139  Fed.  126,  refusing  equitable  relief  on  county  aid 
bonds  where  holder  delayed  twenty  years  and  did  not  avail  himself 
of  remedies  allowed  by  state  statute;  Duryea  v.  American  Woodworking 
etc.  Co.,  133  Fed.  332,  state  does  not  lose  right  to  enforce  annual  license 
fee  against  property  of  insolvent  corporation  because  at  time  of  its 
assessment  property  was  in  hands  of  federal  receiver;  Barber  Asphalt 
etc.  Co.  v.  Morris,  132  Fed.  949,  67  L.  K.  A.  761,  66  C.  C.  A.  55, 
federal  jurisdiction   not  affected   by   provision   of  city   charter  relating 


16  Wall.  244-258  Notes  on  U.  S.  Reports.  586 

to    appeals    from   allowance    and   rejection   of   claims    against   city   and 
prohibiting  payment  of  claims   pending  appeal. 

Distinguished  in  Illinois  l^ife  Ins.  Co.  v.  Newman,  141  Fed.  450, 
federal  court  cannot  enjoin  collection  of  state  tax  on  ground  of  its 
illegality  though  such  power  is  conferred  on  state  courts;  Anthony 
V.  Burrow,  129  Fed.  789,  denying  jurisdiction  to  enjoin  state  officers 
acting  under  state  statute  from  issuing  certificate  of  nomination  to 
Congressional   candidate. 

Syl.  9  (VII,  987).  Equitable  relief  from  deed — Conditions  prece- 
dent. 

Approved  in  Rannels  v.  Eowe,  145  Fed.  299,  deed  to  railroad  pro- 
vided road  built  three  years,  and  if  not  built  in  that  time  lands  to 
revert,  was  on  condition  subsequent. 

Syl.   10    (VII,   987).     Conditions   subsequent,   when   enforced   at   law. 

Approved  in  Wilmore  Coal  Co.  v.  Brown,  147  Fed.  938,  second 
deed  by  grantor  after  default  of  condition  in  deed  of  mineral  under 
certain  land  that  it  is  void  unless  railroad  built  within  five  years, 
devests  title  of  first  grantee  though  grantor  also  assigns  to  grantee 
nil   rights   under   first   deed. 

Syl.   12    (VII,  988).     State  as  party  to  contract. 

Cited  in  Gilmore  v.  Schenck,  115  La.  400,  39   So.  45,   arguendo. 

16  Wall.   244-249,   21  L.  326,   HUMPHREY  v.   PEGUES. 

Syl.  1   (VII,  990).     Privileges  of  other  corporations — Tax  exemption. 

Approved  in  Gunter  v.  Atlantic  etc.  R.  R.  Co.,  200  U.  S.  279, 
281,  283,  284,  285,  287,  288,  289,  290,  291,  293,  50  L.  481,  482,  483, 
484,  485,  486,  487,  26  Sup.  Ct.  252,  determining  effect  of  principal  case 
as  res  adjudicata;  Lake  Drummond  Canal  etc.  Co.  v.  Commonwealth, 
103  Va.  346,  49  S.  E.  509,  sale  on  foreclosure  of  trust  deed  of  all 
property  and  franchises  of  corporation  does  not  pass  to  purchaser  tax 
immunity   granted   by   state   to   corporation   and   its   assigns, 

Syl.  2   (VII,  991).     Charter  tax  exemption. 

Approved  in  Prewitt  v.  Security  etc.  Ins.  Co.,  119  Ky.  328,  83  S.  W. 
613,  upholding  Ky.  St.  1903,  §  631,  providing  for  revocation  of  license 
of  foreign  insurance  company  removing  suit  to  federal  court. 

16   Wall.   250-258,   21   L.   278,   DICKINSON   v.   PLANTERS'   BANK. 

Syl.    1    (VII,   992).     Review  of   facts   on   trial   to   court. 

Approved  in  De  La  Rama  v.  De  La  Rama,  201  U.  S.  310,  50  L. 
768  26  Sup.  Ct.  485,  finding  of  fact  stated  in  opinion  of  trial 
court  is  not  finding  of  fact  within  statute ;  Townsend  v.  Beatrice 
Cemetery  Assn.,  138  Fed.  383.  on  appeal  in  equity,  recourse  cannot 
be  hid  to  oi^iuion  of  lower  court  to  ascertain  facta  where  there  is   nc» 


587  Notes  on  U.  S.  Reports.  16  Wall.  258-310 

evidence  in  record;  York  v.  Washburn,  129  Fed.  566,  64  C.  C.  A. 
132,  opinion  of  trial  judge  setting  forth  reasons  for  decision  does  not 
become  special  finding  by  being  copied  into  judgment  entry;  Larson 
V.  Union  P.  R.  Co.,  70  Neb.  266,  97  N.  W.  315,  appointment  of  ad- 
ministrator made  contrary  to  statute  providing  order  in  which  persons 
are  entitled  to  administrator  is  not  collaterally  attackable. 

16   Wall.   258-271,   21   L.   493,   KNICKERBOCKER   INSURANCE   CO. 
V.    COMSTOCK. 

Syl.  3   (VII,  993).     Mode  of  re-examining  facts  tried  by  jury. 

Approved  in  Sclincr  v,  McKay,  2  Alaska,  566,  in  action  to  quiet 
title,  where  answer  shows  defendant  rightfully  in  possession  was  ousted 
by  plaintiff  and  wrongfully  kept  out,  defendant  entitled  to  jury; 
Bradford  v.  Territory,  1  Okl.  370,  34  Pac.  67,  proceeding  by  informa- 
tion in  nature  of  quo  warranto  is  suit  at  common  law  triable  by 
j"ry- 

Syl.  4  (VII,  994).     Mandamus  to  compel  decision. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  954,  955, 
67  L.  R.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  to  compel  cir- 
cuit judge  to  vacate  order  staying  proceedings  pending  state  appeal; 
In  re  Uowd,   133  Fed.  751,  arguendo.     See  98  Am.  St.  Rep.  891,  note. 

16  Wall.  271-277,  21  L.  313,  CARPENTER  v.  LONGAN, 

Syl.  3  (VII,  995).  Mortgage  secured  by  note — Bona  fide  purchaser. 
Approved  in  Cudahy  Packing  Co.  v.  State  Nat.  Bank,  134  Fed. 
546,  67  C.  C.  A.  662,  mortgage  securing  negotiable  note  passes  free 
from  equities  between  original  parties  to  bona  fide  indorsee  of  note; 
First  Nat.  Bank  v.  National  Live  Stock  etc.  Bank,  13  Okl.  723,  76 
Pac.  131,  assignee  before  maturity  of  note  secured  by  chattel  mort'/age, 
though  assignment  of  mortgage  not  made,  is  protected  against  subse- 
quent purchasers  in  good  faith. 

16  Wall.  277-310,  21  L.  280,  BUCHANAN  v.  SMITH. 

Syl.  2   (VII,  999).     Bankruptcy — Probable  cause  to  believe  insolvent. 

Approved  in  In  re  McMurtrey,  142  Fed.  856,  transfer  by  insolvent 
firm  of  all  its  property  to  certain  creditors  on  their  demand  and  threats 
to  sue,  which  property  was  accepted  in  full  payment  of  claims  largely 
exceeding  its  value,  is  voidable  preference;  In  re  Moody,  134  Fed. 
633,  where  bankrupt  within  four  months  of  bankruptcy  sold  stock 
of  goods  to  firm  in  exchange  for  farm  taken  in  wife's  name,  and  firm 
also  paid  his  debt  to  bank  of  which  members  were  stockholders  and 
officers^  firm  and  bona  fide  purchaser;  Crandall  v.  Coats,  133  Fed. 
969,  holding  preferred  creditors  of  bankrupt  charged  with  notice  of  in- 
solvency at  time  of  conveyance ;  Capital  Nat.  Bank  v.  Wilkerson,  .'56 
Ind.   App.   474,   75   N.  E.   S39,   holding   preferred   creditor   had   reason- 


16  Wall.  314-366  Notes  on  U.  S.  Keports.  588 

able  cause  to  believe  at  time  payments  made  that  preference  was  ob- 
tained. 

16  Wall.   314-318,  21  L.   357,  WALKER  v.  WHITEHEAD. 

Syl.   1    (VII,  1001).     Law  governing  contracts. 

Approved  in  In  re  Thompson  Milling  Co.,  144  Fed.  316,  attorney's 
fee  provided  for  in  note  payable  on  condition  that  default  made  in 
payment  of  note,  and  it  is  placed  in  hands  of  attorney  for  collection 
or  suit  brought  thereon,  is  not  fixed  liability  provable  against  bank- 
rupt's estate;  Ex  parte  Folsom,  131  Fed.  503,  holding  constitutional 
amendment  abolishing  corporate  existence  of  certain  townships  which 
had  issued  railroad  aid  bonds,  impairs  obligation  of  contracts ;  Boyd 
V.  Schneider,  131  Fed.  226,  70  L.  R.  A.  264,  65  C.  C.  A.  209,  national 
bank  act  providing  for  administration  of  affairs  of  insolvent  bank  by 
receiver  does  not  prevent  depositors  from  suing  directors  for  negli- 
gently loaning  asset  in  violation  of  act;  State  ex  rel.  Louisiana  Imp.  Co. 
V.  Board  of  Assessors,  111  La.   1001,  36  So.  98,  arguendo. 

16   Wall.    318-330,    21   L.    297,   MICHIGAN   CENTRAL   R.   R.   CO.   v. 
MINERAL  SPRINGS  MFG.  CO. 

Syl.   1    (VII,   1003).     Liability  of  connecting  carrier. 

Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Bryant,  36  Ind.  App.  345, 
75  N.  E.  831,  carrier  receiving  goods  for  shipment  to  consignee  beyond 
its  own  line  does  not  become  liable  for  loss  beyond  its  own  line; 
Fisher  v.  Boston  etc.  R.  R.  Co.,  99  Me.  343,  345,  105  Am.  St.  Rep. 
283,  59  Atl.  534,  68  L.  R.  A.  390,  determining  liability  of  carrier  for 
deviation  from  route  without  notice  to  shipper.  See  97  Am.  St.  Rep. 
97,  note. 

16  Wall.  331-336,  21  L.  339,  COFIELD  v.  McCLELLAND. 

Syl.   1    (VII,   1006).     Entries   in   trust   under   Denver   relief   act. 

Approved  in  Martin  v.  Hoff,  7  Ariz.  252,  64  Pac.  447,  imoccupied 
lots  entered  under  Comp.  Laws,  c.  80,  §  3,  could  be  disposed  of  only 
by  legislative  authority,  and  mandamus  does  not  lie  to  compel  trustee 
to   convey   lots    to   petitioner    who    had   settled    thereon    for    ten   years. 

16  Wall.  338-347,  21  L.  499,  MERRILL  v.  PETTY. 

Syl.   2    (VII,    lOOS).     Revision   of   judgment   of   lower  court. 

Cited  in  Taylor  v.  Colorado  Iron  Works,  33  Colo.  ISO,  80  Pac.  131, 
arguendo. 

16  Wall.  352-366,  21  L.  341,  McNITT  v.  TURNER. 

Syl.  7   (VII,  1010).     Collateral  attack  on  administrator's  sale.  ^ 
Approved  in  White  v.  Martin,  2  Alaska,  498.  jurisdiction  of  probate 
court   to   appoint   guardian   for   lunatic's   property   not^  collaterally    at- 
tackable. 


589  Notes  on  U.  S.  Eeports.  16  Wall.  366-390 

(VII,  1009).  Miscellaneous.  Cited  in  McGuire  v.  Blount,  199  U.  S. 
144,  50  L.  128,  26  Sup.  Ct.  1,  plaintiff  in  ejectment  must  recover  upon 
strength  of  own  title. 

16  Wall.  366-377,  21  L.  287,  TAYLOR  v.  TAINTOR. 

Syl.    1    (VII,   1011).     Concurrent   jurisdiction — Priority. 

Approved  in  In  re  Southwestern  Bridge  etc.  Co.,  133  Fed.  571,  where 
Kansas  corjDoration  and  Oklahoma  corporation  each  did  business  in  its 
own  state,  but  were  owned  and  managed  by  same  persons,  and  busi- 
ness of  both  intermingled  and  both  became  bankrupt  in  Kansas  and 
later  receiver  appointed  for  Oklahoma  corporation,  Kansas  courts  had 
priority  of  jurisdiction;  Threadgill  v.  Colcord,  16  Okl.  469,  85  Pae. 
709,  where  purchaser  at  master's  sale  under  decree  is  himself  a  party 
to  suit  in  which  decree  entered,  he  cannot  collaterally  attack  regularity 
of  decree. 

Distinguished  in  Beavers  v.  Haubert,  198  U.  S.  85,  49  L.  053,  25 
Sup.  Ct.  573,  prosecution  of  proceedings  to  remove  to  another  district 
for  trial  one  charged  with  offense  is  not  unlawful  intorfcreuco  wi.n 
jurisdiction  of  circuit  court  in  whose  custody  accused  held  to  a\vait 
trials  pending  in  such  court,  where  such  court  consented. 

Syl.    2    (VII,    1012).     Extradition — Requiring    prisoner    to    appear. 

Approved  in  In  re  Beavers,  131  Fed.  368,  where  federal  prisoner 
was  removed  to  certain  district  for  trial  on  indictment  pending  in 
such  district,  he  cannot  object  to  removal  to  another  district  on  indict- 
ment ponding  in  such  district  before  trial  in  first  district.  See  112  Am. 
St.  Rcj).  110,  115,   129,  note. 

Syl.  4    (VII,   1013).     Dominion  of  bail  over   prisuner. 

Approved  in  United  States  v.  Peckham,  143  Fed.  G2S,  one  who  is 
arrested  in  one  federal  district  for  removal  to  another  for  trial  on 
criminal  charge,  and  bound  over,  and  gives  bail  for  appearance  in  other 
district,  cannot  obtain  review  of  magistrate's  decision  on  his  sur- 
render by  his  bail;  Mackenzie  v.  Barrett,  141  Fed.  965,  966,  one  giving 
bail  on  appeal  from  order  on  ne  exeat  is  entitled  to  writ  of  habeas 
corpus;  Coleman  v.  State,  121  Ga.  598,  49  S.  E.  717,  without  proof 
of  authority  to  do  so,  son  of  bail  cannot  empower  third  person  to  re- 
capture principal. 

16   M^all.    378-390,    21   L.    358,   NEW    ORLEANS   ETC.    INSURANCE 
CO.    V.   PIAGGIO. 

Syl.  2  (VII,  1014).     New  venire  where  facts  on  record. 

Approved  in  Farrar  v.  Wheeler,  145  Fed.  487,  where  in  action  for 
personal  injuries  only  error  related  to  assessment  of  damages,  circuit 
court  of  appeals  had  jurisdiction  on  reversal  to  limit  retrial  to  question 
of  damages;  Nichols  v.  Board  of  Commrs.,  13  Wyo.  7,  76  Pac.  681,  where 
final  judgment  not  supported  by   pleadings  or  findings,  it  is  reversible 


16  Wall.  390-479  Notes  on  U.  S.  Eeports.  590 

on  error  on  record  proper  without  bill  of  exceptions,  though  no  excep- 
tion taken  to  proceedings  below. 

Syl.  6  (VII,  1014),  Abstractly  correct  instructions — Bill  of  excep- 
tions. 

Cited  in  Cassett  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  42,  arguendo, 
16  Wall.  390-402,  21  L,  361,  BUEKE  v.  SMITH, 

Syl.  1    (VII,  1014).     Directors  cannot  release  stock  subscriber. 

Approved  in  Maryland  Trust  Co.  v.  National  Mech.  Bank,  102  IMd. 
627,  63  Atl.  77,  holding  trust  company  cannot  purchase  its  own  stock. 

16   Wall.   414-436,   21   L.   457,   UNITED   STATES   v,   HUCKABEE. 

Syl.  3   (VII,  1017).     Contract  under  duress  is  void. 

Approved  in  First  Nat.  Bank  v,  Sargent,  65  Neb.  601,  91  N.  W. 
597,  59  L.  E.  A.  296,  where  one  conveyed  land  to  bank  as  security 
for  debt  and  he  later,  while  broke,  procured  purchaser  at  good  })rice, 
but  bank  refused  to  consent  to  sale  unless  bonus  given,  payment  of  bonus 
was  under  duress. 

Syl.  4  (VII,  1018),     Duress,  sale  when  not  made  under. 

Approved   in   Burnes   v,   Burnes,    132    Fed.   493,   threat   of   surviving 

partner  to  administer  estate  as  survivor  unless  corporation  formed   by 

heirs  and  stock  divided,  is  not  duress. 

16  Wall.  446-452,  21  L.  367,  EIBON  v.  EAILEOAD  COS, 
Syl.  2  (VII,  1019).  Equity — Want  of  necessary  party. 
Approved  in  United  States  v.  Northern  Pac.  E.  Co.,  134  Fed.  720, 
67  C.  C.  A.  269,  suit  by  government  in  which  annulment  of  contract 
between  corporations  is  sought  as  necessary  incident  to  other  relief, 
cannot  be  tried  on  merits  where  court  has  no  jurisdiction  of  one  of 
corporations;  Weidenfcid  v.  Northern  Pac.  Ey.  Co.,  129  Fed.  311, 
63  C.  C.  A.  537,  where  stockholder  sued  to  restrain  corporation  from 
retiring  preferred  stock  and  issuing  common  stock  in  its  place,  but 
thing  primarily  sought  was  destruction  of  ownership  of  majority  of 
stock  by  securities  company  formed  for  that  purpose,  securities  com- 
pany is  indispensable  party;  Lynch  v.  United  States,  13  Okl.  158,  73 
Pac.   1101,  applying  rule  in  suit  to  cancel  land  patent. 

Syl.  3   (VII,  1020).     Suit  by  minority  stockholders — Parties. 
See  97  Am.  St.  Eep.  47,  note, 

16  Wall.  471-479,  21  L.  303,  MOEGAN  v.  PAEHAM. 

Syl.   2    (VII,    1022).     Enrollment   of   vessel   in   other  port. 
.  Approved  in  Olson  v.  San  Francisco,  148  Cal.  83,  82  Pac.  851,  vessel 
engaged  in   commerce   on  high  seas  is  taxable  in   San  Francisco,  wlicre 
her   managing   owner    resided,   though    temporarily    registered   in    Wash- 
ington and   has  never  been  in   California  waters. 


591  Notes  on  U.  S.  Keports.  16  Wall.  483-535 

Syl.  4   (VII,   1023).     Tax   on   vessel   registered  in   other  state. 

Approved  in  Ayer  etc.  Tie  Co.  v.  Kentucliy,  202  U.  S.  422,  50  L. 
1087,  2G  Sup.  Ct.  678,  Comp.  St.  1901,  p.  2831,  did  not  change  situs 
of  vessel  for  purpose  of  taxation;  Union  etc.  Transit  Co.  v.  Ken- 
tucky, 199  U.  S.  205,  50  L.  154,  26  Sup.  Ct.  3G,  Kentucky  state  tax  on 
rolling  stock  of  Kentucky  railroad  permanently  located  in  other  states 
denies  it  due  process  of  law;  Old  Dominion  S.  S.  Co.  v.  Virginia, 
198  U.  S.  306,  308,  49  L.  1062,  1063,  25  Sup.  Ct.  686,  vessels  which, 
though  engaged  in  interstate  commerce,  are  employed  in  such  com- 
merce wholly  within  limits  of  a  state,  are  taxable  there  though  en- 
rolled at  port  outside  of  state;  Commonwealth  v.  Ayer  etc.  Tie  Co., 
117  Ky.  169,  77  S.  W.  688  (reversed  202  U.  S.  409),  where  Illinois 
corporation  having  principal  office  in  Chicago  operated  vessel  having 
painted  on  its  stern  "of  Paducah,  Kentucky,"  vessel  was  taxable 
in  Paducah. 

Distinguished  in  Foppiano  v.  Speed,  199  TI.  S.  520,  50  L.  292,  26 
Sup.  Ct.  138,  state  license  tax  on  person  selling  lifjuor  in  state  on  board 
interstate  boat  is  autliorizcd  by  Comp.  St.   1901,  p.  3177. 

10  Wall.  483-504,  21  L.  473,  PLANTERS'  BANK  v.  UNION  BANK. 

Syl.  7  (VII,  1027),  Keeovcry  of  consideration  on  executed  illegal 
contract. 

Approved  in  Barnes  v.  Lynch,  9  Old.  193,  59  Pac.  1009,  following 
rule;  Padilla  v.  Padilla,  11  N.  M.  553,  70  Pac.  566,  where  brother  re- 
covered judgment  on  Indian  depredation  claim  for  property  owned  by 
himself  and  sister  jointly,  and  agreed  to  give  sister  share  when  money 
received,  sister  may  recover  share;  Overholt  v.  Burbridge,  28  Utah,  415, 
79  Pac.  563,  compelling  bucket-shop  to  pay  profits  of  sale  on  margin. 

Distinguished  in  Erpelding  v.  McKearnan,  143  Mich.  413,  107  N.  W. 
108,  in  action  by  stockholders  of  corporation,  whose  property  sold  to 
another  corporation,  to  recover  from  another  stockholder,  plaintiff's  share 
of  sum  alleged  to  have  been  received  by  defendant  under  secret  agree- 
ment with  purchaser,  evidence  of  illegal  contract  to  which  plaintiff  and 
defendant  were  parties  is  admissible;  Ruemmeli  v.  Cravens,  13  Okl.  354, 
74  Pac.  912,  where  nonresident  employed  agent  to  sell  liquor  without 
procuring  license  and  agent  procures  license  in  own  name,  principal 
cannot  recover  of  agent  moneys  unaccounted  for. 

16  Wall.  522-535,  21  L.  369,  AMERICAN  STEAMBOAT  CO.  v.  CHASE. 

Syl.  6    (VII,  1031).     Admiralty — Right  of  common-law  remedy. 

Approved  in  The  Lotta,  150  Fed.  220,  where  there  was  only  one  claim- 
ant against  vessel  for  wrongful  death,  owner  could  set  up  limited  lia- 
bility as  defense  in  state  court,  and  federal  court  could  not  restrain 
state  action  though  extent  of  liability  had  been  determined  in  federal 
court. 


16  Wall.  535-560  Notes  on  U.  S.  Keports.  592 

Syl.  7  (VII,  1031),     Maritime  tort — Jurisdiction  of  suit  in  personam. 

Approved  in  Tlie  Saginaw,  139  Fed.  908,  in  enforcing  in  court  of  ad- 
miralty right  of  action  for  wrongful  death  in  collision  on  high  seas, 
which  is  given  by  statute  of  vessel's  home  state,  measure,  of  damages  is 
governed  by  law  of  such  state. 

IG  Wall.  535-544,  21  L.  292,  BEALL  v.  NEW  MEXICO. 

Syl.  1   (VII,  1032).     Judgment  against  sureties  on  appeal  bond. 

Approved  in  Empire  State  etc.  Co.  v.  Hanley,  136  Fed.  103,  69  C.  C. 
A.  87,  upholding  Idaho  Ann.  Code  1901,  §  3576,  authorizing  entry  of 
judgment,  on  motion  against  sureties,  by  court  from  which  appeal  is 
taken. 

Syl.  3    (VII,  1033).     Administrator  de  bonis  cannot  sue  predecessor. 

See  108  Am.  St.  Eep.  427,  note.  Distinguished  in  Ellyson  v.  Lord, 
124  Iowa,  132,  99  N.  W.  585,  in  suit  by  administrator  de  bonis  non 
and  administrator  and  sureties,  latter  cannot  defend  on  ground  that 
funds  for  which  administrator  did  not  account  were  proceeds  of  un- 
authorized sale  of  decedent's  realty. 

16  Wall.  544-551,   21  L.   322,   MITCHELL  v.  HAWLEY. 

Syl.  1   (VII,  1034).     Patents— Title— Purchase  of  right  to  use. 

Approved  in  Bobbs-Merrill  Co.  v.  Straus,  139  Fed.  187,  purchaser  of 
copyrighted  books  from  publisher  does  not  infringe  by  resale  though 
books  contain  notice  that  no  one  authorized  to  sell  at  less  price  than 
fixed  by  publisher;  Geo.  Frost  Co.  v.  Kora  Co.,  136  Fed.  488,  purchaser 
of  patented  clasp  in  open  market  who  detaches  them  from  cord  to  which 
they  are  attached  and  attaches  them  to  supporters  to  make  which  both  are 
licensed,  is  not  infringer, 

Syl.  2    (VII,  1035).     Patents — Restrictions  in  conveyance  of  use. 

Approved  in  New  York  Phon.  Co.  v.  Edison,  136  Fed.  613,  where  as- 
signment of  patent  provided  for  assignment  of  improvements  made 
within  fifteen  years  and  improvements  made  subsequently,  and  assignee 
authorized  to  extend  license  subject  to  original  agreement,  licensee  not 
authorized  to  second  extension  in  perpetuity. 

16   Wall.   551-560,   21   L.   481,   MARSHALL   v.   KNOX. 

Syl.  2  (VII,  1036).  Conflicting  jurisdiction — Seizure  by  before  bank- 
ruptcy. 

Approved  in  First  Nat.  Bank  v.  Chicago  Title  etc.  Co.,  198  U.  S.  289, 
49  L.  1054,  25  Sup.  Ct.  693,  banlcruptcy  court  after  adjudging,  on  re- 
ceiver's petition  for  directions  respecting  sale,  that  receiver  was  not 
in  possession,  cannot  decree  sale  and  determine  rights  of  adverse  claim- 
ants to  proceeds;  In  re  Reynolds,  133  Fed.  589,  where  after  adjudica- 
tion in  bankruptcy  property  taken  by  mortgagee  under  chattel  mortgage 
given  more  than  four  months  prior  to  filing  of  petition,  trustees  suing  in 


593  Notes  on  U.  S.  Keports.  16  Wall.  564-584 

state  court  for  value  of  property  cannot  institute  summary  proceedings 
in  bankruptcy  court. 

Syl.  3  (VII,  1037).     Jurisdiction  of  suits  by  bankruptcy  assignee. 

Approved  in  Security  Warehousing  Co.  v.  Hand,  143  Fed.  38,  order 
on  petition  in  bankruptcy  court  in  nature  of  bill  in  equity  to  establish 
rights  of  i)etitioner  to  possession  of  property  also  claimed  by  bank- 
rupt 's  trustee  is  reviewable  by  appeal. 

16  Wall.  564-566,  21  L.  348,  SPECHT  v.  IIOWAED. 

Syl.   1    (VII,    1038).     Withdrawal   of   improper   evidence. 

Approved  in  State  v.  Emblem,  56  W.  Va.  686,  49  S.  E.  557,  apply- 
ing rule  in  prosecution  for  letting  house  to  be  used  as  house  of  ill-1'amo. 

Sjd.  2  (VII,  1038).  Contemporaneous  parol  agreement  to  vary  writ- 
ing. 

Approved  in  Earle  v.  Enos,  130  Fed.  470,  parol  agreement  at  time  of 
discount  of  accommodation  note  that  it  would  not  look  to  maker  for 
payment  cannot  be  shown  to  defeat  action  on  note. 

16  Wall.  500-577,  21  L.  485,  ST.  PAUL  WATER  CO.  v.  WARE. 

Syl.  3  (VII,  1040).  City's  liability  for  injury  by  contractor's  ob- 
struction. 

Approved  in  Huntt  v.  McNamee,  141  Fed.  299,  owner  of  lot  who  let 
work  of  excavating  thereon  to  independent  contractor  is  not  liable  for 
injuries  caused  by  blasting  by  contractor  unless  he  knew  contractor  was 
negligent  or  knew  work  was  dangerous  to  neighbors;  Thomas  v.  Har- 
rington, 72  N.  H.  48,  54  Atl.  287,  65  L.  R.  A.  742,  abutting  owner  em- 
ploying independent  contractor  to  put  in  water-pipe  from  road  is  liable 
for  injuries  to  one  falling  into  unguarded  and  unlighted  trench;  MuUius 
V.  Siegel-Cooper  Co.,  183  N.  Y.  136,  75  N.  E.  1115,  abutting  owner  ig 
liable  for  injuries  caused  pedestrian  by  sidewalk  defectively  constructed 
by  contractor;  Cameron  Mill  etc.  Co.  v.  Anderson,  34  Tex.  Civ.  108,  78 
S.  W.  10,  holding  one  holding  underground  oil  tank  permit  liable  for 
injuries  to  one  falling  into  unlighted  or  unguarded  pit  being  made  by 
his  independent  contractor. 

Distinguished  in  City  of  Pawtucket  v.  Pawtucket  Elee.  Co.,  27  R.  I 
133,  61  Atl.  50,  where  railroad  gave  bond  to  save  city  harmless'  from  acts 
of  company,  city  could  not  sue  in  trespass  to  recover  amount  of  judg- 
ment rendered  against  city  for  defect  in  street  caused  by  company 's 
negligence. 

10  Wall.  577-584,  21  L.  489,  WALBRUN  v.  BABBITT. 

Syl.  1   (VII,  1041).     Bankruptcy — Sale  of  stock  of  goods  as  fraud. 

Approved  in  In  re  Knopf,  144  Fed.  248,  255,  and  In  re  Knopf,  14G 
Fed.  110,  both  following  rule;  Dokkcn  v.  Page,  147  Fed.  440,  where 
bankru^jt,  when  insolvent,  sold  to  petitioner  entire  stock  for  less  than 
38 


16  Wall.  584-610  Notes  on  U.  S.  Reports.  504 

half  price,  without  invoice,  sale  was  fraudulent  as  to  creditors;  In 
re  Moody,  134  Fed.  632,  where  retail  merchant  sold  entire  stock  to  firm 
in  exchange  for  farm  taken  in  wife's  name  and  also  in  consideration 
of  payment  of  claim  of  bank  of  which  members  of  firm  were  officers, 
transfer  void  as  preference;  In  re  Pease,  129  Fed.  448,  452,  where 
trust  company,  through  its  attorney,  made  loan  to  merchant,  with 
which  he  paid  certain  creditors  including  attorney's  clients,  loan  being 
secured  by  mortgage  on  stock,  and  company  next  day  sold  out  stock 
under  mortgage,  mortgage  was  void  as  to  creditors. 

16  Wall.  584-603,  21  L.  504,  WAGER  v.  HALL. 

Syl.  2  (VII,  1042).     Bankrupt— When  trader  is  insolvent. 

Approved  in  Suffel  v.  McCartney  Nat.  Bank,  127  Wis.  214,  106  N.  W. 
839,  preferential  payment  by  one  subsequently  bankrupt  is  not  recov- 
erable by  trustee  merely  because  creditor  knew  of  facts  tending  to 
produce  doubt  as  to  debtor 's  solvency. 

Syl.  4  (VII,  1042).  Bankruptcy — Inquiries  as  to  solvency  of  mort- 
gagor. 

Approved  in  In  re  Knopf,  144  Fed.  255,  sale  of  entire  stock  of  retail 
merchant  within  four  months  of  bankruptcy  puts  burden  on  purchaser 
to  show  good  faith;  In  re  Moody,  134  Fed.  631,  where  retail  merchant 
sold  entire  stock  to  firm  in  exchange  for  farm  taken  in  wife's  name, 
and  also  in  consideration  of  payment  of  claim  of  bank  of  which  mem- 
bers «f  firm  were  officers,  transfer  was  void  as  preference;  Crandall 
V.  Coats,  133  Fed.  969,  holding  creditors  had  notice  of  bankrupt's 
insolvency  at  time  of  conveyance;  In  re  Pease,  129  Fed.  453,  where 
trust  company,  through  its  attorney,  made  loan  to  merchant,  with 
which  he  paid  certain  creditors,  including  attorney's  clients,  loan 
being  secured  by  mortgage  on  stock,  and  next  day  company  sold  stock 
under  mortgage,  mortgage  void  as  preference;  Capital  Nat.  Bank  v. 
Wilkerson,  36  Ind.  App.  474,  75  N.  E.  839,  holding  creditor  had  rea- 
sonable cause  to  believe  that  at  time  payments  made  preference  was 
intended  and  being  obtained. 

Syl.  5  (VII,  1042).  Bankruptcy — Preference — Transfer  to  one  cred- 
itor. 

Approved  in  Rex  Buggy  Co.  v.  Hearick,  132  Fed.  311,  65  C.  C.  A.  676, 
merchant  hopelessly  insolvent  who,  within  four  months  of  involuntary 
bankruptcy,  pays  certain  creditors  in  full,  but  refuses  others,  commits 
act  of  bankruptcy. 

16   Wall.   003-010,  21  L.  373,  KANSAS  PACIFIC  RAILWAY   CO.   v. 
PEESCOTT. 

Syl.  2  (VII,  1043).     Taxation  of  lands  prior  to  patent. 
Approved  in  dissenting  opinion  in  Delinquent  Tax  List  v.  Territory 
of  Arizona,  4  Ariz.  189,  39  Pac.  328,  majority  holding  taxpayer  cannot 


595  Notes  on  U.  S.  Reports.  16  Wall.  610-693 

object  to   tax  on  unconfirmecl  Mexican  grant   without  first   tendering 
taxes  due  on  his  other  property  included  in  assessment. 

Syl.  3  (VII,  1044).     Taxation  of  public  lands  prior  to  payment. 

Approved  in  Topcka  etc.  Security  Co.  v.  McPherson,  7  Okl.  341,  54 
Pac.  492,  lots  in  governmont  townsite  are  not  subject  to  sale  for 
taxes  levied  while  contest  pending  in  Land  Department  and  before 
deed  issued  by  townsite   trustees. 

Distinguished  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  67, 
73  Pac.  623,  lands  embraced  in  perfect  Mexican  grant  are  taxable, 
though  grant  submitted  to  court  of  private  land  claims  for  confirma- 
tion, and   patent  not  yet  issued. 

10  Wall.  610-644,  21  L.  430,  CEAPO  v.  KELLY. 

Syl.   3    (VII,    104G).     Situs   of   vessels. 

Approved  in  In  re  Clyde  S.  S.  Co.,  134  Fed.  99,  suit  is  maintainable 
in  admiralty  for  damages  for  wrongful  death  caused  by  collision  on 
high  seas  where  recovery  for  wrongful  death  is  given  by  states  to 
which  vessels  belong. 

16  Wall.  644-667,  21  L.  328,  ST.  JOSEPH  TOWNSHIP  v.  ROGERS. 

Syl.  4  (VII,  1049).     Assent  of  majority  of  voters. 

Approved  in  Sharp  v.  George,  5  Ariz.  68,  46  Pac.  213,  under  Laws 
18th  Leg.  Asscm.,  Acts  No.  32,  relating  to  election  to  form  union  high 
school   district,   majority  of  those   voting  is  sufficient. 

10    Wall.    667-678,    21    L.    375,    CHICAGO   ETC.    RAILROAD    CO.    v. 
COUNTY  OF  OTOE. 

Syl.  1   (VII,  1050).     Legislature  may  authorize  county  railroad  aid. 

Approved  in  Horton  v.  City  of  Newport,  27  R.  I.  288,  61  Atl.  761, 
upholding  power  of  legislature  to  provide  for  payment  of  city  police 
out  of  local  city  funds. 

16   Wall.   678-698,   21   L.   382,   OLCOTT   v.   THE   SUPERVISORS   OF 
FON  DU  LAC  CO. 

Syl.  3  (VII,  1052).     Binding  effect  of  state  decisions. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  where  at 
time  of  issuance  of  aid  bonds  there  was  no  state  decision  construing 
constitutional  provision  alleged  to  be  violated,  federal  court  puts  own 
construction  on  constitution  irrespective  of  state  decision  rendered 
after  issuance  of  bonds;  Phoenix  Bridge  Co.  v.  Castleberry,  131  Fed. 
178,  65  C.  C.  A.  481,  right  of  collateral  attack  on  judgment  is  matter 
of  general  law,  as  to  which  state  decisions  are  not  binding. 

Syl.   7    (VII,  1054).     Railroad  is  public   highway. 

Approved  in  Donovan  v.  Pennsylvania  Co.,  199  U.  S.  292,  50  L.  199, 
26  Sup.   Ct.   91,  railroad   having   arrangement   with   transfer   company 


17  Wall.  1-29  Notes  on  U.  S.  Keports.  596 

for  furnishing  at  depot  all  vehicles  necessary  for  accommodation  of 
its  passengers  may  exclude  other  cabmen  from  its  depot;  McLucas  v. 
St.  Joseph  etc.  Ey.  Co.,  67  Neb.  610,  93  N.  W.  929,  railroad  operated 
in  state  is  public  highway;  dissenting  opinion  in  Western  Union 
Tel.  Co.  V.  Pennsylvania  K.  E.  Co.,  195  U.  S.  577,  49  L.  326,  25  Sup. 
Ct.  133,  majority  holding  under  Eev.  St.,  §§  5263  et  seq.,  telegraph 
companies  not  granted  right  to  occupy  railroad  rights  of  way  without 
consent  of  railroad. 


1CVII  WALLACE. 


17  Wall.  1-9,  21  L.  587,  COEDOVA  v.  HOOD. 

Syl.  4  (VIII,  7).     Waiver  of  vendor's  lien  by  taking  note. 
Approved  in  Griffin  v.  Smith,  143  Fed.  866,  following  rule. 

Syl.  6  (VIII,  8).  Means  of  knowledge  equivalent  to  actual  knowl- 
edge. 

Approved  in  National  Cash  Eegister  Co.  v.  New  Columbus  Watch 
Co.,  129  Fed.  116,  63  C.  C.  A.  616,  where  attorney  for  inventor,  being 
requested  to  ascertain  whether  client  would  sell  pending  application 
for  patent,  bought  it  for  himself  on  quiet  and  sold  it  to  complainant 
for  big  gain,  complainant  not  affected  by  his  knowledge  of  equitable 
interest  of  others;  Pierce  v.  Vansell,  35  Ind.  App.  536,  74  N.  E.  558, 
applj'ing  rule  where  administrator  conveyed  tract  of  thirty-nine  acres 
under  description  which  by  mutual  mistake  was  supposed  to  convey 
twelve  acres,  and  defendant  acquired  same  as  part  of  larger  tract 
which   was   conveyed  by   antenuptial   contract. 

17  Wall.  19,  21  L.  611,  EYAN  v.  KOCH. 

Syl.  1  (VIII,  11).  Judgment  affirmed  in  absence  of  assignment  of 
errors. 

Approved  in  Fitch  v.  Richardson,  147  Fed.  196,  following  rule. 

17  Wall.  19-29,  21  L.  054,  NATIONAL  BANK  OF  THE  METEOP- 
OLIS  V.  KENNEDY. 

Syl.  1  (VIII,  11).     National  bank  receiver's  suit  in  own  name. 

Approved  in  Fish  v.  Olin,  76  Vt.  124,  56  Atl.  533,  national  bank 
receiver  may  sue  at  law  in  own  name  in  state  court. 

Syl.  10   (VIII,   12).     Evidence  not  included  in  bill  of  exceptions. 

Approved  in  The  Wyandotte,  145  Fed.  326,  applying  rule  in  ad- 
miralty. 

Syl.  12   (VIII,  13).     Eolicf  of  one  party  docs  not  control. 

Approved  in  Barataria  Canning  Cn.  v.  Ott,  84  ]Miss.  757,  37  So.  125, 
in  construing  reservation  in  deed,  intention  of  parties  cannot  be 
Bhowa. 


597  Notes  on  U.  S.  Eeports.  17  Wall.  32-81 

17  Wall.  32-44,  21  L.  566,  BRANSON  v.  WIRTH. 

Syl.  5  (VIII,  14).     Estoppel  against  estoppel. 

Approved  in  Tappan  v.  Huntington,  97  Colo.  35,  106  N.  W.  99, 
conveyance  by  subsequent  grantee  subject  to  encumbrances  makes 
mortgage  enforceable  by  original  grantor  who  has  acquired  mortgage; 
United  States  Fid.  etc.  Co.  v.  Ettenheimer,  70  Neb.  151,  99  N.  W.  653, 
one  who  executes  bond  under  circumstances  which  estop  him  from 
pleading  want  of  consideration  cannot  defend  action  on  bond  on 
ground  that  plaintiff  is  estopped  to  assert  consideration. 

Sji.  6   (VIII,  14).     Estoppel  by  acts  inducing  reliance. 

Approved  in  Wiser  v.  Lawler,  7  Ariz.  185,  62  Pac.  701,  holding 
vendor  of  mine  not  estopped  to  assert  title  thereto  where  they  had 
given  option  to  party  who  assigned  to  corporation  which  defaulted  in 
payment. 

Syl.  9  (VIII,  14).     Recitals  in  private  acts  as  evidence. 

Approved  in  Davis  v.  Moyles,  76  Vt.  37,  56  Atl.  178,  petitions  to 
legislature  for  grant  of  lands  reciting  lands  confiscated  from  peti- 
tioner's father  and  private  acts  granting  land  and  also  reciting  con- 
fiscation, are  not  evidence  of  confiscation,  so  as  to  show  title  in  state 
at  time  of  grant  as  against  defendant  in  suit  for  trespass  by  one 
claiming  through  grantee. 

17  Wall.  44-64,  21  L.  570,  OLCOTT  v.  BYXUM. 

Syl.  9   (VIII,   17).     Power  of  mortgagee   to   sell — Sale  of  part. 

Approved  in  Croze  v.  St.  Mary's  Canal  etc.  Co.,  143  Mich.  517, 
107  N.  W.  93,  where  mortgaged  logs  were  mingled  with  other  logs  so 
that  sorting  at  place  of  seizure  impossible,  mortgagee  not  guilty  of 
conversion   in   removing   them   to   lake   for   sorting. 

17  Wall.  64-G7,  21  L.  543,  EX  PARTE  WARMOUTH. 

Syl.  2   (VIII,  "18).     Prohibition  by  supreme  to   circuit  court. 
See  111  Am.  St.  Rep.  934,  936,  note. 

17  Wall.  67-75,  21  L.  564,  MASON  v.  UNITED  STATES. 

Syl.  7  (VIII,  19).  Acceptance  of  lesser  amount  on  government 
claim. 

Approved  in  Burnes  v.  Burnes,  132  Fed.  493,  threat  of  surviving 
partner  to  administer  estate  as  survivor  if  corporation  not  formed 
and  stock  allotted  to  heirs  is  not  duress. 

17  Wall.  78-81,  21  L.  558,  HARWOOD  v.  CINCINNATI  ETC.  RAIL- 
ROAD CO. 

Syl.  2  (VIII,  20).     Laches  not  dependent  on  statute  of  limitations. 

Approved   in   Patterson   v.    Hewitt,    11    N.  .M.   20,   66   Pac.   557,   55 

L.  R.  A.  658,  holding  claimants  of  conflicting  mining  claims  who  aban- 


17  Wall.  82-123  Notes  on  U.  S,  Reports.  598 

doned  locations   and  made  new  locations   in  name   of  one   of  parties 
barred  by  laches. 

Syl.  3  (VIII,  21).     Foreclosure  not  set  aside  after  five  years. 

Approved  in  Cole  v.  Birmingham  Union  Ey.  Co.,  143  Ala.  434,  39 
So.  405,  stockholder's  suit  to  set  aside  sale  of  corporation's  property 
for  shares  of  stock  in  purchasing  company  is  barred  ten  years  after 
sale,  property  meanwhile  having  been  sold  to  third  party,  who  mort- 
gaged it;  Patterson  v.  Hewitt,  11  N.  M.  33,  66  Pac.  561,  55  L.  E.  A. 
Cj8,  holding  claimants  of  conflicting  mining  claims  who  abandoned 
locations  and  made  new  location  in  name  of  one  of  parties  barred  by 
laches. 

17  Wall.  82-96,  21  L.  613,  AVEEILL  v.  SMITH. 

Syl.  6  (VIII,  22).     Probable  cause — Trespass  against  officer. 

Approved  in  Agnew  v.  Haymes,  141  Fed.  637,  638,  in  action  against 
internal  revenue  officer  for  wrongful  seizure  of  property  returned  to 
claimant  intact,  proof  of  probable  cause  is  good  defense  under  Eev. 
St.,  §  989,  though  court  in  rendering  judgment  in  proceeding  for  for- 
feiture failed  to  make  certificate  of  probable  cause  provided  for  by 
Eev.  St.,  §  970. 

Distinguished  in  Haymes  v.  Brown,  132  Fed.  529,  under  Eev.  St., 
§  989,  probable  cause  is  no  defense  to  action  against  revenue  officer 

i'jT  wrongful  seizure. 

Syl.  7  (VIII,  22).     Trespass  by  officer — What  is  probable  cause. 

Approved  in  United  States  v.  83  Sacks  of  Wool,  147  Fed.  748,  on 
judgment  for  claimant  of  property  seized  by  customs  officers,  certifi- 
cate of  probable  cause  should  be  entered  where  it  is  shown  that  officers 
acted  in  good  faith  and  on  reasonable  ground  of  suspicion. 

17  Wall.  9G-109,  21  L.  611,  BAILEY  v.  HANNIBAL  ETC.  EAILEOAD 
CO. 

Svl.  4   (VIIT,  23).     Contracts — Different  writings  read  together. 

Approved  in  Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  180,  67 
C.  C.  A.  74,  where  distilleries  company  agreed  to  sell  slop  and  deliver 
it  to  feeding  lot,  and  contemporaneous  contract  provided  for  lease  of 
land  bv  purchaser  to  company  to  be  used  as  feeding  lot,  lessor  to 
have  refusal  of  slop  at  market  price,  two  contracts  were  separate. 

17  Wall.  109-123,  21  L.  618,  OULTON  v.  SAYINGS  INSTITUTION. 

Syl.  3  (VIII,  24).     Kinds  of  banks. 

Approved  in  State  v.  German  Sav.  Bk.,  103  Md.  204,  63  Atl.  484, 
in  action  for  collection  of  franchise  tax  on  savings  bank,  allegation 
that  defendant  was  ordinary  state  bank,  with  paid-up  capital,  is  not 
inconsistent  with  allegation  that  it  is  not  savings  liank;  Hamilton 
Nat.  Bank  v.  American  Loan  &  Trust  Co.,  66  Neb.  72,'  92  N.  W.  191, 


599  Notes  oa  U.  S.  Eeports.  17  Wall.  153-182 

corporation  authorized  to  negotiate  loans,  buy  and  sell  notes,  mort- 
gages and  bonds,  borrow  money  and  receive  deposits  and  execute 
trusts,  is  bank. 

Syl.  5    (VIII,  24).     Taxes — Savings  banks   doing  other  business. 

Approved  in  Western  Investment  etc.  Co.  v.  Murray,  6  Ariz.  223, 
56  Pac.  731,  where  corporation  received  money  and  loaned  it  in  names 
of  depositors,  and  collected  rents  and  interest  on  loans,  which  were 
subject  to  check  by  owners,  for  which  it  charged  commission,  it  is  a 
bank. 

17  Wall.  153-167,  21  L.  622,  HOMESTEAD  CO.  v.  VALLEY  E.  R. 

Syl.  4  (VIII,  28).     Kecovery  of  taxes  paid  by  claimant  of  land. 

Apjiroved  in  Bryant  v.  Nelson-Frey  Co.,  94  Minn.  308,  102  N.  W. 
S(!0,  voluntary  payment  for  number  of  years  of  taxes  on  vacant  land 
of  anotlier  by  stranger  to  title,  under  mistaken  belief  that  he  had  tax 
title,  creates  no  obligation  on  part  of  owner  to  repay. 

Distinguished  in  Armijo  v.  Neher,  11  N.  M.  656,  72  Pac.  14,  in  suit 
for  accounting  between  cotenants,  possessor  erroneously  claiming  en- 
tire tract  is  entitled  to  credits  for  taxes  paid,  where  he  acted  in  good 
faith, 

17  Wall.  168-182.  21  L.  538,  UNITED  STATES  v.  COOK. 

Syl.  3  (VIII,  30).     Indictment  under  statute  containing  exception. 

Approved  in  United  States  v.  Sheridan-Kirk  etc.  Co.,  149  Fed.  813, 
in  prosecution  for  violation  of  eight-hour  law,  burden  of  showing 
justification  is  on  defendant;  United  States  v.  Stone,  135  Fed.  395, 
applying  rule  to  indictment  based  on  Rev.  St.,  §  5440,  charging  con- 
spiracy to  defraud  United  States  by  violating  subsequent  statute; 
Johnson  v.  People,  33  Colo.  231,  108  Am.  St.  Rep.  85,  80  Pac.  135, 
applying  rule  to  indictment  under  Mills'  Ann.  St.  Rev.  Supp.,  §  1209, 
for  murder  committed  in  procuring  miscarriage;  Smith  v.  .Jones,  16 
S.  D.  343,  92  N.  W.  1085,  upholding  sufficiency  of  complainant  for 
malicious  prosecution,  though  it  showed  on  face  that  offense  has  been 
outlawed  and  did  not  plead  exceptions  provided  in  statute;  dissenting 
opinion  in  People  v.  Ebelt,  180  N.  Y.  481,  73  N.  E.  23S,  majority  hold- 
ing written  challenge  to  jury  panel  that  special  jury  act  violated 
Const.,  art.  3,  §  IS,  but  failing  to  allege  that  bill  not  reported  to  legis- 
lature by  revision  commissioners  as  required  by  §  23,  is  insufficient; 
United  .States  v.  Praeger,  149  Fed,  485,  arguendo. 

Syl  5   (Vill,  31).     Every  ingredient  of  oflfense   must  be  alleged. 

Approved  in  Laiited  States  v.  Allen,  150  Fed.  154,  indictment  under 
Rev.  St.,  §  4046,.  must  charge  that  money  order  funds  embezzled  came 
into  defendant's  possession  by  virtue  of  his  employment;  United 
States  v.  Green,  136  Fed,  641,  643,  upholding  sufficiency  of  indict- 
ment under  Rev,  St.,  §  5440,  for  conspiracy  to  defraud  government; 
Niece   v.  Territory,  9   Okl.   539,   60   Pac,   301,  indictment  for   bigamy 


17  Wall.  191-253  Notes  on  U.  S.  Reports.  600 

under  Stat.  1893,  §  4351,  must  negative  fact  that  alleged  bigamous 
wife  was  person  other  than  wife  of  defendant  at  time  of  second  wife; 
Parker  v.  Territory,  9  Okl.  114,  59  Pac.  10,  indictment  for  rape  must 
allege  that  female  was  not  wife  of  accused;  Young  v.  Territory,  8  Okl, 
528,  58  Pae.  725,  indictment  for  assault  to  rape  must  allege  that  female 
was  not  wife  of  accused. 

Syl.  7   (VIII,  32).     Indictment — Statute  containing  exception. 

Approved  in  Tomlinson  v.  Bainaka,  163  Ind.  114,  70  N.  E.  15G, 
complaint  in  action  to  enforce  lien  for  building  partition  fence  is 
sufficient,  though  it  did  not  allege  lands  were  inclosed  to  retain  stock; 
State  V.  Snyder,  182  Mo.  498,  82  S.  W.  22,  66  L.  R.  A.  490,  holding 
indictment  seeking  to  overcome  limitations  must  allege  that  defendant 
was  not  inhabitant  of  state  subsequent  to  offense;  Wilkerson  v.  State, 
44  Tex.  Cr.  458,  72  S.  W.  852,  indictment  under  Pen.  Code,  art.  379, 
charging  gaming  at  hotel  is  sufficient,  though  it  does  not  negative  fact 
that  game  was  in  private  residence. 

Syl.  11   (VIII,  33),     Defense  of  limitations  raisable  by  demurrer. 
See  112  Am.  St.  Eep.  123,  note, 

Syl.  13  (VIII,  33).  Indictment — Demurrer  raising  defense  of  limi- 
tations. 

Approved  in  United  States  v.  Brace,  143  Fed.  704,  demurrer  cannnt 
raise  defense  of  plea  of  statute  of  limitations  to  indictment;  Ex 
parte  Townsend,  133  Fed.  75,  judgment  of  court-martial  confirmed 
according  to  articles  of  war  is  not  reviewable  on  habeas  corpus  on 
ground  that  prosecution  was  barred  by  limitation. 

17   Wall.    191-206,   21   L.   606,   LAPEYRE   v.    UNITED   STATES. 

Syl.  3   (VIII,  35).     When  piesidential  proclamation   takes  effect. 

Approved  in  Railroad  Commission  of  Louisiana  v.  Kansas  City  etc. 
Ry.  Co.,  Ill  La.  140,  35  So.  490,  determining  that  railroad  had  con- 
structive notice  of  order  of  railroad  commission  ordering  removal  of 
Bpur  track. 

17  Wall.  207-210,  21  L.  553,  ALLEN  v.  UNITED  STATES, 

Syl.  4   (VIII,  35).     Setoff  on  claim  ex  contractu. 

Approved  in  Tidewater  Quarry  Co.  v.  Scott,  105  Va.  164,  52  S.  E. 
837,  defendant  in  assumpsit  may  set  off  claim  for  conversion  of  his 
property  by  plaintiff, 

17  Wall.  211-253,  21  L.  523,  HOLDEN  v.  JOY, 

Syl.  12  (VIII,  37).     Conditions  subsequent — Who  claims  breach. 

Approved  in  Jordan  v.  Goldman,  1  Okl.  440,  441,  34  Pac.  376,  under 
Cherokee  treaties,  Cherokee  nation  settlement  and  operation  of  stone 
quarries  on  outlet  was  unwarranted. 


601  Notes  on  U.  S.  Reports.  17  Wall.  253-354 

17  Wall.  253-294,  21  L.  576,  TYLER  v.  MAGUIRE. 

Syl.  4  (VIII,  38).     Matters  considered  on  second  appeal. 

Approved  in  United  States  v.  Denver  etc.  R.  R.  Co.,  11  N.  M.  154, 
66  Pac.  552,  applying  rule  to  question  as  to  right  to  cut  timber  on 
government  lands  adjacent  to  railroad  right  of  way. 

17  Wall.  322-335,  21  L.  597,  UNITED  STATES  v.  BALTIMORE  ETC. 
RAILROAD  CO. 

Syl.  4  (VIII,  41).     Federal  taxation  of  state  agencies. 

Distinguished  in  South  Carolina  v.  United  States,  199  U.  S.  460, 
50  L.  269,  26  Sup.  Ct.  110,  government  may  exact  revenue  tax  from 
dispensing  agent  of  state  which  has  taken  charge  of  liquor  business. 

Syl.  7  (VIII,  42).     Public  and  private  corporations  distinguished. 

Approved  in  Worcester  v.  Worcester  etc.  St.  Ry.  Co.,  196  U.  S. 
549,  49  L.  595,  25  Sup.  Ct.  327,  city  cannot  invoke  protection  of  con- 
tract clause  of  constitution  against  abrogation,  by  statute,  of  contract 
between  city  and  street  railway  as  to  paving  of  streets;  Kittel  v. 
Trustees  etc.  Imp.  Fund,  139  Fed.  953,  under  Florida  improvement 
fund  act,  trustees  could  confirm  railroad  land  grant  passed  by  legis- 
lature in  strict  conformity  with  improvement  act.  See  97  Am.  St. 
Rep.   349,  note. 

Distinguished  in  Lexington  v.  Thompson,  113  Ky.  545,  101  Am.  St. 
Eep.  361,  68  S.  W.  478,  57  L.  R.  A.  775,  holding  void  act  of  1900, 
attempting  to  fix  compensation   of  members  of  city  fire   department. 

Syl.  8  (VIII,  43).     Federal  tax  on  municipal  revenues. 

Approved  in  Mosely  v.  State,  115  Tenn.  59,  60,  86  S.  W.  716,  state 
cannot  tax  interest  on  government  bonds  on  its  being  paid  into  hands 
of  bondholder;  dissenting  opinion  in  South  Carolina  v.  United  States, 
199  U.  S.  466,  467,  468.  471,  50  L.  272,  274,  26  Sup.  Ct.  110,  majority 
holding  government  may  exact  revenue  tax  from  dispensing  agent  of 
state  which  has  taken  charge  of  liquor  business. 

Distinguished  in  South  Carolina  v.  United  States,  199  U.  S.  453,  50 
L.  266,  26  Sup.  Ct.  110,  government  may  exact  revenue  tax  from  dis- 
pensing agent  of  state  which  has  taken  charge  of  liquor  business. 

17  Wall.  336-351,  21  L.  602,  HUME  v.  BEALE  'S  EXECUTRIX. 

Syl.  4  (VIII,  45).     Excuse  for  cestui 's  laches. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  28,  66  Pae.  560,  55  L. 
R.  A.  658,  evidence  of  poverty  of  complainant  is  no  excuse  for  long 
delay  in  assertion   of  rights. 

17  Wall.  351-354,  21  L.  542,  ALLEN  v.  MASSEY. 

Syl.  3   (VIII,  46).     Following  state  statutory  construction. 

Approved  in  In  re  Wood,  147  Fed.  S7S,  under  Wisconsin  decisions 
homestead  owned  by  bankrupt,  though  purchased  while  insolvent  from 


17  Wall.  357-384  Notes  on  U.  S.  Eeports.  602 

proceeds  of  nonexempt  property,  is  exempt;  York  v.  Washburn,  129 
Fed.  567,  64  C.  C.  A.  132,  federal  courts  follow  state  courts  in  deter- 
mining whether  oral  contract  for  lease  of  realty  for  more  than  one 
year  not  conforming  to  statute  of  frauds  is  void  or  voidable;  dissent- 
ing opinion  in  James  v.  Gray,  131  Fed.  414,  65  C.  C.  A.  385,  majority 
holding  loan  made  by  wife  to  husband  from  separate  estate  is  debt 
provable  against  his  bankrupt  estate,  irrespective  of  its  enforceability 
under  state  laws. 

17  Wall.  357-384,  21  L.  627,  NEW  YORK  CENTEAL  EAILEOAD  CO. 
V.  LOCKW^OOD. 

Syl.  1   (VIII,  48).     Drover  riding  on  pass  is  passenger. 

Approved  in  Weaver  v.  Ann  Arbor  E.  E.  Co.,  139  Mich.  600,  601, 
602,  102  N.  W.  1041,  1042,  following  rule;  McNeill  v.  Durham  etc. 
Ey.  Co.,  135  N.  C.  699,  47  S.  E.  767,  67  L.  E.  A.  227,  holding  railroad 
liable  for  injuries  to  one  riding  on  pass,  though  pass  was  void;  Nickles 
V.  Seaboard  etc.  Ey.,  74  S.  C.  133,  135,  54  S.  E.  265,  266,  where  hus- 
band agrees  to  go  to  certain  point  as  witness  for  railroad  on  condition 
that  it  furnish  transportation  for  his  wife,  stipulation  on  pass  relieving 
company  from  negligence  is  no  defense  to  action  for  death  of  wife; 
Feldschneider  v.  Chicago,  Milwaukee  etc.,  122  Wis.  432,  99  N.  W. 
1037,  where  contract  of  stock  carriage  provided  that  shipper  might 
accompany  stock,  clause  that  carrier  not  liable  for  personal  injuries 
in  excess  of  $500  is  void. 

Distinguished  in  Yarrington  v.  Delaware  etc.  Co.,  143  Fed.  567. 
under  Penn.  P.  L.  58,  railway  mail  clerk  is  not  passenger. 

Syl.  3    (VIII,  49).  Limitation  of  carrier's  liability. 

Approved  in  Central  etc.  Ey.  Co.  v.  Hall,  3  24  Ga.  325,  110  Am.  St. 
Ecp.  172,  52  S.  E.  681,  4  L.  E.  A.  (N.  S.)  898,  upholding  contract  lim- 
iting liability  of  carrier  of  livestock  to  injuries  caused  by  gross 
negligence. 

Syl.  5   (VIII,  50).     Co-ordinate  jurisdiction   on  commercial  law. 

Approved  in  Spinks  v.  Mutual  etc.  Life  Assn.,  137  Fed.  171,  ap- 
plying rule  in  determining  validity  of  provision  of  insurance  policy 
that  no  action  shall  be  brought  after  one  year  from  insured's  death. 

Distinguished  in  Yarrington  v.  Delaware  etc.  Co.,  143  Fed.  569, 
under  Penn.  P.  L.  58,  railway  mail  clerk  is  not  passenger. 

Syl.  9   (VIII,  52).     Common  carrier  becoming  private  carrier. 

Distinguished  in  Texas  etc.  .Ey.  Co.  v.  Fenwick,  34  Tex.  Civ.  226, 
78  S.  W.  551,  railroad  liable  for  injuries  to  newsboy  employed  by 
another   to   sell  papers  on  train  though   he   signed  antecedent  release. 

Syl.   10   (VIII,  53).     Care  required  of  carriers  of  passengers. 
Approved  in  Memphis  News  Pub.  Co.  v.  Southern  Ey.  Co.,  110  Tenn. 
703,  63  L.   R.  A.   150,  75   S.   W.   945,  where   railroad   contracted   with 


603  Notes  on    U.  S.  Reports.  17  Wall.  357-384 

newspaper  to  run  special  early  train  carrying  only  its  newspapers, 
paper  j^uaranteeing  certain  revenue  from  train,  and  train  became  one 
of  scheduled  trains,  railroad  could  not  refuse  other  papers. 

Syl.  12    (VIII,  55).     Gross   and  ordinary  negligence. 

Approved  in  Evansville  etc.  R.  R.  Co.  v.  McKinney,  34  Ind.  App. 
408,  73  N.  E.  150,  where  complaint  alleged  agreement  for  round-trip 
shipment  of  racehorses,  and  that  on  return  carrier  refused  to  ship 
unless  contract  limiting  liability  to  .$100  for  each  horse  signed,  and 
horses  injured  by  carrier's  negligence,  cause  of  action  is  stated; 
Nashville  etc.  Ry.  Co.  v.  Stone,  112  Tenn.  377,  105  Am.  St.  Rep.  955, 
79  S.  W.  1038,  stipulation  limiting  liability  for  loss  of  hogs  shipped 
to  $5  per  head  is  void  wliere  real  value  was  treble  that  sum. 

Syl.  13  (VIIT,  55).  Ordinary,  slight  and  gross  negligence  distin- 
guished. 

Approved  in  Raymond  v.  Portland  R.  R.  Co.,  100  Me.  534,  62  Atl. 
(104,  construing  instruction  as  to  care  required  of  conductor  of  street- 
ear  in  permitting  passenger  to  aliglit  from  car. 

Syl.   14    (VIII,  50).     Negligence   defined. 

Approved  in  Maniujn  v.  Camden  etc.  Ry.  Co.,  50  W.  Va.  550,  49 
S.   E.  451,  applying  rule  where  street-car  passenger  injured. 

Syl.  16   (VIII,  56).     When  carrier  can  stipulate  against  negligence. 

Approved  in  Kelly  v.  Malott,  135  Fed.  76,.  67  C.  C.  A.  548,  charac- 
terization of  defendant's  negligence  as  "gross"  in  declaration  does 
not  change  effect  of  allegation  from  what  it  w'ould  have  been  if  term 
"negligence"  alone  used;  Chicago  etc.  Ry.  Co.  v.  Ilaniler,  215  III. 
540,  106  Am.  St.  Rep.  187,  74  N.  E.  710,  where  sleeping-car  porter 
injured  by  blowing  up  of  locomotive  of  his  train,  contract  releasing 
railroad  from  liability  is  complete  defense,  though  negligence  was 
gross;  Evansville  etc.  R.  R.  Co.  v.  McKinney,  34  Ind.  Apj).  409,  73 
N.  E.  150,  complaint  alleging  agreement  for  round-trip  shipment  of 
racehorses,  and  that  carrier  refused  to  ship  on  return  unless  contract 
limiting  liability  to  .$100  for  each  horse  signed,  value  being  fixed  by 
carrier,  states  cause  of  action. 

Syl.   17    (VIII,   59).     Carrier  cannot  stipulate   against   negligence. 

Approved  in  Can  v.  Texas  etc.  Ry.  Co.,  194  U.  S.  431,  48  L.  1057. 
24  Sup.  Ct.  663,  exemption  of  carrier  from  liability  for  fire  is  valid 
though  opportunity  to  ship  under  common-law  liability  not  presented; 
Arthur  v.  Texas  etc.  Ry.  Co.,  139  Fed.  130,  where  shipper  accepted 
bill  of  lading  containing  fire  exemption  clause  without  request  for 
rate  under  common-law  liability,  carrier  not  liable  for  loss  by  fire; 
Pennsylvania  R.  Co.  v.  Burr,  130  Fed.  850,  65  C.  C.  A.  331,  where  bill 
of  lading  limits  carrier's  liability  to  value  of  goods  at  time  and  place 
of  shipment,  and  gives  carrier  benefit  of  insurance  effected  by  ship- 
per, carrier  cannot  claim  insurance  covering  current  value  at  destina- 
tion;  Wilson  V.  Atlantic  C.  L.  R.   Co.,   129  Fed.  779,  780,  where  car- 


17  WaU.  384-398  Notes  on  U.  S.  Reports.  604 

rier  agreed  to  haul  circus  cars,  loading  of  which  was  to  be  in  charge 
of  circus  men,  for  reduced  rate,  stipulation  releasing  carrier  from 
liability  for  negligence  of  its  employees  is  valid. 

Syl.  18  (VIII,  64),  Carrier's  liability  to  drover — Contract  exemp- 
tion. 

Approved  in  Paul  v.  Pennsylvania  E.  R.  Co.,  70  N.  J.  L.  445,  57 
Atl.  140,  following  rule;  The  Oregon,  133  Fed.  630,  68  C.  C.  A.  603, 
applying  rule  to  stipulation  of  ticket  exempting  carrier  from  liabil- 
ity for  own  or  agent's  negligence,  provided  it  has  used  due  diligence 
to  make  vessel  seaworthy;  Johnston  v.  Fargo,  184  N.  Y.  384,  77  N. 
E.  390,  agreement  between  express  company  and  an  employee  re- 
lieving company  from  liability  for  injuries  caused  through  its  negli- 
gence is  void;  McNeill  v.  Durham  etc.  Ey.  Co.,  135  N,  C.  702,  703, 
704,  47  S.  E.  772,  773,  67  L.  E.  A.  227,  holding  railroad  liable  for  in- 
juries to  one  riding  on  pass  though  pass  was  void;  Sprigg  v.  Eut- 
land  R.  E.  Co.,  77  Vt.  356,  357,  358,  60  Atl.  146,  147,  applying  rule 
to  contract  exempting  carrier  from  liability  for  injuries  to  care- 
taker of  cattle;  Chesapeake  etc.  Ey.  Co.  v.  Beaslcy,  104  Va.  792,  3 
L.  R.  A.  (N.  S.)  183,  52  S.  E.  567,  under  Code  1887,  §  1296,  contract 
limiting  carrier's  liability  is  void;  Shannon  v.  Chesapeake  etc.  Ey.  Co., 
104  Va.  649,  52  S.  E.  377,  holding  railroad  liable  for  injuries  to  ex- 
press messenger;  Bosley  v.  Baltimore  etc.  E.  R.  Co.,  54  W.  Va.  579, 
46  S.  E.  619,  66  L.  R.  A.  871,  contract  limiting  liability  of  carrier  of 
stock  to  amount  expended  by  owner  for  food  and  water  in  event  of 
delay  through  carrier's  negligence  does  not  exempt  carrier  from  lia- 
bility for  damage  caused  by  its  negligence;  Cherry  v.  Chicago  etc. 
R.  R.  Co.,  191  Mo.  517,  109  Am.  St.  Rep.  830,  2  L..  R.  A.  (N.  S.)  G95, 
90  S.  W.  389,  arguendo. 

17  Wall.  384-398,  21  L.  644,  STITT  v.  HUIDEKOPEES. 

Syl.  3   (VIII,  65).     Affirmative  witness  preferred  to  negative. 

Approved  in  Rich  v.  Chicago  etc.  Ry.  Co.,  149  Fed.  83,  in  action 
for  death  at  crossing  where  engineer  and  fireman  testified  bell  was 
ringing,  testimony  of  others  that  they  did  not  hear  bell  does  not  war- 
rant finding  of  negligence;  The  Fin  MacCool,  147  Fed.  127,  apply- 
ing rule  where  master  and  crew  of  sunken  dredge  testified  to  placing 
lights  thereon  and  that  they  were  burning  immediately  preceding 
collision;  Baltimore  etc.  R.  Co.  v.  Baldwin,  144  Fed.  56,  where  fore- 
man of  track  crew  and  others  testified  to  warning  of  approach  of  en- 
gine, testimony  of  others  that  they  did  not  hear  warning  creates  no 
conflict;  Chicago  etc.  Ry.  Co.  v.  Andrews,  130  Fed.  70,  64  C.  C.  A.  399, 
applying  rule  where  in  action  for  injuries  at  railroad  crossing  many 
witnesses  testified  to  hearing  signals  and  saw  train  approaching; 
State  V.  Murray,  139  N.  C.  548,  51  S.  E.  776,  upholding  instruction 
defining  positive  and  negative  testimony  in  prosecution  for  mur- 
der. 


605  Notes  on  U.  S.  Reports.  17  Wall.  398-437 

17  Wall.  398-405,  21  L.  649,  CONWAY  v.  STANNAED. 

Syl.  2  (VIII,  65).     Notice  of  sale  of  perishable  property. 

Cited  in  Daniels  v.  Homer,  139  N.  C.  230,  51  S.  E.  996,  3  L.  E.  A. 
(N.  S.)  997,  arguendo. 

17  Wall.  409-411,  21  L.  665,  EEED  v.  GAEDNEE.  , 

Syl.  1  (VIII,  66).     Eeview  of  matters  in  bill  of  exceptions. 
Approved  in  Newport  etc.  Ey.  &  Elec.  Co.  v.  Yount,  136  Fed.  590, 

69  C.  C.  A.  363,  assignment  of  error  based  on  giving  and  refusal  of 

instructions  not  considered  on  appeal,  unless  bill  of  exceptions  contains 

evidence  pertinent  to  issues. 

17  Wall.  417-424,  21  L.  642,  MOORE  v.  HUNTINGTON. 

Syl.  4  (A'lII,  68).  Judgment  against  defendant  and  appeal  sure- 
ties. 

Approved  in  Empire  State  etc.  Co.  v.  Hanley,  336  Fed.  103,  69  C. 
C.  A.  87,  where,  after  affirmance  on  appeal,  appellee  filed  in  trial 
court  motion  to  proceed,  containing  notice  to  sureties  on  supersedeas 
bond  that  he  would  apply  for  summary  decree  on  bond,  court  could 
render  summary  judgment  against  surety. 

17  Wall.  425-437,  21  L.  650,  STATE  v.  STOLL. 

Syl.  1   (VIII,   68).     Repeal  by  later  law. 

Approved  in  Guthrie  v.  Sparks,  131  Fed.  449,  65  C.  C.  A.  427, 
Ky.  St.  1894,  §  1882,  empowering  county  fiscal  courts  to  levy  county 
taxes,  but  excepting  power  to  levy  tax  for  railway  aid  bonds,  is  not 
impliedly  repealed  as  to  exception  by  §  1S39,  relating  to  ad  valorem 
taxes;  Giles  v.  Dennison,  15  Okl.  63,  78  Pac.  177,  Laws  1897,  p.  250, 
§  2,  relating  to  construction  of  courthouse,  is  not  repealed  by  Laws 
1903,  c.  11,  p.  146;  Carpenter  v.  Eussell,  13  Okl.  283,  73  Pac.  932. 
Stat.  1893,  c.  IS,  art.  13,  relating  to  appeals,  is  not  inconsistent  with 
Act  of  1893  extending  jurisdiction  of  probate  court  and  providing  for 
appeals  therefrom;  Tootle  v.  Kent,  12  Okl.  700,  73  Pac.  318,  Code 
Civ.  Proc,  §  56,  relating  to  change  of  venue,  does  not  conflict  with  28 
Stat.  21,  and  is  valid;  Buchanan  v.  State  Treasurer,  68  S.  C.  415,  47 
S.  E.  684,  construing  salary  reduction  act  of  1893,  and  general  ap- 
propriation act  passed  on  following  day. 

Syl.  3   (VIII,  70).     Special  charter  unaffected  by  general  law. 

Approved  in  Christie-Street  Com.  Co.  v.  United  States,  136  Fed. 
333,  69  C.  C.  A.  464,  limitation  of  two  years  for  commencement  of 
actions  to  recover  back  internal  revenue  taxes  illegally  exacted  pre- 
scribed by  Eev.  St.,  §  3227,  is  not  repealed  by  Comp.  St.  1901,  p.  752; 
Bealmear  v.  Hutchins,  134  Fed.  262,  under  Eev.  St.  N.  C.  1837,  c.  42, 
§  1,  relating  to  entry  of  Cherokee  lands,  burden  is  on  entryman  to 
show  on  face  of  grant  itself  that  laud  was  at  time  vacant  and  un- 
surveyed. 


17  WaU.  445-473  Notes  on  U.  S.  Reports.  606 

17  Wall.  445-453,  21  L.  675,  WASHINGTON  ETC.  RAILEOAD  CO.  v 
BE  OWN. 

Syl.  2  (VIII,  72).  Process — ^Presumption  as  to  continuance  in  offi- 
cial capacity. 

Approved  in  dissenting  opinion  in  Thum  v.  Pyke,  8  Idaho,  30,  66 
Pac?163,  majority  holding  judgment  against  corporation  is  void  where 
service  of  summons  made  on  one  not  secretary  at  date  of  service. 

Syl.  4  (VIII,  72).     Eailroads — Escape  of  legal  duties  by  lease. 

Approved  in  Muntz  v.  Algiers  etc.  Ey.  Co.,  Ill  La.  428,  100  Am. 
St.  Eep.  495,  35  So.  627,  64  L.  R.  A.  222,  railroad  is  liable  for  in- 
juries caused  by  its  negligent  operation  of  cars  upon  road  operated  by 
its  lessee. 

(VIII,  72.)  Miscellaneous.  Cited  in  Chicago  etc.  R.  R.  Co.  v. 
Newell,  198  U.  S.  579,  49  L.  1171,  25  Sup.  Ct.  801. 

17  Wall.  453-460,  21  L.  700,  ADAMS  v.  BUEKE. 

Syl.  2   (VIII,  75).     Patents — License   to   sell   or  use. 

Approved  in  Hartman  v.  Park  &  Sons  Co.,  145  Fed.  364,  upholding 
contract  between  maker  of  proprietary  medicine  and  wholesalers  bind- 
ing latter  to  sell  at  fixed  price  and  to  retailers  designated  by  maker 
only;  Bullock  etc.  Mfg.  Co.  v.  Westinghouse  etc.  Mfg.  Co.,  129  Fed. 
109,  63  C.  C.  A.  607,  where  defendant  restrained  from  making  or 
selling  patented  article,  his  making  and  selling  single  element  of 
combination  for  use  in  foreign  country  for  use  with  other  elements  of 
patent  is  not  contempt. 

Syl.  3   (VIII,   75).     Patents — Sale  of  right  in   certain   district. 
Cited  in  Eubber  Tire  Wheel  Co.  v.  Milwaukee  Eubber  etc.  Co.,  142 
Fed.  536,  arguendo. 

17  Wall.  460-463,  21  L.  679,  PHILP  v.  NOCK. 

Syl.  1  (VIII,  76).     Measure  of  damages  for  patent  infringement. 

Distinguished  in  Brown  v.  Lanyon,  148  Fed.  839.  action  at  law  is 
not  maintainable  for  sole  purpose  of  recovering  profits  of  infringer  of 
patent. 

Syl.  2   (VIIT,  76).     Damages  for  infringement  of  part. 
Approved  in   Westinghouse  v.  New  York  Air  Brake   Co.,   140   Fed. 
547,  following  rule. 

17  Wall.  463-473,  21  L.  517,  CAELTON  v.  BOKEE. 

Syl.  3   (VIII,  77).     Patents — All  embracing  claims. 

Approved  in  Queen  v.  Fricdlar.dcr,  149  Fed.  777.  holding  void 
Sayer  patent  No.  594,036,  claim   1,  for  improvement  in  vacuum   tubes. 


607  Notes  on  U.  S.  Reports.  17  Wall.  473-514 

17  Wall.  473-488,  21  L.  723,  WILSON  v.  CITY  BANK. 

Syl.  1  (VIII,  78).     Objects  of  bankruptcy. 

Approved  in  In  re  Armstrong,  145  Fed.  208,  holding  mortgages 
given  while  actually  insolvent,  but  where  debtor  did  not  so  believe, 
not  to  be  preferences. 

Syl.  5  (VIII,  78).  Bankruptcy — Transfers  void  as  fraudulent  pref- 
erence. 

Approved  in  Western  Tie  etc.  Co.  v.  Brown,  196  U.  S.  509,  49  L. 
574,  25  Sup.  Ct.  339,  sum  retained  by  creditor  with  knowledge  of 
debtor's  insolvency,  within  four  months  of  bankruptcy,  which  sum 
was  due  bankrupt  under  agreement  by  which  creditor  deducted  from 
employee's  wages  sums  due  bankrupt,  is  not  preference;  Hardy  v. 
Gray,  144  Fed.  925,  926,  holding  payment  by  insolvent  to  creditor 
by  return  of  goods  to  be  preference. 

Syl.  6  (VIII,  78).  Insolvent  not  compelled  to  petition  for  adjudica- 
tion. 

Approved  in  Eichmond  etc.  Iron  Co.  v.  Allen,  148  Fed.  661,  insol- 
vent corporation  does  not  give  preference  by  permitting  its  property 
on  leased  premises  to  be  sold  for  past  rent. 

Syl.  10  (VIII,  80).  Bankruptcy — Passive  nonresistance  not  prefer- 
ence. 

Approved  in  .Johnson  v.  Anderson,  70  Neb.  243,  97  N.  W.  342,  hold- 
ing attachment  and  judgment  thereon  not  preference. 

17  Wall.  496-507,  21  L.  728,  UNITED  STATES  v.  ISHAM. 

Syl.  2  (VIII,  84).     Statutory  construction — Punctuation. 

Approved  in  Crawford  v.  Burke,  195  U.  S.  192,  49  L.  153,  25  Sup. 
Ct.  9,  only  debts  created  by  fraud  of  bankrupt  while  he  was  acting 
as  officer  or  in  fiduciary  capacity  are  excepted  from  operation  of  dis- 
charge in  bankruptcy  by  Bankr.  Act,  §  17,  subd.  4. 

Syl.  5  (VIII,  84).  Taxation — Doubts  construed  in  favor  of  exemp- 
tion. 

Approved  in  State  v.  Western  Union  Tel.  Co.,  96  Minn.  IS,  104  N. 
W.  570,  under  Laws  1891,  p.  70,  c.  8,  as  amended  in  1901,  tangible 
and  intaxable  property  of  telegraph  companies  are  taxable. 

17  Wall.  50S-514,  21  L.  705,  NORTHWESTEEN  PACKET  CO.  v.  Mc- 
CUE. 

Syl.  3  (VIII,  85).     When  relation  of  master  and  servant  ceases. 
Approved   in   Arkadelphia   Lumber   Co.    v.    Smith,    78    Ark.    510,    95 
S.   W.   801,   where   lumber   company    furnished    employees    with    hnnd- 
car  to  go   home  at  end  of   day's   labor,   employees  still  in   company's 
service  while  traveling  over  road  to  homes. 


17  Wall.  521-559  Notes  on  U.  S.  Eeports.  608 

Distinguished  in  O'Neil  v.  Pittsburg  etc.  E.  Co.,  130  Fed.  208, 
flagman  crossing  tracks  after  work  ended  cannot  recover  for  injury 
caused  by  negligence  of  train  crew. 

J  7  Wall.  521-532,  21  L.  687,  BOAED  OF  PUBLIC  WOEKS  v.  COLUM- 
BIA COLLEGE. 

Syl.  3  (VIII,  87).     Judgments— Full  faith  and  credit. 

Approved  in  In  re  Box's  Will,  127  Wis.  270,  106  N.  W.  10G5,  on 
proceedings  to  probate  will  which  had  been  probated  in  Illinois, 
where  copy  of  record  not  authenticated  is  required  by  statute,  county 
court  had  no  jurisdiction  to  admit  will  to  probate. 

17  Wall.  532-545,  21  L.  707,  EEA  v.  MISSOUEL 

Syl.  3  (VIII,  90).     Witnesses — Scope  of  cross-examination. 
Approved  in   dissenting  opinion   in   Eesurrection   Gold   Min.   Co.   v. 
Fortune  Gold  Min.  Co.,  129  Fed.  682,  64  C.  C.  A.  180,  majority  hold- 
ing cross-examination  of  witness  should  be  limited  to  subjects  of  his 
direct  examination. 

17  Wall.  545-553,  21  L.  685,  ELDEED  v.  BANK. 

Syl.  1  (VIII,  91).     Plea  is  appearance. 

Approved  in  Groel  v.  United  Elec.  Co.,  68  N.  J.  Eq.  251,  59  Atl. 
641,  under  Eev.  1902,  P.  L.,  p.  511,  plea  by  foreign  corporation  in 
suit  in  which  personal  decree  sought,  reciting  that  it  appears  by  its 
officers  for  sole  purpose  of  objecting  to  jurisdiction,  is  sufficient. 

17  Wall.  553-559,  21  L.  739,  UNION  PACIFIC  EAILEOAD  CO.  v. 
FOET. 

Syl.  1  (VIII,  92).     Theory  of  fellow-servant  rule. 

Approved  in  Bering  Mfg.  Co.  v.  Femelat,  35  Tex.  Civ.  43,  79  S. 
W.  873,  instruction  that  employer  cannot  escape  liability  for  injury 
to  servant  caused  by  wrongful  act  of  foreman  is  erroneous. 

Syl.   2   (VIII,  93).     Presumption   of   servant's   assumption   of   risks. 

Distinguished  in  McMillan  v.  Grand  Trunk  Ey.  Co.,  130  Fed.  829, 
65  C.  C.  A.  165,  where  boy  of  seventeen,  who  had  gone  into  railroad 
yards  with  experienced  servant  to  be  instructed  in  car-coupling,  was 
killed,  proof  that  servant  who  was  with  deceased  was  also  young  does 
not  show  defendant's  negligence. 

Syl.  4  (VIII,  95).  Ordering  minor  to  do  perilous  work  is  negli- 
gence. 

Distinguished  in  Texas  etc.  Coal  Co.  v.  Manning,  34  Tex.  Civ.  325, 
78  S.  W.  547,  where  neither  express  authority  to  one  employee  to 
direct  another,  nor  knowledge  of  such  assumed  authority  brought 
••v)me  to  employer,  no  presumption  of  authority  arises. 


609  Notes  on  U.  S.  Reports,  17  Wall.  560-581 

Syl.  5  (VIII,  96).     Implied  agreement  not  endanger  servant. 

Approved  in  Vohs  v.  Shorthill,  130  Iowa,  541,  107  N.  "W.  418,  hold- 
ing it  was  duty  of  master  to  warn  inexperienced  servant  of  danger 
from  flying  splinters  in  cutting  steel  rails. 

17  Wall.  560-570,  21  L.  710,  CHICAGO  &  N.  W.  RAILROAD  CO.  v. 
FL'LLER. 

Syl.  1  (VIII,  97).     Commerce — Requiring  posting  of  railroad  rates. 

Approved  in  Louisville  v.  Wehmhoff,  116  Ky.  830,  76  S.  W.  881,  under 
Ky.  St.  1899,  §§  2742,  2782,  2783,  council  may  pass  ordinance  pro- 
hibiting poolrooms;  Walker  v.  Southern  Ry.  Co.,  137  N.  C.  168,  49 
S.  E.  86,  upholding  Acts  1903,  p.  999,  c.  590,  imposing  penalty  on 
railroad  failing  to  transport  interstate  freight  within  four  days  after  its 
receipt;  Atlantic  Coast  Line  Ry.  Co.  v.  Commonwealth,  102  Va.  617, 
46  S.  E.  916,  upholding  corporation  commission's  rules  regarding 
storage,  demurrage,  car  service  and  car  detention  charges;  Hagan  v. 
City  of  Richmond,  104  Va.  732,  3  L.  R.  A.  (N.  S.)  1120,  52  S.  E.  389, 
Comp.  St.  1901,  p.  3546,  authorizing  Secretary  of  War  to  remove 
obstructions  from  navigable  waters,  does  not  prohibit  states  or  cities 
from  removing  obstructions  where  secretary  does  not  act. 

Syl.  3   (VIII,  98).     Commerce  embraces    what. 

Approved  in  dissenting  opinion  in  Northern  Securities  Co.  v.  United 
States,  193  U.  S.  392,  48  L.  723,  24  Sup.  Ct.  436,  majority  upholding 
anti-trust  act  of  1890. 

Syl.  4  (Vm,  98).  State  regulation  of  commerce  in  absence  of 
congressional. 

Approved  in  Arkansas  etc.  Ry.  Co.  v.  German  Nat.  Bank,  77  Ark. 
490,  92  S.  W.  525,  upholding  Kirby's  Digest,  §§  530.  531,  prohibit- 
ing delivery  of  goods  except  on  surrender  of  bill  of  lading. 

17  Wall.  570-581,  21  L.  657,  HORN  v.  LOCKHART. 

Syl.  1   (VIII,  99).     Who  are  indispensable  parties. 

Approved  in  Lynch  v.  United  States,  13  Okl.  158,  73  Pac.  1100, 
where  patent  issued  to  homesteader  for  townsite  purposes  and  many 
lots  sold,  government  cannot  cancel  patent  for  fraud  of  entryman. 

Syl.  2  (VIII,  99).  Presence  of  indispensable  parties  necessary  to 
jurisdiction. 

Approved  in  New  York  etc.  Co.  v.  City  of  New  York,  145  Fed. 
662,  under  state  statute  giving  tenant  under  lease  for  more  than  ten 
years  right  to  sue  to  remove  cloud  from  title,  lessor  is  not  indis- 
pensable party  to  suit  by  lessee  to  set  aside  local  improvement  assess- 
ment. 

Syl.  5  (VIII,  101).     Validity  of  acts  of  rebel  states. 
Approved    in    Cullins    v.    Overton,    7    Okl.    481,    54    Pac.    705,    where 
Texas    authorities    organized    disputed    territory    into    county,    vvnose 
39 


17  Wall.  582-609  Notes  on  U.  S.  Eeports,  610 

inliabitants  exercised  all  governmental  functions  until  it  was  de- 
cided that  territory  was  not  in  Texas,  judgment  of  court  of  such 
county  was  valid. 

17  Wall.  582-586,  21  L.  682,  THE  MEEEITT. 

Syl.  1  (VIII,  103).     Nonregistration  of  vessel  owned  by  citizen. 

Approved  in  The  Alta,  148  Fed.  665,  vessel  not  registered  in  United 
States,  though  owned  by  citizen,  is  subject  to  tonnage  duty;  The 
Alta,  136  Fed.  519,  69  C.  C.  A.  289,  foreign-built  vessel  owned  by  citi- 
zen is  not  subject  to  tonnage  duty. 

17  Wall.  596-600,  21  L.  737,  SOHN  v.  WATERSON. 

Syl.  1   (VIII,   105).     Statutes   presumed  prospective. 

See  111  Am.  St.  Rep.  461,  note. 

Syl.  2   (VIII,  105).     Limitation  statutes  may  be  retroactive. 

Approved  in  Schauble  v.  Schulz,  137  Fed.  391,  69  C.  C.  A.  581, 
Rev.  Code  N.  D.  1899,  §  3491a,  validating  titles  held  by  adverse  pos- 
session, is  retroactive;  Herriek  v.  Boquillas  Land  etc.  Co.,  200  U.  S. 
102,  50  L.  391,  26  Sup.  Ct.  192,  ten  year  limitation  prescribed  by 
Ariz.  Rev.  St.  1901,  par.  2938,  for  actions  to  recover  lands  adversely 
held,  does  not  apply  to  action  brought  between  date  when  statute 
enacted  and  date  when  revision  of  statutes  took  effect;  Lamb  v. 
Powder  River  etc.  Co.,  132  Fed.  436,  438,  67  L.  R.  A.  558,  65  C.  C.  A. 
570,  holding  Colo.  Sess.  Laws  1895,  p.  239,  c.  106,  as  amended  in 
1899,  prescribing  limitation  of  actions  on  foreign  judgments,  is  void. 
See  111  Am.  St.  Rep.  455,  note. 

Syl.  4  (VIII,  106).     When  limitations  begin  to  run. 

Approved  in  Crothers  v.  Edison  Electric  Co.,  149  Fed.  607,  608,  609, 
under  amendment  of  1905,  40  Cal.  Code  Civ.  Proc,  §  350,  reducing 
limitations  for  actions  for  negligence,  as  to  causes  of  actions  previ- 
ously accrued,  but  not  barred  under  old  law,  new  period  ran  from 
taking  effect  of  amendment;  Keagy  v.  Wellington  National  Bank, 
12  Okl.  36,  69  Pac.  813,  statute  of  limitations  does  not  begin  to  run 
until  debtor  becomes  resident  of  territory;  Huber  v.  Zimmerman, 
8  Okl.  574,  58  Pac.  738,  holding  note  sued  on  not  barred;  Southgate  v. 
Frier,  8  Okl.  438,  57  Pac.  842,  effect  of  act  of  1893,  abolishing  lim- 
itation statute  of  1890,  was  to  renew  causes  of  action  which  had  not 
expired  before  new  statute  took  effect;  Richardson  v.  Mackay,  4  Okl. 
337,  46  Pac.  549,  where  cause  of  action  arose  in  another  state,  stat- 
Tite  of  limitations  does  not  begin  to  run  until  debtor  becomes  resi- 
dent of  territory. 

17  Wall.  604-609,  21  L.  721,  UNITED  STATES  v.  EOUTWELL. 

Syl.  2   (VIII,  108).     Mandamus  does  not  reach  office  of  respondent. 

Approved  in  New  Mexico  v.  Baker,  19G  U.  S.  440,  49  L.  543,  25  Sup. 
Ct.  375,  successor  in  office  of  territorial  judge  uuiy  be  substituted  in 


611  Notes  on   U.  S.  Eeports  17  Wall.  610-650 

place  of  predecessor  on  appeal  from  denial  of  mandamus  to  compel 
latter  to  take  jurisdiction  of  action;  State  v.  Board  of  State  Canvas- 
sers, 32  Mont.  16,  79  Pac.  403,  mandamus  to  compel  state  officers  to 
perform  duty  where,  prior  to  liearing,  term  of  office  expired  and  suc- 
cessors given  no  notice  of  proceedings;  Iloldermann  v.  Sciiane,  56  W. 
Va.  15,  48  S.  E.  514,  mandamus  awarded  against  mayor  and  council- 
men  to  compel  them  to  convene  as  canvassing  board  cannot  be  used 
against  successors. 

Syl.  6  (VIII,  109).  Abatement  of  mandamus  by  death  or  retirement 
of  officer. 

Approved  in  New  Mexico  v.  Baker,  196  U.  S.  442,  49  L.  544,  25 
Sup.  Ct.  375,  successor  in  office  of  territorial  judge  may  be  substituted 
in  place  of  predecessor  on  appeal  from  denial  of  mandamus  to  compel 
latter  to  take  jurisdiction  of  action;  State  v.  Board  of  State  Can- 
vassers, 32  Mont.  17,  79  Pac.  403,  dismissing  mandamus  to  compel  state 
officers  to  perform  official  duties  where  prior  to  hearing  terms  ex- 
pired and  demand  'not  made  on  successors  to  perform  duties. 

17   Wall.   610-624,   21   L.   731,   SAWYER   v.   HOAG. 

Syl.  1  (VIII,  110).     Bankruptcy  assignee  may  set  aside  conveyances. 

Approved  in  Commercial  Bank  v.  Warthen,  119  Ga.  994,  47  S.  E.  5.'?7, 
on  corporation's  bankruptcy,  right  of  corporation  to  sue  on  unpaid 
stock  subscriptions  passes  to  trustee. 

Syl.  2  (VIII,  111).     Corporation's  capital  stock  is  trust  fund. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776,  where 
corporation  conveyed  "paid-up"  shares  of  its  stock  at  trifle  less  than 
par  to  board  of  trade  in  exchange  of  building  site,  and  board  sold 
stock  at  cost,  purchasers  not  liable  to  further  assessments  on  corpora- 
tion's bankruptcy. 

Syl.  3  (VIII,  115).     Directors  cannot  release  stock  subscription. 

Approved  in  Vaughn  v.  Alabama  Nat.  Bank,  143  Ala.  576,  42  So.  64, 
stockholder  who  purchased  corporate  stock  at  less  than  par  is  liable 
to  corporation's  creditors  for  difference  between  purchase  price  and 
par;  Maryland  Trust  Co.  v.  National  Mech.  Bank,  102  Md.  627,  63  Atl. 
77,  trust  company  chartered  subject  to  Acts  1892,  p.  156,  c.  109,  §  85e, 
and  Const.,  art.  3,   §  39,  cannot  purchase   its  own  stock. 

17  Wall.   624-630,  21   L.   741,  KIBBE  v.  BENSON. 

Syl.  4   (VIII,   119).     Service  of  process  at  dwelling. 

Approved  in  Graham  v.  Loh,  32  Ind.  App.  187,  69  N.  E.  476,  in  action 
to  vacate  judgment  for  fraud  predicated  on  false  return  of  service  of 
summons,  neither  allegation  in  complaint  that  plaintiff's  name  forged 
on  note  sued  on  nor  long  delay  in  enforcing  judgment  show  fraud  in 
procurement    of    jurisdiction. 

Syl.  5   (VUl,  120).     Equity  sets  aside  default — Void  service. 
Cited  in  King  v.  Davis,   137   Fed.   228,  arguendo. 


17  Wall.  630-CG5  Notes  on  U.  S.  Keports.  612 

17  Wall.  630-639,  21  L.  717,  SMITHS  v.  SHOEMAKEE. 

Syl.  5   (VIII,  120).     No  reversal  for  harmless  error. 

Approved  in  Armour  v.  Eussell,  144  Fed.  615,  reversing  judgment 
for  servant  in  action  for  injuries  on  account  of  erroneous  instruction 
as  to  master's  duty  regarding  safety  of  tools  and  place  to  work; 
Seattle  Elec.  Co.  v.  Hartless,  144  Fed.  381,  under  Washington  statutes 
making  action  for  personal  injury  occasioning  death  survive  to  wife 
or  children,  evidence  as  to  physical  condition  of  widow  and  daughter 
is  inadmissible;  National  Biscuit  Co.  v.  Nolan,  138  Fed.  9,  70  C.  C. 
A.  436,  reversing  judgment  in  action  for  personal  injuries  where  plain- 
tiff permitted  to  testify  that  she  depended  on  herself  for  support; 
Union  Pac.  E.  Co.  v.  Field,  137  Fed.  18,  69  C.  C.  A.  536,  reversing 
judgment  on  account  of  prejudicial  remarks  of  counsel  in  argument. 

17  Wall.  639-648,  21  L.  661,  DANIEL  v.  WHAETENBY. 

Syl.  7  (VIII,  122).     Estates — "Issue"  depends  on  context. 

Approved  in  Yocum  v.  Parker,  134  Fed.  210,  67  C.  C.  A.  227,  under 
Eev.  St.  Mo.  1845,  c.  32,  §§  5,  6,  devise  to  son,  provided  if  he  did  die 
without  issue  lands  to  go  to  another,  gave  son  fee  simple  devestable  on 
his  dying  without  issue. 

Syl.  8  (VIII,  122).     Wills— Eule  in  Shelley's  Case. 

Approved  in  dissenting  opinion  in  Doyle  v.  Andis,  127  Iowa,  57,  102 
N.  W.  184,  69  L.  E.  A.  953,  majority  holding  deed  to  grantee  during 
his  natural  life  and  then  to  his  heirs  conveys  fee  simple  to  him. 

17  Wall.  648-651,  21  L.  774,  WALKEE  v.  STATE  HAEBOE  COM- 
MISSIONEES. 

Syl.  2    (VIII,  123).     Following  state  construction. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ey.  Co.,  144  Fed.  179, 
193,  determining  title  to  Oakland  waterfront. 

17  Wall.  657-665,  21  L.  745,  SIOUX  CITY  ETC.  EAILEOAD  CO.  v. 
STOUT. 
Syl.  2   (VIII,   125).     Care  required  of   child. 

Approved  in  Shellabcrger  v.  Fisher,  143  Fed.  940,  holding  owner  of 
apartment  building  liable  for  injuries  to  child  of  five,  caused  by 
operation  of  automatic  passenger  elevator;  Euhloff  v.  Fair  Haven  etc. 
E.  E.  Co.,  76  Conn.  693,  58  Atl.  7,  applying  rule  where  child  of  eight 
years  run  over  while  crossing  street-car  tracks;  Mattson  v.  Minnesota 
etc.  E.  E.  Co.,  95  Minn.  482,  111  Am.  St.  Eep.  487,  104  N.  W.  445, 
'70  L.  E.  A.  503,  holding  owner  of  dynamite  leaving  same  unguarded 
on  premises,  where  it  was  found  by  children  and  exploded,  liable  for 
injuries  caused;  Dubiver  v.  City  etc.  Ey.  Co.,  44  Or.  236,  74  Pac.  918, 
applying  rule  where  boy  of  fifteen  years  was  injured  in  collision  be- 
tween street-car  and  wagon  which  he  was  driving. 


613  Notes  on  U.  S,  Reports.  17  Wall.  657-665 

Syl.  3  (VIII,  126).     Eailroads — Care  required  toward  trespassers. 

Approved  in  Bucci  v.  Waterman,  25  R.  I.  127,  54  Atl.  1060,  allegation 
that  where  child  attempted  to  get  on  wagon  was  in  threatening  man- 
ner ordered  off  and  so  disconcerted  that  he  fell  off    is  sufficient. 

Syl.   7    (VIII,   128).     Negligence,   when   question   for   jury. 

Approved  in  Blackman  v.  Edsall,  17  Colo.  App.  437,  68  Pac.  792,  up- 
holding sufficiency  of  evidence  or  undue  influence  in  execution  of  will; 
Ft.  Wayne  Traction  Co.  v.  Hardendorf,  164  Ind.  410,  72  N.  E.  595, 
where  passenger  standing  on  running-board  of  street-car  was  injured 
by  being  struck  by  passing  car,  question  of  defendant's  negligence  in 
running  cars  so  close  together  is  for  jury;  Buehner  Chair  Co.  v.  Feul- 
ner,  164  Ind.  373,  73  N.  E.  817,  holding  question  of  contributory 
negligence  in  action  for  injuries  to  servant  is  for  jury;  Indianapolis 
St.  Ey.  Co.  V.  O'Donnell,  35  Ind.  App.  316,  73  N.  E.  164,  applying 
rule  where  plaintiff  injured  while  crossing  street-car  tracks;  Plainview 
V.  Mendelson,  65  Neb.  90,  90  N.  W.  957,  upholding  submission  of 
question  of  negligence  in  construction  of  sidewalk;  Neeley  v.  South- 
western etc.  Oil  Co.,  13  Okl.  371,  75  Pac.  542,  65  L.  R.  A.  145,  applying 
rule  in  action  against  master  for  personal  injuries  sustained  by 
servant. 

Syl.  8  (VIII,  132).  Eailroads— Injury  to  child  in  turntable. 
•  Approved  in  Chicago  etc.  R.  Co.  v.  Krayonbuhl,  65  Neb.  900,  91  N. 
W.  881,  59  L.  R.  A.  920,  following  rule;  Shellaberger  v.  Fisher,  143 
Fed.  939,  holding  owner  of  apartment  building  liable  for  injuries  to 
child  of  five,  caused  by  operation  of  automatic  passenger  elevator; 
York  V.  Pacific  etc.  Ey.  Co.,  8  Idaho,  585,  69  Pac^  1045,  upholding 
verdict  for  plaintiff  in  action  for  death  of  child  of  four  years  while 
playing  on  turntable;  Lopes  v.  Sahuque,  114  La.  1012,  38  So.  813, 
holding  where  child  injured  while  playing  on  defendant's  cart  left 
in  street,  there  can  be  no  recovery. 

Limited  in  Driscoll  v.  Clark,  32  Mont.  ISO,  181,  80  Pac.  2,  in  action 
for  injuries  to  child  while  playing  around  machinery,  allegation  that 
machinery    attracted    children    is    insufficient. 

Qualified  in  Walker  v.  Potomac  etc.  E.  Co.,  105  Va.  228.  229,  53  S. 
E.  113,  114,  holding  railroad  maintaining  unfastened  turntable  on 
premises  about  fifty  feet  from  public  grounds  not  liable  for  injuries 
to  trespassing  child  of  twelve  years. 

Distinguished  in  Seymour  v.  Union  Stockyards  Co.,  224  HI.  585,  79 
N.  E.  951,  where  child  attracted  to  right  of  way  by  clay  piled  along 
tracks,  and  while  playing  there  was  attracted  to  passing  train  and 
began  playing  alongside  of  cars,  railroad  not  liable  for  injuries;  Foster- 
Hel-bert  Stone  Co.  v.  Pugh,  115  Tenn.  698,  91  S.  W.  202,  stone  truck 
with  bed  below  axle  is  not  peculiarly  attractive  to  children  so  to  re- 
quire owner  to  exercise  greater  care  in  its  use  than  employment  of 
careful  driver. 


18  Wall.  5-50  Notes  on  U.  S.  Eeports.  614 

17  Wall.   666-G72,  21   L.   683,   THE   EMILY   SOUDER. 

Syl.  4  (VIII,  135).     Note  not  presumed  to  be  payment. 

Approved  in  The  Winnebago,  141  Fed.  951,  giving  of  notes  by  owner 
of  ship  under  construction  to  materialman  to  raise  funds  does  not 
deprive  latter  of  right  to  lien. 

Syl.  6   (VIII,  136).     Advances  to  captain  in  foreign  port. 

Approved  in  The  Worthington,  133  Fed.  725,  70  L.  E.  A.  353,  66  C. 
C.  A.  555,  one  loaning  funds  in  foreign  port  to  owner  of  vessel  to  be 
used  in  loading  her  is  entitled  to  lien;  The  Surprise,  129  Fed.  875,  64 
C.  C.  A.  309,  though  vessel  navigated  by  charterer,  who  is  to  make  all 
disbursements  and  protect  vessel  from  liens,  one  furnishing  wharfage 
and  supplies  in  foreign  port  on  order  of  master  acquires  lien. 

Syl.  7   (VIII,  136).     Presumptions  as  to  advances  in  foreign  port. 

Approved  in  The  City  of  Camden,  147  Fed.  848,  one  lending  money 
on  credit  of  vessel  to  enable  owner  to  pay  off  liens  thereon  given 
by  state  law,  and  which  is  so  used,  acquires  lien  of  equal  standing 
with  those  discharged;  The  Alcalde,  132  Fed.  78,  where,  while  ship 
at  port  of  discharge,  receiver  appointed  in  suit  between  owners,  but 
master  refused  to  surrender  her  until  wages  paid,  and  then  he  drew 
draft  and  paid  himself  and  crew  and  left  ship,  lender  not  entitled 
to    lien. 


•   XVIII  WALLACE. 


18  Wall.  5-50,  21  L.  787,  UNION  PACIFIC  RAILEOAD  CO.  v.  PENIS- 
TON. 

Syl.   1    (VIII,   139).     Limits   of   state   taxing   power. 

Approved  in  Union  Eefrigerator  Transit  Co.  v.  Kentucky,  199  U.  S. 
206,  50  L.  154,  26  Sup.  Ct.  36,  due  process  is  denied  Kentucky  cor- 
poration by  tax  assessed  under  Kentucky  statute  on  its  rolling  stock 
located  in  other  states. 

Syl.  7  (Vm,  140).     Exemption  of  federal  agencies  from  state  tax. 

Approved  in  Hibernia  Savings  etc.  Soc.  v.  San  Francisco,  200  U.  S. 
314,  50  L.  496,  26.  Sup.  Ct.  265,  United  States  Treasury  checks  for 
interest  on  government  bonds  are  taxable  by  state  in  hands  of  owner; 
Baltimore  Shipbuilding  etc.  Co.  v.  Baltimore,  195  U.  S.  382,  49  L.  245, 
25  Sup.  Ct.  50,  land  conveyed  by  government  to  corporation  for 
drydock  purposes  is  not  exempt  from  state  taxation  because  of 
reservation  of  right  to  free  use  of  dock;  Noble  v.  Amoretti,  11  Wyo. 
251,  71  Pac.  881.  upholding  state  tax  on  stock  of  goods  of  licensed 
Indian  trader  located  on  reservation. 


615  Notes  oa  U.  S.  Reports.  18  Wall.  57-^4 

18   Wall.   57-71,   21  L.   798,   WEBER   v.   BOARD   OF   HARBOR   COM- 
MISSIOXERS. 

Syl.  1  (VIII,  142).     Riparian  owner's  right  of  access. 

Approved  in  United  States  v.  Roth,  2  Alaska,  2G3,  one  entering 
shore  lands  between  high  and  low  water  mark  in  front  of  homestead 
entry  of  public  lands  is  trespasser;  Sutter  v.  Heckman,  1  Alaska,  91, 
granting  injunction  to  protect  owner  of  upland  in  right  of  ingress 
and  egress  between  land  and  sea  oter   tide   lands. 

Syl.  5  (VIII,  144).    Riparian  owner's  right  to  wharf  out. 

Approved  in  West  Chicago  St.  R.  R.  Co.  v.  Illinois,  201  U.  S.  524, 
50  L.  852,  26  Sup.  Ct.  518,  upholding  right  to  require  street  railway 
to  stand  expense  of  lowering  tunnel  constructed  by  it  under  river, 
which,  though  not  obstruction  to  navigation  when  constructed,  has 
become  such  by  increased  size  of  vessels  using  river;  Southern  Pac. 
Co.  V.  Western  Pac.  Ry.  Co.,  144  Fed.  199,  201,  determining  title  to 
Oakland  waterfront;  Sutter  v.  Heckman,  1  Alaska,  88,  granting  in- 
junction to  protect  owner  of  upland  in  right  of  ingress  and  egress  be- 
tween land  and  sea  over  tide  lands;  City  of  Providence  v.  Comstock, 
27  R.  I.  552,  65  Atl.  312,  title  to  land  along  original  shore  line  of  tide 
w^<iter,  together  with  title  to  filled  land  between  such  land  and  present 
nhore,  gives  owner  no  right  to  occupy  bed  of  stream  as  against  state. 

Syl.  4   (VIII,  143).     Title  to  tide  lands  on  admission  of  state. 

Approved  in  United  States  v.  Roth,  2  Alaska,  239,  one  entering  on 
shore  land  between  high  and  low  water  mark  in  front  of  homestead 
entry  of  public  lands  is  trespasser;  Alaska  Gold  Mining  Co.  v.  Bar- 
bridge,  1  Alaska,  316,  lands  lying  below  ordinary  high  tide  on  shore 
of  ocean  in  Alaska  are  not  subject  to  mining  location;  City  of  Provi- 
dence v.  Comstock,  27  R.  I.  543,  65  Atl.  308,  title  to  land  along  original 
shore  line  of  tide  waters,  together  with  title  to  filled  land  between 
such  land  and  present  shore,  docs  not  give  right  to  occupy  bed  of 
river  as  against  state. 

Syl.  10  (VIII.  145).     Limitations  do  not  run  against  state. 

Approved  in  Hagerman  v.  Territory,  11  N.  M.  160,  66  Pac.  526,  action 
brought  in  name  of  territory  for  delinquent  taxes  w-hich  are  property 
of  county  in  which  assessed  is  not  barred  by  general-limitation  statute. 

18  Wall.  71-84,  21  L.  771,  SUPERVISORS  v.  UNITED  STATES. 

Syl.  4  (VIII,  145).     Following  state  statutory  construction. 

Approved  in  York  v.  Washburn,  129  Fed.  569,  64  C.  C.  A.  132,  apply- 
ing rule  to  question  whether  oral  contract  for  lease  of  realty  for  more 
than  one  year,  not  complying  with  statute  of  frauds,  is  void  or  void- 
able. 

Syl.  6   (VIII,  146).     County  tax  levy  to  pay  judgnirnt. 
Appro\'cd  in   Atchison  etc.   11.  II.  (D.  v.  Territory,   11   X.  'SI.  67(5,  72 
Pae.    16,   court    may   ascLrLuin    wiitlbcr    ciaiui    wiiieh    is    basis   of   jud^- 


18  WaU.  112-141  Notes  on  U.  S.  Exports.  616 

ment  against  county  is  legally  payable  out  of  taxes  sought  to  be  so 
applied. 

18  Wall.  112-120,  21  L.  805,  BEST  v.  POLK. 

Syl.  3  (VIII,  148).    Patent  conveying  reserved  lands  is  void. 

Distinguished  in  Wallace  v.  Adams,  143  Fed.  722,  upholding  Act  of 
1902,  creating  citizenship  court,  empowered  to  review  final  judgments 
of  federal  courts  under  29  Stat.  339,  which  has  been  affirmed  by 
supreme  court. 

18  Wall.  120-1^5,  21  L.  821,  COFFIN  v.  OGDEN. 

Syl.  1  (VIII,  149).    Patent  infringement — Invention  as  defense. 

Approved  in  Eastern  Paper  Bag  Co.  v.  Continental  Paper  Bag  Co., 
142  Fed.  517,  upholding  Liddell  patent  No.  558,969,  for  paper-bag 
machine,  and  holding  it  infringed  by  Claussen  patent  No.  598,497. 

Syl.  2  (VIII,  150).    Patent  infringement — Burden  of  proof. 

Approved  in  Laas  v.  Scott,  145  Fed.  196  (affirmed  in  Scott  v.  Laas, 
150  Fed.  765),  judgment  for  complainant  in  District  of  Columbia 
supreme  court,  on  appeal  from  proceedings  in  patent  office,  creates 
presumption  of  priority  of  invention;  Koerner  v.  Deuther,  143  Fed. 
548,  holding  Koerner  patent  No.  392,735,  for  printers'  drying  rack,  not 
anticipated  and  infringed;  Merrimac  etc.  Mfg.  Co.  v.  Feldman,  133 
Fed.  67,  holding  Leighton  patent  No.  667,916,  for  inconvertible  couch 
bed,  void  for  anticipation. 

Syl.  3  (Vni,  151).  Patent  infringement — Prior  use  as  defense. 
■  Approved  in  United  Shoe  Mach.  Co.  v.  Greenman,  145  Fed.  541, 
though  one  having  embodied  invention  in  machine,  whose  use  was 
abandoned,  failed  to  describe  it  in  patent  granted  to  him,  so  that 
latter  was  inoperative,  attempt  to  obtain  patent  is  evidence  that  in- 
vention was  not  abandoned;  Daniel  v.  Eestein,  131  Fed.  47.3,  holding 
Miller  patent  No.  524,178,  for  packing,  void  for  anticipation. 

18  Wall.  125-129,  21  L.  812.  UNITED  STATES  v.  BUZZO. 

Syl.  2  (VIII,  151).    Failure  to  stamp— Intent. 

Approved  in  Territory  v.  Baca,  11  N.  M.  564,  566,  71  Pac.  462,  hold- 
ing erroneous  refusal  of  instructions  in  prosecution  for  assault  with 
intent  to  murder  that  if  defendant  cut  witness  without  intent  so  to 
do  he  is  not  guilty. 

18  Wall.  129-141,  21  L.  929,  BAETEMEYEE  v.  IOWA. 

Syl.  1  (VIII,  152).     Police  power — Eegulation  of  liquor  traffic. 

Approved  in  Meyer  v.  City  of  Mobile,  147  Fed.  845,  upholding 
ordinance  licensing  beer  dealers  as  applied  to  sale  of  beer  in.  bottles 
brought  from  other  states;  State  v.  Durein,  70  Kan.  29,  30,  80  Pac. 
992,  993,  upholding  constitutional  and  statutory  prohibition  against 
sale  of  liquor;  Harrell  v.  Speed,  113  Tenn.  230,  106  Am.  St.  Eep.  814, 
81  S.  W.  841,  oue  running  bar  on  boat  plying  between  Arkansas  and 


617  Notes  on  U.  S.  Reports.  18  Wall.  141-205 

Tennessee  is  subject  to  license  tax  imposed  by  Tennessee  statute  for 
running  bar  while  vessel  is  at  landing  in  Tennessee;  Webster  v.  State, 
110  Tenn.  505,  82  S.  W.  182,  upholding  statute  prohibiting  sale  of 
liquor  within  four  miles  of  institution  of  learning. 

Syl.  2  (VIII,  153).     Right  to  sell  liquor  not  privilege  of  citizenship. 

Approved  in  Jordan  v.  Evansville,  163  Ind.  515,  516,  517,  72  N.  E. 
545,  546,  67  L.  R.  A.  613,  upholding  Burns'  Ann.  St.  1901,  §  3927, 
giving  city  power  to  require  license  to  sell  liquor  within  four  miles  of 
corporate  limits;  State  v.  Frederickson,  101  Me.  46,  63  Atl.  539,  up- 
holding Rev.  St.,  c.  29,  §  40,  declaring  certain  beverages,  including 
cider,  when  kept  with  intent  to  sell  same  for  tippling  purposes,  to  be 
intoxicating;  Sandys  v.  Williams,  46  Or.  340,  80  Pac.  647,  upholding 
ordinance  prohibiting  sale  of  liquor  in  private  rooms. 

Syl.  4  (VIII,  154).     Questions  considered  on  writ  of  error. 

Approved  in  Cox  v.  Texas,  202  U.  S.  451,  50  L.  1101,  26  Sup.  Ct.  671, 
federal  question,  though  referred  to  in  assignments  of  errors  in  state 
appellate  court  and  in  supreme  court,  not  considered  an  error  where 
it  does  not  appear  that  state  court  considered  question. 

18  Wall.  141-151,  21  L.  824,  SYKES  v.  CHADWICK. 

Syl.  2  (VIII,  154).    Suit  by  wife  alone  respecting  dower  release. 

Approved  in  James  v.  Gray,  131  Fed.  406,  407,  65  C.  C.  A.  385,  loan 
by  wife  to  husband  from  separate  estate  is  pro\-able  as  debt  against 
his  bankrupt  estate  irrespective  of  its  enforceability  under  state  laws, 

18  Wall.  151-155,  21  L.  775,  BATESVILLE  INST.  v.  KAUFFMAN. 

Syl.  2  (VIII,  155).     Assignment  of  debt  carries  security. 

Approved  in  Kirkpatrick  v.  Eastern  M.  &  E.  Co.,  135  Fed.  149,  where 
person  executed  underwriting  agreement  with  corporation,  agreeing 
to  purchase  its  bonds,  he  to  receive  stock  as  bonus,  but  before  de- 
livery of  bonds  they  were  pledged  to  bank  together  with  assignment  of 
underwriting  agreement  but  stock  not  delivered,  bank  could  require 
receiver  to  turn  over  stock  to  it. 

18  Wall.  156-162,  21  L.  860,  DAY  v.  MICOU. 

Syl.  5  (VIII,  156).    Sale  of  confiscated  property  subject  to  mortgage. 

Approved  in  Middleton  v.  Moore,  43  Or.  362,  73  Pac.  17,  under  law 
in  force  in  1897-98,  tax  deed  did  not  cut  off  lien  of  mortgage  executed 
prior  to  assessment  and  levy  of  tax. 

18  Wall.  163-205,  21  L.  872,  EX  PARTE  LANGE. 

Syl.  1  (VIII,  156).  Habeas  corpus  to  determine  legality  of  im- 
prisonment. 

Approved  in  Jamison  v.  Wimbish,  130  Fed.  361,  granting  habeas 
corpus  where  petitioner  sentenced  by  police  judge  for  petty  municipal 
offense  to  seven  months  in  chain  gang;  Ex  parte  Harlan,  1  Okl.  50,  27 
Pac.  921,  habeas  corpus  does  not  lie  where  trial  court  had  jurisdiction 


18  Wall.  163-205  Notes  on  U.  S.  Reports.  618 

of  subject  matter  of  indictment  and  of  person  of  accused  to  determine 
sufficiency  of  indictment  to  charge  offense. 

Distinguished  in  Whitney  v.  Dick,  202  U.  S.  138,  50  L.  965,  26  Sup.  Ct. 
584,  circuit  court  of  appeals  cannot  issue  certiorari  to  review  convic- 
tion in  inferior  federal  court  where  only  question  is  whether  punish- 
ment of  offense  is  within  federal  jurisdiction;  Ex  parte  Gfeller,  178 
Mo.  266,  77  S.  W.  557,  in  proceeding  for  discovery  of  assets  of  estate 
of  decedent,  deposition  may  be  taken. 

Syl.  6   (VIII,   160).     Double  jeopardy  prohibited. 

Approved  in  Kepner  v.  United  States,  195  U.  S.  126,  49  L.  123,  24 
Sup.  Ct.  797,  32  Stat.  691,  c.  1369,  §  5,  relating  to  double  jeopardy, 
prohibits  right  of  government  to  appeal  from  judgment  of  acquittal  in 
court  of  first  instance  in  Philippines. 

Distinguished  in  In  re  McClaskey,  2  Okl.  576,  577,  37  Pae.  857,  where 
defendant  is  convicted  and  judgment  pronounced  and  he  is  put  in 
penitentiary  and  subsequently  remanded  to  trial  court  on  ground  of 
lack  of  jurisdiction,  he  was  not  in  jeopardy. 

Syl.  7  (VIII,  100).     Former  jeopardy  good  defense  to  prosecution. 

Approved  in  dissenting  opinion  in  Kepner  v.  United  States,  195  CJ. 
S.  134,  49  L.  126,  24  Sup.  Ct.  797,  majority  holding  32  Stat.  691,  c.  13o9, 
§  5,  relating  to  double  jeopardy,  prohibits  government  from  appealing 
from  judgment  of  acquittal  in  court  of  first  instance  in  Philippines. 

Syl.  8  (VIII,  161).     Erroneous  judgment  not  void. 

Approved  in  McVeigh  v.  Ripley,  77  Conn.  141,  58  Atl.  703,  where 
statute  punished  horse-stealing  by  imprisonment  and  theft  of  prop- 
erty less  than  $15  in  value  by  fine  of  not  more  than  $7,  justice  fining 
one  $5  for  stealing  $10  horse  and  committing  him  till  fine  paid  is  not 
liable  for  false  imprisonment;  dissenting  opinion  in  Kepner  v.  United 
States,  195  U.  S.  135,  49  L.  127,  24  Sup.  Ct.  797,  majority  holding  32 
Stat.  691,  c.  1369,  §  5,  relating  to  double  jeopardy,  prohibits  appeal  by 
government  from  acquittal  in  Philippine  court  of  first  instance. 

Syl.  11  (VIII,  162).  Erroneous  judgment  not  validated  by  jurisdic- 
tion. 

Approved  in  In  re  Patzwald,  5  Okl.  794,  50  Pac.  141,  upholding 
right  to  inquire  into  jurisdiction  of  court  on  whole  review  by  habeas 
corpus. 

Syl.  12   (VIII,  162).     Judgment  without  jurisdiction  is  void. 

Approved  in  Ex  parte  Robinson,  144  Fed.  836,  where  circuit  court 
had  no  jurisdiction  over  subject  matter  of  suit,  its  adjudication  that 
party  was  in  contempt  for  violating  injunction  issued  therein  is  void; 
C.  C.  Taft  Co.  V.  Century  Sav.  Bank,  141  Fed.  371,  omission  in  petition 
in  involuntary  bankruptcy  of  allegation  that  defendant  owes  debts  to 
amount  of  over  $1,000  is  jurisdictional;  Banking  House  of  A.  Castetter 
v.  Dukes,  70  Neb.  653,  97  N.  W.  807,  where  record  shows  all  steps  by 


619  Notes  on  U.  S.  Reports.  18  Wall.  20G-232 

wliicli  court  of  general  jurisdiction  acquired  jurisdiction,  and  they 
show  on  face  lack  of  jurisdiction,  judgment  is  collaterally  attackable. 
Distinguished  in  Spriggs  v.  Commonwealth,  113  Ky.  733,  68  S.  W. 
1089,  erroneous  instructions,  though  sufficient  to  entitle  defendant  to 
new  trial,  do  not  entitle  him  to  discharge  from  custody, 

Syl.  13   (VIII,  162).     Satisfaction  of  alternate  punishment. 

Approved  in  Ex  parte  Peeke,  144  Fed.  1017,  where  petitioner  was 
convicted  on  five  counts,  each  charging  separate  offense,  and  was 
sentenced  to  five  years,  and  maximum  punishment  was  two  years, 
sentence  Avas  void  as  to  excess  over  two  years;  In  re  McNeil,  68  Kan. 
oG7,  74  Pac.  1110,  where  statute  fixes  punishment  at  fine  or  imprison- 
ment, one  sentenced  to  jail  and  to  pay  fine  and  to  stand  committed  till 
fine  paid  is  entitled  to  discharge  on  payment  of  fine. 

Distinguished  in  Clevengcr  v.  Figley,  68  Kan.  707,  75  Pac.  1004, 
Judgment,  in  action  to  foreclose  mortgage  given  by  land  owner  jointly 
with  guardian  of  insane,  determining  existence  of  homestead  at  time 
mortgage  executed  is  not  collaterally  attackable. 

Syl.  14  (Vlir,  162).     Service  of  sentence  under  void  judgment. 
See  111  Am.  St.  Eep.  949,  note. 

18  Wall.  206-232,  21  L.  888,  THE  DELAWARE  RAILROAD  TAX. 

Syl.  4   (VIII,   163).     Tax  exemption  must  clearly  appear. 

Approved  in  American  Smelting  etc.  Co.  v.  People,  34  Colo.  254,  82 
Pac.  536,  acts  of  1897  and  1901,  requiring  foreign  corporations  to  pay 
filing  fee  as  condition  precedent  to  doing  business  in  state,  dors  not 
exempt  from  further  taxation;  dissenting  opinion  in  Blair  v.  Chicago, 
201  U.  S.  498,  50  L.  842,  26  Sup.  Ct.  427,  majority  holding  right  to  use 
Chicago  streets  was  not  extended  for  ninety-nine  years,  without  refer- 
ence to  time  limit  fixed  by  city,  by  Illinois  Act  of  February  6,  18G5. 

Syl.  8   (VIII,  166).     State  taxing  power  not  extraterritorial. 

Approved  in  St.  Louis  etc.  Ry.  Co.  v.  Davis,  132  Fed.  634,  denying 
federal  jurisdiction  w-liere  state  board  assessed  property  of  railroad 
at  higher  percentage  of  actual  value  than  property  of  other  classes  is 
assessed. 

Syl.  12  (VIII,  167).    Basis  of  assessment  and  tax  rate  discretionary. 

Approved  in  Michigan  R.  R.  Tax  Cases,  138  Fed.  234,  upholding 
Mich.  Pub.  Acts  1901,  p.  236,  providing  for  taxation  of  railroad  prop- 
erty by  state  assessors  by  ascertaining  average  rate  of  taxation  of 
other  property  by  means  of  reports  of  local  taxing  bodies;  Kersey  v. 
Terre  Haute,  161  Ind.  474,  68  N.  E.  1029,  upholding  city  ordinance 
taxing  vehicles  using  streets  but  omitting  street-cars,  automobiles  and 
vehicles  of  nonresidents. 

Syl.  13  (VIII,  167).     Corporate  tax  on  basis  of  capital  stock. 
Approved  in  State  v.   Canadian   Pac.  Ry.  Co.,  100  Me.   207,  60  Atl. 
903,  upholding  Rev.  St.  1883,  c.  6,  §  42,  as  amended  in  1901,  imposing 


18  Wall.  233-254  Notes  on  U.  S.  Reports.  G20 

excise  tax  on  railroads  based  on  average  gross  receipts  per  mile  of  road 
operated;  Chicago  etc.  R.  Co.  v.  State,  128  Wis.  590,  108  N.  W.  562, 
upholding  Wis.  Laws  1903,  c.  315,  p.  491,  relating  to  taxation  of  rail- 
roads on  unit  system. 

Syl.  14  (VIII,  167).  Railroad  tax  based  on  capital  stock — Fran- 
chise. 

Approved  in  People  v.  Reardon,  184  N.  Y.  455,  112  Am.  St.  Rep. 
644,  77  N.  E.  978,  upholding  Laws  1905,  pp.  474,  477,  c.  241,  §§  315, 
324,  imposing  tax  on  transfers  of  corporate   stock. 

18  Wall.  233-236,  21  L.  902,  CHICAGO  CITY  RAILWAY  CO.  v.  AL- 
LERTON. 

Syl.  2  (VIII,  169).  Corporations — Stockholders  alone  can  increase 
capital. 

Distinguished  in  Burnes  v.  Burnes,  132  Fed.  497,  solvent  corporation 
which  accepted  transfer  of  its  own  stock  under  its  agreement  to  pay 
annuity  to  former  owners  and  received  dividends  thereon  cannot  avoid 
contract  as  ultra  vires. 

Syl.  4  (VIII,  169).  Consent  of  stockholders  necessary  to  change 
purpose.     See  103  Am.  St.  Rep.  559,  note. 

18  Wall.  237-254,  21  L.  827,  MERCANTILE  MUTUAL  INSURANCE 
CO.  V.  FOLSOM. 

Syl.  1  (VIII,  170).     Findings  on  waiver  of  jury. 

Approved  in  Paul  v.  Delaware  etc.  R.  Co.,  130  Fed.  952,  following 
rule. 

Syl.  3   (VIII,  171).     Finding  of  court  equivalent  of  special  verdict. 

Approved  in  Paul  v.  Delaware  etc.  R.  Co.,  130  Fed.  956,  following 
rule. 

Syl.  4   (VIII,  171).     Review  of  general  findings  of  court. 

Approved  in  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  126,  128, 
66  C.  C.  A.  190,  and  Paul  v.  Delaware  etc.  R.  Co.,  130  Fed.  953,  954, 
956,  both  following  rule;  West  v.  Houston  Oil  Co.,  136  Fed.  350,  69  C. 
C.  A.  169,  applying  rule  in  trespass  to  try  title. 

Syl.  6  (VIII,  171).     Nonsuit  in  federal  court — Exceptions. 

Approved  in  Paul  v.  Delaware  etc.  R.  Co.,  130  Fed.  955,  following 
rule;  United  States  Fidelity  etc.  Co.  v.  Board  of  Commrs.,  145  Fed. 
151,  refusing  to  review  judgment  in  action  on  fidelity  bond  tried  with- 
out jury. 

Syl.  8  (VIII,  171).     Scope  of  review  of  court's  special  findings. 

Approved  in  Paul  v.  Delaware  etc.  R.  Co.,  130  Fed.  956,  following 
rule;  Jones  v.  United  States,  135  Fed.  519,  68  C.  C.  A.  68,  making  of 
special  findings  by  federal  court  on  waiver  of  jury  is  governed  by 
Rev.  St.,  §§  G4iJ,  700,  and  not  by  state  statutes. 


621  Notes  on  U.  S.  Reports.  18  Wall.  255-317 

18  Wall.  255-272,  21  L.  835,  HENSHAW  v.  BISSELL. 

Syl.  5  (VIII,  172).     Priority  between  floating  grants. 

Approved  in  Catron  v.  Laughlin,  11  -N.  M.  633,  72  Pac.  32,  where 
surveyor  general  of  New  Mexico  declared  Mexican  grant  good  and  valid 
and  recommended  it  to  Congress  for  confirmation  without  limitation  as 
to  quantity,  congressional  confirmation  adjudicates  validity  of  title 
for  all  land  claimed. 

Syl.  9  (VIII,  173),  Limitations  during  land  confirmation  proceed- 
ings. 

Approved  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  136  Fed.  128,  69 
C.  C.  A.  548,  there  is  no  disseisin  sufficient  to  start  operation  of 
limitations  as  against  locator  of  mining  claim  prior  to  issuance  of 
patent. 

Syl.  10  (VIII,  173).     Doctrine  of  equitable  estoppel. 

Approved  in  Wiser  v.  Lawlcr,  7  Ariz.  191,  62  Pac.  703,  holding  de- 
fendants not  estopped  to  assert  title  to  mine  contracted  to  be  sold 
under  agreement  reserving  title  till  full  payment. 

Distinguished  in  dissenting  opinion  in  Grice  v.  Woodworth,  10 
Idaho,  474,  109  Am.  St.  Rep.  214,  80  Pac.  917,  69  L.  R.  A.  584,  majority 
holding  where  husband  and  wife  entered  into  oral  contract  for  sale 
of  homestead  and  purchaser  took  possession,  paid  price  and  made  im- 
provements with  knovvicdge  and  consent  of  wife,  they  must  execute 
conveyance. 

18  Wall.  272-307,  21  L.  841,  ATKINS  v.  THE  DISINTEGRATING  CO. 

Syl.  3  (VIII,  175).     Statutory  construction — Pari  materia — Context. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591,  clerks 
of  territorial  district  courts  must  account  to  secretary  of  treasury  for 
all  fees  earned  by  them  as  such  clerks. 

18  W^aU.  307-317,  21  L.  759,  LAMB  v.  DAVENPORT. 

Syl.  2  (VIII,  170).     Sale  of  settler's  possessory  rights. 

Approved  in  Coleman  v.  Territory,  5  Okl.  204,  47  Pac.  1080,  it  is 
forgery  to  procure  another  to  make  and  counterfeit  order  to  register 
of  land  office  to  dismiss  pending  land  contest;  Tecumseh  State  Bk.  v. 
Maddox,  4  Okl.  594,  46  Pac.  567,  relinquishment  of  preferential  right 
to  entry  on  public  lands  and  agreement  to  sell  personaltj^  thereon  are 
good  consideration  for  assignment  of  moneys;  City  of  Guthrie  v. 
JJeamer,  3  Okl.  662,  41  Pac.  650,  where  survey  and  plat  for  townsite 
made  and  adopted  by  inhabitants  prioc  to  townsite  act  of  1890,  and 
afterward  Secretary  of  Interior  adopted  plat,  individual  claims  to 
streets  and  alleys  were  devested;  McKennon  v.  Winn,  1  Okl.  335,  33 
Pac.  585,  22  L.  R.  A,  501,  enforcing  specific  performance  of  agreement 
whereby  townsite  claimant  agreed  to  acquire  title  to  townsite  lot  for 
joint  benefit  of  himself  and  plaintiff  in  consideration  of  latter  paying 
for  fences  and  house;   Waring  v.  Loomis,  35   Wash.  90,  76  Pac.  512, 


18  Wall.  317-342  Notes  on  U.  S.  Eeports.  G22 

contract  between  joint  occupiers  of  government  land  with  intent  to 
acquire  title  thereto,  stipulating  for  payment  of  sum  by  one  to  an- 
other as  part  of  expense  of  erecting  dwelling,  and  providing  that  one 
shall  occupy  dwelling  and  acquire  title  for  other  to  extent  of  his 
interest,  is  based  upon  good  considerations. 

18  Wall.  317-322,  21  L.  784.    SNOW  v.  UNITED  STATES. 

Syl.  2  (VIII,  177).     Organic  act  rules  territories. 

Approved  in  Ex  parte  Haly,  1  Okl.  14,  25  Pac.  515,  under  Organic 
Act,  §  10,  United  States  commissioner  may  commit  one  charged  with 
assault  to  custody  of  marshal. 

18  Wall.  322-331,  21  L.  763,  WESTEAY  v.  UNITED  STATES. 

Syl.  1  (VIII,  177).     Notice  of  liquidation  of  duties  unnecessary. 

Approved  in  Kahn  v.  Herold,  147  Fed.  580,  where,  at  time  executors 
paid  inheritance  tax  on  life  estate  under  protest,  they  did  not  know 
life  tenant  had  died,  payment  was  not  voluntary. 

18  Wall.  332-342,  21  L.  933,  COOK  v.  TULLIS. 

Syl.  1  (VIII,  178).  Eatification  of  agent's  act  equivalent  to  author- 
ity. 

Approved  in  Stickley  v.  Widle,  122  Iowa,  402,  98  N.  W.  13G,  where 
wife  fails  to  ratify  husband's  oral  contract  for  sale  of  homestead  until 
after  its  abandonment  and  after  its  attachment  by  husband's  creditors, 
her  ratification  does  not  prejudice  creditors. 

Syl.  2  (VIII,  179).  Bankruptcy — Fair  exchange  of  values  by  in- 
solvent. 

Approved  in  Tomlinson  v.  Bank  of  Lexington,  145  Fed.  828,  where 
manufacturing  concern  made  overdrafts  under  agreement,  whereby 
subsequent  deposits  applied  in  payment  thereof,  deposits  so  made  and 
applied  in  payment  of  overdrafts  made  in  due  course  of  business  are 
not  preferences. 

Syl.  4  (VIII,  180).    Bankruptcy  trustee's  title  subject  to  claims. 

Approved  in  Smith  v.  Au  Gres  Twp.,  150  Fed.  264,  witness  may 
testify,  after  death  of  bankrupt,  to  admissions  made  by  bankrupt 
concerning  his  estate  while  he  was  yet  owner  thereof;  Page  Co.  v. 
Eose,  130  Iowa,  299,  106  N.  W.  745,  where  county  treasurer  deposited 
tax  receipts  with  bank  for  collection  and  bank  collected  same  and 
credited  same  to  treasurer  in  representative  capacity,  county  was  en- 
titled to  preference  on  bank's  "insolvency. 

Distinguished  in  Kimmel  v.  Bean,  68  Kan.  603,  75  Pac.  1120,  64  L. 
E.  A.  785,  bank  receiving  from  agent  for  deposit  in  own  name  money 
of  principal,  without  notice  of  agency,  may  apply  deposit  to  over- 
draft. 


623  Notes  on  U.  S.  Reports.  18  Wall.  350-375 

Syl.  5  (VIII,  181).     Following  trust  funds. 

Approved  in  Smith  v.  Au  Gres  Twp.,  150  Fed.  265,  where  bankrupt, 
who  was  township  trustee,  used  township  money  to  buy  goods  for  sale 
in  his  business  and  mingled  them  with  other  goods,  township  had 
equitable  lien  on  proceeds  of  sale  of  stock  by  bankrupt's  trustee  for 
amount  appropriated;  United  States  v.  Thurston  Co.,  143  Fed.  290, 
proceeds  of  sales  of  lands  allotted  to  Indians  by  Indian  heirs  of 
allottees  under  32  Stat.  245,  c.  888,  §  7,  which  have  been  deposited  in 
bank  to  credit  of  heirs,  are  exempt  from  state  taxation. 

18  Wall.  350-375,  21  L.  959,  GALPIN  v.  PAGE. 

Syl.  2  (VIII,  183).  Presumptions  in  favor  of  jurisdiction. 
Approved  in  Woodworth  v.  McKee,  126  Iowa,  716,  102  N.  W.  777, 
where  certificate  to  judgment  record  of  sister  state  court  shows  court 
was  court  of  record,  mere  denial  of  its  jurisdiction  does  not  cast 
burden  of  proving  its  existence  on  one  relying  on  judgment;  Russell  v. 
Houston,  115  Tenn.  541,  91  S.  W.  194,  where  papers  in  case  have  dis 
appeared  from  clerk's  office  and  cannot  be  found,  final  decree  and 
entries  on  docket  are  admissible  to  show  former  adjudication;  Clark 
T.  Eltinge,  38  Wash.  381,  107  Am.  St.  Rep.  858,  80  Pac.  558,  whether 
record  of  foreign  judgment  is  properly  authenticated  is  for  trial  court. 

Syl.  3  (VIII,  183).  Presumptions  as  to  jurisdiction  of  superior 
courts.  . 

Approved  in  Johnson  v.  Hunter,  147  Fed.  137,  139,  under  Arkansas 
Laws,  1895,  p.  88,  for  enforcement  of  payment  of  levee  taxes,  affi- 
davit that  defendant,  proceeded  against  as  unknown  owner,  is  non- 
resident of  county  and  absent  therefrom  and  that  land  is  unoccupied 
is  prerequisite  to  service  by  publication;  Alaska  Commercial  Co.  v. 
Debney,  2  Alaska,  319,  under  statutes  of  Yukon  Territory  providing 
for  service  on  agent  where  defendant  is  out  of  territory,  where  de- 
fendant gave  brother  power  of  attorney  to  transact  his  business, 
service  on  brother  while  he  was  not  transacting  any  business  for  de- 
fendant is  void;  Gulling  v.  Washoe  Co.  Bank,  28  Xev.  488,  82  Pac.  802, 
answer  directed  against  complainant,  but  which  seeks  affirmative  relief 
against  codefendant,  raises  no  issue  as  to  latter  where  it  is  not  served 
on  him,  and  he  does  not  answer  or  demur,  and  judgment  granting 
affirmative  relief  is  not  res  adjudicata  as  against  codefendant;  Turner 
V.  Barraud,  102  Va.  329,  331,  46  S.  E.  319,  321,  where  only  mention  of 
one  infant  defendant,  as  shown  by  record,  is  in  bill  and  in  caption  of 
answer  of  guardian  appointed  for  other  infant  defendants,  whose  in- 
terests are  adverse  to  former,  use  of  words  "infant  defendants"  in 
decree  is  not  treatment  of  former  as  party  to  suit. 

Distinguished  in  Taylor  v.  Huntington,  34  Wash.  459,  75  Pac.  1105, 
court  of  general  jurisdiction  foreclosing  tax  lien  cannot  be  vacated 
on  ground  that  affidavit  for  publication  of  notice  was  defective,  and 
it  did  not  appear  that  holder  of  delinquency  certificate  had  paid  ac- 
crued   taxes. 


18  Wall.  350-375  Notes  on  U.  S.  Eeports.  624 

Syl.  4  (VIII,  184).  Scope  of  presumption  as  to  jurisdiction  of  su- 
perior court. 

Approved  in  First  National  Bank  v.  Eastman,  144  Cal.  491,  103  Am. 
St.  Rep.  95,  77  Pac.  1045,  judgment  on  personal  service  outside  state 
on  nonresident  pursuant  to  Code  Civ.  Proc,  §  413,  is  void  except  as  to 
disposition  of  property  seized  thereunder;  Comesky  v.  Suffern,  179  N. 
Y.  398,  72  N.  E.  322,  where  claimant  petitioned  court  to  appoint  com- 
missioners to  award  damages  for  change  of  street  grade,  and  answer 
denied  all  facts  except  village's  jurisdiction  over  street  and  alleged 
waiver  of  claim  by  petitioner,  award  made  without  opportunity  to 
village  to  prove  issues  raised  by  answer  is  void. 

Syl.  6   (VIII,   186).     Statutes  authorizing   constructive   service. 

Approved  in  Cohen  v.  Portland  Lodge  of  Elks,  144  Fed.  269,  up- 
holding sufficiency  of  affidavit  for  publication  of  summons  in  action 
to  foreclose  mortgage;  Clay  v.  Bilby,  72  Ark.  108,  78  S.  W.  751,  in 
proceedings  for  sale  under  overdue  tax  act  of  1881,  affidavit  of  pub- 
lication of  warning  order  not  insufficient  on  collateral  attack  for  fail- 
ure of  affiant  to  state  that  he  was  publisher,  that  paper  published  in 
county  or  that  it  had  bona  fide  circulation  in  county  for  one  month 
prior  to  first  publication;  Kerns  v.  McAulay,  8  Idaho,  565,  69  Pac. 
540,  where  service  of  summons  on  nonresident  is  made  by  publication 
and  his  property  within  state  is  attached,  and  personal  judgment  there- 
after entered,  judgment  is  valid   as   against  property   attached. 

Distinguished  in  McHatton  v.  Rhodes,  143  Cal.  280,  101  Am.  St.  Rep. 
125,  76  Pac.  1038,  presumption  is  in  favor  of  jurisdiction  of  court  of 
general  jurisdiction  to  render  judgment  where  service  had  by  publica- 
tion. 

Syl.  7  (VIII,   187).     Records  must  show  special  jurisdictional  facts. 

Approved  in  dissenting  opinion  in  Clay  v.  Bilby,  72  Ark.  115,  78 
S.  W.  754,  majority  holding  in  proceedings  for  sale  of  land  under 
overdue  tax  act  of  1881,  affidavit  of  publication  of  warning  order  not 
insufficient  on  collateral  attack  for  failure  of  affiant  to  state  that  he 
was  publisher  of  paper,  that  it  was  published  in  county  and  that  it  had 
bona  fide  circulation  therein  for  one  month  prior  to  first  publication; 
dissenting  opinion  in  Indiana  Trust  Co.  v.  Byram,  36  Ind.  App.  25,  72 
N.  E.  677,  majority  holding  that  where  decedent  had  been  claimant's 
agent  to  make  investments  and  take  notes,  and  on  decedent  "s  death 
note  found  payable  to  claimant  with  indorsements  of  payments  on  it, 
and  claimant  had  no  knowledge  of  it,  presumption  that  decedent  held 
note  as  agent. 

Distinguished  in  Taylor  v.  Huntington,  34  "Wash.  458,  75  Pac.  1105, 
judgment  of  court  of  general  jurisdiction  foreclosing  tax  lien  cannot  be 
vacated  on  ground  that  affida^'it  for  publication  of  notice  was  defective 
and  it  did  not  appear  that  holder  of  delinquency  certificate  had  paid 
accrued  taxes. 


625  Notes  on    U.  S.  Reports.  18  Wall.  375-413 

18   Wall.   375-391,   21  L.   868,   TIFFANY  v.  BOATMAN'S  INSTITU- 
TION. 

Syl.  9  (VIII,  190).     Bankruptcy— Bona  fide  mortgage. 

Approved  in  In  re  Clifford,  136  Fed.  477,  under  Comp.  St.  1901,  p. 
3449,  recording  of  mortgage  given  for  present  consideration  prior  to 
commencement  of  bankruptcy  proceedings  is  sufficient;  Crim  v.  Wood- 
ford, 136  Fed.  41,  68  C.  C.  A.  584,  liens  given  by  insolvent  within  four 
months  prior  to  bankruptcy  to  secure  present  loans,  valid  under  state 
laws,  are  not  preferences,  though  lender  knew  borrower  had  over- 
draft; In  re  Pease,  129  Fed.  448,  where  trust  company,  through  its 
attorney,  who  also  represented  other  creditors,  made  loan  to  insolvent 
merchant  secured  by  mortgage  on  goods,  with  which  certain  creditors, 
including  clients,  paid  in  full,  and  company  sold  out  stock  on  next 
day  under  mortgage,  mortgage  was  illegal  preference. 

Syl.    10    (VIII,   190).     Bankruptcy — Advances   to    debtor. 

Distinguished  in  In  re  Moody,  134  Fed.  633,  where  bankrupt  mer- 
chant sold  stock  to  firm  in  exchange  for  farm  taken  in  wife's  name 
and  for  further  consideration  of  payment  of  debt  due  to  bank,  of 
which  partners  were  officers,  transfer  was  illegal  preference;  In  re 
Pease,  129  Fed.  451,  452,  where  trust  company,  through  its  attorney, 
who  also  represented  other  creditors,  made  loan  to  insolvent  merchant 
secured  by  mortgagee  on  goods,  with  which  certain  creditors,  includ- 
ing clients,  paid  in  full,  and  company  on  next  day  sold  stock  under 
mortgage,  mortgage  was  illegal  preference. 

(VIII,  J89.)  Miscellaneous.  Cited  in  In  re  Stern,  144  Fed.  958, 
defense  of  usury  is  available  to  debtor's  trustee  in  bankruptcy. 

18  Wall.  391-409,  21  L.  944,  TRASK  v.  MAGUIRE. 

Syl.  6  (VIII,  191).     Prohibition  against  tax  immunities. 

Approved  in  Lake  Drummond  Canal  Co.  v.  Commonwealth,  103  Va. 
355,  49  S.  E.  512,  corporation  created  under  Code  1887,  §  1234,  on 
purchase  of  property  of  another  corporation  on  foreclosure,  cannot 
claim  tax  immunity  granted  to  original  corporation  prior  to  con- 
stitution. 

18  Wall.  409-413,  21  L.  862,  TIFFANY  v.  BANK  OF  MISSOURI. 

Syl.  2  (VIII,  192).     Statute  penalizing  usurious  interest. 

Approved  in  Keppel  v.  Tiffin  Sav.  Bank,  197  U.  S.  362,  49  L.  792, 
25  Sup.  Ct.  443,  creditor  of  bankrupt  who  has  in  good  faith  received 
preference,  voidable  solely  because  given  within  four  months,  and  has 
retained  it  until  deprived  of  it  by  order  of  court,  may  prove  his  debt; 
In  re  Worth,  130  Fed.  930,  under  Iowa  Code,  1897,  §  3041,  making 
usurious  contracts  voidable  only  to  extent  of  usurious  interest,  cred- 
itors of  bankrupt  cannot  plead  usury  against  claim  of  another  creditor. 
40 


18  Wall.  436-471  Notes  on  U.  S.  Eeports.  62e 

18  Wall.  436-457,  21  L.  779,  LUCAS  v.  BKOOKS. 

Syl.  1   (VIII,  194).     Tenant  estopped  to  deny  landlord's  title. 

Approved  in  Bullard  v.  Hudson,  125  Ga.  397,  54  S.  E.  134,  where 
possessor  of  premises  agrees  to  pay  party  rent  for  them,  he  cannot  set 
up  title  adverse  to  landlord,  even  after  expiration  of  term,  without  first 
surrendering  premises;  Hodges  v.  Waters,  124  Ga.  233,  110  Am.  St.  Rep. 
167,  52  S.  E.  163,  1  L.  R.  A.  (N.  S.)  1181,  where  tenant  in  pos.session 
agreed  to  pay  rent  to  another  than  his  landlord  for  given  time,  no  promise 
to  pay  rent  after  expiration  is  implied  though  he  remain  in  possession ; 
Hagar  v.  Wikoff,  2  Okl.  585,  39  Pac.  282,  applying  rule  where  wife 
rented  townsite  lot  and  husband  resided  there  with  her. 

Syl.  9   (VIII,  195).     Objections  to  instructions  must  be  specific. 

Distinguished  in  Rhea  v.  United  States,  6  Okl.  257,  50  Pac.  994,  up- 
holding sufficiency  of  exception  to  separate  instructions  where  record 
shows  that  to  giving  of  each  and  every  and  all  of  said  instructions  de- 
fendant excepted  separately  at  the  time. 

Syl.  11    (VIII,  195).     Wife's  lease  inuring  to  husband's  benefit. 
Approved  in  Hagar  v.  Wikoff,  2  Okl.  586,  39  Pac.  283,  applying  rule 
where  wife  rented  townsite  lot  and  husband  resided  there  with  her. 

18  WaW.  457-471,  21  L.  897,  THOMPSON  v.  WHITMAN. 

Syl.  1  (VIII,  195).     Foreign  judgment — Full  faith  and  credit. 

Approved  in  National  Exchange  Bank  v.  Wiley,  195  U.  S.  269,  270, 
49  L.  190,  25  Sup.  Ct.  70,  judgment  taken  under  warrant  of  attorney, 
annexed  to  note  authorizing  confession'  of  judgment  in  favor  of  holder, 
is  collaterally  attackable  in  suit  in  another  state  on  ground  that  one  in 
whose  favor  it  was  rendered  was  not  holder  because  he  was  not  real 
owner  of  note. 

Syl.  5  (VIII,  197).     Conclusiveness  of  foreign  judgment — Recitals. 

Approved  in  Cooper  v.  Brazelton,  135  Fed.  479,  68  C.  C.  A.  188,  pres- 
ident of  bank  to  which  borrowing  members  of  foreign  building  associa- 
tion paid  dues  to  be  forwarded  to  home  office  was  not,  after  bank  ceased 
to  do  business  for  it,  agent  of  association  for  purpose  of  service  of 
process;  In  re  Gulp,  2  Cal.  App.  81,  83  Pac.  94,  under  Code  Civ.  Proc, 
§§  1915,  1916,  personal  judgment  of  another  state  is  collaterally  attack- 
aide  on  ground  of  lack  of  jurisdiction  though  judgment  recites  due  no- 
tice; Watkinson  v.  Watkinson,  67  N.  J.  Eq.  155,  58  Atl.  389,  defend- 
ant in  divorce  decree  may  set  aside  decree,  where  neither  spouse  had 
domicile  in  state  and  defendant  served  outside  of  state  did  not  appear; 
In  re  Box's  Will,  127  Wis.  270,  106  N.  W.  1065,  where  copy  of  will  ad- 
mitted to  probate  in  another  state  and  of  record  showing  its  admission 
to  probate  not  authenticated  as  required  by  statute,  county  court  has  no 
jurisdiction  to  admit  it  to  probate;  dissenting  opinion  in  Haddock  v. 
Haddock,  201  U.  S.  608,  50  L.  885,  26  Sup.  Ct.  225,  majority  holding 
mere  domicile  within  state  of  one  spouse  does  not  give  court  jurisdic- 


627  Notes  on  U,  S.  Reports.  18  Wall.  493-509 

tion  to  render  divorce  decree  enforceable  in  other  states  against  non- 
resident nonappearing  defendant  served  by  publication;  dissenting  opin- 
ion in  United  States  v.  Ju  Toy,  198  U.  S.  275,  277,  49  L.  1049,  1050, 
25  Sup.  Ct.  644,  majority  holding  decision  of  Secretary  of  Commerce 
affirming  denial  by  immigration  officers  of  right  of  Chinese  to  enter  is 
conclusive  on  habeas  corpus  when  citizenship  is  ground  on  vrhich  right 
of  entry  claimed;  dissenting  opinion  in  Jordan  v.  Chicago  etc.  By.  Co., 
125  Wis.  592,  110  Am.  St.  Rep.  865,  104  N.  W.  807,  1  L.  R.  A.  (N.  S.) 
885,  majority  holding  determination  of  county  court  on  petition  by  pub- 
lic administrator  for  letters  that  decedent  left  property  in  state  is  not 
collaterally  attackable.     See  103  Am.  St.  Rep.  308,  note. 

Distinguished  in  Cohen  v.  Portland  Lodge,  142  B.  P.  O.  E.,  140  Fed. 
775,  domestic  judgment  is  not  conclusive  against  defendant  who  was  not 
served  or  did  not  appear  or  was  not  defaulted;  Cuykendall  v.  Doe,  129 
Iowa,  457,  105  N.  W.  700,  where  judgment  regularly  confessed  under 
warrant  of  attorney  and  entered  in  court  of  state  where  debtor  resided  at 
time  of  execution  and  in  accordance  with  its  laws,  it  is  enforceable  here 
though  judgments  so  confessed  not  permitted  by  our  law. 

Syl.  8  (VIII,  199).     Judgments  without  jurisdiction  are  void. 

Approved  in  Beeman  v.  Kitzman,  124  Iowa,  89,  99  N.  W.  172,  where 
husband  went  to  another  state  with  no  intention  of  remaining  there  and 
sued  for  divorce  immediately  after  residing  there  jurisdictional  period 
and  left  immediately  after  procuring  decree,  wife  not  appearing,  court 
had  no  jurisdiction. 

Syl.  9   (VIII,  200).     Inquiry  into  jurisdiction — Foreign  judgment. 

Approved  in  Phoenix  Bridge  Co.  v.  Castleberry,  131  Fed.  177,  65  C. 
C.  A.  481,  determining  priority  of  jurisdiction  over  administration  of  es- 
tate under  South  Carolina  statute. 

18  Wall.  493-509,  21  L.  904,  CLARKE  v.  BOORMAN. 

Syl.  1  (VIII,  202).     Construction  of  wills — Surrounding  circumstances. 

Approved  in  Robinson  v.  Bonaparte,  102  Md.  70,  61  Atl.  215,  where 
testator  directed  trust  to  continue  for  twenty  years  after  his  death  and 
tleath  of  wife  and  that  trustees  should  apply  rents  to  support  of  wife 
for  life  and  after  her  death  to  support  of  children,  trust  continued  for 
twenty  years  after  death  of  widow;  Darnell  v.  Lafferty,  113  Mo.  App. 
303,  88  S.  W.  791,  admitting  parol  evidence  to  show  what  animals  re- 
ferred to  in  memoranda  of  sale  describing  them  as  "ten  head  of  cows 
and   heifers." 

Syl.  5    (VIII,  202).     Limitations — Trustee  closing  trust. 

Approved  in  Kansas  City  etc.  Ry.  Co.  v.  Stevenson,  135  Fed.  557, 
where  defendant  on  resigning  presidency  of  railroad  retained  title  to 
property  which  had  been  donated  to  aid  railroad,  claiming  it  was  his, 
own,  ten  years'  delay  in  enforcing  trust  bars  right. 


18  Wall.  516-587  Notes  on  U.  S.  Eeporta.  628 

18  Wall.  516-546,  21  L.  908,  CHAFFEE  v.  UNITED  STATES. 
Syl.  2  (VIII,  204).  Debt  for  recovery  of  statutory  penalty. 
Approved  in  In  re  Seagraves,  4  Okl.  433,  48  Pac.  275,  since  penalty 

provided  for  in  Eev.  St.  U.  S.,  §  2148,  is  recoverable  in  action  of  debt, 

one  prosecuted  criminally  for  violation  of  said  act  cannot  be  imprisoned 

xmt'n  fine  is  paid. 

Syl.  4   (VIII,  204).     Judgment  in  debt  for  statutory  penalty. 

Approved  in  United  States  v.  Chicago  etc.  Ky.  Co.,  143  Fed.  355,  in 
joint  actions  against  two  or  more  railroads  to  recovery  penalty  for  vio- 
lation of  Safety  Appliance  Act  there  may  be  recovery  against  all  or  any 
of  defendants  according  to  proofs. 

Syl.   6   (VIII,  204).     Entries  in  account-books  as  evidence. 

Approved  in  Eosenthal  v.  McGraw,  138  Fed.  725,  testimony  of  witness 
as  to  indebtedness  based  on  his  examination  of  charges  in  account-books 
which  were  not  made  by  him    is  inadmissible. 

Syl.  8  (VIII,  205).     Burden  of  proof — Eevenue  penalties. 

Approved  in  State  v.  Chicago  etc.  Ey.  Co.,  122  Iowa,  25,  26,  101  Am. 
St.  Eep.  254,  96  N.  W.  905,  burden  on  state  of  proving  that  engineer 
was  liable  to  penalty  imposed  by  Code,  §  2073,  for  failure  to  stop  train 
before  crossing  intersecting  railroad  on  same  level,  not  shifted  by  proof 
that  train  did  not  stop;  State  v.  Weckert,  17  S.  D.  206,  95  N.  W.  925, 
holding  erroneous  instruction  in  prosecution  for  larceny  as  casting 
burden  that  property  was  taken  under  honest  claim  of  ownership  on 
defendant. 

18  Wall.  549-552,  21  L.  786.  TACEY  v.  lEWIN. 

Syl.  2   (VIII,  206).     Tender  of  tax. 

Distinguished  in  United  States  v.  Ed.  S.  Hartwell  Lumber  Co.,  142  Fed. 
437,  where  at  time  of  tendering  entry  of  goods  importers  had  no  right 
to  have  it  accepted,  government  not  estopped  because  collector's  refusal 
on  wrong  grounds  misled  importers  into  failing  to  renew  tender  on 
proper  occasion. 

18  Wall.  553-587,  21  L.  914,  CASE  OF  SEWING  MACHINE  COS. 
Syl.  2   (VIII,  208).     Citizenship — Joint  plaintiffs  and  defendants. 
Approved  in  Sweeney  v.  Carter  Oil  Co.,  199  U.  S.  257,  50  L.  180,  26 

Sup.   Ct.   55,  two   citizens  of  different  states  may  sue  citizen   of  third 

state  in  district  of  latter 's  residence  under  act  of  1887,  as  amended  in 

1888. 

Syl.   8    (VIII,  209).     Eemoval  of  causes — Joint  parties. 

Distinguished  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  664,  68  C.  C. 
A.  288,  where  bill  discloses  separable  controversies,  and  if,  when  parties 
are  arranged  upon  opposite  sides,  either  controversy  is  wholly  between 
citizens  of  different  states,  suit  is  removable  under  act  of  1887, 


e29  Notes  on  U.  S.  Eeports.  18  Wall.  589-642 

18  Wall.  589-598,  21  L.  923,  BULLAED  v.  NATIONAL  EAGLE  BANK. 

Syl.  2   (VIII,  211).     Implication  from  general  words  of  statute. 

Approved  in  Wilson  v.  Langhorne,  102  Va.  636,  47  S.  E.  873,  where 
testator  devised  realty  to  daughter  in  trust  with  remainder  to  children 
surviving  her,  but  did  not  authorize  trustee  to  make  loans  to  remainder- 
man, loan  by  trustee  to  remainderman  does  not  charge  his  interest  in 
estate  with  lien. 

Syl.  3   (VIII,  211).     National  bank  by-law— Lien  on  stock. 

Approved  in  Third  Nat.  Bank  v.  Buffalo  German  Ins.  Co.,  193  U.  S. 
592,  48  L.  805,  24  Sup.  Ct.  524,  holding  void  national  bank's  by-law 
prohibiting  transfer  of  stock  of  one  indebted  to  bank  without  consent  of 
directors;  Bridges  v.  National  Bank  of  Troy,  185  N.  Y.  149,  77  N.  E. 
1006,  where  assigiior  in  assignment  for  benefit  of  creditors  was  indobtcl 
to  bank  as  indorser,  and  after  assignment  bank  went  into  liquidation, 
in  action  by  assignee  against  bank  to  recover  assignor's  distributive 
share  of  assets,  assignor's  debt  to  bank  cannot  be  set  off. 

18  Wall.  626-628,  21  L.  938,  DAVENPORT  v.  DOWS. 

Syl.  1    (VIII,  214).     Stockholder  suing  for  corporation — Parties. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  588,  49  L.  610,  25  Sup. 
Ct.  355,  fact  that  ultimate  interest  corporation  defendant  may  be  same 
as  complaining  stockholders'  does  not  require  alignment  of  corporation 
with  complainants  for  purpose  of  federal  jurisdiction  where  corporate 
control  is  antagonistic;  Kidd  v.  New  Hampshire  Traction  Co.,  72  N.  H. 
286,  56  Atl.  469,  66  L.  R.  A.  574,  stockholders  in  foreign  corporation 
may  sue  for  its  property  in  state  though  it  is  not  served  with  process 
in  state  and  does  not  appear;  Hearst  v.  Putnam  Min.  Co.,  28  Utah,  196, 
107  Am.  St.  Rep.  698,  77  Pac.  757,  where  corporation  has  sold  property, 
stockholders  cannot  sue  to  cancel  conveyance  on  ground  of  fraud  giving 
right  to  trust  in  their  favor.     See  97  Am.  St.  Rep.  46,  note. 

18  Wall.  628,  629,  21  L.  813,  ST.  CLAIR  COUNTY  v.  LOVINGSTON. 

Syl.  2  (VIII,  215).     What  is  final  judgment. 

Approved  in  Clement  v.  Wilson,  135  Fed.  750,  68  C.  C.  A.  387,  or- 
der setting  aside  verdict  and  granting  new  trial  is  not  final  reviewable 
order. 

18  Wall.  629-635,  21  L.  927,  GRAY  v.  EOLLO. 

Syl.  2  (VIII,  216).     Bankruptcy— Setoff  of  debts. 

Approved  in  In  re  Shults,  132  Fed.  575,  solvent  partnership  indebted 
to  bankrupt  cannot  set  off  against  such  indebtedness  claim  due  from 
bankrupt  estate  to  one  of  partners. 

18  Wall.  635-642,  21  L.  8G6,  BARTHOLOW  v.  BEAN. 

Syl.  1  (VIII,  216).     Bankruptcy — Payment  as  preference. 

Approved  in  In  re  George  M.  Hill  Co.,  130  Fed.  319,  6ii  L.  R.  A.  68, 
payment  to  bank  by  insolvent   within  four  months   prior  to  bankruptcy 


18  Wall.  648-661  Notes  on  U.  S.  Reports.  630 

of  notes  given  to  third  person  but  which  have  been  indorsed  to  bank 
is  preference  under  Bankr.  Act,  §  60a;  Capital  Nat.  Bank  v.  Wilkerson, 
36  Ind.  App.  479,  481,  75  N.  E.  841,  preference  not  affected  by  fact  that 
at  time  of  payment  creditor  held  securities  largely  in  excess  of  debt; 
Harris  v.  Second  Nat.  Bank,  110  Tenn.  245,  75  S.  W.  1054,  bankruptcy 
trustee  is  not  precluded  from  recovering  from  payee  in  note  money  paid 
by  bankrupt  on  note  within  four  months  of  adjudication  though  there 
are  solvent  indorsers  on  note. 

18  Wall.  648-657,  21  L,  966,  HORNBUCKLE  v.  TOOMBS. 

Syl.  1   (VIII,  217).     Scope  of  territorial  legislature's  powers. 

Approved  in  dissenting  opinion  in  Allen  v.  Reed,  10  Okl.  132,  63  Pac. 
869,  majority  holding  void  Stat.  1893,  c.  23,  relating  to  change  of 
county  seats. 

Syl.  2   (VIII,  217).     Territorial  courts  not  federal  courts. 

Approved  in  Ex*  parte  Moran,  144  Fed.  598,  604,  upholdiag  jurisdic- 
tion of  circuit  court  of  appeals  to  issue  habeas  corpus  to  determine  power 
oi  territorial  court  to  imprison  one  convicted  of  capital  offense;  Wallace 
V.  Adams,  143  Fed.  725,  upholding  32  Stat.  641,  creating  citizenship  court 
empowered  to  review  final  judgments  of  United  States  courts  under  29 
Stat.  339,  which  had  been  affirmed  by  supreme  court;  Fuller  v.  John- 
son, 8  Okl.  606,  58  Pac.  747,  United  States  court  of  Indian  territory 
is  not  "United  States  court"  within  meaning  of  Okl.  St.  1890,  p.  930, 
§  2. 

Syl.  4  (VIII,  218).     Rules  of  territorial  court  pleadings. 

Approved  .in  Cochran  v.  United  States,  147  Fed.  207,  on  trial  in 
territorial  court  of  offense  against  federal  law  questions  relating  to  sev- 
erance and  to  peremptory  challenges  are  determined  by  territorial  laws ; 
Jung  V.  Myer,  11  N.  M.  389,  68  Pac.  937,  holding  void  Laws  1901,  e. 
82,  authorizing  appeals  to  supreme  court  from  interlocutory  orders  af- 
fecting substantial  rights,  as  conflicting  with  Organic  Act,  §  10;  Welty 
V.  United  States,  14  Okl.  13,  16,  76  Pac.  122,  123,  in  prosecution  for 
murder  committed  on  Indian  reservation,  defendant  need  not  be  served 
with  list  of  jury  and  witnesses  as  provided  by  federal  law;  United 
States  V.  Choctaw  etc.  R.  R.  Co.,  3  Okl.  453,  41  Pac.  746,  in  action  where 
United  States  sues  in  interest  of  private  parties  as  relators,  defendant 
must  file  security  for  costs  provided  for  by  territorial  laws. 

(VIII,  217.)  Miscellaneous.  Cited  in  Alley  v.  Reed,  10  Okl.  Ill,  60 
Pac.  784,  holding  void  Statutes  1893,  c.  23,  relating  to  change  of  county 
seats. 

18  Wall.  659-661,  21  L.  969,  DAVIS  v.  BILSLAND. 

Syl.  3   (VIII,  220).     Priority  of  mechanics'  over  otlicr  liens. 

Approved  in  dissenting  opiuion  in  Pacific  States  Savings  etc.  Co.  v. 
Dubois,  11  Idaho,  336,  542,  83  Pac.  518,  521,  majority  holding  where 
erection  of   building  not  done   under   contract,   mortgage   lien  attaching 

( 


631  Notes  on  U.  S.  Reports.  19  Wall.  37-70 

prior  to  time  that  lien  claimants  commenced  particular  part  of  work  or 
furnished  material,  takes  precedence. 

18  Wall.  670-674,  21  L.  852,  HICKS  v.  KILSEY. 

Syl.  1   (VIII,  220).     Patents— Substitution  of  materials. 

Approved  in  Sloan  Filter  Co.  v.  Portland  Gold  Min.  Co.,  139  Fed.  26, 
holding  void  Sloan  patent  No.  587,874,  for  barrel-filter  for  use  in 
filtering   precious   metal   solutions. 


XIX  WALLACE. 


19  Wall.  37-41,  22  L.  62,  BULKLEY  v.  UNITED  STATES. 

Syl.  1    (VIII,  225).     Profits  as  damages  for  breach  of  contract. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  812,  construing 
covenants  in  oil  lease  with  reference  to  conditions  for  forfeiture;  Choctaw 
etc.  R.  R.  Co.  V.  Jacobs,  15  Okl.  500,  82  Pac.  504,  refusing  to  allowing 
amount  of  commissions  to  be  earned  where  freight  delayed  in  delivery; 
Tootle  V.  Kent,  12  Okl.  691,  73  Pac.  315,  in  action  by  merchant  for 
malicious  acts  of  another  causing  depreciation  in  value  of  goods,  measure 
of  damages  is  difference  between  market  value  at  time  they  were  taken 
by  defendant  under  chattel  mortgage  and  value  when  property  placed  in 
hands  of  receiver;  Cliisholm  etc.  Mfg.  Co.  v.  N.  S,  Canopy  Co.,  Ill  Tenn. 
211,  77  S.  W.  1064,  allowing  lost  profits  for  breach  of  contract  for 
manufacture  and  delivery  of  patent  brackets  known  to  be  used  by  party 
for  particular  purpose. 

19  Wall.  .-.S-r,2.  22  L.  70,  KXOWLES  v.  GASLIGHT  ETC.  CO. 

Syl.  2   (VITI.  226).     Foreign  judgment — Showing  lack  of  service. 

Approved  in  National  Exchange  Bank  v.  Wiley,  195  U.  S.  270.  49 
L.  190,  25  Sup.  Ct.  70.  foreign  judgment  taken  under  warrant  of  at- 
torney annexed  to  promissory  note  authorizing  confession  of  judgment 
in  favor  of  holder,  is  collaterally  attackable  on  ground  that  party  in 
whose  favor  it  was  rendered  not  real  owner  of  note.  See  103  Am.  St. 
Rep.  309,  note. 

Distinguished  in  Cohen  v.  Portland  Lodge  142.  B.  P.  O.  E.,  140  Fed. 
775,  domestic  judgment  is  not  conclusive  against  one  wlio.  while  made 
defendant,  is  not  shown  by  record  to  have  been  served  or  tu  have  ap- 
peared or  defaulted. 

19  Wall.  65-70,  22  L.  47,  COOPER  v.  0:\rOirUXI)RO. 

Syl.  3  (VIII,  228).     Conclusiveness  .)f  findings  on  waiver  of  jury. 

Approved  in  West  v.  Houston  Oil  Co.,  136  Fed.  350,  69  C.  C.  A.  169, 
where  issue  of  fact  is  tried  to  court  and  no  special  findings  matlc,  suili- 


19  Wall.  70-107  Notes  on  U.  S.  Eeports.  632 

ciency  of  evidence  not  reviewable;  Streeter  v.  Sanitary  Dist.  of  Chicago, 
133  Fed.  126,  129,  130,  66  C.  C.  A.  190,  in  case  trial  to  court  where  there 
are  no  special  findings,  ruling  on  request  for  holding  that  plaintiffs  were 
entitled  to  recover  amount  claimed  is  not  reviewable;  Paul  v.  Delaware 
etc.  E.  Co.,  130  Fed.  954,  where  motion  to  dismiss  complaint  was  denied 
at  close  of  evidence  in  action  tried  to  court,  correctness  of  ruling  is  re- 
viewable on  exceptions,  without  special  findings. 

19  Wall.  70-72,  22  L.  63,  CREWS  v.  BREWER. 

Syl.  1   (VIII,  228).     Review  where  jury  waived. 

Approved  in  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  126,  66 
C.  C.  A.  190,  following  rule;  Anglo-American  Laqd  etc.  Co.  v.  Lombard, 
132  Fed.  734,  68  C.  C.  A.  89,  determining  what  is  special  finding. 

19  Wall.  73-75,  22  L.  64,  THE  LUCILLE. 

Syl.  1   (VIII,  229).     New  trial  after  appeal  in  admiralty. 
Approved  in  The  San  Rafael,  141  Fed.  275,  applying  rule  where  libel- 
ants appealed  though  claimants  did  not. 

19  Wall.  81-83,  22  L.  100,  MORGAN'S  EXECUTOR  v.  GAY. 

Syl.  1  (VIII,  230).     Suit  by  assignee— Diverse  citizenship  of  assignor. 

Approved  in  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  122,  66  C.  C.  A. 
179,  denying  federal  jurisdiction  over  suit  by  assignee  of  oral  contract 
to  recover  money  due  thereon  where  assignor  could  not  sue  in  federal 
court. 

19  Wall.  83-94,  22  L.  100,  TOWN  OF  QUEENSBURY  v.  CULVER. 

Syl.  1  (VIII,  231).     Municipal  railroad  aid. 

Approved  in  Donovan  v.  Pennsylvania  Co.,  199  U.  S.  293,  50  L.  199, 
26  Sup.  Ct.  91,  railroad  which  has  arranged  with  transfer  company  to 
furnish  at  depot  all  vehicles  necessary  for  passengers  may  exclude  other 
hackmen  from  soliciting  trade  at  depot. 

19  Wall.  94-107,  22  L.  178,  ROBERTSON  v.  CARSON. 

Syl.  2   (VIII,  232).     Mortgagor  as  party — Suit  setting  aside  release. 

Distinguished  in  York  Co.  Sav.  Bank  v.  Abbot,  139  Fed.  993,  suit  in 
equity  by  lessee  against  nonresident  lessor  to  enforce  rights  under  lease 
by  requiring  defendant  to  elect  to  sell  land  to  or  buy  house  thereon  from 
complainant,  at  appraised  value,  is  not  within  jurisdiction  of  circuit 
court  for  district  where  property  situated  where  defendant  has  not  ap- 
peared. 

(VIII,  232.)  Miscellaneous.  Cited  in  Wiemer  v.  Louisville  Water 
Co.,  130  Fed.  245,  federal  jurisdiction  not  affected  by  fact  that  com- 
plainant removed  to  state  for  purpose  of  acquiring  right  to  sue  in  fed- 
eral court  of  state  of  late  residence  where  removal  is  with  intent  to 
acquire  citizenship  in  new  state. 


633  Notes  on  U.  S.  Reports.  19  Wall.  107-167 

19  Wall.  107-125,  22  L.  72,  REES  v.  CITY  OF  WATERTOWN. 

Syl.  1   (VIII,  233).     Taxing  power  exercised  by  legislative  authority. 

Approved  in  Kersey  v.  Terre  Haute,  161  Ind.  474,  68  N.  E.  1029,  up- 
holding ordinance  imposing  license  tax  on  vehicles  using  streets  though 
excluding  automobiles,  street-cars,  and  vehicles  of  nonresidents. 

19  Wall.  125-138,  22  L.  148,  THE  PENNSYLVANIA. 

Syl.  1   (VIII,  234).     Collision — Steamer  in  fog  should  slacken  speed. 

Approved  in  Quinette  v.  Bisso,  136  Fed.  830,  69  C.  C.  A.  825,  holding 
tug  ascending  Mississippi  near  New  Orleans  in  dense  fog  at  nine-knot 
speed  liable  for  death  of  one  run  down  while  crossing  river  in  skiff. 

Syl.  3  (VIII,  235).  Collision — Presumption  of  fault  from  violation  of 
rule. 

Approved  in  Kelley  Island  etc.  Co.  v.  City  of  Cleveland,  144  Fed. 
212,  tug  overtaking  and  passing  steam  scow  without  signals  and  without 
consent  of  overtaken  vessel,  contrary  to  rules  and  statute,  is  liable  for 
grounding  of  scow  due  to  suction  caused  by  passing  vessel;  The  Ad- 
miral Schley,  142  Fed.  67,  holding  both  vessels  at  fault  for  collision  in 
fog;  Baltimore  etc.  Packet  Co.  v.  Coastwise  Transp.  Co.,  139  Fed.  779, 
holding  vessel  failing  to  sound  fog  signal  as  required  by  rules  liable 
for  collision;  The  Eagle  Wing,  135  Fed.  832,  applying  rule  -where  priv- 
ileged vessel  had  unlicensed  mate;  The  Admiral  Cecille,  134  Fed.  677, 
vessel  anchored  in  prohibited  zone  liable  for  collision  though  harbor 
master  saw  her  anchored  there  and  made  no  objection. 

19  Wall.  146-167,  22  L.  105,  SAWYER  v.  PRlCIvETT. 

Syl.   1    (VIII,   237).     Contracts — What  is   false  representation. 

Approved  in  Curran  v.  Smith,  149  Fed.  951,  affirming  Smith  v.  Cur- 
ran,  138  Fed.  158,  where  engineers  entered  into  contract  to  investigate 
project  for  pipe-line  to  supply  water  for  purposes  set  forth  in  prospectus 
and 'if  satisfactory  to  contract  to  construct  line,  they  cannot  defend  for 
breach  of  contract  on  ground  of  falge  representations,  where  they  had 
investigated  project;  Mather  v.  Barnes.  146  Fed.  1005,  where  as  part 
of  negotiations  for  sale  of  coal  lands  defendants  represented  that  land 
was  underlaid  throughout  entire  line  with  vein  of  coking  coal,  but  stated 
they  w^ere  not  much  acquainted  with  land,  representations  not  material; 
Pittsburg  etc.  Trust  Co.  v.  Northern  etc.  Ins.  Co.,  140  Fed.  896,  where, 
on  sale  of  business  and  assets  of  life  insurance  company,  list  of  bal- 
ances against  agents  made  and  secretary  said  that  they  were  better  than 
ordinary,  statement  was  merely  expression  of  opinion;  Kimber  v.  Young, 
137  Fed.  749,  70  C.  C.  A.  178,  applying  rule  in  action  for  deceit  in  sale 
of  corporate  bonds. 

Syl.  3   (VIII,  237).     Bona  fide  holder — Note  secured  by  mortgage. 

Approved  in  Cudahy  Packing  Co.  v.  State  Nat.  Bank,  134  Fed.  546, 
67  C.  C.  A.  662,  mortgage  securing  note  providiug  for  payment  of  at- 


19  Wall.  167-241  Notes  on  U.  S.  Eeports.  634 

torney  's  fees  in  case  note  not  paid  at  maturity  passes  free  from  equities 
to  bona  fide  indorsee  of  note. 

19  Wall.   167-177,  22   L.   109,  CROPLEY  v.   COOPER. 

Syl.  1  (VIII,  238).     Bequest  when  legatee  attains  certain  age. 

Approved  in  Rhode  Island  Hospital  Trust  Co.  v.  Noyes,  26  R.  I.  329, 
341,  58  Atl.  1002,  1006,  where  under  trust  devise  of  stock  from  income  of 
which  sister  should  get  annuity  balance  to  be  used  for  grandson  until 
he  attained  age  of  twenty-five,  when  he  should  get  balance  of  fund, 
less  enough  to  pay  annuity,  and  sister  died  before  testator,  grandson 
took  vested  interest,  though  he  died  before  attaining  age  of  twenty-five. 

Syl.  3  (VIII,  238).  Vested  interest — Bequest  on  attainment  of  ma- 
jority. 

Approved  in  Atlee  v.  Bullard,  123  Iowa,  279,  98  N.  W.  890,  where 
there  was  devise  to  wife  till  youngest  child  of  age,  then  to  be  sold  and 
proceeds  divided  between  wife  and  children,  wife 's  share  subject  to  parti- 
tion judgment  lien. 

■19  Wall.  198-214,  22  L.  41,  UNITED  STATES  v.  GAUSSEN. 

Syl.  1  (VIII,  240).     Treasury  transcripts  as  evidence. 

Approved  in  United  States  v.  Pierson,  145  Fed.  817,  818,  applying 
rule  in  action  on  bond  of  Indian  agent. 

19  Wall.  214-227,  22  L.  68,  HOME  LIFE  INSURANCE  CO.  v.  DUNN. 

Syl.  3    (VIII,  242).     Removal  before  final  hearing. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  485,  upholding  right  of  re- 
moval of  criminal  prosecution  where  petitioner  tried  three  times  in  state 
court  and  each  conviction  reversed,  and  on  last  two  trials  petitioner  dis- 
criminated against  in  selection  of  jury. 

19  Wall.  227-241,  22  L.  80,  DOLLAR  SAVINGS  BANK  v.  UNITED 
STATES. 

Syl.  2    (VIII,  244).     Construction  of  provisos  in  statutes. 

Approved  in  United  States  v.  Schlierholz,  137  Fed.  618,  special  land 
department  agent  appointed  under  appropriation  act,  30  Stat.  32,  c.  2, 
was  not  oflicer  of  United  States  within  Rev.  St.,  §  5481,  relating  to 
extortion;  Gould  v.  New  York  Life  Ins.  Co.,  132  Fed.  930,  under  Bankr. 
Act,  §  70,  a  title  to  insurance  policy  which  has  no  surrender  value  and  is 
payable  to  bankrupt 's  personal  representatives  does  not  pass  to  trustee. 

Syl.  6  (VIII,  245).  Government  not  bound  by  statutes  unless  men- 
tioned. 

Approved  in  Rochester  v.  Bloss,  185  N.  Y.  50,  77  N.  E.  796,  under 
Laws  1903,  p.  1187,  c.  522,  city  in  action  for  taxes  due  was  limited 
to  taxes  spread  on  assessment-rolls  without  including  percentages  pro- 
vided for  in  cliarter. 


635  Notes  on  U.  S.  Reports.  19  Wall.  241-468 

Syl.  7   (VIII,  246).     Debt  to  recover  internal  revenue  taxes. 

Approved  in  Phelps  v.  Brumback,  107  Mo.  App.  26,  80  S.  W.  680, 
under  Kansas  City  Charter,  art.  5,  §  59,  providing  that  if  one  claiming 
title  under  tax  deed  be  defeated  in  suit  for  land  conveyed  by  such  deed, 
winner  must  pay  claimant  under  deed  amount  paid  at  tax  sale  with 
interest,  personal  judgment  may  be  had  against  successful  claimant. 
See  101  Am.  St.  Rep.  150,  166,  note. 

19  Wall.  241-253,  22  L.  83,  NUGENT  v.  SUPERVISORS. 

Syl.  1   (VIII,  247).     County  railroad  stock  subscription — How  made. 

Approved  in  Red  River  etc.  Co.  v.  Tennessee  etc.  R.  R.  Co.,  113  Tenn. 
716,  87  S.  W.  1020,  where  railroad  sought  municipal  subscription  on 
condition  that  road  be  completed  within  two  years  from  subscription 
and  council  directed  mayor  to  subscribe,  subscription  completed  when 
made  by  mayor  and  not  at  date  of  resolution. 

Syl.  3  (VIII,  248).  Consolidation  of  corporations — Effect  on  stock 
subscription. 

Approved  in  Wright  v.  Minnesota  etc.  Ins.  Co.,  193  U.  S.  664.  48 
L.  836,  24  Sup.  Ct.  549,  reservation  of  right  of  amendment  in  articles 
of  association  of  life  insurance  company  empowers  company  to  bind 
members  by  change  from  assessment  plan  to  "old  line"  plan;  Jones 
V.  Missouri-Edison  Elec.  Co.,  135  Fed.  156,  157,  under  Rev.  St.  Mo. 
1899,  §  1334,  relating  to  consolidation  of  corporations,  stockholders  of 
one  of  constituent  companies  cannot  sue  in  equity  for  relief,  if  relief 
prayed  for  must  be  enforced  through  company. 

Distinguished  in  Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  775, 
upholding  right  of  minority  stockholders  in  one  of  two  consolidated  cor- 
porations to  equitable  relief  where  consolidation  obtained  by  fraud  on 
holders  of  minority  stock  and  abuse  of  fiduciary  relations  of  trustees. 

19  Wall.  287-419,  22  L.  125,  MITCHELL  v.  TILGHMAN. 

(VIII,  250.)  Miscellaneous.  Cited  in  Johnson  v.  Brafford,  114  Ky. 
100,  70  S.  W.  194,  where  complaint  alleged  breach  of  contract  against 
nonresident  defendant  and  claim  against  resident  for  infringement  of 
right  to  make  and  sell  patented  article,  court  acquired  no  jurisdiction 
as  against  nonresident  by  service  on  resident  in  couuty  and  on  non- 
resident in  another  county. 

19  Wall.  433-468,  22  L.  116,  KLEIN  v.  RUSSELL. 

Syl.   5    (VIII,   252).     Patents  liberally   construed. 

Approved  in  Robins  etc.  Belt  Co.  v.  American  etc.  Mach.  Co.,  14.5 
Fed.  926,  holding  Robins'  patent  No.  571,604,  for  belt  conveyer  valid 
and  infringed. 


19  Wall.  468-485  Notes  on  U.  S.  Eeports.  636 

19  Wall.  468-485,  22  L.  164,  THE  MAYOE  OF  NASHVILLE  v.  BAY. 

Syl.  1  (VIII,  253).  Municipal  and  private  corporations  distin- 
guished. 

Approved  in  Scott  v.  Laporte,  162  Ind.  43,  68  N.  E.  280,  city 
ordinance  empowering  private  corporation  to  construct  and  maintain 
waterworks  and  binding  city  to  pay  large  water  rentals  for  twenty- 
one  years  to  trustees  of  bondholders,  city  guaranteeing  entire  trans- 
action, is  void;  State  v.  Butler,  178  Mo.  312,  77  S.  W.  570,  under 
St.  Louis  City  Charter,  art.  6,  §  27,  ordinance  giving  board  of  health 
power  to  contract  for  removal  of  city  garbage  is  void;  Territory 
V.  Hopkins,  9  Okl.  147,  59  Pac.  980,  county  may  refund  bonds  issued 
under  Sess.  Laws  1897,  art.  2,  c.  5. 

Syl.  8   (VIII,  253).     Municipality  has  no  implied  borrowing  power. 

Approved  in  White  Eiver  Sav.  Bank  v.  City  of  Superior,  148  Fed. 
5,  under  charter  of  Superior,  city  not  liable  on  bonds  issued  for 
street  improvements  and  specifying  property  assessable  for  their 
payment;  Luther  v.  Wheeler,  73  S.  C.  90,  52  S.  E.  876,  where  officers 
of  town  under  resolution  give  note  for  money  used  for  erection  of 
public  building,  and  note  is  afterward  renewed  by  resolution,  holder 
may  recover  of  town  amount  received  as  money  had  and  received. 

Syl.  3  (VIII,  254).     Charter  method  of  raising  money  exclusive. 

Approved  in  Scott  v.  Laporte,  162  Ind.  49,  69  N.  E.  676,  city  ordi- 
nance empowering  private  concern  to  construct  water  system  and 
binding  city  to  pay  large  water  rentals  for  twenty-one  years  to  trus- 
tees of  bondholders,  and  pledging  city's  taxing  power  to  meet  fixed 
charges,  is  void. 

Syl.  4   (VIII,  254).     Municipal  power  to  issue  negotiable  paper. 

Approved  in  Morrison  v.  Austin  State  Bank,  213  111.  484,  104  Am. 
St.  Rep.  225,  72  N.  E.  1113,  warrants  issued  for  local  improvements, 
under  Laws  1897,  pp.  127,  133,  are  non-negotiable. 

Svl.  5   (VIII,  256).     Transferability  of  city  warrants  for  claims. 

Approved  in  Luther  v.  Wheeler,  73  S.  C.  92,  52  S.  E.  876,  where 
town  officers  under  resolution  gave  note  for  money  used  for  erection 
of  public  building,  and  note  is  afterward  renewed  by  resolution, 
holder  may  recover  of  town  for  money  had  and  received. 

Syl.   8   (VIII,   257).     Municipal   negotiable   notes. 

Approved  in  Luther  v.  Wheeler,  73  S.  C.  91,  52  S.  E.  876,  where 
town  officers  under  resolution  gave  note  for  money  used  for  erection 
of  public  building  and  note  is  afterward  renewed  by  resolution, 
holder  may  recover  of  town  for  money  had  and  received. 


637  Notes  on  U.  S.  Reports.  19  Wall.  486-514 

19  Wall.  486-490,  22  L.  67,  UNITED  STATES  v.  AEWO. 

Syl.  1   (VIII,  258).     Venue  of  assault  on  high  seas. 

Distinguished  in  Kerr  v.  Shine,  136  Fed.  64,  69  C.  C.  A.  69,  under 
Rev.  St.,  §  730,  where  one  committed  oflFense  on  high  seas  and  vessel 
first  touched  at  Hawaii,  where  complaint  filed  and  warrant  issued 
but  not  served  until  he  landed  in  California,  he  is  triable  in  Cali- 
fornia. 

19  Wall.  490-.505,  22  L.  189,  TAPPAN  v.  MERCHANTS'  NA- 
TIONAL BANK. 

Syl.  1   (VIII,  258).     Situs  of  personalty. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  202, 
205,  50  L.  153,  154,  26  Sup.  Ct.  36,  due  process  of  law  is  denied  Ken- 
tucky corporation  by  Kentucky  tax  on  its  rolling  stock  located  in 
other  states  and  there  employed  in  its  business. 

Syl.  2  (VIII,  259).  Separation  of  situs  of  personalty  for  taxing 
purposes. 

Approved  in  State  v.  Fidelity  etc.  Co.,  35  Tex.  Civ.  217,  220,  80 
S.  W.  546,  548,  municipal  bonds  deposited  with  state  treasurer  by 
foreign  corporation  in  order  to  do  business  in  state,  are  taxable  by 
state;  Metropolitan  Life  Ins.  Co.  v.  Board  of  Assessors,  115  La.  706, 
39  So.  849,  arguendo. 

Syl.  4   (VIII,  259).     State  tax  on  bank  shares  of  nonresidents. 

Approved  in  Corry  v.  Baltimore,  196  U.  S.  475,  476,  49  L.  561, 
103  Am.  St.  Rep.  371,  25  Sup.  Ct.  297,  upholding  Md.  Code  Pub. 
Gen.  Laws,  art.  81,  imposing  personal  liability  on  nonresident  stock- 
holder in  domestic  corporation;  State  v.  Fidelity  etc.  Co.,  35  Tex. 
Civ.  221,  80  S.  W.  548,  municipal  bonds  deposited  with  state  treas- 
urer by  foreign  corporation  as  condition  precedent  to  doing  busi- 
ness in  state    are  taxable  by  state. 

Distinguished  in  Gilbertson  v.  Oliver,  129  Iowa,  572,  105  N.  W. 
1004,  indebtedness  to  nonresident  having  no  agent  in  state  is  not 
liable  to  inheritance  tax  under  Code,   §   1467. 

19   Wall.   505-514,   22   L.   205,   EX  PARTE   ROBINSON. 

Syl.  1  (A^III,  260).  Courts  have  inherent  power  to  punish  con- 
tempts. 

Approved  in  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S.  327,  48  L. 
1001,  24  Sup.  Ct.  665,  circuit  court  of  appeals  may,  under  Comp. 
St.  1901,  p.  547,  §  6,  review  order  of  circuit  court  finding  one  not 
party  to  suit  guilty  of  contempt  in  violating  restraining  order; 
Heinze  v.  Butte  etc.  Min.  Co.,  129  Fed.  277,  63  C.  C.  A.  388,  where 
in  equitable  suit  in  aid  of  law  action  to  recover  for  trespass  to 
mining  claim,  defendant  disobeyed  order  requiring  him  to  permit 
plaintiff  to  examine  mine  to  get  evidence  on  issue,  and  he  was  fined 


19  Wall.  526-572  Notes  on  U.  S.  Reports.  638 

for  contempt,  contempt  order  is  not  reviewable  on  writ  of  error; 
Smith  V.  Speed,  11  Okl.  113,  66  Pac.  517,  55  L.  E.  A.  402,  judge  in 
chambers  may  punish  violation  of  injunction  as  contempt;  Burke 
V.  Territory,  2  Okl.  509,  37  Pac.  833,  holding  publication  in  newspaper 
charging  that  judge  intended  to  withhold  report  of  grand  jury  in 
effort  to  browbeat  it  is  punishable  as  contempt,  though  contempt 
also  a  misdemeanor. 

Syl.  2   (VIII,  261).     Federal  court's  power  to  punish  contempt. 

Approved  in  Cuyler  v.  Atlantic  etc.  R.  Co.,  131  Fed.  96,  under  Rev. 
St.,  §  725,  federal  court  cannot  punish  newspaper  publisher  for  con- 
tempt consisting  of  editorial  criticising  oificial  conduct  and  integrity 
of  court;  Burke  v.  Territory,  2  Okl.  516,  37  Pac.  835,  holding  news- 
paper publication  charging  that  judge  intended  to  withhold  grand 
jury  report  in  effort  to  browbeat  jury    is  punishable  as  contempt. 

Syl.  5  (VIII,  263).     Notice  necessary  to  disbar  attorney. 

Approved  in  In  re  Brown,  2  Okl.  596,  39  Pac.  471,  defendant  in 
disbarment  proceeding  may  be  cited  to  appear  and  answer  within 
any  time  that  gives  him  reasonable  opportunity  to  be  heard. 

Syl.  6    (VIII,  263).     Mandamus  to  restore  disbarred   attorney. 

Distinguished  in  In  re  Brown,  2  Okl.  591,  39  Pac.  470,  appeal  lies 
to  supreme  court  from  order  of  district  court  suspending  attorney 
pending   trial   for   his   disbarment. 

(VIII,  260.)  Miscellaneous.  Cited  in  In  re  Branch,  70  N.  J.  L. 
548,  57  Atl.  431,  holding  void  P.  L.  1903,  p.  224,  relieving  registered 
law  students  who  have  served  three-year  clerkship  from  examination. 

19  Wall.  526-531,  22  L.  160,  HEAD  v.  THE  UNIVERSITY. 

Syl.  1   (VIII,  264).     Removal  of  university  professor. 

Approved  in  Ward  v.  Board  of  Regents,  138  Fed.  377,  379,  where 
regents  of  Kansas  Agricultural  College  were  authorized  by  statute 
to  remove  any  professor  whenever  interests  of  college  required,  re- 
gents not  liable  for  damages  for  discharging  professor  before  termi- 
nation of  contract. 

19  Wall.  .544-547,  22  L.  183,  BUTT  v.  ELLETT. 

Syl.   1    (VIII,   265).     Chattel   mortgage  of   crop   not  sown. 

Approved  in  Johnson  v.  Donohue,  113  Tenn.  450,  83  S.  W.  361, 
where  insolvent  prior  to  bankruptcy  assigned  right  to  receive  funds 
from  railroad  thereafter  to  accrue  under  contract,  in  consideration 
of  pre-existing  debt,  assignee  could  enforce  right  to  receive  such 
funds,   though   debtor's   right  at   time   of   assignment   was   contingent. 

19  Wall.  563-572,  22  L.  184,  WILLIAMS  v.  BANKHEAD, 
Syl.  2    (VIII,  270).     W^ho   are  indispensable   parties. 
Approved   in    Lynch    v.    United    States,    13    Okl.    158,    73   Pac.    1101, 

where    patent    issued    to    entrynuiu    for    townsite    purposes    and    land 


639  Notes  on  U.  S.  Reports.  19  Wall.  572-594 

plat  and  lots  sold  to  many  innocent  purchasers,  government  cannot 
sue  to  cancel  patent  for  fraud  on  part  of  entryman;  Railroad  Com- 
mission V.  Palmer  Hardware  Co.,  124  Ga.  637,  53  S.  E.  lO.ji,  arguendo. 

Syl.  3  (VIII,  271).     Proper  and  necessary  parties  distinguished. 

Approved  in  Daimler  Mfg.  Co.  v.  Conklin,  145  Fed.  956,  where 
bill  for  infringement  of  patent  alleges  that  licensee  has  interest  in 
patented  invention  which  may  be  impaired  by  defendant's  infringe- 
ment, he  may  be  joined  as  complainant. 

19  Wall.  572-577,  22  L.  1G2,  STEVEXSOX  v.  WILLIAMS. 

Syl.  1  (VIII,  271).    Removal  must  be  before  final  judgment. 

Approved  in  Katz  v.  Herschel  Mfg.  Co.,  150  Fed.  685,  action  pend- 
ing before  justice  of  peace  is  removable  to  federal  court  on  petition 
of  nonresident  defendant  if  requisite  citizenship  and  amount  in  con- 
troversy exist. 

19  Wall.  5S1-5S4,  22  L.  201,  PEETE  v.  MORGAN. 

Syl.  2    (VIII,  273).     State   tonnage  duties  for  quarantine. 

Approved  in  Way  v.  New  Jersey  Steamboat  Co.,  133  Fed.  192, 
Laws  N.  Y.  1897,  p.  701,  §  63,  imposing  tax  on  vessels  entering  har- 
bor, computed  on  tonnage  of  vessel,  is  void. 

19  Wall.  584-590,  22  L.  173,  RAILROAD  CO.  v.  RICHMOND. 

Syl.  1   (VIII,  273).     Contracts  valid  when  made  continue  so. 

Approved  in  Mottley  v.  Louisville  etc.  R.  Co.,  150  Fed.  412,  upholding 
contract  made  prior  to  passage  of  34  Stat.  584,  by  which,  in  considera- 
tion of  release  of  damages,  carrier  contracted  to  issue  passes  to  com- 
plainants for  life. 

Syl.  2   (VIII,  274).     Object  of  congressional   commerce  power. 

Approved  in  Howard  v.  Illinois  Central  R.  Co..  148  Fed.  999, 
holding  void  employers'  liability  act  of  1906;  Davis  v.  Cleveland 
etc.  Ry.  Co.,  146  Fed.  409,  cars  delivered  to  another  railroad  loaded 
with  freight  to  be  transported  to  other  states  and  returned  loaded 
or  empty  to  owner  in  state  where  received,  are  not  attachable  un- 
der laws  of  state  into  which  they  are  carried  by  other  company; 
Grand  Trunk  etc.  Ry.  Co.  v.  Chicago  etc.  R.  Co..  141  Fed.  802,  hold- 
ing contract  by  lessee  railroad  to  run  its  trains  and  use  terminal 
facilities  of  lessor  during  term  of  lease  does  not  bind  lessee  to  use 
tracks  and  facilities  during  term. 

19  Wall.  591-594,  22  L.  210,  UNITED  STATES  v.  COOK. 

Syl.  1    (VIII,  274).     Indians  have   right  of  occupancy  only. 

Approved  in  Winters  v.  United  States,  143  Fed.  748,  grantees  of 
public  lands  outside  Ft.  Belknap  Indian  reservation  could  acquire  no 
exclusive  right  to  waters  of  Milk  river  for  irrigation  under  desert 
land  act;    United  States  v.   Gardner,   133  Fed.  2S8,  66   C.  C.  A.  653, 


19  Wall.  606-655  Notes  on  U.  S.  Reports.  640 

lands  allotted  to  Indians  in  severalty  subject  to  conditions  of  gen- 
eral allotment  act  of  1887  remain  property  of  United  States  during 
trust  period  and  it  may  sue  for  timber  wrongfully  cut. 

Syl.  2   (VIII,  275).     Indians  may  cut  timber  for  own  use. 

Approved  in  King-Ryder  Lumber  Co.  v.  Scott,  73  Ark.  332,  84  S. 
W.  488,  sale  of  timber  by  homesteader  before  receipt  of  final  cer- 
tificate, to  carry  out  in  good  faith  the  acquisition  of  homestead,  is 
not  void,   though  profit  results  from  sale. 

Distinguished  in  Richard  v.  Perrodin,  116  La.  447,  40  So.  791,  one 
not  inhabitant  of  Bellevue  cannot  cut  timber  on  swamp  lands. 

Syl.  8  (VIII,  275).     Indians  cannot  cut  timber  to  sell. 

Approved  in  Labadie  v.  United  States,  6  Old.  422,  51  Pac.  673, 
Indian  cutting  timber  on  Osage  reservation  for  speculative  purposes 
may  be  prosecuted  under  25  Stat.   166. 

Syl.  6   (VIII,  276).     Government  may  sue  for  illegally  cut  timber. 

Approved  in  Peyton  v.  Desmond,  129  Fed.  6,  63  C.  C.  A.  651,  pat- 
entee under  homestead  laws  may  recover  value  of  timber  wrongfully 
cut  from  land  between  initiation  of  claim  and  issuance  of  patent. 

19   Wall.   606-611,     22  L.  187,  HOLLADAY  v.  DAILY. 

Syl.  1   (VIII,  277).     Power  to  sell  and  convey — Execution  of  deed. 

Approved  in  Kilpatrick  v.  Wiley,  197  Mo.  169,  95  S.  W.  224,  hold- 
ing contract  for  sale  of  lands  entered  into  by  broker  to  conform  to 
power. 

19  Wall.  611-618,  22  L.  203,  PACKET  COMPANY  v.  SICKLES. 

Syl.  4   (VIII,  277).     Measure  of  damages  for  patent  infringement. 

Distinguished  in  Brown  v.  Lanyon,  148  Fed.  839,  action  at  law  can- 
not be  maintained  for  sole  purpose  of  recovering  profits  which  in- 
fringer of  patent  has  made. 

19  Wall.  646-655,  22  L.  219,  WARREN  v.  VAN  BRUNT. 

Syl.  3   (VIII,  280).     Conclusiveness  of  Land  Department  decision. 

Approved  in  Sage  v.  Rudnick,  91  Minn.  334,  100  N.  W.  108,  dur- 
ing pendency  of  controversy  over  railroad  land  grant  in  Land  De- 
partment, running  of  statute  of  limitations  in  favor  of  adverse  claim 
not  suspended. 

Syl.  4  (VIII,  280).  Decision  of  Land  Department — Scope  of  judi- 
cial review. 

Approved  in  Jones  v.  Hoover,  144  Fed.  220,  holding  equity  will 
review  acts  of  Land  Department  to  give  possession  where  possession 
is  essential  for  completion  of  purchase  under  statutes  relating  to 
disposition  of  public  lauds. 


641  Notes  on  U.  S.  Reports.  19  Wall.  655-665 

19  Wall.  655-661,  22  L.  223,  HEINE  v.  LEVEE   COMMISSIONERS. 

Syl.  1  (VIII,  281).     Mandamus  to.  compel  tax  levy  to  pay  bonds. 

Approved  in  Marra  v.  San  Jacinto  etc.  Irr.  Dist.,  131  Fed.  789, 
where  irrigation  district  organized  under  Cal.  St.  1887,  p.  29,  sold 
bonds  and  holder  thereof  secured  judgment  on  which  execution  re- 
turned unsatisfied,  his  remedy  was  to  mandamus  oflBcers  of  district 
to  levy  assessment  against  property  of  district. 

Syl.  2  (VIII,  282).  Equity— Failure  of  legal  remedy— Municipal 
bonds. 

Approved  in  Marra  v.  San  Jacinto  etc,  Irr.  Dist.,  131  Fed.  790, 
where  irrigation  district  organized  under  Cal.  St.  1887,  p.  29,  sold 
bonds,  remedy  of  holder  who  has  had  execution  on  judgment  returned 
unsatisfied  is  mantlamus  to  compel  levy  of  assessment  and  not  suit 
for  receivership;  Folsom  v.  Greenwood  Co.,  130  Fed.  734,  federal 
court  cannot  adjudge  a  county,  which  can  only  levy  taxes  for  speci- 
fied purposes,  liable  for  payment  of  bonds  issued  by  township  before 
county  was  created  and  which  was  dissolved  on  its  inclusion  in 
county;  Kersey  v.  Terre  Haute,  161  Ind.  474,  68  N.  E.  1029,  uphold- 
ing ordinance  imposing  license  tax  on  vehicles  using  streets,  though 
street-cars,  automobiles  and  vehicles  of  nonresidents   exempted. 

Distinguished  in  Graham  v.  Folsom,  200  U.  S.  252,  253,  50  L.  468, 
469,  26  Sup.  Ct.  245,  mandamus  lies  to  compel  county  auditor  and 
treasurer  to  levy  tax  to  pay  judgment  on  township  bonds»  though 
township  organization  abolished. 

19  Wall.  661-665,  22  L.  226,  BOARD  OF  COMMISSIONERS  v.  GOR- 
MAN. 

Syl.  1   (VIII,  283).     Supersedeas  as  stay  of  execution. 

Approved  in  Boston  &  M.  R.  Co.  v.  Gokey,  150  Fed.  687,  where 
district  court  judgment  afiirmed  by  circuit  court  of  appeals  and  man- 
date sent  down,  but  defeated  party  applied  to  supreme  court  for 
certiorari,  execution  stayed  by  district  court;  Thalheim  v.  Camp 
Phosphate  Co.,  48  Fla.  195,  37  So.  525,  Rev.  St.  1892,  §  1272,  does 
not  restore  personalty  previously  levied  on  to  possession  of  defendant 
in  execution. 

Syl.  2   (VIII,  284).     Execution  time  runs  from  judgment  entry. 

Approved  in  In  re  McCall,  145  Fed.  901,  where  order  overruling 
application  for  rehearing  of  order  confirming  bankrupt's  composi- 
tion entered  on  journal  for  October  10th,  which  contained  indorse- 
ment by  clerk,  "Filed  Oct.  10th,"  and  direction  of  judge  to  enter 
order  was  dated  October  16th,  time  for  appeal  ran  from  October  lutb, 
as  other  date  was  clerical  error. 

41 


19  Wall.  666-G79  Notes  on  U.  S.  Eeports.  642 

19  Wall.  666-679,  22  L.  227,  TOWNSHIP  OF  PINE  GROVE  v.  TAL- 
OOTT. 

Syl.  1   (VIII,  284).     Invalidity  of  statutes   must  be  clear. 
Approved    in    Hall   v.    Chicago    etc.    Ey.    Co.,    149    Fed.    566,    query 
whether  employer's  liability  act  of  1906  is  valid. 

Syl.  4   (VIII,  285).     Municipalities  may  aid  railroads. 

Approved  in  Donovan  v.  Pennsylvania  Co.,  199  U.  S.  293,  50  L. 
199,  26  Sup.  Ct.  91,  railroad  which  has  contracted  with  transfer 
company  to  provide  all  vehicles  necessary  for  use  of  passengers  ar- 
riving at  depot  may  exclude  other  cabmen  from  depot  grounds; 
Detroit  etc.  R.  R.  Co.  v.  Campbell,  140  Mich.  387,  103  N.  W.  857, 
where  railroad  contracted  with  individual  to  obtain  for  it  right 
of  way  and  construct  remainder  of  road,  authorizing  him  to  take 
necessary  steps  to  condemn  land,  he  to  defray  expenses,  he  could 
maintain  condemnation  proceedings  in  name  of  railroad. 

Syl.  5   (VIII,  285).     Following  state  construction  of  constitution. 

Approved  in  York  v.  Washburn,  129  Fed.  508,  5G9,  64  C.  C.  A. 
132,  whether  or  not  oral  contract  for  lease  of  realty  for  more  than 
one  year,  not  complying  with  statute  of  frauds  of  state  where  land 
lies,  is  nullity  or  voidable,  is  determinable  according  to  state  deci- 
sions. 

Syl.  6   (VIII,  286).     Taxation  must  be  uniform. 

Approved  in  State  v.  Chicago  etc.  R.  R.  Co.,  195  Mo.  238,  93  S. 
W.  786,  holding  void  Const.  Amend,  of  1900,  authorizing  county 
courts  and  township  directors  to  levy  road  tax  and  exempting  cer- 
tain cities  from  operation  of  amendment;  Pryor  v.  Bryan,  11  Okl. 
364,  66  Pac.  350,  upholding  act  exempting  from  taxation  all  prop- 
erty on  Indian  reservation  attached  to  county  for  taxing  purposes 
except  for  territorial  or  court  funds,  where  property  receives  no  bene- 
fit from  other  county  funds. 


XX  WALLACE. 


20  Wall.   8-14,  22  L.  309,  CREIGHTON  v.  KERR. 

Syl.  1   (VIII,  288).    .General  appearance  waives  defects  in  service. 

Approved  in  Bcntley  v.  Reid,  133  Fed.  702,  66  C.  C.  A.  528,  where 
on  petition  being  filed  clerk  failed  to  annex  process  so  that  same 
could  be  served  for  next  term  and  court  entered  order  directing  ser- 
vice for  succeeding  term,  and  on  such  service  defendant  pleaded  to 
merits,  commencement  of  action  for  purpose  of  limitations  was  filing 
of  petition;  Norfolk  etc.  R.  Co.  v.  Sutherland,  105  Va.  549,  54  S.  E. 
466,  where  defendant  appeared  when  cause  was  remanded  to  rules  to 
enable  plaintiff  to  file  amended  declaration,  service  of  summons  to 
amended    declaration   is   unnecessary. 

20  Wall.  14-20,  22  L.  311,  McQUIDDY  v.  WARE. 

Syl.  2   (VIII,  2S9).     Equitable  relief  refused  for  laches. 

Approved  in  Ryason  v.  Dunten,  164  Ind.  9G,  73  N.  E.  77,  where 
mother  in  possession  as  cotenant  with  son  purchased  land  at  fore- 
closure and  obtained  sheriff's  deed,  and  son  for  several  years  after 
failed  to  assert  rights,  he  cannot  assert  rights  against  mother's  re- 
mote  grantee   for   value. 

20  Wall.  20-30,  22  L.  279,  HUMASTON  v.  AMERICAN  TELEGRAPH 
CO. 

Syl.  1  (VIII,  290).     Contract  for  arbitration  binding. 

Approved  in  Elberton  Hardware  Co.  v.  Hawes,  122  Ga.  866,  50  S. 
E.  9G7,  where  parties  to  executory  agreement  for  sale  of  goods  agree 
that  price  be  fixed  by  values  named,  and  one  of  valuers  refuses  to 
act,  other  cannot  select  valuer;  Hopedale  El.  Co.  v.  Electric  etc. 
Co.,  184  N.  Y.  363,  77  N.  E.  396,  where  contract  for  sale  of  electric 
plant  provided  that  if  vendor's  storage  batteries  should  prove  su- 
perior to  vendees,  it  would  pay  certain  sum  as  bonus  based  on  per- 
centage of  superiority,  and  vendee  refused  to  make  test,  damages 
recoverable  are  only   nominal   in  absence   of  evidence   of  superiority. 

Syl.  2  (VIII,  290).  Act  of  vendee  rendering  performance  impos- 
sible— Value. 

Distinguished  in  Elbertson  Hardware  Co.  v.  Hawes,  122  Ga.  869,  50 
S.  E.  969,  fact  that  one  of  parties  to  executory  agreement  for  sale 
of  goods  under  which  valuers  fix  price  is  cause  of  refusal  of  one 
of  valuers  to  act  does  not  estop  him  from  denying  valuation  made 
otherwise  than  according  to  agreement. 

[643] 


20  Wall.  36-72  Notes  on  U.  S.  Reports.  644 

20  Wall.  36-45,  22  L.  282,  PACIFIC  E.  E.  CO.  v.  MAGUIEE. 

Syl.  2  (VIII,  292).  Statutory  tax  exemption  of  railroad  as  con- 
tract. 

Approved  in  State  v.  Chicago  etc.  Ey.  Co.,  128  Wis.  504,  lOS  N. 
W.  609,  upholding  statute  imposing  tax  on  gross  earnings  of  rail- 
road. 

20  Wall.  64-72,  22  L.   315,  OEEGON  STEAM  NAVIGATION  CO.   v. 
WINSOR. 

Syl.   1    (VIII,   294).     Contract  in  restraint   of   trade   is   void. 

Approved  in  Webb  Press  Co.  v.  Pierce,  116  La.  912,  41  So.  206, 
holding  void  contract  whereby  one  contemplating  to  engage  in  busi- 
ness in  certain  place  agrees  with  another  not  to  do  so. 

Syl.   2    (VIII,   295).     Contracts— What   restraint    of   trade   valid. 

Approved  in  Merriman  v.  Cover,  104  Va.  436,  51  S.  E.  819,  up- 
holding contract  between  firm  procuring  railroad  right  of  way  and 
owner  that  no  oak  bark  be  shipped  over  road  except  to  owner,  un- 
less he  refuses  to  take  it  at  market  price. 

Syl.  3  (VIII,  295).  Theory  of  invalidity  of  contracts  restraining 
trade. 

Approved  in  Cincinnati  etc.  Packet  Co.  v.  Bay,  200  U.  S.  185, 
50  L.  433,  26  Sup.  Ct.  208,  purchaser  of  river  boats  cannot  invoke 
anti-trust  act  as  defense  to  action  for  purchase  price  though  he 
agreed  to  maintain  present  rates  which  relate  to  domestic  business; 
Cottington  v.  Swan,  128  Wis.  323,  107  N.  W,  337,  upholding  con- 
tract whereby  vendor  of  livery  business  agrees  not  to  engage  in  liv- 
ery business  in  same  place  so  long  as  vendee  or  his  heirs  continue 
in  business  in  same  place. 

Syl.  4  (VIII,  295).  Facts  determine  invalidity  of  contract  re- 
straining  trade. 

Approved  in  Merica  v.  Burget,  36  Ind.  App.  459,  75  N.  E.  1086, 
agreement  by  vendor  of  bank  to  quit  banking  business  and  not  to 
start  bank  in  same  town  while  vendee  owns  bank  sold  is  broken 
by  vendor  subscribing  to  stock  in  new  bank  and  acting  as  assistant 
cashier;  Swigert  v.  Tilden,  121  Iowa,  662,  100  Am.  St.  Rep.  374, 
97  N.  W.  86,  63  L.  E.  A.  608,  upholding  sale  of  goodwill  in  mail 
order  shirt  business  on  agreement  of  seller  not  to  engage  in  manu- 
facture of  shirts  within  one  hundred  miles  of  Des  Moines  nor  sell 
shirts  in  Iowa  and  Nebraska  for  ten  years,  except  as  vendee's  agent. 

Syl.  5  (VIII,  295).     Contracts  partially  restraining  trade. 

Approved  in  Hartman  v.  Park  &  Sons  Co.,  145  Fed.  380,  system 
of  contracts  made  by  maker  of  proprietary  medicine  between  him 
and  wholesalers  by  which  they  are  to  sell  only  at  certain  price  and 
io    certain    retailers    and    between    him    and    retailers    whereby    they 


645  Notes  on  U.  S.  Reports.  20  Wall.  117-137 

agreed  to  sell  only  at  certain  price,  is  valid;  Fisheries  Co.  v.  Lenneu, 
130  Fed.  534,  65  C.  C.  A.  79,  upholding  agreement  by  which  vendor 
of  fisheries  plant  agreed  not  to  engage  in  fish  business  in  competi- 
tion with  vendee  for  twenty  years. 

Syl.  6  (VIII,  297).     Partial  invalidity  of  contract  restraining  trade. 

Approved  in  Monongahela  etc.  Coke  Co.  v.  Jutte,  210  Pa.  St.  307, 
105  Am.  St.  Eep.  812,  59  Atl.  1095,  contract  of  sale  of  coal  landr, 
binding  vendor  not  to  engage  in  mining  or  shipping  coal  in  certain 
territory  for  ten  years  is  void  as  to  territory  outside  of  state,  but 
valid   in   so   far   as  it  relates   to   mining  in   state. 

20  Wall.  117-124,  22  L.  328,  KNAPP  v.  EAILROAD  CO. 

Syl.   4    (VIII,    301).     Trustees    may   enforce    claims. 

Approved  in  In  re  E.  T.  Kenney  Co.,  136  Fed.  455,  beneficial  in- 
terest of  assignors  in  net  proceeds  of  claims  against  insolvent  as- 
signed to  committee  to  purchase  property  of  insolvent  from  receiver 
and  sell  same  for  creditors,  after  administration  of*  trust  by  com- 
mittee, not  provable  in  bankruptcy. 

20  Wall.  125-137,  22  L.  299,  BURTON  v.  DRIGGS. 

Syl.  1  (VIII,  302).  Assignment  of  grounds  of  inadmissibility  of 
evidence. 

Approved  in  Graves  v.  Bonness,  97  Minn.  281,  107  N.  W.  104,  fol- 
lowing rule;  Brown  v.  United  States,  142  Fed.  6,  applying  rule  to 
objection  to  admission  of  account-books  in  prosecution  for  aiding 
national  bank  president  in  misapplication  of  funds;  Texas  &  P.  Ry. 
Co.  v.  Contourie,  135  Fed.  470,  471,  68  C.  C.  A.  177,  applying  rule 
in  action  against  carrier  for  loss  by  fire  of  cotton  while  on  com- 
pany's dock. 

Syl.  2  (VIII,  303).  Admission  of  copy  of  lost  deposition — Absent 
witness. 

Approved  in  Toledo  Traction  Co.  v.  Cameron,  137  Fed.  60,  61,  69 
C.  C.  A.  28,  admitting  testimony  given  at  former  trial  where  wit- 
ness in  action  for  personal  injuries  is  outside  jurisdiction  of  court 
and  resides  more  than  one  hundred  miles  from  place  of  trial;  Brown 
v.  Harkins,  131  Fed.  67,  65  C.  C.  A.  301,  in  action  by  distiller  for 
revenue  taxes  illegally  imposed,  evidence  that  record-book  taken  from 
him  to  collector's  office  and  then  to  revenue  agent's  office,  and 
that  search  made  for  it  only  in  latter  office,  is  insufficient  for  ad- 
mission  of    parol    evidence    of    contents. 

Syl.  3  (VIII,  304),     Secondary  evidence  of  papers  in  another  state. 

Distinguished  in  Pringey  v.  Guss,  IG  Okl.  83,  86  Pac.  293,  secondary 
evidence  of  contents  of  written  contract  not  admissible  where  no 
diligence  shown  to  produce  original  last  seen  in  possession  of  third 
party. 


20  Wall.  137-152  Notes  on  U.  S.  Keports.  646 

Syl.   4   (VIII,  304).     Proof  of  voluminous  documents  by   examiner. 

Approved  in  Schumacher  v.  Pima  Co.,  7  Ariz.  273,  64  Pac.  491, 
applying  rule  in  action  by  county  to  recover  money  unlawfully  paid 
as  probate  judge's  salary  where  county  board  employed  attorney  to 
examine  records;  New  La  Junta  etc.  Canal  Co.  v.  Kreybill,  17  Colo. 
App.  36,  67  Pac.  1029,  permitting  witness  who  had  examined  rec- 
ords of  numerous  deeds  in  various  counties  to  state  number  of  such 
deeds  of  record  in  those  counties  to  show  that  deeds  were  of  record 
nt  time  of  execution  of  deed  of  trust  on  property  of  party  executing 
those  deeds;  State  v.  Nevada  etc.  E.  R.  Co.,  28  Nev.  214,  81  Pac. 
10.3,  where  on  issue  of  earning  capacity  of  railroad  for  tax  pur- 
poses, books  not  introduced,  but  each  party  sought  to  prove  result 
from  them  by  opinion  of  expert,  introduction  of  books  waived;  Sykes 
V.  Beck,  12  N.  D.  267,  96  N.  W.  852,  refusing  evidence  of  attorney 
for  plaintiff  that  he  had  examined  records  and  that  they  did  not 
contain  anj-thing  with  reference  to  certain  tax  levies. 

Distinguished  in  In  re  Estate  of  Colton,  129  Iowa,  545,  105  N.  W. 
1009,  admitting  evidence  of  attorney  who  had  examined  records  that 
there  was  no   record  of   divorce   decree   between   certain   parties. 

Syl.  5  (VIII,  305).  Assumpsit  for  consideration  of  fraudulent  as- 
signment. 

Approved  in  Johnson  v.  Gate,  77  Vt.  225,  59  Atl.  832,  in  action  for 
money  paid  for  goods  purchased  by  firm  for  which  plaintiff  was  agent, 
v.-here  defendant  falsely  informed  plaintiff  that  firm  had  never  paid, 
question  of  plaintiff's  guaranty  is  immaterial. 

20  Wall.   137-152.  22  L.   331,  TIOGA   ETC.  RY.   CO.   v.  BLOSSBURG 
ETC.  RY.  CO. 

Syl.   1    (VIIT,   305).     Judgment   as   bar. 

Approved  in  Georgia  etc.  Banking  Co.  v.  Wright,  132  Fed.  916, 
where  state  supreme  court  in  suit  between  state  and  railroad  decided 
that  charter  precluded  state  from  taxing  company  in  excess  of  cer- 
tain rate,  decision  concludes  state  in  suit  for  taxes  for  differcut 
year  under  different  statute. 

Syl.   5    (VIII,   30G).     Foundation    of   law   of   limitations. 

Approved  in  Sidway  v.  Missouri  Land  etc.  Co.,  187  Mo.  673,  86  S. 
W.  156,  where  foreign  corporation  was  licensed  in  state  and  main- 
tained office  and  agent  for  service  of  process  it  was  not  nonresident 
within  Rev.  St.,  §  4282,  providing  for  suspension  of  limitations. 

(VIII,  305.)  Miscellaneous.  Cited  in  Williams  v.  Metropolitan 
etc.  Ry.  Co..  GS  Kan.  23,  74  Pac.  602,  64  L.  R.  A.  794,  foreign  cor- 
poration being  "out  of  state"  within  meaning  of  Code,  §  21,  cannot 
avail  itself  of  statute  of  limitations. 


647  Notes  on  U.  S.  Reports.  20  WaU.  152-251 

20   Wall.    152-158,   22   L.    338,   SIMPSON   v.    GREELEY. 

Syl.  1   (VIII,  30G).     Joint  parties  must  join  in   appeal. 

Approved  in  Port  v.  Schloss  Bros.  &  Co.,  149  Fed.  7r'.2,  following 
rule. 

20   Wall.   1G5-171,   22  L.   252.  ROACH  v.   SUMMERS. 

Syl.  1  (VIII,  308).  Discharge  of  surety  by  change  in  principal's 
contract. 

Distinguished  in  Zeigler  v.  Hallahan,  131  Fed.  208,  66  C.  C.  A.  1, 
■where  defendant  guaranteed  lease  by  which  tenant  bound  to  keep 
and  pay  rent  for  premises  and  deliver  them  in  good  condition  at  end 
of  term,  insertion  of  clause  in  lease  making  it  void  if  premises  de- 
stroyed by  fire,  discharged  surety. 

20  Wall.  171-178,  22  L.  273,  THIRD  NATIONAL  BANK  v.  COOPER. 

(VIII,  308.)  Miscellaneous.  Cited  In  Bacon  v.  Roberts,  146  Fed. 
730,  dismissing  petition  to  review  order  of  bankruptcy  referee  filed 
fifty  days  after  making  of  order. 

20  Wall.  179-189,  22  L.  339,  TWENTY  PER  CENT  CASES. 

Syl.  1   (VIII,  309).     Retroactive  construction  of  statutes. 

Approved  in  Hall  v.  Chicago  etc.  Ry.  Co.,  149  Fed.  567,  employers' 
liability  act  regulating  liability  of  interstate  carriers  for  injuries  to  em- 
ployees does  not  apply  to  causes  of  action  existing  at  time  of  its 
adoption. 

20   Wall.   201-226,   22   L.   259,   THE   LOTTAWANNA. 

Syl.  2  (VIII,  310).     Maritime  lien — Supplies  furnished  in  home  port. 

Approved  in  The  Sue,  137  Fed.  135,  where  local  law  gives  lien  for 
repairs  or  supplies  furnished  vessel  in  home  port,  no  lien  is  acquired 
unless  local  law  followed. 

Syl.  7   (A^III,  311).     Property  following  appeal  in  rem. 

Approved  in  First  Nat.  Bank  v.  State  Nat.  Bank.  131  Fed.  431, 
65  C.  C.  A.  414,  where  appeal  is  taken  under  Bankr.  Act,  §  25a,  from 
judgment  allowing  or  rejecting  debt,  district  court  cannot  entertain 
motion  for  rehearing  pending  appeal. 

20  Wall.  226-251,  22  L.  254,  CORNETT  v.  WILLIAMS. 

Syl.  4  (VIII,  311).     Best  possible  secondary  evidence — Certified  copy. 

See  110  Am.  St.  Rep.  456,  note. 

Syl.  5   (VIII,  312).     Conclusiveness  of  judgment  on  collateral  attack. 

Approved  in  C.  C.  Taft  Co.  v.  Century  Sav.  Bank,  141  Fed.  371, 
omission  of  petition  in  involuntary  bankruptcy  to  allege  that  defendant 
owes  debts  amounting  to  $1,000  is  jurisdictional  defect;  In  re  Burkell, 
2  Alaska,  110,  arguendo. 


20  Wall.  251-341  Notes  on  U.  S.  Keports.  648 

Syl.  7  (VIII,  313).     Official  acts — Presumptions  from  other  acta. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  812,  construing 
conditions  in  oil  lease  relating  to  forfeiture  for  failure  to  comply  with 
covenants. 

20  Wall.  251-264,  22  L.  275,  UNITED  STATES  v.  HEREON. 

Syl.  3   (VIII,  314).     Bankruptcy  discharge — Debt  due  government. 

Approved  in  Olds  v.  Forrester,  126  Iowa,  458,  102  N.  W.  420,  judg- 
ment for  costs  in  criminal  prosecution  is  satisfied  by  discharge  of 
judgment  debtor  in  bankruptcy. 

20  Wall.  289-322,  22  L.  264,  CITY  OF  MEMPHIS  v.  BEOWN. 

Syl.  2  (VIII,  316).  Damages — Failure  to  return  bonds  under  con- 
tract. 

Approved  in  Barse  Live  Stock  Co.  v.  McKinister,  10  Okl.  71,  64  Pac. 
15,  damages  where  property  of -defendant  seized  and  delivered  to  plain- 
tiff under  writ  are  price  at  which  he  could  have  bought  property  in 
market  nearest  place  at  which  he  should  have  had  possession. 

Syl.  8    (VIII,  317).     Damages   must  be  legally  computable. 

Approved  in  Tootle  v.  Kent,  12  Okl.  691,  73  Pac.  315,  allowing 
damages  for  loss  of  credit  in  action  by  merchant  for  malicious  acts  of 
another. 

Distinguished  in  Critchfield  v.  Julia,  147  Fed.  72,  where  defendant 
in  consideration  of  services  rendered  agreed  to  certain  sum  and  certain 
preferred  stock  in  corporation  to  be  formed,  but  after  formation  of 
corporation  did  not  issue  such  stock,  plaintiff  could  recover  sum  equal 
to  value  of  such  stock  if  issued  determinable  with  reference  to  value 
of  corporation's  assets  and  activities. 

Syl.  10   (VIII,  317).     Modification  of  city  contract  by  officers. 

Approved  in  Drainage  Com.  v.  National  Contracting  Co.,  136  Fed. 
791,  under  Acts  La.  1896,  p.  162,  §§  5,  6,  7,  relating  to  drainage, 
neither  drainage  commission  nor  its  engineer  could  consent  to  sub- 
stitution of  cheaper  material  for  that  specified  in  contract. 

20  Wall.  323-341,  22  L.  348,  STOCKDALE  v.  ATLANTIC  INSURANCE 
CO. 

Syl.  2  (VIII,  317).     Legislative  construction  of  statutes. 

Approved  in  James  v.  United  States,  202  U.  S.  406,  50  L.  1081, 
26  Sup.  Ct.  685,  salary  of  District  of  Columbia  supreme  judges  for  year 
ending  June  30,  1893,  was  $5,000,  though  appropriation  for  such  year 
was  sufficient  to  pay  former  salary  only;  American  Sug.  Ref.  Co.  v. 
United  States,  136  Fed.  509,  Cuban  treaty  of  1903,  was  retroactive  and 
applied  to  Cuban  goods  imported  ten  days  after  ratifications  exchanged, 
though  Congress  did  not  approve  it  till  later. 


649  Notes  on  U.  S.  Keports.  20  Wall,  353-384 

20  Wall.  353-375,  22  L.  241,  HAILES  v.  VAN  WORMER. 

Syl.   1    (VIII,  319).     Patents — New  combination  of  old  constituents. 

Approved  in  Pennsylvania  etc.  Gaslight  Co.  v.  Best,  137  Fed.  942, 
upholding  Campbell  patent  No.  447,757,  for  method  of  using  hydro-carbon 
fluids  for  illuminating  purposes  and  incandescent  lamp  for  using  such 
method. 

Syl.  2  (VIII,  319).     Patents— Combining  old  devices. 

Approved  in  American  Chocolate  Mach.  Co.  v.  Helmstetter,  142  Fed. 
980,  Holmes'  patent,  No.  492,205,  for  chocolate  dipping  machine,  con- 
sisting of  combination  with  drop-dripping  mechanism  of  jarring  device 
for  removing  surplus,  is  not  infringed  by  machine  of  Weeks'  patent  No. 
634,633;  Dodge  Cold  Storage  Co.  v.  New  York  etc.  R.  R.  Co.,  139  Fed. 
985,  986,  987,  holding  void  Piez  &  Beaumont  patents  Nos..  668,960  and 
688,111,  for  improvements  in  mechanism  for  piling  coal  and  for  remov- 
ing material  from  pile;  West  Boylston  Mfg.  Co.  v.  Wallace,  137  Fed. 
926,  holding  void  Mitchelsen  patent  No.  718,499  for  tenting  cloth,  for 
use  in  covering  plants,  as  lacking  novelty;  Self-sealing  Can  Co.  v. 
Hoeker,  136  Fed.  420,  holding  void  Spencer  patent  No.  412,134,  for  can 
top  and  cover;  Voightmann  v.  Weis  etc.  Cornice  Co.,  133  Fed.  300,  hold- 
ing void  Voightmann  patent  No.  600,186,  for  improvement  in  firej)roof 
windows. 

20  Wall.  375-384,  22  L.  383,  FERRIS  v.  HIGLEY. 

Syl.  1  (VIII,  321).     Act  organizing  territory  is  its  constitution. 

Approved  in  Davidson  v.  Wampler,  29  Mont.  66,  74  Pac.  84,  under 
Prob.  Prac.  Act,  §§  367,  369,  guardian  cannot  mortgage  ward's  land  to 
secure  debt  contracted  for  improvement  of  estate;  Jung  v.  Myer,  11 
N.  M.  390,  68  Pac.  937,  holding  void  Laws  1901,  c.  82,  authorizing  ap- 
peals to  supreme  court  from  interlocutory  orders  affecting  substantial 
rights. 

Syl.  2    (VIII,   321).     Territorial  court's  law  and  equity  jurisdiction. 

Approved  in  Christy  v.  City  of  Kingfisher,  13  Okl.  588,  76  Pac.  137, 
holding  void  act  authorizing  city  council  to  hear  and  determine  charges 
made  ground  for  removal  of  officer  and  to  enter  order  of  removal  but 
failing  to  provide  for  review  in  courts;  dissenting  opinion  in  Howe  v. 
Dunlap,  12  Okl.  474,  72  Pac.  896,  majority  holding  injunction  will 
not  lie  to  restrain  mayor  and  council  from  recognizing  as  city  attorney 
person  elected  as  successor  in  office  of  person  removed  by  council. 

Syl.  3   (VIII,  322).     Procedure  in  probate  court. 

Approved  in  State  Capital  etc.  Co.  v.  Board  of  Commrs.  of  Grant  Co., 
8  Okl.  230,  56  Pac.  958,  probate  court  has  no  jurisdiction  over  action 
to  vacate  judgment. 

Syl.  4  (Vm,  322).     Territorial  law  conferring  jurisdiction  on  courts. 
Approved  in  In  re  Bruno  Munro,  1  Alaska,  283.  284,  municipalities  can- 
not create  municipal  courts  independent  of  those  created  by  Congress; 


20  Wall.  385-403  Notes  on  U.  S.  Reports.  65& 

Caron  v.  Old  Eeliable  Gold  Min.  Co.,  12  N.  M.  222,  226,  78  Pac.  65,  67, 
probate  court  has  no  jurisdiction  to  determine  contested  claims  of  title 
to  property  as  between  an  estate  and  stranger;  Garrett  v.  London  etc. 
Ins.  Co.,  15  Okl.  224,  81  Pac.  421,  probate  court  has  no  jurisdiction 
to  appoint  receiver;  Bardrick  v.  Dillon,  7  Okl.  551,  54  Pac.  790,  enjoin- 
ing tax  levy  on  excess  where  board  of  equalization  increased  valuation 
of  property  of  any  individual  in  excess  of  its  true  cash  value;  Wetz 
V.  Elliott,  4  Okl.  620,  51  Pac.  657,  under  Stat.  1893,  c.  18,  art.  15,  §§  1, 
6,  probate  court  had  no  jurisdiction  over  proceeding  purely  injunctional; 
Irwin  v.  Irwin,  2  Okl.  195,  37  Pac.  552,  holding  probate  court  has  no 
jurisdiction  in  divorce;  Bullerdick  v.  Hermsmeyer,  32  Mont.  551,  81  Pac. 
336,  arguendo. 

Distinguished  in  Central  Loan  etc.  Co.  v.  Campbell  etc.  Co.,  5  Okl. 
407,  409,  49-  Pac.  51,  52,  upholding  Stat.  1893,  §§  4120,  4121,  au- 
thorizing probate  judge  to  issue  attachment  in  cause  pending  in  district 
court  where  district  judge  is  absent  from  county;  Irwin  v.  Irwin,  3  Okl. 
202,  206,  41  Pac.  374,  375,  under  Stat.  1890,  §  4966,  probate  courts 
could  only  grant  divorces  where  petition  and  affidavit  show  plaintiff  to 
have  resided  two  years  in  territory  and  six  months  in  county;  Allison  v. 
Bergers,  1  Okl.  8,  25  Pac.  513,  county  court  has  jurisdiction  of  civil 
suit  for  money  demand  of  $310;  dissenting  opinion  in  Irwin  v.  Irwin, 
2  Okl.  225,  37  Pac.  562,  majority  holding  probate  court  has  no  juris- 
diction over  actions  for  divorce. 

20  Wall.  385,  386,  22  L.  385,  THE  S.  B.  WHEELER. 

Syl.  1  (VIII,  323).     Admiralty — Concurrence  of  two  courts. 

Approved  in  The  Iroquois,  194  U.  S.  247,  48  L.  960,  24  Sup.  Ct.  640, 
afl&rming  concurring  decisions  of  two  lower  courts  that  master  of  sailing 
vessel  bound  for  San  Francisco  was  bound  to  put  in  intermediate  port 
for  medical  attendance  for  seamen  who  had  broken  ribs  and  leg  while 
vessel  rounding  Cape  Horn;  Last  Chance  Min.  Co.  v.  Bunker  Hill  etc. 
Co.,  131  Fed.  588,  66  C.  C.  A.  299,  refusing  to  disturb  findings  of 
master  based  on  conflicting  evidence  when  approved  by  court. 

20  Wall.  387-403,  22  L.  354,  NEW  ORLEANS  v.  THE  STEAMSHIP 
CO. 

Syl.  1  (VIII,  323).     Contempt  is  specific  crime. 

Approved  in  Heinze  v.  Butte  etc.  Min.  Co.,  129  Fed.  278,  280,  63 
C.  C.  A.  388,  where  in  suit  in  equity  in  aid  of  action  at  law  injunction 
issued  preventing  defendant  from  extracting  ore  and  order  requiring 
them  to  permit  plaintiff  to  examine  mine  was  disobeyed,  judgment  fining 
defendant  for  contempt  was  not  criminal  judgment  and  not  reviewable 
on  error;  In  re  Fellerman,  149  Fed.  246,  two  persons  may  be  jointly 
proceeded  against  for  contempt  though  it  consists  in  false  swearing 
before  court;  Bullock  etc.  Co.  v.  Westinghouse  etc.  Co.,  129  Fed.  106, 
107,   63   C.   C.   A.   607,   circuit   court   judgment   fining   one   for   violating 


651  Notes  on  U.  S.  Keports.  20  Wall.  414-445 

injunction  is  reviewable  on  writ  of  error;  Christensen  etc.  Co.  v.  West- 
inghouse  etc.  Co.,  129  Fed.  96,  97,  63  C.  C.  A.  598,  order  adjudging 
one  in  contempt  for  violating  interlocutory  injunction  restraining  patent 
infringement  is  not  reviewable  except  on  appeal  from  final  decree  in 
cause;  State  v.  Harney,  30  Mont.  197,  76  Pac.  11,  Code  Civ.  Proc, 
§  615,  as  amended,  prohibiting  change  of  venue  where  parties  agree 
on  judge  pro  tempore  or  if  qualified  district  judge  is  called  iu  does 
not  apj)ly  to  contempt  proceedings. 

Distinguished  in  In  re  Christensen  Engineering  Co.,  194  U.  S.  459,  48  L. 
1074,  24  Sup.  Ct.  729,  circuit  court  of  appeals  has  jurisdiction  on  writ 
of  error  to  review  circuit  court  order  fining  one  for  violating  pre- 
liminary injunction  in  patent  infringement'' suit. 

Syl.  3  (VIII,  325).     Keview  of  circuit  court  judgment  in  contempt. 

Distinguiyhed  in  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S.  331,  333, 
48  L.  1003,  1004,  24  Sup.  Ct.  665,  circuit  court  of  appeals  may  review 
order  of  circuit  court  fining  one  not  party  to  suit  for  contempt  in  violat- 
ing restraining  order. 

20  Wall.  414-420,  22  L.  389,  MAYS  v.  FRITTON. 

Syl.  1   (VIII,  326).     Waiver  of  objection  to  state  jurisdiction. 

Approved  in  In  re  Reynolds,  133  Fed.  587,  where,  after  adjudication 
in  bankruptcy  property  of  bankrupt  taken  possession  of  by  chattel  mort- 
gage, and  trustee  sued  in  state  court  for  value  of  property,  he  cannot 
thereafter  bring  summary  proceedings  in  bankruptcy  court  to  recover 
projjerty. 

Syl.  2  (VIII,  327).     Objection  must  be  taken  below. 
Approved   in   The   Wyandotte,    145    Fed.   326,   exhibits   must   be   made 
part  of  record  in  admiralty  appeal. 

20  Wall.  430-445,.  22  L.  391,  THE  MONTELLO. 

Syl.    1    (VIII,    328).     What    are    navigable    streams. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  478,  50  L.  277,  26 
Sup.  Ct.  127,  where  bill  alleges  that  river  is  navigable  stream,  demurrer 
admits  navigability;  United  States  v.  Roth,  2  Alaska,  261,  Chena 
river  is  navigable  stream;  Minnesota  Canal  etc.  Co.  v.  Koochiching  Co., 
97  Minn.  441,  107  N.  W.  409,  Gen.  Laws  1901,  c.  360,  p.  579,  do  not  au- 
thorize corporation  to  divert  waters  from  navigable  stream  so  as  to  inter- 
fere with  navigation  and  by  means  of  canal  discharge  it  into  different 
drainage  area;  State  v.  Twiford,  136  N.  C.  606,  48  S.  E.  587,  naviga- 
bility not  affected  by  fact  that  one  riparian  owner  owns  lands  on  both 
sides  of  stream  with  no  public  road  to  v.ater. 

Syl.   2    (VIII,   329).     When  river  navigable   water   of  United   States. 
Approved  in  Birch  v.  King,  71  N.  J.  L.  394,  59  Atl.  11,  plea  to  juris- 
diction averring  that  cause  of  action  aiose  on  navigable  waters  and  is 


20  Wall.  445-474  Notes  on  U.  S.  Reports.  652 

exclusively  within  federal  jurisdiction  is  bad  as  not  showing  that  waters 
were  navigable  waters  of  the  United  States. 

20  Wall.  445-459,  22  L.  365,  HOME  INSURANCE  CO.  v,  MORSE. 

Syl.  2  (VIII,  330).     Agreement  not  to  remove  suit. 

Approved  in  Victor  Talking  Mach.  Co.  v.  American  Graph.  Co.,  140 
Fed.  862,  prior  agreement  by  which  parties  to  suit  for  infringement 
of  patent  agree  on  terms  of  settlement  on  condition  that  patent  is 
sustained  does  not  deprive  court  of  jurisdiction;  Hartford  Fire  Ins.  Co. 
v.  Hon,  66  Neb.  556,  562,  103  Am.  St.  Rep.  725,  92  N.  W.  747,  749,  60  L. 
R.  A.  436,  holding  void  stipulation  in  fire  insurance  policy  that  no  action 
thereon  shall  be  brought  until  after  compliance  with  stipulation  as  to 
appraisement  and  arbitration ;  dissenting  opinion  in  Prewitt  v.  Security 
etc.  Ins.  Co.,  119  Ky.  342,  343,  346,  S4  S.  W.  530,  531,  and  dissenting 
opinion  in  Security  etc.  Ins.  Co.  v.  Prewitt,  202  U.  S.  260,  261,  50  L. 
1019,  1020,  26  Sup.  Ct.  619,  majority  upholding^  Kentucky  statute  pro- 
viding that  foreign  insurance  company  removing  suit  to  federal  court 
shall  have  license  to  do  business  in  state  revoked. 

Distinguished  in  Security  etc.  Ins.  Co.  v.  Prewitt,  202  U.  S.  254,  255, 
50  L.  1017,  26  Sup.  Ct.  619,  affirming  Prewitt  v.  Security  etc.  Ins.  Co., 
119  Ky.  327,  330,  331,  83  S.  W.  612,  613,  and  upholding  Kentucky  stat- 
ute providing  that  foreign  insurance  company  removing  suit  to  federal 
court  shall  have  license  to  do  business  in  state  revoked. 

Syl.  5  (VIII,  332).     Insurance — Agreement  not  to  remove  suits. 

Approved  in  Pearson  v.  Anderburg,  28  Utah,  500,  80  Pac.  309,  mem- 
bers of  voluntary  association  cannot  restrict  themselves  to  remedies 
before  society's  tribunals  with  reference  to  benefits  due  under  contract, 
so  as  to  require  them  to  exhaust  remedy  provided  for  by  society's 
tribunals  as  condition  precedent  to  suing  for  benefits;  dissenting  opinion 
in  Security  etc.  Ins.  Co.  v.  Prewitt,  202  U.  S.  258,  263,  264,  265,  50 
L.  1019,  1020,  1021,  26  Sup.  Ct.  619,  majority  upholding  Kentucky 
statute  providing  that  foreign  insurance  company  removing  suit  to 
federal  court  shall  have  license  to  do  business  in  state  removed;  Knight 
v.  Shelton,  134  Fed.  440,  arguendo. 

Distinguished  in  Security  etc.  Ins.  Co.  v.  Prewitt,  202  U.  S.  249,  251, 
252,  50  L.  1015,  1016,  26  Sup.  Ct.  619,  upholding  Kentucky  statute 
providing  that  foreign  insurance  company  removing  suit  to  federal  court 
shall  have  license  to  do  business  in  state  revoked. 

20   V/all.    459-474,   22   L.   371,   SPROTT   v.   UNITED   STATES. 

Syl.  2   (VIII,  334).     Validity  of  acts  of  insurgent  states. 

Approved  in  Cullins  v.  Overton,  7  Okl.  482,  54  Pac.  705,  where  Texas 
authorities  organized  disputed  territory  into  county,  judgment  of  its 
county  court,  rendered  prior  to  adjudication  that  such  territory  was 
not  in  Texas,  is  valid. 


653  Notes  on  U.  S.  Reports.  20  Wall.  486-516 

20  Wall.   486-488,  22  L.  375,  BOLEY  v.  GRISWOLD. 

Syl.  1   (VIII,  335).     Judgment  in  replevin. 

Distinguished  in  Hynes  v.  Barnes,  30  Mont.  27,  75  Pac.  523,  under 
Code  Civ.  Proc,  §  1193,  judgment  for  plaintiff  in  claim  and  delivery 
must  be  in  alternative. 

20  Wall.  488-494,  22  L.  395,  HEARNE  v.  MARINE  IXS.  CO. 

Syl.  1    (VIII,  336).     Equity — Reformation  of  contracts  for  fraud. 

Approved  in  Taylor  v.  Grand  Lodge  A.  O.  U.  W.,  96  Minn.  452,  105 
N.  W.  413,  where  laws  of  beneficial  society  prohibited  admission  of 
persons  over  forty-five  and  applicant  over  such  falsely  certified  to  con- 
trary and  paid  dues  for  long  time  and  lodge  knew  nothing  of  falsity 
of  certificate  till  after  his  death,  claim  for  benefits  was  denied. 

Syl.  3   (VIII,  337).     Reformation  of  contract — Mutual  mistake. 
Approved  in  Forester  v.  Van  Auken,   12   N.  D.   182,  96   N.  W.   303, 
holding  evidence  insuflScient  to  show  deed  inten'.led  as  mortgage. 

Syl.  5  (VIII,  337).     Usage  to  explain  ambiguity. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  812,  construing 
oil  lease  with  reference  to  conditions  of  forfeiture;  Lillard  v.  Ken- 
tucky Distilleries  etc.  Co.,  134  Fed.  182,  67  C.  C.  A.  74,  admitting 
evidence  of  custom  to  show  that  contract  for  delivery  of  distillery 
slop  at  distiller's  feeding  lot  contemplated  lot  to  be  supplied  with 
Buitable  pens,  troughs  and  pipes. 

Distinguished  in  Moore  v.  United  States,  196  U.  S.  16G.  49  L.  433,  25 
Sup.  Ct.  202,  custom  at  San  Francisco  between  shippers  and  ship  owners 
requiring  consignee  to  designate  berth  for  discbarge  of  cargo  does  not 
prevail  over  terms  of  contract  to  deliver  coal  at  wharf  in  Honolulu, 
where  different  custom  prevails;  Connecticut  Fire  Ins.  Co.  v.  Buchanan, 
141  Fed.  889,  890,  refusing  parol  evidence  to  show  that  parties  to  insur- 
ance policy  intended  to  cover  building  while  used  for  purpose  other 
than  that  specified  in  policy. 

20  Wall.  498-507,  22  L.  410,  RUBBER  TIP  PENCIL  CO.  v.  HOWARD. 

Syl.  1  (VIII,  338).     Patents— Device  useful  but  not  new. 

Distinguished  in  Thomson-Houston  Eli  Co.  v.  Ohio  Brass  Co.,  129  Fed. 
379,  upholding  Van  Deopoele  patent  No.  394,039,  for  insulated  turn- 
buckle  for  use  on  trolley-cars. 

20  Wall.  507-516,  22  L.  414,  ATCHISON  v.  PETERSON. 

Syl.  2   (VIII,  338).     Riparian  rights — Use  of  water  for  mining. 

Approved  in  Morris  v.  Bean,  146  Fed.  426,  failure  to  record  claim 
for  Avater  does  not  preclude  taking  of  water  for  beneficial  uses  by  methods 
other  than  in  statutes  prescribed;  Revenue  Min.  Co.  v.  Balderston,  2 
Alaska,  368,  denying  unreasonable  monopoly  of  waters  on  public  lands 
■where   one   undertakes   to   unfairly   deprive   another    from   using    them; 


20  Wall.  517-527  Notes  on  U.  S.  Reports.  654 

Boise  Irr.  etc.  Co.  v.  Stewart,  10  Idaho,  50,  77  Pac.  28,  upholding 
and  construing  Sess.  Laws  1903,  p.  223,  regulating  appropriation  and 
diversion  of  public  waters;  Clark  v.  Allaman,  71  Kan.  213,  240,  80 
Pac.  574,  583,  determining  rights  of  appropriators  for  irrigation  as 
against  riparian  owners;  Crawford  Co.  v.  Hathaway,  67  Neb.  360,  108 
Am.  St.  Rep.  675,  93  N.  W.  793,  irrigation  acts  of  18S9  and  1895 
did  not  abolish  vested  rights  of  riparian  owners;  Willey  v.  Decider,  11 
Wyo.  520,  100  Am.  St.  Rep.  939,  73  Pac.  216,  owner  of  land  in  Mon- 
tana may  by  prior  appropriation  acquire  right  to  use  .of  water  of  stream 
rising  in  that  state  and  flowing  into  Wyoming,  by  joining  with  land 
owners  in  Wyoming  in  construction  of  ditch  to  divert  waters  at  point 
in  latter  state  for  irrigation  of  lands  in  both  states. 

Distinguished  in  Meng  v.  Coffee,  67  Neb.  509,  510,  108  Am.  St.  Rep. 
704,  705,  93  N.  W.  716,  denying  right  of  riparian  owners  to  divert 
waters  of  stream  for  irrigation  purposes  to  detriment  of  other  riparian 
owners. 

Syl.  4  (VIII,  339).     Water — Rights  conferred  by  appropriation. 

Approved  in  Revenue  Min.  Co.  v.  Balderston,  2  Alaska,  369,  denying 
unreasonable  monopoly  of  waters  on  public  lands  where  one  unrea- 
sonably seeks  to  unfairly  prevent  another  from  using  them ;  Stenger  v. 
Tharp,  17  S.  D.  22,  94  N.  W.  404,  determining  amount  of  water  which 
one  riparian  owner,  as  against  another  such  owner,  may  appropriate 
for  irrigation. 

20  Wall.  517-520,  22  L.  421,  UNITED  STATES  v.  GILL. 

Syl.  1  (VIII,  340).     Government's  liability — Hay  used  by  army. 

Approved  in  United  States  v.  Foreman,  5  Okl.  253,  48  Pac.  97,  one 
suing  in  territorial  court  for  recovery  of  money  paid  for  land  on  which 
entry  erroneously  allowed  afterward  canceled  need  not  show  surrender 
of  duplicate  receipt  and  execution  of  disclaimer  as  provided  in  act  of 
June  16,  1880. 

20  Wall.  520-527,  22  L.  376,  POLLARD  v.  BAILEY. 

Syl.   4    (VIII,  341).     Remedy  and  liability  created  by  same  statute. 

Approved  in  Middletown  Nat.  Bank  v.  Toledo  etc.  Ry.  Co.,  197  U.  S. 
405  49  L.  810,  25  Sup.  Ct.  462,  Itockhokler's  liability  in  Ohio  corporation 
is  not  enforceable  outside  of  state;  Harrigan  v.  Gilchrist,  121  Wis.  268, 
99  N.  W.  948,  creditor  may  sue  receiver  of  corporation  to  enforce  trust. 

Syl.   6    (VIII,   342).     Remedy — Stockholder's   liability   act. 

Approved  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  388,  holding 
void  as  against  contract  rights  accrued  prior  to  its  passage,  Laws  Kan. 
1898,  c.  10,  p.  27,  substituting  for  existing  remedy  suit  in  equity 
bv  receiver  appointed  after  judgment  against  corporation;  Hazlett 
V.  Woodhead,  27  R.  I.  511,  63  Atl.  954,  to  enforce  stockholder's  lia- 
bility in  banking  corporation  imposed  by  Neb.  Const.,  1875,  art.  lib,  §  7, 
receiver  must  include  nonresident  stockholders  in  equity  suit  in  Nebraska; 


655  Notes  on  U.  S.  Reports.  20  Wall.  528-577 

Miller  v.  Smith,  26  R.  I.  150,  58  Atl.  635,  66  L.  R.  A.  473,  refusing  to 
entertain  suit  in  equity  by  creditors  of  Colorado  corporation,  on  behalf 
of  themselves  and  others  who  may  choose  to  come  in,  against  stock- 
holder to  enforce  double  liability  under  1  Mills  Ann.  St.    Colo.    §   533. 

20   Wall.   528-543,   22   L.   406,   NORTHWESTERN   UNION   PACKET 
CO.  V.  CLOUGH. 

Syl.  4  (VIII,  344).     Declarations  by  agent  of  past  occurrences. 

Approved  in  The  Saranac,  132  Fed.  942.  in  action  against  vessel  for 
injury  to  stevedore  by  falling  down  hatchway,  statement  of  mate  ten 
minutes  after  accident  that  hatch  covers  never  did  fit  is  inadmissible; 
Alliiigton  etc.  Mfg.  Co.  v.  Detroit  Reduction  Co.,  133  Mich.  43G.  95 
N.  W.  565,  in  action  by  seller  for  price  of  machine  sold  to  corporation 
in  which  defense  of  breach  of  warranty  set  up,  admissions  of  director 
not  binding  on  corporation;  Havens  v.  Rhode  Island  Suburban  Ry.  Co., 
26  R.  I.  53,  58  Atl.  249,  in  action  against  railway  for  injuries  to  con- 
•luctor  through  negligence  of  motorman,  evidence  that  on  day  after 
accident,  manager  told  barn  foreman  that  motorman  was  incompetent, 
is  inadmissible;  Gosa  v.  Southern  Ry.,  67  S.  C.  362,  45  S.  E.  816,  in 
action  for  personal  injuries  declaration  of  bystander  after  accident  are" 
not  part  of  res  gestae. 

Syl.  5    (VIII,  345).     Bill  of  excoj)tions  must   show  prejudicial   error. 
Approved  in  O'Kecfe  v.  Dillenbeck,  15  Okl.  441,  S3  Pac.  541,  applying 
rule  in  ejectment. 

20  Wall.   543-545,  22   L.    422,    UNITED    STATES    EXPRESS  CO.   v. 
WARE. 

Syl.  2  (VIII,  346).     Service  on  agent  of  foreign  corporation. 

Approved  in  Sidway  v.  Missouri  Land  etc.  Co.,  187  Mo.  673,  S6 
S.  W.  156,  where  foreign  corporation  was  licensed  to  do  business  in 
Missouri  and  had  process  agent  there  it  was  not  nonresident  within  Rf. 
St.  1899,  §  42S2,  providing  for  suspension  of  limitations. 

20   Wall.   546-559,  22   L.   403,   AMBLER   v.   WHIPPLE. 

Syl.   1    (VIII,  346).     Dissolution  of  partnership — Written  contract. 

Distinguished  in  Jenkins  etc.  Co.  v.  Alpena  etc.  Cement  Co.,  147  Fed. 
657,  where  parties  to  verbal  agreement  for  sale  of  cement  contemplate 
its  reduction  to  writing  and  signature,  but  writing  was  simj^ly  to  be 
memorial  of  agreement,  contract  is  binding  thuugh  never  written. 

20  Wall.  575-577,  22  L.  451,  LONGSTREETH  v.  PENNOCK. 

Syl.  1  (VIII,  349).  Bankruptcy — Seizure  of  property  liable  to  dis- 
traint. 

Approved  in  In  re  Wiufield  Mfg.  Co.,  137  Fed.  986,  where  after 
tenant's  bankruptcy  landlord  accepted  surrender  of  premises,  he  cannot 
enforce  stipulation  in  lease  that  in  case  tenant  becomes  bankrupt  rent 
for  entire  term  should  become  due. 


20  Wall.  577-652  Notes  on  U.  S.  Reports.  656 

20  Wall.  577-583,  22  L.  417,  CANNON  v.  NEW  ORLEANS. 

Syl.  1   (VIII,  349).     State  mooring  fee  is  tonnage  tax. 

Approved  in  Way  v.  New  Jersey  Steamboat  Co.,  133  Fed.  192,  holding 
void  Laws  N.  Y.  1897,  p.  701,  §  63,  imposing  tax  on  master,  owner  or 
consignee  of  vessel  entering  port,  based  on  tonnage;  Board  of  Com- 
missioners of  New  Orleans  v.  New  Orleans  etc.  R.  Co.,  112  La.  1014, 
36  So.  838,  after  creation  of  port  commissioners,  city  of  New  Orleans 
could  not  authorize  construction  of  railroad  on  wharves  along  Mississippi. 

Syl.  3   (VIII,  351).     State  regulation  of  wharfage  fees. 

Approved  in  State  v.  Faudre,  54  W.  Va.  123,  102  Am.  St.  Rep.  927, 
46  S.  E.  269,  63  L.  R.  A,  877,  Ohio  may  fix  charge  for  ferriage  over 
Ohio  river  to  West  Virginia. 

20  Wall.  590-642,  22  L.  429,  MURDOCK  v.  CITY  OF  MEMPHIS. 

Syl.  2    (VIII,  353).     Repeal  of  act  by  implication. 

Approved  in  State  v.  Lee,  28  Nev.  391,  82  Pac.  230,  Stat.  1899,  p.  88, 
c.  73,  regulating  practice  of  medicine,  is  repealed  by  Stat.  1905,  p.  87, 
Si.  63 ;  Pratt  Institute  v.  City  of  New  York,  183  N.  Y.  158,  75  N.  E.  1121, 
1  Gen.  Tax  Law,  1896,  p.  908,  §  4,  subd.  7,  exempting  real  estate 
of  educational 'institutions  used  exclusively  for  carrying  out  corporate 
purposes,  repeals  special  charter  provisions  granting  such  exemption. 

Syl.   7    (VIII,  355).     Appeal — Looking  into  opinion  below. 
Approved  in  Carson  v.  Three  States  Lumber  Co.,  142  Fed.  894,  fol- 
lowing rule. 

Syl.  8    (VIII,   355).     Affirmance — Federal  question  correctly  decided. 
Approved    in    Hamburg-American    S.    S.    Co.    v.    Lennan,    194    U.    S. 
628,  48  L.  1157,  24  Sup.  Ct.  857,  following  rule. 

(VIII,  353.)  Miscellaneous.  Cited  in  Ex  parte  Anderson,  46  Tex.  Cr. 
390,  81  S.  W.  982,  city  court  has  no  jurisdiction  to  try  one  accused 
of  violation  of  state  penal  statute. 

20  Wall.  650,  651,  22  L.  448,  CADLE  v.  BAKER. 

Svl.  1    (VIII,  358).     Questioning  legality  of  receiver's  appointment. 

Approved  in  Threadgill  v.  Colcord,  16  Okl.  462,  85  Pac.  708,  one 
who  has  filed  petition  asking  receiver's  appointment,  and  who  is  pur- 
chaser at  sale,  is  estopped  from  questioning  appointment  of  receiver. 

20  Wall.  652,  22  L.  449,  TREAT  v.  JEMISON. 

Syl.  1   (VIII,  358).     Sufiiciency  of  assignments  of  error. 

Approved  in  Ward  v.  Sherman,  7  Ariz.  278,  64  Pac.  435,  assignment 
which  does  not  distinctly  point  out  grounds  of  error  relied  ou  is  in- 
sufficient. 


657.  Notes  on  U.  S.  Keports.  20  Wall.  655-670 

20  Wall.  655-670,  22  L.  455,  CITIZENS'  SAVINGS  AND  LOAN  AS- 
SOCIATION V,   TOPEKA. 

Syl.  2   (VITI,  359).     Municipal  authority  to  incur  debt — Taxes. 

Approved  in  Rose  v.  McKic,  145  Fed.  591,  granting  mandamus  to 
compel  levy  of  tax  by  town  to  pay  judgment  against  it;  Manning  v. 
City  of  Devils  Lake,  1.3  N.  D.  51,  99  N.  W.  52,  city  cannot  issue  bonds 
for  construction  of  bridge  outside  of  city  limits. 

Syl.  3   (VIII,  3G0).     Municipal  right  to  contract  limited — Tax  power. 

Approved  in  Farmers'  etc.  Trust  Co.  v.  Sioux  Falls,  331  Fed.  903, 
where  city  granted  to  water  company  exclusive  privilege  of  maintaining 
water-pipes  in  streets  for  twenty  years,  it  cannot  construct  its  own  water- 
works after  expiration  of  term,  if  it  has  no  power  to  so  invest  its 
funds. 

Syl.  6  (VIII,  361).  Constitutional  law — Eights  uncontrollable  by 
state. 

Approved  in  McKinster  v.  Sager,  163  Ind.  680,  106  Am.  St.  Rep. 
268,  72  N.  E.  858,  68  L.  R.  A.  273,  holding  void  Acts  1903,  p.  276, 
c.  153,  making  sales  of  stock  by  merchant  not  in  due  course  of  business 
void  as  to  creditors  who  sold  stock,  unless  schedule  of  creditors,  etc., 
published. 

Syl.  7  (VIII,  361).     Powers  of  government  limited. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  390,  81  S.  W.  9S1, 
city  court  cannot  try  one  accused  of  violation  of  state  penal  statute; 
dissenting  opinion  in  Allen  v.  Reed,  10  Okl.  133,  63  Pac.  870,  arguendo. 

Syl.   9    (VIII,   362).     Taxes   must  be   for   public   purpose. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co., 
196  IT.  S.  252,  49  L.  467,  25  Sup.  Ct.  251,  proceeding  in  eminent  do- 
main authorized  by  Ky.  St.,  §§  835-839,  is  removable  to  federal 
court  where  requisite  diverse  citizenship  exists;  King  v.  Hatfield, 
130  Fed.  583,  holding  void  Const.  W.  Va.,  art.  13,  §§  3,  6,  vesting 
title  to  lands  forfeited  for  noneharging  of  taxes  thereon  and  vesting 
title  in  others;  McRae  v.  Cohise  Co.,  5  Ariz.  34,  44  Pac.  301,  holding 
void  Laws  1889,  p.  35,  requiring  supervisors  to  offer  reward  for 
person  digging  first  artesian  well  in  county;  Scott  v.  La  Porte,  162 
Ind.  48,  68  N.  E.  282,  city  ordinance  empowering  water  company 
to  construct  waterworks  and  binding  city  to  pay  water  rentals  for 
twenty-one  years  to  trustees  of  company's  bondholders,  and  pledging 
city's  taxing  power  to  meet  such  fixed  charges,  is  void;  Castner  v. 
City  of  Minneapolis,  92  Minn.  86,  87,  99  N.  W.  361,  city  cannot 
reimburse  defeated  candidate  for  expenses  involved  in  recount  of 
ballots  in  election  contest;  Minnesota  Sugar  Co.  v.  Iverson,  91  Minn. 
39,  97  N.  W.  456,  holding  void  Laws  1899,  p.  389,  c.  307,  provid- 
ing bounty  on  sugar  made  from  beets  grown  in  state. 
42 


20  Wall.  670-686  Notes  on  U.  S.  Reports.  658 

Distinguished  in  dissenting  opinion  in  Madisonville  Traction  Co.  v. 
St.  Bernard  Min.  Co.,  196  U.  S.  260,  49  L.  471,  25  Sup.  Ct.  251, 
majority  holding  condemnation  proceedings  authorized  by  Ky.  St., 
§§  835-839,  are  removable  to  federal  court  where  diverse  citizenship 
exists. 

20  Wall.   670-686,   22  L.  452,  BASEY  v.   GALLAGHER. 

Syl.  2  (VIII,  306).  Abolishing  distinction  between  forms  of  action. 
Approved  in  Chessman  v.  Hale,  31  Mont.  585,  79  Pac.  256,  plain- 
tiff in  action  for  damages  for  maintenance  of  nuisance  is  entitled 
to  jury  trial  as  to  damages,  though  injunction  also  asked;  Crawford 
Co.  V.  Hathaway,  67  Neb.  360,  108  Am.  St.  Rep.  675,  93  N.  W.  793, 
irrigation  acts  of  1889  and  1895  did  not  abolish  vested  rights  of 
riparian    owners;    Schumacher   v.    Crane-Churchill    Co.,    66    Neb.    443, 

92  N.  W.  610,  order  transferring  action  in  ejectment  to  equity  docket 
because  of  equitable  defenses  does  not  preclude  trial  by  jury  of  legal 
issues. 

Syl.   5    (VIII,  367).     Appropriation  of  water  rights. 

Approved  in  Morris  v.  Bean,  146  Fed.  426,  failure  to  record  claim 
for  water  does  not  preclude  taking  of  water  for  beneficial  uses  of 
methods  other  than  in  statute  prescribed;  Revenue  Min.  Co.  v. 
Balderston,  2  Alaska,  368,  denying  unreasonable  monopoly  of  waters 
on  public  lands  where  one  undertakes  to  unfairly  deprive  another 
from  using  them;  Boglino  v.  Giorgetta,  20  Colo.  345,  78  Pac.  C14, 
where  abandoned  bed  of  river  patented  by  government,  another  can- 
not acquire  right  of  way  for  water  over  such  land;  Miles  v.  Butte 
Elec.  etc.  Co.,  32  Mont.  66,  79  Pac.  553,  under  Comp.  St.  1887,  div. 
5,  §§  1250-1257,  claimant  of  water  must  show  diversion  of  water 
claimed  to  have  been  appropriated,  that  he  constructed  work  to  con- 
vey water  for  beneficial  use,  and  that  he  owned  land  described  in  no- 
tice; Willey  v.  Decker,  11  Wyo.  520,  100  Am.  St.  Rep.  939,  73  Pac. 
216,  owner  of  land  in  Montana  may  by  prior  appropriation  acquire 
right  to  use  of  water  of  stream  rising  in  that  state  and  flowing 
into  Wyoming,  by  joining  with  la^d  owners  in  Wyoming  in  con- 
struction of  ditch  to  divert  waters  at  point  in  that  state  to  irrigate 
lands  in  both  states. 

Syl.    6    (VIII,    368).     Water   rights   of   occupants    of   public    lands. 
Approved  in  Meng  v.   Coffee,  67   Neb.   518,   108   Am.   St.  Rep.   712, 

93  N.  W.  719,  appropriation  of  water  by  squatter's  rights  does  not 
give  settler,  who  has  appropriated  water  in  that  way  for  less  than 
ten  years,  exclusive  right  as  against  other  settlers   on  same   stream. 


XXI  WALLACE. 


21  Wall.  1-17,  22  L.  499,  THE  LADY  PIKE. 

Syl.  1  (VIII,  370),  Admiralty  appeals — Concurrence  of  two  di- 
visions. 

Approved  in  The  Iroquois,  194  U.  S.  247,  48  L.  960,  24  Sup.  Ct. 
640,  applying  rule  to  findings  that  master  of  bark  bound  for  Cali- 
fornia was  bound  to  put  into  intermediate  port  for  surgical  aid  for 
seaman  injured  while  breasting  Cape  Horn;  Last  Chance  Min.  Co. 
V.  Bunker  Hill  etc.  Concen.  Co.,  131  Fed.  588,  66  C.  C.  A.  299,  find- 
ings of  master  depending  on  conflicting  evidence  and  approved  by 
trial   court    not  disturbed   on   appeal. 

Syl.    2    (VIII,    370).     Collision — Master    must    know    dangers. 

Approved  in  The  Joseph  Peene,  130  Fed.  490,  holding  tug  liable 
for  injuries  to  tow  caused  by  floating  ice  where  tug  left  to  drift  in 
channel   while   tug   delivered   other   tow. 

21   Wall.   17-33,  22  L.   515,  JEROME  v.   McCARTER. 

Syl.  4  (VIII,  372).     Finality  of  action  on  appeal  bond. 

Approved  in  Clarke  v.  Eureka  Co.  Bank,  131  Fed.  146,  where 
supersedeas  bond  accepted  and  writ  of  error  allowed  and  citation 
issued,  motion  to  increase  bond  is  within  exclusive  jurisdiction  of  ap- 
pellate court, 

21   Wall.  33-36,  22  L.  476,  DOANE  v.  GLENN, 

Syl.   1    (VIII,  373),     Time  for  objections   to   defects   in   deposition. 

Approved  in  Columbus  Ry,  Co,  v.  Patterson,  143  Fed.  246,  applying 

rule  where  notarial  certificate  to  deposition  misstates  name  of  witness. 

21   Wall.   36-41,   22   L.   527,   GARDNER   v.   BROWN, 

Syl.  2  (VIII,  373).  Foreclosure  trust  deed — Trustee  as  party. 
Approved  in  In  re  E.  T.  Kenney  Co.,  136  Fed.  455,  where  creditors 
of  bankrupt  before  bankruptcy  assigned  claims  to  committee  to  pur- 
chase bankrupt's  property  and  sell  sam<.».  for  their  benefit,  they 
were  not  entitled  to  prove  equitable  interest  against  bankrupt  es- 
tate, 

21   Wall,  41-43,   22  L.  476,  VANNEVAR  v.  BRYANT. 

Syl.    1    (VIII,   374).     Removal   by   nonresident    defendant. 

Distinguished  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  664.  68  C.  C. 
A.   288,   if,   when   parties    to    separable    controversies   have    been    ar- 

[659] 


21  Wall.  44-65  Notes  on  U.  S.  Eeports.  660 

ranged  upon  opposite  sides  according  to  facts,  either  controversy  is 
between  diverse  citizens,  suit  is  removable. 

Syl.    2    (VIII,    374).     Bemoval    pending    motion    for    new    trial. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  485,  removing  criminal 
case  where  defendant  had  been  convicted  three  times  and  each 
conviction  reversed  and  had  been  discriminated  against  in  selection 
of  jurora. 

21    Wall.   44-65,    22    L.    551,   SCHULENBERG   v.    HARRIMAN. 

Syl.  2  (VIII,  376).  Adverse  possession — Presumption  from  plain- 
tiff's  possession. 

Approved  in  dissenting  opinion  in  Morgan  v.  Jackson,  32  Ind.  App. 
177,  69  N.  E.  412,  majority  holding  ownership  or  right  of  possession 
in  replevin  plaintiff  and  possession  of  defendant  do  not  change  plain- 
tiff's   burden    to    show    that    defendant    wrongfully    holds    possession. 

Syl.  3  (VIII,  376).     Railroad  grant— Conveyance  before  completion. 

Approved  in  Knepper  v.  Sands,  194  U.  S.  481,  48  L.  1085,  24  Sup. 
Ct.  744,  Comp.  St.  1901,  p.  1595,  protecting  bona  fide  purchasers  of 
railway  grant  which  had  been  erroneously  patented,  does  not  apply 
to  one  purchasing  after  passage  of  act  unearned  lands  title  to 
which  was  resumed  by  state  on  railroad's  default. 

Syl.    4    (VIII,    377).     Grant    to    state    for    railroad    in   praesenti. 

Approved  in  Sage  v.  Rudnick,  91  Minn.  331,  100  N.  W.  107,  grant 
of  1SG7  to  Hastings  etc.  R.  R.  Co.  passed  legal  title  on  filing  map 
of  definite  location;  dissenting  opinion  in  Sage  v.  Rudnick,  91  Minn. 
328,  98  N.  W.  90,  majority  holding  that  time  during  which  right 
of  plaintiff's  grantor  under  land  grant  was  in  litigation  in  Land  De- 
partment does  not  count  in  determining  whether  right  to  recover 
land  is  barred  by  adverse  possession. 

Syl.  8   (VIII,  381).     Nonperformance  of  condition  subsequent. 

Approved  in  Capen  v.  Sheldon,  78  Vt.  47,  61  Atl.  866,  where  con- 
dition, in  town  charter  granting  land  to  proprietors,  that  each  sliall 
improve  share  within  time  fixed,  on  penalty  of  forfeiture,  is  broken, 
estate   not   defeated   until   state   asserts   forfeiture. 

Syl.   9   (VIII,  382).     Assertion   of   breach   of  condition   subsequent. 

Approved  in  Rannels  v.  Rowe,  145  Fed.  301,  mere  execution  and 
recording  of  another  deed  to  third  person  by  grantors  in  prior  deed, 
after  original  deed  recorded,  and  witliout  notice  to  grantee  therein 
does  not  forfeit  first  deed  for  breach  of  condition  subsequent  where 
no   possession   taken. 

Syl.   13    (VIII,  384).     Remedies  for   illegal   cutting   of   timber. 
Approved  in  Peyton  v.  Desmond,  129  Fed.  6,  63  C.  C.  A.  651,  where 
facts    stated    and    relief    demanded    show    that    action    is    to    recover 


661  Notes  on  U.  S.  Eeports,  21  Wall.  73-119 

value    of   lumber    made    from    trees   wrongfully    cut    from    plaintiff's 
land,  action  is  transitory. 

21   Wall.   73-97,   22   L.   528,   HAl^HLTON  v.   DILLIN. 

Svl.   1    (VIII,   387).     Tax  on  goods  brought   from   rebel   states. 

Approved  in  Lincoln  v.  United  States,  202  U.  S.  498,  50  L.  1119, 
26  Sup.  Ct.  728,  duties  on  imports  to  Manila  which  were  not  au- 
thorized by  Presidential  order  of  July  12,  1898,  were  not  ratified 
by  Comp.   St.,  Supp.  1905,  p.   391. 

Syl.   3    (VIII,   387).     War— Tax  on   imports   from   rebel   states. 

Distinguished  in  Lincoln  v.  United  States,  197  U.  S.  429,  49  L. 
819,  25  Sup.  Ct.  455,  existence  of  insurrection  in  Philippines  did  not 
justify   exaction    of   duties   on   imports   for   United    States. 

21   Wall.   105-111,  22  L.  481,  COOPEE  v.   COATES. 

Syl.   1    (VIII,   388).     Erroneous   admission   of   cumulative   evidence. 

Approved  in  Brown  v.  United  States,  142  Fed.  4,  applying  rule 
in  prosecution  for  aiding  national  bank  ofl&cer  in  misapplication  of 
bank  funds. 

21   Wall.   112-119,   22   L.   566,   SMITH   v.   NICHOLS. 

Syl.   2    (Vlli,   388).     Patents — Disclaimer   after   suit   commenced. 

Approved  in  Sample  v.  American  Soda  Fountain  Co.,  134  Fed.  403, 
where  patentee  files  disclaimer  in  patent  office  during  pendency  of 
infringement  suit  which  has  been  heard  on  appeal,  circuit  court  may 
grant   rehearing. 

Syl.   6    (VIII,   389).     Patents— Extended   application   of   original. 

Approved  in  New  York  Belting  etc.  Co.  v.  Sierer,  149  Fed.  769, 
holding  void  Furness  &  Watts  patent  No.  527,961  for  tile  floors 
or  walls,  consisting  of  interlocking  and  removable  tiles;  Thomas  v. 
St.  Louis  etc.  E.  Co.,  149  Fed.  755,  holding  void  Thomas  patent  No. 
570,148,  for  car  truss;  Bullock  Elec.  Mfg.  Co.  v.  General  Elec.  Co., 
149  Fed.  419,  holding  void  Eust  patent  No.  508,637,  for  improvement 
in  armature  cores;  Voightmann  v.  Weis  etc.  Cornice  Co.,  148  Fed. 
853,  holding  void  Voightmann  patent  No.  600,186,  for  automatically 
closing  fireproof  window;  American  Graphophone  Co.  v.  L^niversal 
etc.  Mfg.  Co.,  145  Fed.  643,  holding  void  Jones  patent  No.  688,739, 
for  method  of  producing  sound  records  for  talking  machines;  Streit 
V.  Kaiper,  143  Fed.  984,  holding  void  Street  patent  No.  668,268,  for 
iootrest  for  chairs;  Van  Epps  v.  United  Box  etc.  Paper  Co.,  143 
Fed.  878,  holding  Victorj'  patent  No.  417,451,  for  pulp  screening  ma- 
chine valid  but  limited  by  prior  art;  American  Carriage  Co.  v. 
W\veth,  139  Fed.  391,  holding  void  Wyeth  patent  No.  400,381,  for 
sleigh-runner  for  wheeled  vehicles;  Sloan  Filter  Co.  v.  Portland 
Gold.  Min.  Co.,  139  Fed.  26,  holding  void  Sloan  patent  No.  587,874, 
for    barrel    filter    for    using    in    filtering    precious    metal    solutions; 


21  Wall.  130-157  Notes  on  U.  S.  Eeports.  662 

Capewell  v.  Goldsmith,  138  Fed.  685,  holding  void  Capewell  patent 
No.  630,972,  for  stick-pin  retainer;  North  Jersey  St.  Ey.  Co.  v. 
Brill,  134  Fed.  584,  67  C.  C.  A.  380,  holding  void  Brill  patents  Nos. 
627,988   and   627,900,   for   car  trucks   for   electric   cars. 

21   Wall.   130-138,  22  L.   588,  DUPASSEUR  v.   EOCHEREAU. 

Syl.  1  (VIII,  393).     Removal — Refusal  to  uphold  foreign  judgment. 

Approved  in  Mathew  v.  Wabash  Ry.  Co.,  115  Mo.  App.  481,  81  S. 
W,  648,  where,  in  action  for  injuries  to  passenger,  defendant  alleged 
train  was  interstate  train  and  was  equipped  with  couplers  and  brakes 
required  by  interstate  commission  and  that  such  equipment  increased 
hazard,  federal  question  raised. 

21  Wall.  138-147,  22  L.  609,  VERMILYE  v.  ADAMS  EXPRESS  CO. 
.   Syl,    2    (VIII,    395).     Rights    of    purchaser    of    overdue    notes. 

Distinguished  in  Gardner  v.  Beacon  Trust  Co.,  190  Mass.  29,  76  N. 
E.  456,  2  L.  R.  A.  (N.  S.)  767,  where  owner  of  overdue  note  secured 
by  mortgage  assigns  it,  so  as  to  enable  assignee  to  deal  with  it,  though 
obtained  by  fraud,  as  if  he  were  owner,  bona  fide  purchaser  takes  it 
free   from   equities   of   original   owner. 

Syl.   3    (VIII,   395).     Treasury  notes— Usage  of  banks. 

Approved  in  Cudahy  Packing  Co.  v.  State  Nat.  Bank,  134  Fed. 
545,  67  C.  C.  A.  662,  provision  for  payment  of  attorneys'  fees  in  case 
note  is  not  paid  at  maturity  does  not  destroy  negotiability. 

Syl.   5   (VIII,   395).     Rights  of  assignee  of  owner  of  stolen   notes. 

Approved  in  Gardner  v.  Beacon  Trust  Co.,  190  Mass.  30,  76  N. 
E.  456,  2  L.  R.  A.  (N.  S.)  767,  where  owner  of  overdue  note  secured 
by  mortgage  assigns  it,  so  as  to  enable  transferee  to  deal  with  it  as 
his  own,  though  obtained  by  fraud,  bona  fide  purchaser  takes  it  free 
from  equities  of  original  owner. 

(VIII,  394.)  Miscellaneous.  Cited  in  Singer  v.  Merchants  etf. 
Transp.  Co.,  191  Mass.  455,  77  N.  E.  883,  carrier's  agent  who  deliv- 
ered goods  to  one  whose  name  was  same  as  that  of  consignee  is  not 
chargeable  with  knowledge  that  consignor  had  several  times  a  year 
for  several  years  sent  goods  through  same  company  addressed  in  same 
way. 

21    Wall.    152-157,   22   L.   593,   AMERICAN   LIFE   INSURANCE    CO. 
V.   MAHONE. 

Syl.  1  (VIII,  396).  Insurance — Parol  showing  misstatement  by 
agent. 

Distinguished  in  Connecticut  Fire  Ins.  Co.  v.  Buchanan,  141  Fed. 
891,  where  policy  insured  building  while  it  is  occupied  for  certain 
purpose,  parol  evidence  that  it  was  intention  of  parties  that  insur- 
ance  should   cover   building   while   vacant   is   inadmissible. 


663  Notes  on  U.  S.  Reports.  21  Wall.  158-178 

Syl.  2  (VIII,  397).  Misstatements  by  agent  in  insurance  applica- 
tion. 

Approved  in  Home  Forum  Benefit  Order  v.  Jones,  5  Okl.  610,  50 
Pae.  169,  under  by-laws  of  beneficial  society  providing  that  local 
lodge  may  receive  applications  for  benefit  certificates  which  are  sent 
to  grand  secretary  for  approval  of  grand  medical  examiner,  approval 
is  essential  to  validity  of  certificate. 

Distinguished  in  Deming  Inv.  Co.  v.  Shawnee  Fire  Ins.  Co.,  16 
Okl.  11,  83  Pac.  921,  fact  that  agent  who  wrote  application  knew 
condition   of   title   is    no    defense   where   application    misstates    facts. 

21    Wall.    158-162,   22    L.    511,    SPRINGFIELD    FIRE    ETC.    INSUR- 
ANCE  CO.   v.  LEA. 

Syl.  4   (VIII,  400).     Conclusiveness  on  appeal  of  findings  of  fact. 
Approved   in   Streeter  v.   Sanitary   Dist.   of  Chicago,   133  Fed.   126, 
66  C.  C.  A.   190,  applying  rule  in  action  on  contract. 

21   Wall.   162-178,  22  L.  627,  MINOR  v.  HAPPERSETT. 
Syl.   1    (VIII,  401).     Women  as  citizens. 

Approved  in  Gordon  v.  Yost,  140  Fed.  80,  where  wife  is  deserted 
by  husband,  she  may  become  resident  and  citizen  of  different  state 
from   him   for   purposes  of  federal  jurisdiction. 

Syl.  2  (VIII,  401).     Meaning  of  "citizen"  in  constitution. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  450,  50 
L.  265,  26  Sup.  Ct.  110,  government  may  exact  liquor  revenue  license 
from  dispensing  agent  of  state  which  has  taken  charge  of  liquor 
business;  Kepner  v.  United  States,  195  U.  S.  126,  49  L.  123,  24  Sup. 
Ct.  797,  Act  of  1902,  §  5,  for  government  of  Philippines  took  away 
right  of  government  to  appeal  from  acquittal  in  Philippine  court  of 
first  instance;  Schick  v.  United  States,  195  U.  S.  69,  49  L.  102,  24 
Sup.  Ct.  826.  one  prosecuted  by  information  in  district  court  under 
oleomargarine  act  (Comp.  St.  1901,  p.  2228)  may  waive  jury;  Cronly 
v.  Tucson.  6  Ariz.  238,  56  Pac.  877,  holding  void  Laws  1897,  Act 
No.  76.  §  2,  providing  that  at  every  city  election  every  taxpayer, 
n-ithout   regard  to  sex,  shall  be  entitled  to  vote. 

Syl.  4  (VIII,  402).  Fourteenth  amendment  adds  no  rights  to  citi- 
zens. 

Approved  in  Pope  v.  Williams,  98  Md.  71,  103  Am.  St.  Rep.  379, 
66  L.  R.  A.  398,  56  Atl.  545,  upholding  Laws  1902,  c.  133,  p.  204, 
providing  that  no  one  coming  into  state  can  vote  till  one  year 
after  declaration  of  intention  to  become  voter;  State  v.  Webber, 
96  Minn.  430,  105  N.  W.  493,  upholding  Const.  Amend.  1895  to  art. 
7.  §  1,  limiting  right  of  suffrage  as  respects  naturalized  citizens  to 
such  as  are  admitted  three   months  prior  to   election. 


21  Wall.  178-196  Notes  on  U,  S.  Eeports.  664 

Syl.  5   (Vin,  403).     Suffrage  not  coextensive  with  citizenship. 

Approved  in  Pope  v.  Williams,  193  U.  S.  632,  48  L.  822,  24  Sup. 
Ct.  573,  upholding  Md.  Laws  1902,  c.  133,  requiring  persons  coming 
into  state  to  reside  to  make  declaration  of  intention  of  becoming 
citizens  and  residence  as  condition  precedent  to  registration.  See 
103  Am.  St.  Kep.  386,  note. 

(VIII,  401.)  Miscellaneous.  Cited  in  Ex  parte  Anderson,  46  Tex. 
Cr.  389,  81  S.  W.  981,  city  court  has  no  jurisdiction  to  try  one  ac- 
cused of  violation  of  state  penal  statute. 

21  Wall.  178-185,  22  L.  482,  MAESH  v.  WHITMOEE. 

Syl.  2   (VIII,  404).     Agent  buying  at  principal's  sale. 

Approved  in  In  re  Castle  Braid  Co.,  145  Fed.  230,  where  contract 
by  corporation  to  purchase  directors'  stock  was  assented  to  by 
stockholders,  and  it  was  made  to  settle  dissension  among  stockhold- 
ers, and  stock  assigned,  prima  facie  case  to  establish  claim  in  bank- 
ruptcy shown;  Burns  v.  Cooper,  140  Fed.  277,  sale  of  ward's  realty 
by  guardian  under  order  of  court  may  be  set  aside  where  guardian 
procured  sale  of  property  for  purpose  of  acquiring  title;  Young  v. 
City  of  Mankato,  97  Minn.  6,  105  N.  W.  970,  3  L.  E.  A.  (N.  S.)  849, 
board  of  freeholders,  appointed  to  draft  city  charter,  cannot  employ 
one  of  its  members  as  counsel  for  board;  Barnes  v.  Lynch,  9  Okl. 
186,  59  Pac.  1007,  setting  aside  agreement  between  officers  of  cor- 
poration between  themselves  to  divide  assets  of  corporation  among 
themselves;  Nabours  v.  McCord,  97  Tex.  533,  80  S.  W.  598,  where 
assignee  for  creditors  guaranteed  purchaser  of  assets  that  he  would 
secure  resale  of  stocks  at  cost  and  stock  was  assigned  by  buyer,  at 
assignee's  direction,  to  A,  from  whom  assignee  borrowed  purchase 
price,  and  A's  check  turned  into  estate,  transaction  was  voidable  by 
creditors. 

Syl.  4  (VIII,  406).     Laches — Allegations  excusing  delay. 

Approved  in  Kansas  City  etc.  Ey.  Co.  v.  Stevenson,  135  Fed.  557, 
where  president  of  railroad,  on  resigning,  retains  property  donated  to 
aid  railroad,  claiming  it  as  his  own,  delay  of  nine  years  in  suing  to 
enforce  trust  is  laches;  Patterson  v.  Hewitt,  11  N.  M.  41,  66  Pac. 
564,  55  L.  E.  A.  658,  applying  rule  to  action  to  enforce  alleged  rights 
under  agreement  relating  to  mining  rights. 

21  Wall.  185-196,  22  L.  504,  ADAMS  v.  ADAMS. 

Syl.  7  (VIII,  407).     When  creation  of  trust  complete. 

Approved  in  Allen-West  Com.  Co.  v.  Grumbles,  129  Fed.  294,  63 
C.  C.  A.  401,  where  owner  of  shares  in  corporation  delivered  assign- 
ment of  its  business  to  wife,  but  retained  certificates  and  received 
dividends  and  later  indorsed  certificates,  assignment  was  incomplete, 
gift. 


665  Notes  on  U.  S.  Eeports.  21  Wall.  196-249 

21  Wall.  196-205,  22  L.  612,  GAKEISON  v.  CITY  OF  NEW  YORK. 

Syl.  1  (VIII,  408).  Contracts — Judgment  on  transaction  lacking 
assent. 

Approved  in  Gaffney  v.  Jones,  39  Wash.  589,  81  Pac.  1059,  holding 
valid  Laws  1897,  p.  52,  c.  39,  providing  that  after  expiration  of  six 
years  after  rendition  judgment  shall  cease  to  be  lien,  as  applied  to 
judgment  in  tort  rendered  prior  to  act. 

Syl.  8   (VIIT,  410).     No  vested  rights  in  judgments. 

Approved  in  Wallace  v.  Adams,  143  Fed.  726,  upholding  32  Stat. 
641,  creating  citizenship  court  empowered  to  review  final  judg- 
ments of  federal  courts  under  29  Stat.  339,  which  had  been  af&rmed 
by  supreme  court. 

21  Wall.  205-230,  22  L.  577,  LITTLEFIELD  v.  PERRY. 

Syl.  3  (VIII,  410).  Jurisdiction — Patent  infringement — Construc- 
tion of  contract. 

Approved  in  Harrington  v.  Atlantic  etc.  Telegraph  Co.,  143  Fed. 
330,  336,  upholding  jurisdiction  over  suit  for  infringement,  though 
reconveyance  of  patents  transferred  under  trust  agreement  also 
sought. 

Syl.  5   (VIII,  411),     Patent  infringement — Licensee  as  plaintiff. 

Approved  in  Wooster  v.  Crane,  147  Fed.  516,  owner  of  equitable 
title  to  copyright  may  sue  in  own  name  for  infringement  when  holder 
of  legal  title  is  one  of  infringers. 

Syl.  12   (VIII,  412).     Patents — Assignment  of  imperfect  invention. 

Distinguished  in  Bobbs-Merrill  Co.  v.  Straus,  147  Fed.  26,  where 
copyrighted  copies  sold  in  which  notice  printed  that  retail  price  was 
$1,  and  that  no  one  authorized  to  sell  for  less,  resale  at  less  price 
not  enjoined;  National  Cash  Register  Co.  v.  New  Columbus  Watch 
Co.,  129  Fed.  116,  63  C.  C.  A.  616,  registration  of  instrument  which 
does  not  convey  present  interest  in  patent  for  which  application  is 
pending    is  not  notice  to  assignee  of  patent  subsequently  applied  for. 

21  Wall.  235-240,  22  L.  617,  EX  PARTE  SAWYER. 

Syl.  5   (VIII,  416).     Control  over  order  against  appeal  sureties. 

Distinguished  in  Perriam  v.  Pacific  Coast  Co.,  133  Fed.  143,  66 
C.  C.  A.  206,  sureties  on  stipulation  in  admiralty  for  release  of  libeled 
vessel  need  not  be  joined  in  appeal  by  claimant,  though  decree  is 
joint  in  form  against  claimant  and  stipulators. 

21  Wall.  241-249,  22  L.  632,  TILDEN  v.  BLAIR. 

Syl.  3   (VIII,  416).     Law  governing  drafts. 

Cited  in  Nashua  Savings  Bank  v.  Saylcs,  184  Mass.  522,  100  Am. 
St.  Kep.  573,  69  N.  E.  310,  arguendo. 


21  Wall.  255-284  Notes  on  U.  S,  Eeports.  666 

21  Wall.  255-264,  FLOEIDA*  EAILEOAD  CO.  v.  SMITH. 

Syl.  2   (VIII,  419).     Contracts— Setoff  of  damages  for  defects. 

Approved  in  Michigan  Yacht  etc.  Co.  v.  Busch,  143  Fed.  936,  ap- 
plying rule  in  action  to  recover  money  paid  on  contract  for  construc- 
tion of  boat. 

Syl.  6   (VIII,  420).     Bridge  contract — Implied  warranty  of  fitness. 

Approved  in  Hunter  v.  Porter,  10  Idaho,  86,  77  Pac.  439,  where 
agreement  for  lease  refers  to  building  as  "cold  storage  building," 
and  restricts  its  use  to  storage  of  such  articles  as  are  ordinarily 
stored  in  such  places,  implied  warranty  of  fitness  for  such  use  arises. 

21   Wall.   264-272,   22   L.   556,   SOUTHEEN  EXPEESS   CO.   v.   CALD- 
WELL. 

Syl.  1  (VIII,  420).     Contract  limiting  carriers'  liability. 

Approved  in  Broom  v.  Western  Union  Tel.  Co.,  71  S.  C.  509,  51 
S.  E.  259,  holding  stipulation  on  printed  telegraph  blank  requiring 
claims  for  damages  to  be  presented  within  sixty  days  from  filing  of 
message  valid  and  binding  on  recipient  of  message;  Chesapeake 
etc.  Ey.  Co.  v.  Beasley,  104  Va.  793,  3  L.  E.  A.  (N.  S.)  183,  52  S.  E. 
567,  under  Va.  Code  1904,  §  1294c,  subscc.  25,  carrier  cannot  make 
contract  limiting  liability.    • 

Syl.  7   (VIII,  423).     Contract  fixing  time  limit  to  present   claim. 

Approved  in  Spinks  v.  Mutual  etc.  Life  Assn.,  137  Fed.  170,  up- 
holding provision  in  insurance  policy  that  no  action  shall  be  brought 
after  lapse  of  one  year  from  insured's  death;  Broom  v.  Western 
Union  Tel.  Co.,  71  S.  C.  511,  51  S.  E.  260,  holding  stipulation  on 
printed  telegraph  blank  requiring  claims  for  damages  to  be  pre- 
sented within  sixty  days  from  filing  of  message  valid  and  binding 
on  recipient  of  message, 

21  Wall.  272-275,  22  L.  614,  BUTLEE  v.  UNITED  STATES. 

Syl.   1   (VIII,  424).     Surety — Agreement  to   add   new  names. 

Approved  in  Eollins  v.  Ebbs,  138  N.  C.  146,  50  S.  E.  579,  where 
sureties  signed  guardian's  bond  with  penalty  omitted  and  intrusted 
it  to  another  for  delivery,  and  bond  was  filed  with  penalty  inserted, 
sureties  estopped  to  assert  invalidity  of  bond  because  of  omission  of 
penalty. 

21  Wall.  276-284,  22  L.  536,  YONLEY  v.  LAVENDEE. 

Syl.   2    (VIII,   425).     Following  state   administration  laws. 

Approved  in  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  45, 
69  C.  C.  A.  22,  action  at  law  for  allowance  of  contingent  claim 
against  estate  of  decedent  cannot  be  maintained  in  federal  court 
after  time  limited  by  court  under  state  statute. 


6G7  Notes  on  U.  S.  Reports.  21  Wall.  284-310 

Syl.  3   (VIII,  42G).     Nonresident  creditor  of  estate — Federal  court. 

Approved  in  Thiel  Detective  etc.  Co.  v.  McClure,  130  Fed.  57,  58, 
unsecured  creditor  of  decedent  having  legal  demand  not  reduced  to 
judgment  cannot  sue  in  federal  court  to  compel  executor  to  account. 

Syl.  4   (VIII,  427).     Federal  court — Judgment  against  estate. 

Approved  in  Cheshire  Prov.  Inst.  v.  Anglo-American  etc.  Co.,  132 
Fed.  9G9,  66  C.  C.  A.  122,  judicial  proceedings  on  petition  of  bank  com- 
missioners, under  Pub.  St.  N.  H.  1901,  c.  162,  for  winding  up  bank 
do  not  dissolve  corporation  at  once  so  as  to  preclude  judgment  against 
it  by  federal  court. 

21  Wall.  284-288,  22  L.  651,  BAILEY  v.  CLAEK. 

Syl.  3  (VIII,  428).     Legislative  construction  of  statutes. 

Approved  in  Wetmore  v.  Markoe,  196  U.  S.  77,  49  L.  394,  25  Sup. 
Ct.  172,  discharge  in  bankruptcy  does  not  bar  collection  of  arrears 
in  alimony  and  allowance  for  support  of  children  due  under  divorce 
decree;  Johnson  v.  Southern  Pac.  Co.,  196  U.  S.  21,  49  L.  371,  25 
Sup.  Ct.  158,  equipment  of  locomotive  and  diner  with  automatic 
couplers  of  such  different  type  as  not  to  couple  with  each  other  auto- 
matically does  not  satisfy  Comp.  St.   1901,  p.   3174. 

21   Wall.  289-294,  22  L.  634,  TERRELL  v.  ALLISON. 

Syl.   1    (VIII,  428).     Mortgages — Writ  of  assistance. 

Approved  in  Daggs  v.  Wilson,  6  Ari.-',.  395,  59  Pac.  153,  following 
rule. 

Syl.  4  (VIII,  429).    Writ  of  assistance — Against  whom  issued. 

Approved  in  Fox  v.  Stubenrauch,  2  Cal.  App.  94,  83  Pac.  84,  where 
on  application  for  writ  of  assistance  by  purchaser  at  foreclosure  it 
appeared  that  another  claimed  title  under  deed  made  by  one  cf 
defendants  in  foreclosure  pendente  lite,  his  tenant  cannot  plead  title 
to  defeat  writ;  Merrill  v.  Wright,  65  Neb.  796,  101  Am.  St.  Rep. 
645,  91  N.  W.  698,  one  in  possession  in  good  faith  under  void  tax 
deed     cannot  be   dispossessed  under   writ  of  assistance. 

21  Wall.  302-310,  22  L.  539,  JENNISONS  v.  LEONARD. 

Syl.  3  (VIII,  430).  Time  when  of  essence  of  contract — Install- 
ments. 

See  104  Am.  St.  Rep.  270,  note. 

Syl.  4   (VIII,  430).     Installment  payments— Title. 

Approved  in  Brooke  v.  Eastman,  17  S.  D.  347,  96  N.  W.  701,  in- 
terest of  one  who  has  made  first  payment  and  received  contract  of 
sale  of  school  lands  from  land  commissioners  is  subject  to  execution. 


21  Wall.  325-353  Notes  on  U.  S.  Eeporta.  668 

21  Wall.  325-342,  22  L.  542,  CLAEION  BANK  v.  JONES. 

Syl.  1  (VIII,  432).  Bankruptcy  note  as  preference — Immediate 
execution. 

Approved  in  In  re  Pease,  129  Fed.  453,  where  trust  company, 
through  its  attorney,  who  also  represented  other  creditors  of  mer- 
chants, made  loan  to  him  with  which  certain  creditors,  including  cli- 
ents of  attorney,  paid  in  full,  and  next  day  company  sold  out  mer- 
chant's stock  under  chattel  mortgage  which  secured  loan,  transac- 
tion was  fraudulent  preference. 

21  Wall.  342-350,  22  L.  636,  BAILEY  v.   GLOVER, 

Syl.  2   (VIII,  434).     Purpose  of  bankruptcy  act. 

Approved  in  Clendening  v.  Eed  Eiver  etc.  Bank,  12  N.  D.  60,  94 
N.  W.  904,  in  action  by  bankruptcy  trustee  to  recover  preferences, 
order  of  referee  permitting  defendant  to  return  certain  preferences 
and  allowing  defendant's  claim  for  balance  was  adjudication  that 
items  to  be  retained  were  not  preferences. 

Syl.  3    (VIII,  435).     Limitations — Belief   against  fraud. 

Approved  in  Little  v.  Holley  etc.  Hardware  Co.,  133  Fed.  880,  67  C. 
C.  A.  46,  under  Bankr.  Act,  §§  3b,  60a,  60b,  four  months'  period  of 
limitation  as  against  preferential  transfer  which  was  neither  fraud- 
ulent nor  required  to  be  registered  runs  from  date  of  transfer;  Arkins 
V.  Arkins,  20  Colo.  App.  128,  77  Pae.  258,  where  complaint  alleged 
defendant  was  plaintiff's  agent,  claim  not  barred  by  six  year  limita- 
tion where  knowledge  of  fraud  not  obtained  by  plaintiff  till  shortly 
prior  to  suit;  dissenting  opinion  in  Atchison  etc.  Ey.  Co.  v.  Grain  Co., 
68  Kan.  597,  75  Pac.  1055,  majority  holding  in  action  for  violation 
of  verbal  agreement  stipulating  against  discriminations,  averment 
that  defendant  succeeded  in  concealing  fact  of  such  discriminations 
from  plaintiff  until  eighteen  months  prior  to  filing  suit  docs  not  post- 
pone   limitations. 

Distinguished  in  Pietsch  v.  Milbrath,  123  Wis.  668,  107  Am.  St.  Eep. 
1017,  102  N.  W.  345,  fraud,  though  concealed,  does  not  suspend  limita- 
tions in  cases  not  within  statute. 

21  Wall.  350-353,  22  L.  584,  MITCHELL  v.  UNITED  STATES. 

Syl.  2  (VIII,  437).     Domicile  defined. 

Approved  in  Pope  v.  Williams,  98  Md.  67,  103  Am.  St.  Eep.  379,  66 
L.  E.  A.  398,  56  Atl.  544,  upholding  Acts  1902,  p.  204,  c.  133,  providing 
that  no  one  coming  from  another  state  may  register  as  voter  until 
one  year  after  declaration  of  intention  to  become  voter;  Humphrey  v. 
Humphrey,  115  Mo.  App.  363,  91  S.  W.  405,  where  plaintiff  after  mar- 
riage came  with  husband  to  this  state  and  lived  here  with  husband 
for  two  years,  her  mere  absence,  after  his  desertion,  without  in- 
tention to  make  home  elsewhere,  does  not  preclude  divorce  suit  in  this 
state. 


669  Notes  on  U.  S.  Reports.  21  Wall.  354-378 

Syl.  3  (VIII,  438).     Domicile  presumed  to  continue. 

Approved  in  Gaddie  v.  Mann,  147  Fed.  956,  where  it  is  shown  that 
complainant  is  native  of  certain  state,  and  that  his  home  and  family- 
are  there,  presumption  of  citizenship  in  such  state  not  overcome  by 
showing  that  he  has  been  for  large  part  of  time  in  another  state  on 
business,  and  that  he  once  voted  there  at  primary. 

Syl,  4  (VIII,  438).     Essentials  to  acquisition  of  new  domicile. 

Approved  in  Sun  Printing  etc.  Assn.  v.  Edwards,  194  U.  S.  383,  48 
L.  1030,  24  Sup.  Ct.  696,  averment  of  citizenship  in  Delaware  is  suflfi- 
cient  for  purposes  of  federal  jurisdiction,  where  it  is  shown  that  plain- 
tiff had  domicile  there  and  that  absence  from  state  was  without  in- 
tention to  abandon  domicile. 

21  Wall.  354-360,  22  L.  645,  HOTCHKISS  v.  NATIONAL  BANKS. 

Syl.  4  (VIII,  439).     Purchaser  of  note — Suspicion  of  defect. 

Approved  in  First  Nat.  Bank  v.  Moore,  148  Fed.  957,  following  rule; 
Fillebrown  v.  Hayward,  190  Mass.  480,  77  N.  E.  47,  where  director 
sold  stock  to  another  knowing  that  sale  gave  him  control  of  company 
and  payments  on  stock  made  by  his  check  signed  as  treasurer,  seller 
not  charged  with  notice  that  treasurer  was  misappropriating  corporate 
funds;  dissenting  opinion  in  Williams  v.  Neily,  134  Fed.  18,  67  C.  C. 
A.  171,  69  L.  R.  A.  232,  majority  holding  purchaser  for  value  from 
creditor,  the  obligation  of  debtor,  who  takes  latter 's  note,  payable  to 
himself  with  full  knowledge  of  consideration  thereof  and  of  facts 
relating  to  original  transaction,  takes  note  subject  to  defenses  against 
original  creditor. 

Syl.  5  (VIII,  440).     Purchaser  of  note  before  maturity — Defects. 

Approved  in  First  Nat.  Bank  v.  Moore,  148  Fed.  958,  following 
rule;  In  re  Troy  &  Cohoes  Shirt  Co.,  136  Fed.  433,  fact  that  party 
discounting  notes  knew  that  president  and  treasurer  of  corporation 
who  made  notes  were  also  members  of  firm  for  whose  accommodation 
they  were  made,  did  not  charge  him  with  notice  of  their  true  char- 
acter; Massachusetts  National  Bank  v.  Snow,  187  Mass.  163,  72  N. 
E.  960,  note,  payable  to  bearer,  taken  from  thief,  is  valid  in  hands 
of  holder   in   due   course. 

21  Wall.  360-378,  22  L.  568,  CLARK  v.  ISELIN. 

Syl.  1  (VIII,  440).     Pledgee  putting  collateral  in  pledgor's  hands. 

Distinguished  in  Ryttenberg  v.  Schefer,  131  Fed.  323,  where  parties 
attempted  by  agreement  to  give  one  factor's  lien  on  other's  property 
but  possession  remained  in  debtor,  equitable  lien  does  not  arise. 

Syl.  2  (VIII,  441).     Bankruptcy- — Exchange  of  pledged  collateral. 

Approved  in  English  v.  Ross,  140  Fed.  635,  under  Bankr.  Act, 
8  60a,  as  amended  in  1903,  trustee  may  set  aside  preference  given 
within  four  months  as  evidence  by  date  of  its  record,  irres|)ective  of 
date  of  delivery;  Bush  v.  Export  Storage  Co.,  136  Fed.  928,  930,  whore 


21  Wall.  389-453  Notes  on  U.  S.  Eeports.  670 

manufacturer  leased  warehouse  space  to  warehouse  companies  which 
was  used  by  latter  for  storage  of  materials  purchased  by  former  and 
warehouse  company  issued  receipts  therefor  which  manufacturer 
pledged,  pledge  carried  title  to  property  though  materials  used  up  and 
others  substituted  therefor, 

21  Wall.  389-398,  ATLEE  v.  NORTHWESTEEN  PACKET  CO. 

Syl.  3  (VIII,  445).     Boom  erected  by  riparian  owner. 

Approved  in  United  States  v.  Evans,  195  U.  S.  365,  49  L.  237,  25 
Sup.  Ct.  46,  upholding  admiralty  jurisdiction  over  libel  in  rem  against 
vessel  for  colliding  with  beacon  standing  in  water,  though  built  on 
piles;  Bowers  Hyd.  D.  Co.  v.  Federal  Cont.  Co.,  148  Fed.  294,  upholding 
admiralty  jurisdiction  over  suit  for  hire  of  dredge  generally  used  for 
maritime  purposes  though  temporarily  used  for  partly  land  transaction 
in  dredging  stream;  Sutter  v.  Heckman,  1  Alaska,  88,  owner  of  up- 
lands bordering  on  sea  in  Alaska  has  no  title  to  tide  lands  in  front  of 
his  property. 

Syl.  5  (VIII,  446).     Admiralty — Damages  where  both  at  fault. 

Approved  in  The  Steam  Dredge  No.  1,  134  Fed.  167,  69  L.  E.  A. 
292,  67  C.  C.  A.  67,  ordering  division  of  damages  where  inspector  on 
dredge  injured  by  breaking  of  bitt  through  negligence  of  operator 
where  inspector  also  negligent. 

21   Wall.  430-440,  22  L.  673,  DILLON  v.  BAENAED. 

Syl.  1  (VIII,  448).     Equity — Matters  admitted  by  demurrer. 

Approved  in  Hume  v.  Laurel  Hill  Cemetery,  142  Fed.  563,  holding 
void  ordinance  prohibiting  burials  in  San  Francisco. 

Syl.  3  (VIII,  450).     Eailroad  mortgage — Lien  of  contractor. 

Approved  in  Johnston  v.  Huff,  133  Fed.  706,  66  C.  C.  A.  534.  where 
railroad  contractor  gave  supply  firm  order  on  railroad  which  was 
not  presented  for  one  year  and  only  one  day  before  bankruptcy,  it 
was  preference;  Missouri  Pac.  E}'.  Co.  v.  Bradbury,  106  Mo.  App.  458, 
79  S.  W.  968,  where  railroad  was  granted  right  of  way,  laid  track 
and  then  abandoned  same,  rails  became  property  of  grantor. 

21  Wall.  441-453,  22  L.  623,  TKIST  v.  CHILD. 

Syl.   1    (VIII,  450).     Lien — Order  on  particular  fund. 

Approved  in  Cogan  v.  Conover  Mfg.  Co.,  69  N.  J.  Eq.  364.  60  Atl. 
411,  applying  rule;  In  re  Oliver,  132  Fed.  590,  where  bank,  after  ac- 
ceptance by  payee,  disconnected  order  on  drawer's  rent  agent,  pay- 
able out  of  particular  rents,  and  bankruptcy  occurred  before  maturity, 
order  was  lien  on  fund  in  trustee's  hands;  In  re  Cramond,  145  Fed.  977, 
where  city  contractor  assigned  all  rights  to  moneys  payable  from  city 
to  bank  to  get  money  to  do  work,  bank's  claim  was  superior  to  labor 
claims  under  bankruptcy  act. 


671  Notes  on  U.  S.  Reports,  21  Wall.  453-456 

Syl.  3  (VIII,  451).     Lien — Agreement  to  pay  out  of  specified  fund. 

Approved  in  Long  v.  Farmers'  State  Bank,  147  Fed.  364,  where 
debtor  agreed  to  insure  property  to  protect  bank's  claim,  debtor  as- 
signing such  amount  of  insurance  to  bank  as  collateral  security,  there 
was  no  assignment  of  policies  in  praesenti;  "Weiss  v.  Gullett,  18 'Colo. 
App.  128,  70  Pac.  444,  where  contracts  provided  for  compensation  to 
attorney  payable  out  of  proceeds  of  sale  of  mine,  he  to  be  interested 
therein  to  extent  of  compensation,  third  party  purchasing  mine  not 
liable  to  attorney,  though  he  knew  of  agreement. 

Syl.  G   (VIII,  452).     Contracts  against  public  policy  unenforceable. 

Approved  in  Bass  v.  Smith,  12  Okl.  488,  71  Pac.  628,  refusing  specific 
performance  of  agreement  to  convey  lauds  to  be  entered  as  homestead 
in  consideration  of  support  of  entryman  for  life. 

Syl.  7  (VIII,  453).  Claim  against  government — Attorney's  con- 
tract. 

Approved  in  BaumhofT  v.  Oklahoma  City  Gas  etc.  Co.,  14  Okl.  141, 
77  Pac.  44,  upholding  contract  for  sale  of  city  franchises  after  they 
have  been  amended  by  council  where  no  action  on  part  of  either  party 
required. 

Syl.  8   (VIII,  453).     Lobbying  contract  void. 

Distinguished  in  Padilla  v.  Padilla,  11  N.  M.  546,  70  Pac.  564,  up- 
holding contract  whereby  brother  who  had  recovered  judgment  in  own 
name  oh  Indian  depredation  claim  for  property  jointly  owned  by 
himself   and  sister  agreed  to   give   her  share   of   money. 

Syl.  9  (VIII,  454).     Attorney's  fees — Lobbying  contract. 

Approved  in  Garst  v.  Love,  6  Okl.  56,  55  Pac.  22,  in  action  for 
pasturing  cattle  on  plaintiff's  land,  answer  alleging  that  land  inclosed 
is  government  land  and  is  inclosed  for  mere  speculative  purposes, 
states  good  defense. 

Distinguished  in  Nutt  v.  Knut,  200  U.  S.  21,  50  L.  353,  26  Sup. 
Ct.  216,  affirming  Knut  v.  Nutt,  83  Miss.  373,  102  Am.  St.  Rep.  452, 
35  So.  688,  where  one  holding  claim  against  government  executed 
power  authorizing  attorney  to  prosecute  claim  and  another  instrument 
giving  percentage  of  amount  collected,  fact  that  power  is  void  under 
U.  S.  Rev.  St.,  §  3477,  does  not  invalidate  contract  for  compensation. 

21  Wall.  453-456,  22  L.  616,  HILL  v.  MENDENHALL. 

Syl.   3    (VIII,   455).     Contradicting   record   of   foreign   judgment. 

Approved  in  Cohen  v.  Portland  Lodge  No.  142,  B.  P.  O.  E.,  140  Fed. 
775,  domestic  judgment  is  not  conclusive  against  one  who,  while  made 
defendant,  is  not  shown  by  record  to  have  been  served  or  to  have  ap- 
peared. 


21  Wall.  456-500  Notes  on  U.  S.  Keports.  672 

21  Wall.  456-475,  22  L.  678,  BALTIMORE  ETC.  EAILROAD  CO.  ▼. 
MARYLAND. 

Syl.  6  (VIII,  457).  Charter  provision  for  payment — Percentage  of 
earnings. 

Distinguished  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
347,  378,  48  L.  704,  717,  24  Sup.  Ct.  436,  upholding  anti-trust  act  of 
1890,  as  applied  to  combination  of  stockholders  of  two  competing  inter- 
state railroads  to  form  holding  company  which  would  acquire  in  ex- 
change of  its  own  stock    controlling  interest  in  each  road. 

21  Wall.  475-480,  22  L.  685,  FOX  v.  GARDNER. 

Syl.  1  (VIII,  457).  Bankruptcy — Agreement  substituting  another 
as  creditor. 

Approved  in  In  re  Pease,  129  Fed.  449,  where  trust  company  through 
its  attorney,  who  also  represented  other  creditors,  made  loan  to  mer- 
chant with  proceeds  of  which  he  paid  certain  creditors,  including  at- 
torney's clients,  in  full,  and  company  next  day  sold  borrower's  stock 
under  chattel  mortgage,  transaction  was  fraudulent  preference. 

21  Wall.  481-488,  22  L.  471,  GROSHOLZ  v.  NEWMAN. 

Syl.  1  (VIII,  458).  Secret  intent  to  homestead — Bona  fide  pur- 
chaser. 

Approved  in  Ball  v.  Houston,  11  Okl.  238,  66  Pac.  359,  mere  intention 
to  occupy  premises  at  future  time  as  home,  without  actual  occupancy, 
does  not  impress  them  with  homestead  character. 

21  Wall.  488-492,  22  L.  650,  TEXAS  v.  CHILES. 

Syl.  1  (VIII,  458).     Party  as  competent  witness. 

Approved  in  Blood  v.  Morrin,  140  Fed.  920,  plaintiff  in  federal  court 
who  is  citizen  of  another  state  and  resides  more  than  100  miles  from 
place  of  trial  may  be  compelled  to  give  deposition  de  bene  esse. 

21  Wall.  492-500,  22  L.  595,  ERIE  RAILWAY  CO.  v.  PENNSYL- 
VANIA. 

Syl.  2  (VIII,  459).     Taxation  of  railroad  "doing  business"  in  state. 

Approved  in  State  v.  Canadian  Pac.  Ry.  Co.,  100  Me.  207,  60  Atl.  903, 
construing  Pub.  Laws,  c.  145,  p.  160,  as  authorizing  taxation  of  rail- 
roads on  mileage  basis  of  apportionment. 

Syl.  3  (VIII,  460).     Tax  exemption  must  be  clear. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
37,  105  Am.  St.  Rep.  699,  50  L.  75,  25  Sup.  Ct.  715,  N.  Y.  Laws  1899, 
c.  712,  imposing  special  franchise  tax,  does  not  impair  obligation  ot 
contract  by  which  state  or  city  granted  right  to  maintain  street  rail- 
way in  New  York  City  in  consideration  of  payment  of  annual  per- 
centage of  earnings;  American  Smelting  etc.  Co.  v.  People,  34  Colo. 
253,  82  Pac.  535,  Sess.  Laws  1897,  p.  157,  and  Sess.  Laws  1901,  p.  116, 


673  Notes  on  U.  S.  Ee'ports.  21  Wall.  503-520 

imposing  privilege  tax  on  foreign  corporations  does  not  exempt  them 
from  further  taxation. 

21  Wall.  503-520,  22  L.  599,  CASE  OF  BRODERICK'S  WILL. 

Syl.  1  (VIII,  461).     Equity  jurisdiction  to  set  aside  will. 

Approved  in  O'Callaghan  v.  O'Brien,  199  U.  S.  102,  105,  108,  50  L. 
108,  109,  110,  25  Sup.  Ct.  727,  denying  circuit  court's  jurisdiction  over 
bill  to  declare  nonexistence  of  will  and  nullity  of  its  state  probate 
where  contest  under  state  statute  is  but  ancillary  to  original  probate 
proceedings;  Goodrich  v.  Ferris,  145  Fed.  851,  852,  equity  has  no 
jurisdiction  to  set  aside  decree  of  probate  court  distributing  estate 
made  after  notice  required  by  statute;  Medill  v.  Snyder,  71  Kan.  598, 
81  Pac.  219,  Code  Civ.  Proc,  §  23,  does  not  extend  time  for  contesting 
will.    See  106  Am.  St.  Eep.  643,  note. 

Syl.  1  (VIII,  463).  Limitations — Nondiscovery  of  fraud — Eemote 
residence. 

Approved  in  Goodrich  v.  Ferris,  145  Fed.  860,  upholding  sufficiency, 
under  Cal.  Code,  of  notice  by  posting  notice  of  hearing  of  petition  for 
distribution  for  ten  days  prior  to  hearing;  Dowdell  v.  United  States 
District  Court,  139  Fed.  446,  where  proceedings  to  limit  liability  in 
admiralty  have  been  terminated  by  final  decree,  court  cannot  reopen 
case  to  permit  nonappearing  claimants  to  prove  claims;  Knight  v.  Hol- 
lings,  73  N.  H.  503,  63  Atl.  42,  one  seeking  to  set  aside  probate  of 
will  is  barred  by  laches  where  suit  not  begun  till  lapse  of  over  twelve 
years  after  probate;  Siers  v.  Wiseman,  58  W.  Va.  349,  52  S.  E.  463, 
agency  of  one  for  purpose  of  paying  taxes  on  land  of  another  shown 
by  proof  of  his  payment  for  long  period  without  asserting  title,  allow- 
ing it  to  become  delinquent  for  one  year  and  purchasing  at  delinquent 
sale  without  taking  deed  and  continuing  to  pay  taxes  in  name  of 
owner. 

Syl.  6  (VIII,  464).    Federal  equity — Change  in  state  law. 

Approved  in  Barber  Asphalt  Pav.  Co.  v..  Morris,  132  Fed.  949,  67 
L.  R.  A.  761,  66  C.  C.  A.  55,  Duluth  charter  providing  for  appeals  from 
allowance  or  rejection  of  claims  to  state  district  court  and  prohibiting 
payment  of  claims  pending  appeal,  does  not  restrict  power  of  federal 
court  to  enforce  its  judgment  on  such  claims. 

Syl.  7  (VIII,  464).    Federal  courts — State  enlargement  of  equity. 

Approved  in  Devine  v.  Los  Angeles,  202  U.  S.  333,  50  L.  1053,  26 
Sup.  Ct.  652,  applying  rule  to  bill  to  quiet  title  framed  under  Cal.  Code 
Civ.  Proc,  §  738;  Mathews  Slate  Co.  v.  Mathews,  148  Fed.  493,  deny- 
ing federal  jurisdiction  over  suit  brought  under  Rev.  Laws  Mass.,  e. 
159,  §  3,  cl.  7,  giving  courts  jurisdiction  in  equity  of  suits  by  creditors 
to  apply  to  debt  property  which  cannot  be  attached  in  action  at  law; 
Ames  Realty  Co.  v.  Big  Indian  Min.  Co.,  146  Fed.  174,  175,  176, 
federal  court  may  enforce  rights  given  by  Civ.  Code  Mont.,  §  1891, 
providing  that   in  action   for  protection   of   water   rights   all   persons 

43 


21  WaU.  521-558  Notes  on  U.  S.  Keports.  674 

diverting  water  from  same  stream  may  be  made  parties  and  that  one 
judgment  may  settle  rights  of  all;  Illinois  Life  Ins.  Co.  v.  Newman, 
141  Fed.  450,  453,  denying  jurisdiction  to  enjoin  collection  of  tax 
levied  under  state  statute  alleged  to  be  void,  though  such  power  con- 
ferred by  statute  on  state  courts. 

21  Wall.  521-531,  22  L.  606,  LANGDEAU  v.  HANES. 

Syl.  3  (VIII,  466).     Legislative  confirmation  of  land  claim. 

Approved  in  Sage  v.  Eudnick,  91  Minn.  331,  100  N.  W.  107,  grant 
to  Hastings  etc.  K.  E.  Co.  being  in  praesenti  legal  title  passed  on 
filing  map  of  definite  location;  Territory  v.  Delinquent  Taxpayers,  12 
N.  M.  174,  76  Pac.  318,  imperfect  Mexican  grant  not  taxable  when 
court  of  private  land  claims  has  not  confirmed  survey;  Territory  v. 
Delinquent  Taxpayers,  12  N.  M.  67,  73  Pac.  623,  perfect  Mexican 
grant  taxable  though  grant  submitted  for  confirmation  by  court  of 
private  land  claims  and  patent  not  yet  issued;  Catron  v.  Laughlin, 
11  N.  M.  629,  631,  632,  72  Pac.  31,  32,  where  New  Mexico  surveyor 
general  has  declared  Mexican  grant  valid  and  recommended  confirma- 
tion withovit  limitation  as  to  quantity,  congressional  confirmation  as 
recommended  applies  to  all  land  claimed;  Kneeland  v.  Korter,  40 
Wash.  369,  82  Pac.  611,  1  L.  E.  A.  (N.  S.)  745,  where  tide  land  be- 
'■-veen  high  and  low  water  mark  within  place  limits  of  railroad  grant 
nad  been  surveyed  and  defined  and  railroad  had  performed  all  con- 
ditions before  admission  of  state,  railroad  entitled  to  land  under 
Const.,  art.  17,  §  2,  though  patent  not  issued  till  after  constitution; 
dissenting  opinion  in  Sage  v.  Eudnick,  91  Minn.  329,  98  N.  W.  90, 
majority  holding  time  during  which  right  of  plaintiff's  grantor  to 
land  grant  was  in  litigation  in  Land  Department  not  counted  in  deter- 
mining whether  right  to  land  is  barred  by  adverse  possession. 

21  Wall.  532-558,  22  L.  487,  EDWARDS  v.  ELLIOT. 

Syl.  6   (VIII,  468).     Maritime  contract — Building  of  ship. 

Approved  in  Delaney  etc.  Iron  Co.  v.  The  Winnebago,  142  Mich. 
88,  105  N.  W.  529,  and  The  Winnebago,  141  Fed.  948,  both  upholding 
Mich.  Comp.  Laws,  c.  298,  §  10,789,  giving  lien  to  contractors  and 
persons  furnishing  labor  and  materials  in  construction  of  vessels,  and 
providing  for  enforcement  in  state  courts;  Arnold  v.  Eastin,  116  Ky. 
708,  76  S.  W.  859,  contract  to  furnish  material  for  construction  of 
dock,  reserving  lien  thereon  to  seller,  is  not  maritime. 

Syl.  7   (VIII,  469).     State  liens  for  shipbuilding. 

Approved  in  The  Winnebago,  141  Fed.  949,  upholding  Mich.  Comp. 
Laws,  c.  298,  giving  lien  to  contractors  and  persons  furnishing  labor 
and  materials  in  construction  of  vessels,  and  providing  for  enforcement 
in  state  courts. 

Syl.  8  (VIII,  469).     Eight  to  jury  trial. 

Approved  in  Ex  parte  Munn,  140  Fed.  7S3.  under  Eev.  St.,  §  753, 
federal  court  cannot,  on  habeas  corpus,  release  one  confined  tor  con- 


675  JSTotes  on  U.  S.  Reports.  21  Wall.  558-616 

tempt  of  state  court  for  refusing  to  testify  on  ground  that  answers 
might  incriminate  him;  Board  of  Commrs.  v.  McKinley,  8  Okl.  135, 
56  Pac.  1046,  upholding  Code  Civ.  Proc.,  §  304,  authorizing  reference 
of  issue  of  fact  requiring  examination  of  mutual  accounts;  Van  Trees 
V.  Territory,  7  Okl.  374,  54  Pac.  502,  under  Civ.  Code,  §  304,  relating 
to  reference  of  accounts,  court  may  make  reference  over  objection 
of  defendant;  Gunn  v.  Union  E.  E.  Co.,  27  E.  I.  322,  62  Atl.  119, 
upholding  Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supreme  court  to 
direct  verdict  without  further  trial  by  Jury. 

Distinguished  in  Bradford  v.  Territory,  1  Okl.  371,  34  Pac.  67.  hold- 
ing void  St.  Okl.,  art.  18,  §  22,  providing  that  nine  jurors  may  return 
verdict,  as  violating  seventh  amendment. 

21  Wall.  558-609,  22  L.  654,  THE  LOTTAWANNA. 

Syl.  2  (VIII,  470).     Maritime  law,  how  far  operative. 

Cited  in  United  States  v.  Evans,  195  U.  S.  365,  49  L.  237,  25  Sup.  Ct. 
4G,  arguendo. 

Syl.  4  (VIII,  471).     Limits  of  admiralty  jurisdiction  statutes. 

Approved  in  The  James  T.  Furber,  129  Fed.  812,  denying  admiralty 
jurisdiction  over  suit  for  collection  of  rent  of  wharf  space,  under  Me. 
Eev.  St.,  c.  93,  §  7,  giving  lien  for  use  of  wharf. 

Syl.  9   (VIII,  473).     Maritime  liens— State  laws. 

Approved  in  The  Sue,  137  Fed.  135,  following  rule;  Fredericks  v. 
Jas.  Eees  &  Sons  Co.,  135  Fed.  731,  68  C.  C.  A.  368,  lien  for  supplies 
furnished  vessel  given  by  Pa.  Act  1858,  P.  L.  363,  is  enforceable  ex- 
clusively in  admiralty. 

Syl.  12  (VIII,  477).  Admiralty — Debt  not  found  on  maritime  con- 
tract. 

Approved  in  The  Clifton,  143  Fed.  463,  denying  admiralty  jurisdic- 
tion over  suit  to  recover  possession  of  vessel  by  mortgagee  under 
mortgage  to  secure  money  borrowed  to  pay  purchase  price  of  vessel; 
Michigan  S.  S.  Co.  v.  Thornton,  136,Fed.  137,  69  C.  C.  A.  132,  where 
charter  providing  for  payment  of  freight  in  cash  on  delivery  of  each 
cargo  gave  lien  on  all  cargo  and  subfreights  for  freight  though 
cargoes  delivered,  and  consignee  paid  shipper,  money  paid  shipper  was 
impressed  with  trust  for  ship  owner. 

21  Wall.  609-616,  22  L.  687,  FIEST  NATIONAL  BANK  OF  SELMA 
v.  COLBY. 

Syl.  5  (VIII,  480).     Abatement  by  dissolution  of  bank  defendant. 
Approved  in  Fish  v.  Olin,  76  Vt.  124,  56  Atl.  533,  receiver  of  national 
bank  may  sue  at  law  in  own  name  in  state  courts. 

Distinguished  in  Hudson  v.  Limestone  Natural  Gas  Co.,  132  Fed. 
411,  stockholders  of  dissolved  corporation  cannot  be  held  individually 
liable  for  damages  caused  by  negligence  of  corporation  committed  in 
conduct  of  business  before  dissolution- 


21  Wall.  616-659  Notes  on  U.  S.  Eeports.  676 

21  Wall.  616-635,  22  L.  492,  JACKSON  v.  LUDELTNG. 

Syl.  1  (VIII,  481).     Equity — Two  having  interest  in  security. 

Approved  in  Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  771,  whore 
holders  of  majority  stock,  against  protest  of  minority  of  preferred 
stock,  consolidated  corporation  with  another  owned  by  majority,  upon 
terms  giving  minority  less  percentage  of  preferred  stock,  consolidation 
was  fraud  on  minority;  Booker  v.  Crocker,  132  Fed.  8,  10,  65  C.  C.  A. 
627,-  proportionate  share  of  each  holder  of  bonds  secured  by  same 
mortgage  in  lien«  purchased  and  in  expenses  thereof,  is  measured  by 
par  value  of  his  bonds. 

Syl.  3  (VIII,  481).     Corporation  officers  are  trustees. 

Approved  in  Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  779,  where 
majority  stockholders,  against  protest  of  minority  of  preferred  stock, 
consolidated  corporation  with  another  owned  by  majority,  on  terms 
giving  minority  less  percentage  of  preferred  stock,  consolidation  was 
fraud  on  minority;  Stewart  v.  Harris,  69  Kan.  505,  77  Pac.  280,  66  L. 
R.  A.  261,  president  of  corporation  actively  engaged  in  its  manage- 
ment must  inform  ordinary  stockholder  of  true  condition  of  corpora- 
tion's affairs  before  he  purchases  stock  of  latter. 

Syl.  4  (VIII,  482).    Purchase  by  directors  at  foreclosure  sale. 

Approved  in  Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  772,  776, 
where  majority  stockholders,  against  protest  of  minority  of  preferred 
stock,  consolidated  corporation  with  another  owned  by  majority,  upon 
terms  giving  minority  less  percentage  of  preferred  stock,  consolidation 
was  fraud  on  minority;  Burns  v.  Cooper,  140  Fed.  277,  sale  by  guardian 
of  ward's  realty  under  order  of  court  is  voidable  by  ward  where 
guardian  procured  sale  for  purpose  of  securing  title  for  himself;  Reed 
V.  Schmidt,  115  Ky.  82,  72  S.  W.  369,  61  L.  R.  A.  270,  construing  bond- 
holders' pooling  agreement  to  purchase  at  foreclosure  sale. 

21  Wall.  642-647,  22  L.  549,  DOE  v.  CHILDRESS. 

Syl.  1  (VIII,  484).     Bankruptcy — Attachment  four  months  prior. 

Approved  in  Klipstein  v.  Allen-Miles  Co.,  136  Fed.  390,  69  C.  C.  A. 
229,  bankrupt's  surety  on  bond  to  discharge  garnishment  in  pending 
suit  against  bankrupt  is  discharged  by  discharge  in  bankruptcy. 

(VIII,  484.)  Miscellaneous.  Cited  in  Rochester  Lumber  Co.  v. 
Locke,  72  N.  H.  25,  54  Atl.  707. 

21  Wall.  652-659,  22  L.  472,  UNITED  STATES  v.  BOECKER. 

Syl.  1  (VIII,  485).     Liability  of  sureties  on  distiller's  bond. 

Approved  in  Saffroi  v.  Cobun,  32  Tex.  Civ.  82,  73  S.  W.  830,  surety 
on  liquor  license  bond  discharged  where  holder  of  license  by  false 
statements  to  clerk  induced  him  to  change  place  named  in  license  to 
another  corner;  Stern  v.  Sawyer,  78  Vt.  11,  112  Am.  St.  Rep.  894,  61 
Atl.  38  where,  pending  term  of  lease,  lessor  sold  portion  of  property 
•with  consent  of  lessee  but  without  consent  of  lessee's  sureties,  sureties 
were  discharged. 


677  Notes  on  U.  S.  Reports.  22  Wall.  32-57 

Distinguislied  in  Segari  v.  Mazzei,  IIG  La.  1030,  41  So.  246,  mere 
change  in  site  of  dwelling-house,  to  be  constructed  under  contract,  from 
one  place  to  another  in  same  square,  without  causing  additional  ex- 
pense to  contractor,  does  not  discharge  contractor's  surety. 

21  Wall.  660-675,  22  L.  639,  MORTON  v.  NEBRASKA. 

Syl.  3  (VIII,  486).     Public  lands — Exception  of  saline  lands. 

Approved  in  Eastern  Oregon  Land  Co.  v.  Brosnan,  147  Fed.  809, 
where  land  grant  to  state  for  construction  of  road  exempted  lands 
previously  reserved  or  otherwise  appropriated,  complaint  in  ejectment 
against  patentee  must  affirmatively  show  that  at  time  grant  became 
fixed  land  in  question  not  within  exception;  Flanagan  v.  Forsythe,  6 
Okl.  240,  50  Pac.  156,  after  final  proof  made  and  patent  issued,  lands 
entered  as  homestead  are  not  exempt  from  liability  for  debts. 


XXII  WALLACE. 


22  Wall.  32-3S,  22  L.  793,  MUTUAL  BENEFIT  LIFE  INSURANCE 
CO.  V.  NEWTON. 

Syl.  2  (VIII,  492).     Insurance — Proofs  of  death  as  evidence. 

Limited  in  Aetna  Life  Ins.  Co.  v.  Milward,  118  Ky.  729,  82  S.  W.  367, 
368,  in  action  on  accident  policy,  verdict  of  coroner's  jury  is  not  ad- 
missible on  issue  of  cause  of  death. 

22  Wall.  42-47,  22  L.  838,  HOUSE  v.  MULLEN. 

Syl.   6    (A'lII,   494).     Decree  sustaining   demurrer  without   prejudice. 

Approved  in  Fowler  v.  Osgood,  141  Fed.  24,  where  demurrer  is  gen- 
eral and  special  for  want  of  jurisdiction,  judgment  sustaining  demur- 
rer for  want  of  jurisdiction  should  be  limited  accordingly;  Indian 
Land  etc.  Co.  v.  Shoenfelt,  135  Fed.  487.  68  C.  C.  A.  196,  where  equity 
has  no  jurisdiction  of  suit,  decree  of  dismissal  must  expressly  adjudge 
that  it  was  rendered  on  that  ground  or  must  be  without  prejudice. 

(VIII,  493.)  Miscellaneous.  Cited  in  Graham  v.  Oregon  etc.  Nav.  Co., 
134  Fed.  693,  permitting  amendment  of  libel  in  admiralty  where  excep- 
tions for  want  of  jurisdiction  sustained. 

22  Wall.  47-57,  22  L.  833,  JEFFRIES  v.  ECONOMIC  MUTUAL  LIFE 
INSURANCE  CO. 

Syl.  1    (VIII,  495).     Insurance — Application  as  warranty. 

Approved  in  Atlas  Red.  Co.  v.  New  Zealand  Ins.  Co.,  138  Fed.  499, 
where  policy  stipulated  for  its  avoidance  if  property  be  encumbered, 
without  insurer's  consent,  indorsement  by  insurer's  agent,  "Subject 
to  all  conditions  of  policy,  loss  payable  to  A,  as  his  interest  may  ap- 


• 


22  "Wall.  57-123  Notes  on  U.  S.  Ecports.  C78 

pear,"  is  not  consent  to  encumbrance;  Enpert  v.  Supreme  Court  U.  O. 
F.,  94  Minn.  295,  296,  102  N.  W.  716,  holding  answers  to  questions 
concerning  health  in  application  for  life  insurance  not  warranties; 
Thompson  v.  Travelers'  Ins.  Co.,  13  N.  D.  451,  101  N.  W.  901,  where 
policy  was  not  to  be  effectual  unless  insured  in  good  health  when  first 
premium  paid,  actual  and  not  apparent  good  health  was  required; 
Willoughby  v.  Fidelity  etc.  Co.,  16  Okl.  554,  85  Pac.  716,  applying  rule 
to  contract  of  indemnity  insurance. 

22  Wall.  57-60,  22  L.  729,  SCOTT  v.  KELLY. 

Syl.  2  (VIII,  497).     Federal  question — Decision  bankrupt  had  no  title. 

Approved  in  Cramer  v.  Wilson,  195  U.  S.  416,  49  L.  259,  25  Sup.  Ct. 
94,  contention  that  conveyance  was  in  fraud  of  creditors  under  state 
law  or  that  residuary  estate  remained  in  grantor  which  would  pass 
under  bankruptcy  assignee's  sale    raises  no  federal  question. 

22  Wall.  60-67,  22  L.  764,  PUTNAM  v.  DAY. 

Syl.  3   (VIII,  498).     Laches  not  first  raisable  on  bill  of  review. 

Approved  in  Burk  v.  Johnson,  146  Fed.  211,  where  bill  to  rescind 
contract  assigning  territory  for  promotion  of  societies  under  copyrighted 
by-laws  was  predicated  on  false  representations  of  defendant,  it  is  not 
sustainable  on  proof  of  mutual  mistake. 

22  Wall.  77-81,  22  L.  564,  MAXWELL  v.  STEWAET. 

Syl.  6  (VIII,  501).     Fraud  as  defense  to  foreign  judgment. 
See  103  Am.  St.  Eep.  315,  note. 

22  Wall.  99-104,  22  L.  816,  UNITED  STATES  v.  INSUEANCE  COS. 

Syl.  2  (VIII,  502).     Acts  of  de  facto  officers. 

Approved  in  Cullins  v.  Overton,  7  Okl.  482,  54  Pac.  705,  where 
Texas  authorities  organized  disputed  territory  into  county  government, 
*  judgment  of  court  thereof  was  valid  though  later  federal  supreme  court 
held  territory  was  not  in  Texas. 

22  Wall.  105-115,  22  L.  713,  MAEYLAND  v.  EAILEOAD  CO. 

Syl.  2  (VIII,  503).  Contracts — Surrounding  circumstances  aiding  con- 
struction. 

Approved  in  Barcus  v.  Gates,  130  Fed.  367,  applying  rule  to  written 
contract  for  employment  of  attorney  for  contingent  fee;  Merica  v. 
Burget,  36  Ind.  App.  459,  75  N.  E.  1086,  construing  contract  whereby 
vendors  of  bank  agreed  to  quit  banking  business  and  not  start  another 
bank  in  same  town  while  vendees  continued  to  own  bank. 

22  Wall.  116-123,  22  L.  780,  PLEASANTS  v.  FANT. 

Syl.  5   (VIII,  505).     When  nonsuit  proper. 

Approved  in  American  etc.  Plate  Co.  v.  Pittsburgh  etc.  Ey.  Co.,  14.^ 
Fed.  795^  where  engineer  entering  city  at  night  was  flagged  and  told 


G79  Notes  on  U.  S.  Reports.  22  Wall.  123-106 

house  ahead  was  on  fire  and  that  firemen  were  about  to  run  hose  on  track, 
and  he  could  not  back  because  of  train  behind,  and  he  immediately 
went  ahead,  railroad  not  liable  to  owner  of  building  for  interfering 
with  firemen;  Parks  v.  Southern  Ey.  Co.,  143  Fed.  277,  278,  upholding 
direction  of  verdict  for  defendant  in  action  for  killing  flagman  while 
trying  to  flag  train;  Loder  v.  Jayne,  142  Fed.  1022,  ordering  new  trial 
of  remission  of  excessive  damages  in  action  for  damages  caused  by  un- 
lawful combination  in  restraint  of  interstate  commerce;  Huntt  v.  Mc- 
Namee,  141  Fed.  294,  295,  upholding  direction  of  verdict  in  action  for 
personal  injuries  where  complaint  charged  defendant  because  of  neg- 
ligence of  his  agent  and  uncontradicted  evidence  showed  agent  was  in- 
dependent contractor;  Minahan  v.  Grand  Trunk  etc.  Ey.  Co.,  138  Fed. 
46,  70  C.  C.  A.  463,  where  servant  working  on  scaffolding  was  killed  by 
recoil  of  pneumatic  tool,  which  should  not  recoil  when  in  proper  condi- 
tion, and  he  had  previously  told  foreman  that  it  was  out  of  order  and 
later  was  told  it  was  repaired,  questions  of  assumption  of  risk  or  con- 
tributory negligence  were  for  jury;  Camden  etc.  Ey.  Co.  v.  Eice,  137 
Fed.  328,  69  C.  C.  A.  656,  holding  evidence  in  action  for  injuries  to 
street-car  passenger  while  attempting  to  alight  required  submission  of 
question  of  contributory  negligence ;  Eoessler  etc.  Chemical  Co.  v.  Peter- 
son, 134  Fed.  791,  67  C.  C.  A.  295,  holding  general  laborer  in  factory 
burned  while  slacking  lime  assumed  risk  incident  to  employment; 
Chicago  etc.  Ey.  Co.  v.  Andrews,  130  Fed.  74,  64  C.  C.  A.  399,  applying 
rule  in  action  for  injuries  at  railroad  crossing  where  plaintiff  was  guilty 
of  contributory  negligence;  Chaddick  v  Lindsay,  5  Okl.  628,  49  Pae. 
944,  where  railroad  fails  to  supply  station  or  platforms  for  baggage, 
employee  cannot  recover  for  injuries  caused  by  such  failure;  Gunn  v. 
Union  E.  E.  Co.,  27  E.  I.  327,  62  Atl.  121,  upholding  Gen.  Laws  1896, 
c.  231,  §  11,  authorizing  supreme  court  to  direct  judgment  without  fur- 
ther jury  trial. 

22  Wall.  123-136,  22  L.  827,  OGDEXSBUEG  ETC.  E.  E.  CO.  v.  PEATT. 
Syl.  1   (YIII,  508).     Carrier  limiting  liability  to  own  line. 
See  106  Am  St.  Eep.  605,  note. 

Syl.  2    (YIII,  509).     Liability  for  acts  of  connecting  carrier. 

Approved  in  Northern  Pac.  Ey.  Co.  v.  American  Trading"  Co.,  195 
U.  S.  459,  49  L.  278,  25  Sup.  Ct.  84,  special  agreement  by  carrier  to 
transport  through  shipment  by  vessel  of  connecting  carrier  sailing  on 
certain  date  results  from  acceptance  of  through  rate  for  shipment  to  be 
forwarded  via  such  steamer. 

Syl.   3    (VIII,  510).     Station   agent's  power  to  contract  beyond   line. 

Distinguished  in  Pittsburgh  etc.  Ey.  Co.  v.  Bryant,  3lj  Ind.  Ajip.  ."47, 
75  N.  E.  831,  agent's  authority  to  contract  for  extraterritorial  liability 
not  presumed  from  authority  to  receive  goods  for  carriage. 


22  Wall.  157-179  Notes  on  U.  S.  Eeports.  680 

Syl.  5    (VIII,  510).     Carriers — Receipt  of  pay  for  through  carriage. 

Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Bryant,  36  Ind.  App.  34S, 
75  N.  E.  831,  where  carrier's  agent  collected  entire  charge  for  ship- 
ment beyond  initial  carrier's  line  and  gave  receipt  therefor,  it  is  for 
jury  to  determine  whether  agent  contracted  to  carry  goods  to  destina- 
tion, 

Syl.  6  (VIII,  511).     Carrier's  duty  to  furnish  suitable  cars. 

Approved  in  St.  Louis  etc.  Ry.  Co.  v.  Marshall,  74  Ark.  600,  109  Am. 
St.  R-ep.  104,  86  S.  W.  803,  holding  carrier  liable  for  injury  to  goods 
caused  by  defective  car  though  shipper  knew  of  defects  and  injury  may 
have  occurred  beyond  carrier's  own  line;  Lake  Erie  etc.  R.  R.  Co.  v.  Hol- 
land, 162  Ind.  414,  69  N.  E.  141,  63  L.  R.  A.  948,  carrier  liable  for  dam- 
ages to  shipment  caused  by  hidden  defects  in  car  selected  by  shipper 
under  special  contract;  Frohlich  v.  Pennsylvania  Co.,  138  Mich.  124,  110 
Am.  St.  Rep.  310,  101  N.  W.  226,  where,  under  agreement  between  rail- 
road and  consignor,  latter  selected  car  delivered  to  it  loaded  with  sand 
for  shipment  of  glass,  railroad  not  liable  to  consignee  for  loss  occasioned 
by  unsuitablcness  of  car.     See  106  Am.  St.  Rep.  609,  note. 

22  Wall.  157-169,  22  L.  819,  IN  RE  CHILES. 

Syl.  3  (VIII,  514).     Federal   courts — Punishment   for   contempt. 

Approved  in  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S.  327,  48  L.  1001, 
24  Sup.  Ct.  665,  order  of  federal  court  finding  one  not  party  to  suit 
guilty  of  contempt  in  violating  restraining  order  is  reviewable  in  cir- 
cuit court  of  appeals  on  writ  of  error;  Heiuze  v.  Butte  etc.  Min.  Co., 
129  Fed.  279,  63  C.  C.  A.  388,  where  preliminary  injunction  against  ex- 
tracting ore  granted  and  also  order  to  permit  plaintiff  to  examine  prop- 
erty to  obtain  evidence  on  issue  joined,  which  was  disobeyed,  order  ad- 
judging defendant  in  contempt  not  reviewable  on  writ  of  error. 

22  Wall.  170-179,  22  L.  766,  BURNHISEL  v.  FIRMAN. 

Syl.  3   (VIII,  516).     Bankruptcy — Transfers  within  four  months. 

Approved  in  In  re  Clifford,  136  Fed.  476,  mortgage  for  purchase  price 
of  cattle  given  more  than  four  months  prior  to  petition  in  bankruptcy, 
but  not  recorded  until  within  such  time,  is  not  illegal  preference. 

Syl.  4  (VIII,  516).  Bankruptcy — Exchange  of  securities  as  prefer- 
ence. 

Approved  in  In  re  Noel,  137   Fed.   700,  following  rule. 

Syl.  7  (VIII,  516).  Second  security  tainted  with  usury. 
Approved  in  Farmers'  Loan  etc.  Co.  v.  Meridian  W.  W.  Co.,  139  Fed. 
670,  where  water  company  executed  mortgages  to  build  works,  and  pend- 
ing suit  to  annul  its  franchise  company  issued  new  bonds  secured  by  an- 
other mortgage  to  same  trustee,  which  also  provided  for  extension  and 
renewal  of  liens  of  prior  mortgage,  such  provision  did  not  discharge  prior 
mortgages. 


681  Notes  on  U.  S.  Keporta.  22  Wall.  180-253 

22  Wall.  180-198,  22  L.  863,  THE  ELGEE  COTTON  CASES. 

Syl.  5   (VIII,  517).     Sales — Conditions  precedent  to  passing  title. 

Approved  in  Buskirk  Bros.  v.  Peck,  57  W.  Va.  367,  50  S.  E.  434,  under 
contract  of  sale  of  timber  to  be  cut  and  removed  by  vendee  within  spec- 
ified time,  and  measured  and  paid  for  each  month,  before  removal  as 
work  progresses,  title  vests  in  purchaser  as  timber  is  cut. 

22  Wall.  238-250,  22  L.  854,  FRENCH  v.  HAY. 

Syl.  5  (VIII,  522).     Amend inent  of  bill— Right  to  answer. 

Distinguished  in  North  Chicago  St.  R.  Co.  v.  Chicago  Union  Traction 
Co.,  150  Fed.  632,  633,  amendment  of  bill  does  not  entitle  defendant 
who  has  answered  original  bill  to  demur  or  answer  anew  to  entire  bill 
but  only  to  new  matter. 

22  W^all.  250-253,  22  L.  857,  FRENCH  v.  HAY. 

Syl.  1  (VIII,  523).     Enjoining  state  court  after  removal — Auxiliary. 

Approved  in  Riverdale  Cotton  Mills  v.  Alabama  etc.  Mfg.  Co.,  198 
U.  S.  195,  49  L.  1015,  25  Sup.  Ct.  629,  federal  court  which  has  decreed 
foreclosure  may,  by  ancillary  suit,  restrain  attack  on  title  of  purchaser 
under  decree  by  state  suit  brought  by  party  to  original  suit;  Mutual 
Life  Ins.  Co.  v.  Langlcy,  145  Fed.  421,  where  cause  properly  removed  to 
federal  court,  but  state  court  erroneously  denied  motion  for  order  trans- 
ferring cause,  federal  court  could  grant  ancillary  injunction  against 
further  state  proceedings. 

8yl.  2  (VIII,  523).     Enjoining  state  court  after  removal. 

Approved  in  Riverdale  Cotton  Mills  v.  Alabama  etc.  Mfg.  Co..  198  U. 
S.  196,  49  L.  1015,  25  Sup.  Ct.  629,  federal  court  which  has  decreed  fore- 
closure may,  by  ancillary  suit,  restrain  attack  in  title  of  pjurchaser  un- 
der decree  by  state  suit  brought  by  party  to  original  suit;  Madisonville 
Traction  Co.  v.  St.  Bernard  Min.  Co.,  196  U.  S.  245,  49  L.  464,  25  Sup. 
Ct.  251,  applying  principle  to  proceeding  for  condemnation  of  land  un- 
der Ky.  Stat.,  §§  835-839. 

Syl.  3   (VIII,  524).     Prohibition  against  enjoining  state  court. 

Approved  in  Julian  v.  Central  Trust  Co.,  193  U.  S.  112,  48  L.  639,  24 
Sup.  Ct.  399,  federal  court  which  has  decreed  foreclosure  sale  may  en- 
tertain supplemental  proceedings  by  purchaser  under  decree  to  enjoin  sale 
of  property  for  satisfaction  of  state  judgment  against  mortgagor  to 
which  purchaser  was  not  party;  St.  Louis  Min.  etc.  Co.  v.  Montana  Min. 
Co.,  148  Fed.  454,  Rev.  St.,  §  720,  does  not  prohibit  federal  court  from  en- 
joining party  to  action  before  it  from  prosecuting  suit  in  state  court 
when  necessary  to  make  effectual  its  own  prior  judgment  determining 
rights  of  parties  to  it;  Glucose  Refining  Co.  v.  City  of  Chicago,  1'^H 
Fed.  212,  upholding  bill  to  enjoin  enforcement  of  alleged  illegal  city 
smoke  ordinance;  St.  Bernard  "Min.  Co.  v.  Madisonville  etc.  Co.,  130  Fod. 
795,  where  proceeding  to  acquire  land  for  right  of  way  properly  removed 


22  Wall.  322-350  Notes  on  U.  S.  Keports.  682 

to  federal  court  after  commissioner's  report  filed  in  state  court,  federal 
court  could  enjoin  plaintiff  from   further  proceeding  in  state   court. 

22  Wall.  322-329,  22  L.  823,  PITTSBURGH  ETC.  RAILWAY  CO.  v. 
RAMSEY. 

Syl.  4   ("VIII,  527).     Consent  gives  no  jurisdiction. 

Approved  in  Hadley  v.  Bernero,  103  Mo.  App.  558,  78  S.  W.  6G,  where 
appeal  from  judgment  of  justice  of  peace  in  unlawful  detainer  is  not 
taken  within  time  allowed,  but  no  objection  raised  to  appellate  juris- 
diction,*judgment  cannot  be  vacated  on  writ  of  error  coram  nobis. 

Syl.  6   (VIII,  527).     State  court  must  remove  on  proof. 

Approved  in  Shane  v.  Butte  Elec.  Ry.  Co.,  150  Fed.  805,  where  com- 
plaint in  state  court  alleges  joint  cause  of  action  against  nonresident  cor- 
poration and  its  resident  employee,  question  of  improper  joinder  not 
raisable  by  allegations  in  removal  petition  filed  by  corporation;  Helena 
etc.  Transmission  Co.  v.  Spratt,  146  Fed.  313,  cause  removed  to  federal 
court  on  ground  of  diversity  of  citizenship  remanded  unless  jurisdiction 
appears  from  petition  for  removal  and  all  pleadings  and  papers  filed  in 
state  court;  Illinois  etc.  Ry.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W.  485, 
where  petition  for  removal  shows  removable  controversy  prima  facie,  is- 
sues as  to  truth  of  facts  stated  in  petition  are  for  federal  court. 

22  Wall.  341-350,  22  L.  877,  NEW  JERSEY  R.  R.  ETC.  CO.  v.  POL- 
LARD. 

Syl.  1   (VIIT,  529).     Injury  to  passenger  presumes  negligence. 

Approved  in  Southern  Pac.  Co.  v.  Cavin,  144  Fed.  351,  applying  rule 
where  mail  clerk  injured  in  train  wreck;  Cavin  v.  Southern  Pac.  Co.,  136 
Fed.  593,  69  C.  C.  A.  366,  holding  erroneous  instruction  in  action  by 
mail  clerk  against  carrier  for  injuries  that  carrier  only  required  to  ex- 
ercise such  care  as  careful  and  skillful  men  in  such  business  are 
expected  to  use;  Burr  v.  Knickerbocker  etc.  Co.,  132  Fed.  249, 
05  C.  C.  A.  554,  where  moving  of  schooner  from  dock  to  wider  part  of 
channel  to  be  there  turned  and  headed  for  sea  was  in  charge  of  tug,  and 
ghe  grounded  in  calm,  prima  facie  negligence  of  tug  shown;  Firebaugh 
V.  Seattle  Elec.  Co.,  40  W'ash.  662,  82  Pac.  997,  2  L.  R.  A.  (N.  S.)  836, 
apjilying  rule  where  street-car  passenger  injured  by  blowing  out  of  con- 
troller. 

Limited  in  Cincinnati  etc.  Ry.  Co.  v.  South  Fork  Coal  Co.,  139  Fed. 
533,  534,  where,  as  result  of  rear-end  collision,  oil  cars  telescoped  and 
set  on  fire  by  engine  sparks,  and  fire  spread  to  plaintiff's  lumber  along 
tracks,  presumption  of  want  of  ordinary  care  in  operation  of  trains  raised. 

Syl.  2  (VIII,  530).     Injury  to  passenger — Burden  on  carrier. 

Approved  in  Fitch  v.  Mason  City  etc.  Traction  Co.,  124  Iowa,  671,  100 
N.  AV.  621,  upholding  instruction  as  to  presumption  of  negligence  in  ac- 
tion for  injuries  to  passenger  on  electric  train  tluown  from  scat  and  ojt 
of  car  when  car  rounded  curve. 


683  Notes  on  U.  S.  Eeports.  22  Wall.  381-464 

Syl.  4   (VIII,  530).     Passenger  carrier  must  use  greatest  care. 

Approved  in  Williams  v.  Spokane  Falls  etc.  Ry.  Co.,  39  Wash.  89,  80 
Pac.  1103,  applying  rule  in  action  for  injuries  by  postal  clerk  injureil 
by  collision  between  baggage-cars  and  mail-car  while  train  beincr  made 
up. 

Syl.  7  (VIII,  531).     Passenger  injured  by  sudden  jerk. 

Approved  in  Illinois  Central  R.  R.  Co.  v.  Jolly,  117  Ky.  639,  78  S.  W. 
478,  aged  passenger  who,  on  approaching  destination,  leaves  seat  and 
stands  at  door  before  train  stops,  cannot  recover  for  injuries  sustained  by 
jerking  of  train  while  stopping 

Syl.  9  (VIII,  531).     When  nonsuit  refused. 

Approved  in  Gibson  v.  Canadian  Pacific  Nav.  Co.,  1  Alaska,  414,  up- 
holding refusal  of  nonsuit  where  plaintiff  injured  in  unloading  freight 
from  vessel  to  wharf. 

Syl.  10  (VIll,  531).     Parties  as  witnesses. 

Approved  in  Blood  v.  Morrin,  140  Fed.  920,  plaintiff  in  federal  court 
who  is  citizen  of  another  state  and  resides  more  than  one  hundred  miles 
from  place  of  trial  may  be  compelled  to  give  deposition  de  bene  esse. 

22  Wall.  381-394,  22  L.   796,  MORGAN  v.  CAMPBELL. 

Syl.    1    (VIII,   533).     Goods   distrainable   by   landlord. 

Approved  in  Smith  v.  Wheeler,  4  Okl.  144,  44  Pac.  205,  lessee  may 
secure  by  chattel  mortgage  of  personalty  situated  on  premises  debt  of 
crcilitor    in   preference   to   landlord. 

22  Wall.  395-406,  22  L.  801,  AMSIXCK  v.  BEAN. 

Syl.    6    (VIII,    534).     Bankruptcy   of    firm. 

Approved  in  Thompson  v.  First  Nat.  Bank,  84  Miss.  60.  36  So.  66, 
where  partnership  dissolved,  and  by  consent  of  retiring  partner  and 
creditors  title  of  firm  property  transferred  to  continuing  partner 
who  transferred  property,  it  is  no  objection,  in  suit  by  trustee  in 
bankruptcy  of  continuing  partner  to  recover  property,  that  assets  were 
firm  assets. 

22  Wall.  444-464,  22  L.  747,  UNION  PACIFIC  R.  R.  CO.  v.  MeSHANE. 

Syl.  1  (VIII,  537).     State  tax  before  issuance  of  patent. 

Approved  in  Tcgarden  v.  Le  Marchel,  129  Fed.  490,  state  statute 
giving  defendant  in  ejectment  right  to  recover  value  of  improvements 
is  not  applicable  where  plaintiff  claims  under  government  patent  is- 
sued after  improvements  made;  dissenting  opinion  in  Delinquent  Tax- 
list  V.  Territory  of  Arizona,  4  Ariz.  189,  39  Pac.  328,  majority  hold- 
ing taxpayer  cannot  object  to  tax  on  unconfirmed  ^Mexican  grant  on 
ground  that  title  thereto  is  in  public  without  first  tendering  taxes  due 
on  other  property  included  Ia  assessment. 


22  Wall.  513-576  Notes  on  U.  S.  Eeporta.  684 

Syl.  2   ("VIII,  538).     State  tax  before  paying  costs  of  survey. 

Approved  in  Topeka  etc.  Security  Co.  v.  McPherson,  7  Okl.  342,  344, 
54  Pac.  492,  territorial  legislature  cannot  subject  to  taxation  lots  in 
government  townsite  pending  contest  in  Land  Department  between 
occupying   claimants. 

Distinguished  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  70, 
73  Pac.  624,  perfect  Mexican  grant  not  taxable  though  submitted  for 
confirmation  by  court  of  private  land  claims  and  patent  not  yet  issued 

22  Wall.  513-527,  22  L.  758,  ROBINSON  v.  ELLIOTT. 

Syl.  5  (VIII,  543).    Chattel  mortgage — Retention  of  possession. 

Approved  in  Little  Co.  v.  Burnham,  5  Okl.  293,  49  Pac.  69,  follow- 
ing rule;  Mitchell  v.  Mitchell,  147  Fed.  284,  where  chattel  mortgage 
on  stock  of  goods  was  not  recorded  for  several  months  after  execu- 
tion and  until  less  than  four  months  of  mortgagor's  bankruptcy,  who 
held  possession  and  sold  goods  in  due  course  and  replenished  stock,  it 
is  void  as  to  creditors;  In  re  Marine  Construction  etc.  Co.,  144  Fed. 
651,  mortgage  on  plant  and  stock  of  material,  permitting  borrower  to 
use  mortgaged  stock  and  replace  it,  is  valid  as  to  property  on  hand 
when  given,  but  does  not  give  lien  on  boat  built  from  materials  fur- 
nished after  it  was  given;  In  re  Marine  Const,  etc.  Co.,  133  Fed.  923, 
927,  mortgage  on  plant  and  stock  of  material  for  money  borrowed  for 
use  in  ordinary  business,  permitting  borrower  to  use  mortgaged  stock 
and  replace  it,  is  void  as  to  stock  and  as  to  boat  built  therefrom; 
Dugan  V.  Beckett,  129  Fed.  58,  59,  63  C.  C.  A.  498,  chattel  mortgage 
on  stock  authorizing  mortgagor  to  continue  possession  and  sell  goods 
but  requiring  him  to  deposit  each  day,  to  mortgagee's  account,  re- 
ceipts over  ruuning  expenses,  to  be  applied  to  debt,  is  not  void  on  its 
face;  Ranney- Alton  Mer.  Co.  v.  Watson,  10  Okl.  681,  65  Pac.  99,  hold- 
ing void  chattel  mortgage  on  stock  of  goods  permitting  possession  and 
sale  in  due  course  by  mortgagor,  but  not  requiring  him  to  apply  pro- 
ceeds to  mortgage  debt  or  to  account;  Bank  of  Perry  v.  Cooke,  3  Okl. 
546,  551,  41  Pac.  633,  634,  following  rule  though  agreement  to  retain 
possession  was  oral ;  Nelden-Judson  Drug  Co.  v.  Commercial  Nat.  Bank. 
27  Utah,  66,  74  Pac.  197,  mortgage  on  drugstore,  mortgagor  to  retain 
possession,  sell  goods  in  course  of  trade,  and  turn  over  proceeds  less 
expenses  to  mortgagee,  is  void  as  to  creditors,  where  not  intended  that 
mortgage   shall  ever  be   paid   and   mortgagor   retains   proceeds   of   sale. 

Distinguished  in  In  re  Burnham,  140  Fed.  929,  under  New  York  law 
chattel  mortgage  on  merchandise  permitting  mortgagor  to  sell  in  due 
course,  proceeds  to  be  used  only  to  pay  running  expenses,  replenishing 
stock  and  paying  debt,  is  valid  as  to  after-acquired  goods. 

22  Wall.  527-576,  22  L.  805,  TUCTvER  v.  FERGUSON. 

Syl.  9  ,(^'III)  546).     Gratuitous  tax  exemption  revocable. 

Approved  in  Powers  v.  Detroit  etc.  Ry.  Co..  201  V.  S.  557.  50  L. 
865,    26    Sup.    Ct.    556,    Mich.    Laws    ISCo,' p.    3U5,    §    9,    pru\iding    that 


685  Notes  on  U.  S.  Reports.  22  Wall.  576-C04 

railroad  should  pay  annual  percentage  in  capital  stock  in  lieu  of  all 
other  taxes,  created  contract  between  state  and  company;  Baltimore 
etc.  By.  Co.  v.  Wicomico  Co.,  103  Md.  289,  290,  63  Atl.  682,  683, 
Gen.  Assess.  Law  1896,  p.  151,  relating  to  assessment  of  railroad  prop- 
erty, recalled  immunity  from  taxation  acquired  by  purchasers  at  fore- 
closure of  railroad  having  immunity;  Rochester  v.  Rochester  Ry.  Co., 
182  N.  Y.  116,  118,  74  N.  E.  958,  959,  70  L.  R.  A.  773,  immunity  from 
contribution  to  expense  of  new  pavements  conferred  on  street  railway 
by  Laws  1869,  p.  54,  was  revocable  and  did  not  pass  to  lessee  of  rail- 
way. 

Syl.  12  (VIII,  548).  Contract  exempting  from  taxes  strictly  con- 
strued. 

Approved  in  Lake  Drummond  Canal  Co.  v.  Commonwealth,  103  Va. 
345,  49  S.  E.  508,  under  Code  1887,  §§  1233,  1234,  sale  on  foreclosure 
of  deed  of  trust  of  all  property  and  franchises  of  corporation  did  not 
jiass  immunity  from  taxation  granted  to  corporation. 

22    Wall.  576-594,  22  L.   730,  ROSS  v.  JONES. 

Syl.  4  (VIII,  550).  Construction  of  statute  derogatory  of  common 
law. 

Approved  in  Casey  v.  St.  Louis  Transit  Co.,  116  Mo.  App.  252,  91 
S.  \V.  425,  under  Rev.  St.  1899,  §  2864,  providing  for  forfeiture  of 
$5000,  for  wrongful  death  through  negligence  of  corporation,  petition 
seeking  recovery  of  less  sum  is  bad. 

22    Wall.    594-604,    22    L.    724,    EVANSVILLE    ETC.    R.    R.    CO.    v. 
ANDROSCOGGIN  MILLS. 

Syl.    1    (VIII,  550).     Contract  of  through  carriage. 

Approved  in  Pittsburg  etc.  Ry.  Co.  v.  Viers,  113  Ky.  538,  539,  68 
S.  W.  473,  connecting  carrier  receiving  cattle  from  initial  carrier  with- 
out limiting  liability  is  presumed  to  have  accepted  cattle  under  or- 
iginal contract  made  with  initial  carrier  on  behalf  of  itself  and  con- 
necting carriers. 


XXIII  WALLACE. 


23  Wall.  1-19,  23  L.  146,  THE  CLARITA  AND  THE  CLARA. 

Syl.   1    (VIII,  554).     Liability  of  tug  for  collision  by  tow. 

Approved  in  The  De  Gama,  140  Fed.  755,  vessel  in  tow  is  not  liable 
for  collision  where  it  is  not  guilty  of  negligence  and  its  navigation  was 
not  under  direction  of  her  oflicers;  The  Newburgh,  130  Fed.  324,  64  C. 
C.  A.  567,  where  lighter  was  shown  to  have  anchored  in  anchorage 
grounds  in  dense  fog  and  was  sunk  by  collision  with  steamer  going  at 
excessive   speed,   lighter   not    contributorily    liable. 

Distinguished  in  The  Degaina,  150  Fed.  324,  moving  vessel  colliding 
with  moored  vessel  not  exonerated,  though  she  was  in  control  of  tugs, 
unless  such  defense  is  pleaded  and  proved. 

Syl.   4    (VIII,    555).     Collision — Vessel   anchored    in   improper   place. 

Approved  in  Eoss  v.  Cornell  Steamboat  Co.,  143  Fed.  172,  holding 
dredge  at  fault  for  anchoring  at  night  in  bend  in  channel  where  it  wag 
difficult  for  vessels  with  long  tows  to  pass;  Eebstock  v.  Gilchrist  Transp. 
Co.,  132  Fed.  177,  holding  where  moored  vessel  was  in  proper  place 
and  was  struck  by  vessel  in  tow  of  two  tugs,  rear  tug  liable  for  col- 
lision. 

Syl.   7    (VIII,   555).     Salvage   defined. 

Approved  in  The  Dumper  No.  8,  129  Fed.  99,  63  C.  C.  A.  600,  where 
crew  of  tug  under  contract  to  tow  dumpers  to  sea  go  to  rescue  of 
dumper  which  had  been  abandoned  and  had  drifted  to  sea,  and  bring 
her  safely  to  port,  they  are  entitled  to  salvage. 

Syl.    9    (VIII,    555).     Salvage — Steamer    causing    damage. 

Approved  in  The  Pine  Forest,  129  Fed.  702,  704,  64  C.  C.  A.  228, 
raising  of  sunken  vessel  by  other  vessels  owned  by  owner  of  tug  which 
was  in  charge  of  vessel  when  she  sank  and  who  was  in  fault  therefor  is 
not  salvage  service. 

23   Wall.   20-35,    23   L.   55,   THE    GREAT   REPUBLIC. 

Syl.   8    (VIII,   556).     Collision— Liability  of   faster  boat. 

Distinguished  in  The  Edward  Smith,  135  Fed.  38,  67  C.  C.  A.  506, 
dividing  damages  where  faster  vessel  permitted  to  pass  without  pro- 
test  and   slower  vessel  checked   speed   unreasonably. 

23  Wall.  46-69,  23  L.  59,  COUNTY  OF  ST.  CLAIR  v.  LOVINGTON. 

Syl.  1  (VIII,  558).     Boundaries — Courses  yield  to  natural  objects. 

Distinguished  in  Security  Land  etc.  Co.  v.  Burns,  193  U.  S.  179,  48 
L.   671,  24  Sup.   Ct.  425,  courses  and  distances   as  set  forth  in  official 

[686] 


687  Notes  on  U,  S.  Reports.  23  Wall.  69-108 

Burvey,   which    shows    meander   line    of    lake    as    one    boundary,    control 
as   against   actual   boundary   of   lake   where   survey   grossly   fraudulent. 

Syl.  2   (VIII,   558).     Boundaries — Stream   between  corners. 

Approved  in  Davis  v.  Commonwealth  Land  etc.  Co.,  141  Fed.  721,  722, 
construing  description  in  patent  and  following  course  of  natural  ob- 
ject between  corners;  Leonard  v.  Wood,  33  Ind.  App.  84,  70  N.  E. 
828,  holding  surveyor's  meandering  of  river  not  independent  boundary 
so  that  conveyance  bountled  by  it  was  bounded  by  river  as  existing 
after   change  in   course. 

Syl.  6   (VIII,  559).     Title  to  tide  lards. 

Approved  in  Sutter  v.  Ileckman,  1  Alaska,  88,  owner  of  uplands 
bordering  on  seashore  in  Alaska  has  no  proprietorship  in  tide  lands 
lying  immediately  in  front  of  property,  but  merely  right  of  ingress  and 
egress   between   land   and   sea   over   tide    lands. 

Syl.  7    (VIII,  500).     Eiparian  right  to  alluvion. 

Approved  in  Sioux  City  v.  Chicago  etc.  Ey.  Co.,  129  Iowa,  704,  106 
N.  W.  187,  title  to  accreted  or  reclaimed  land  goes  with  fee  of  land 
to    which   it   is   annexed. 

23   Wall.   69-76,   23   L.   84,   THE  DEXTER. 

Syl.   1    (VIII,   500).     Collision— Necessity   for   lookout. 

Approved  in  The  Pocomoke,  150  Fed.  197,  198,  small  launch  having 
pilot-house,  in  which  navigator  stood,  well  forward,  not  liable  for  col- 
lision in  daytime  because  of  absence  of  special  lookout. 

Syl.  4   (VIII,  561).     Collision — Duty  of  vessels  meeting. 

Approved  in  The  Georgetown,  135  Fed.  859,  holding  where  steamer 
having  met  and  passed  tug  with  barge  in  tow,  immediately  stopped  and 
reversed,  throwing  stern  in  course  of  barge,  she  is  liable  for  failure 
to  give  notice  by  signal  as  required  by  rules. 

23   Wall.   85-108,   23   L.    152",   MUTUAL   LIFE   IXS.   CO   v.   YOUNG'S 
ADMINISTRATOR. 

Syl.    1    (A^III,   561).     Insurance — Receipt   of   premium   by    agent. 

Approved  in  Home  Forum  Ben.  Order  v.  Jones.  5  Okl.  614,  50  Pac. 
170,  where  rules  of  beneficial  order  authorize  local  lodge  to  receive 
applications  which  must  be  sent  to  grand  secretary  and  medical  ex- 
aminer   for    approval,    approval    is    necessary    to    create    obligation. 

Syl.   2    (VIII,   561).     Insurance — Offer   of   policy   on   different   terms. 

Approved  in  McNicol  v.  New  York  L.  Ins.  Co.,  149  Fed.  143,  apply- 
ing rule  where  application  denied  and  insurer  submitted  amended  ap- 
plication with  policy  based  thereon,  which  it  sent  to  local  agent  to 
deliver  only  when  applicant  signed  amended  application,  but  applicant 
died  before  signing;  Summers  v.  Mutual  Life  Ins.  Co.,  12  Wyo.  393, 
394,  109  Am.  St.  Rep.  1008,  1009,  75  Pac.  944,  00  L.  R.  A.  812,  where 


23  Wall.  108-137  Notes  on  U.  S.  Eeports.  683 

plaintiff  executed  note  to  insurer 's  agent  in  consideration  that  com- 
pany would  issue  policy  within  stated  time,  and  insurer  having  received 
proceeds  of  note  failed  to  deliver  policy,  plaintiff  could  recover  for 
money  had  and  received. 

23  Wall.  108-119,  23  L.  67,  SECOMBO  v.  MILWAUKEE  ETC.  B.  E. 
CO. 

Syl.  2   (VIII,  562).     Eminent  domain — Mode  of  exercising. 

Approved  in  Shasta  Power  Co.  v.  Walker,  149  Fed.  570,  upholding 
right  of  private  corporation  to  condemn  land  for  ditch  to  conduct 
water  for  purpose  of  generating  electricity  to  public;  Lafayette  etc. 
Ry.  Co.  V.  Butner,  162  Ind.  462,  70  N.  E.  529,  no  appeal  lies  from 
order  refusing  appointment  of  appraisers  in  condemnation  proceed- 
ings for  right  of  way  commenced  under  Burns'  Ann.  St.  1901,  §  5160; 
Dallas  V.  Hallock,  44  Or.  252,  258,  75  Pac.  206,  208,  holding  city  hav- 
ing power  to  condemn  land  for  waterworks  could  condemn  land  strip 
for  pipe-line  and  reservoir  site,  and  could  institute  proceedings  with- 
out first  providing  fund  for  payments. 

Syl.  5  (VIII,  503).  Collateral  attack  on  judgment  of  condemna- 
tion. 

Approved  in  Eichmond  etc.  Ey.  Co.  v.  Seaboard  etc.  Ey.  Co.,  103 
Va.  404,  49  S.  E.  514,  under  Code  1887,  c.  46,  alleged  owners  of  land 
sought  to  be  condemned  for  railroad  right  of  way  not  entitled  to 
stay  pending  equity  suit  between  such  owners  involving  title  to 
land. 

23  Wall.  119-128,  23  L.  113,  LEWIS  v.  HAWKINS. 

Syl.  5  (VIII,  565).  Limitations — Equitable  relief  by  vendor  on 
notes. 

Ai>proved  in  Williams  v.  Young,  71  Ark.  168,  71  S.  W.  670,  follow- 
ing rule. 

Distinguished  in  Eddy  v.  San  Francisco,  148  Fed.  280,  holding 
twenty  years'  delay  by  bondholder  barred  right  to  so  enforce  against 
city  street-widening  bonds,  payable  from  special  fund,  where  city 
had  neglected  to  levy  taxes  for  payment  thereof;  Patterson  v.  Hew- 
itt, 11  N.  M.  42,  66  Pac.  565,  55  L.  E.  A.  658,  holding  eight  years' 
delay  in  seeking  to  enforce  claims  arising  under  alleged  agreement 
for  acquisition  of  mining  claims  was  laches. 

23  Wall.  128-137,  23  L.  116,  EAY  v.  NOESEWOETHY. 

Syl.  1   (VIII,  566).     Bankruptcy — Sale  free  from  encumbrances. 

Approved  in  In  re  Noel,  137  Fed.  698,  where  alleged  preference 
was  by  way  of  mortgage,  and  property  has  been  sold  and  property 
deposited  in  bankruptcy  court,  court  may  determine  validity  of  mort- 
gage  on  petition  by  trustee. 


689  Notes  on  U.  S.  Reports.  23  Wall.  137-245 

23  Wall.  137-150,  23  L.  124,  RANDALL  v.  KREIGER. 

Syl.  1   (VIII,  567).     Statute  validating  prior  conveyances. 

Approved  in  Whitlofk  v.  Hawkins,  105  Va.  251,  53  S.  E.  404,  up- 
holding act  of  19UG,  re-enacting  Code,  c.  23,  relating  to  assessments 
of  lands. 

23  Wall.  150-164.  23  L.  50,  STICKNEY  v.  WILT. 

Ryl.  (VIII,  568).  Bankruj)tcy — Jurisdiction  of  district  and  circuit 
courts. 

Approved  in  Security  Warehousing  Co.  v.  Hand,  143  Fed.  3S,  where 
petition  filed  in  bankruptcy  court  in  nature  of  bill  in  equity  to 
establish  right  of  petitioner  to  take  possession  of  property  also 
claimed  by  bankrujit's  trustee,  order  thereon  is  appealable  under 
Bankr.  Act,  §  24a;  In  re  Scherber,  131  Fed.  124,  where  petition  of 
bankruptcy  trustee  to  recover  preference  by  summary  proceedings 
did  not  allege  that  respondent's  claim  was  colorable  only,  and  re- 
spondent objected  to  form  of  proceedings,  bankruptcy  court  could 
not  determine  matter  except  by  ]>lenary  suit. 

Syl.  6  (VIII,  569).     Bankruptcy  appeal. 

Approved  in  First  Nat.  Bank  v.  State  Xat.  Bank,  131  Fed.  432, 
65  C.  C.  A.  414,  where  appeal  has  been  perfected  under  Bankr.  Act, 
§  25a,  from  judgment  allowing  or  rejecting  debt,  district  ceurt  can- 
not entertain  motion  for  rehearing  pending  appeal. 

Syl.  9   (VIII,  569).     Bankruptcy  appeal — Expiration  of  time. 

Approved  in  In  re  Hudson  Clothing  Co.,  140  Fed.  50,  where  adju- 
dication -of  bankruptcy,  made  after  full  hearing  and  no  appeal  taken, 
rehearing  denied  where  motion  made  after  time  to  appeal  expired. 

23  Wall.  165-181.  23  L.  90,  THE  SEA  GULL. 

Syl.    (VIII.   570).      Collision— Position  of  lookout. 

Approved  in  The  Vedamore,  137  Fed.  847,  70  C.  C.  A.  342.  ocean 
steamer  having  lookout  in  crow's  nest,  one  hundred  feet  from  stern, 
liable  for  collision  with  schooner  while  in  Chesapeake  Bay. 

23     Wall.    181-245,    23    L.    161,    THE     CORX-PLAXTER     PATEXT, 
(BROWN  V.  GUILD;    SAME  v.  SELBY.) 

Syl.    1    (VIII,   571).     Patents — Withdrawal   of   application. 

Distinguished  in  Miller  &  England  v.  Walker  etc.  Bin.  Co..  138 
Fed.  922,  holding  void  Bacon  patent  Xo.  447,532,  for  tilting  bin,  bin 
having  been  previously  made  and  used  by  another. 

Syl.  5   (VIII,  572).     Patents — Importing  specifications  into  claim. 

Approved  in  Scott  v.  Fisher  Knitting  Mach.  Co.,  139  Fed.  145, 
holding  Bellis  patent  No.  561,559,  for  improvements  in  knitting  ma- 
chines not  infringed  by  machine  of  Fisher  patent  No  656,535. 

44: 


23  Wall.  246-321  Notes  on  U.  S.  Reports.  690 

Syl.  8  (VIII,  572).     Patents — Claims  to  particular  devices. 

Approved  in  Dodge  Coal  Storage  Co.  v.  New  York  etc.  R.  R.  Co., 
139  Fed.  981,  holding  void  Piez  &  Beaumont  patents  Nos.  688,960  and 
688,111,  granted  on  division  of  same  application  for  improvement 
of  storage  apparatus;  Bullock  etc.  Mfg.  Co.  v.  Westingliouse  etc. 
Mfg.  Co.,  129  Fed.  109,  63  C.  C.  A.  607,  making  and  selling  of  single 
element  of  patented  combination  with  expectation  that  such  element 
be  sent  to  foreign  country  and  there  used  in  combination  of  other 
elements,  is  not  infringement. 

23  Wall.  246-261,  23  L.  95,  THE  COLLECTOR  v.  RICHARDS. 

Syl.  1   (VIII,  572).     Customs  duties — Value  of  foreign  coins. 

Approved  in  Stone  v.  Whitridge,  129  Fed.  37,  64  C.  C.  A.  47,  fluc- 
tuation in  value  of  foreign  coins  referred  to  in  Tariff  Act  1894,  §  25, 
means  metallic  and  not  exchange  value. 

23  Wall.  261-278,  23  L.  86,  MASON  v.  GRAHAM. 

Syl.  2   (VIII,  574).     Damages  for  patent  infringement. 

Approved  in  Brinton  v.  Paxton.  134  Fed.  SI,  67  C.  C.  A.  204,  where 
profit  made  on  patented  part  alone  is  shown,  apart  from  that  made 
on  whole  machine,  and  that  there  was  no  other  substitute  on  mar- 
ket, patentee  is  entitled  to  recover  profits. 

23  Wall.  289-293,  23  L.  155,  SANDUSKY  v.  FIRST  NATIONAL 
BANK. 

Syl.  2   (VIII,  576).     Re-examination  of  bankruptcy  proceeding. 

Approved  in  In  re  Kaufman,  136  Fed.  266,  bankruptcy  court  after 
term  may  amend  discharge,  and  permit  amendment  of  petition  and 
petition  for  discharge  to  conform  to  amended  discharge;  In  re  Herr- 
man,  134  Fed.  566,  proceeding  against  bankrupt  under  Bankr.  Act, 
1867,  though  pending  at  time  of  application  for  discharge  in  new 
proceedings  under  Bankr.  Act  1898,  is  no  bar  to  discharge  from  debt 
proved  in  former  proceedings,  which  had  been  kept  alive  by  judg- 
ment;   Leighton  v.  Kennedy,  129  Fed.  740,  64  C.  C.  A.  265,  arguendo. 

23  Wall.  294-307,  23  L.  156,  GREGORY  v.  McVEIGH. 

Syl.  1  (VIII,  577).     Supreme  court — Review  of  inferior  state  court. 

Cited  in  Kentucky  v.  Powers,  201  U.  S.  38,  50  L.  650,  26  Sup.  Ct. 
387,  arguendo. 

23  Wall.  307-321,  23  L.  119,  BLAKE  v.  NATIONAL  BANKS. 

Svl.  1  (VIII,  577).  Construction  of  ambiguous  statute — Legisla- 
tive journals. 

Approved  in  Ex  parte  Helton,  117  Mo.  App.  621,  93  S.  W.  915, 
applying  principle  in  construing  Laws  1905,  pp.  168,  169,  relating  to 
hunting  licenses;  Scouten  v.  Whatcom,  33  Wash.  281,  74  Pac.  392, 
construing  Sess.  Laws  1903,  p.  279,  relating  to  annexation  of  cities. 


691  Notes  on  U.  S.  Eeports.  23  Wall.  321-471 

23  Wall.  321-331.  23  L.  143,  SLACK  v.  TUCKER. 

Syl.  2   (VIII,  578).     Factor  and  broker  distin^ished. 

Approved  in  Western  Express  Co.  v.  United  States,  141  Fed.  32, 
where  local  agent  of  express  company  in  prohibition  state  took  or- 
ders for  beer  which  it  sent  to  breweries  in  another  state,  and  latter 
sent  beer  to  agent,  charging  it  to  express  company,  latter  was  liable 
to  special  tax  as  dealer  in  malt  liquors  under  Rev.  St.,  §  3244. 

23  Wall.  374-383,  23  L.  47,  SMYTIIE  v.  FISKE. 

Syl.  1   (VIII,  581).     Revenue  laws  liberally  construed. 

Approved  in  United  States  v.  Beasly,  2  Alaska,  103,  grand  jury  of 
one  judicial  district  cannot  indict  one  for  crime  committed  in  an- 
other district. 

Syl.  2   (VIII,  5S1).     Statutory  construction— Title. 

Approved  in  Carrigan  v.  Stillwell,  99  Me.  437,  59  Atl.  GS4.  G8  L. 
R.  A.  386,  construing  statute  requiring  fire-escapes  on  ail  buildings 
where  business  requires  presence  of  workmen  above  first  floor  as 
not  applying  to  building  having  restaurant  on  first  floor,  whose 
kitchen  with  three  servants  is  on  sixth. 

Syl.  3   (VIII,  581).     Contemporaneous  statutory  construction. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591, 
clerks  of  district  courts  of  territorial  courts  being  required  by  fed- 
eral law  to  account  to  United  States  treasurer  for  all  fees  earned 
by  them,  territorial  law  attempting  to  regulate  same  is  void. 

Syl.  4   (VIII,  582).     Customs  not  otherwise  provided  for. 

Approved  in  United  States  v.  Boden,  133  Fed.  840,  construing  Tariff 
Act  1S97,  par.  263,  with  reference  to  classification  of  preserved  pine- 
apples. 

23  Wall.  416-420.  23  L.  81,  FASHXACHT  v.  FRANK. 

Syl.  3  (VIII,  585).     Matters  reviewed  on  error  from  state  court. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  491,  where  one  is  ac- 
cused in  state  court  and  three  convictions  are  reversed  on  appeal, 
and  discrimination  shown  in  selection  of  jury,  and  rulings  on  objec- 
tions to  panel  are  not  subject  to  review  under  state  law,  cause  is  re- 
movable under  Rev.  St.,  §  641. 

23  Wall.  466-471,  23  L.  70,  LEWIS  v.  COCKS. 

Syl.  2   (VIII,  587).     Equitable  relief  to  owner  not  served. 

Approved  in  Levi  v.  Mathews,  145  Fed.  154,  in  action  at  law  in 
federal  court  for  recovery  of  money  due  on  contract,  defense  of 
fraud  in  procurement  of  contract,  is  not  cognizable;  General  Elec. 
Co.  v.  Westinghouse  Elec.  &  Mfg.  Co.,  144  Fed.  466,  refusing  to  re- 
strain violation  of  contract  for  manufacture  and  sale  of  goods  where 
contract  provided  that  if   either  party   violated  same,  it   should  pay 


23  Wall.  471-480  Notes  on  U.  !s.  Reports.  692 

as  liquidated  damages  fifty  per  cent  of  sale  price  of  goods;  Mutual 
Life  Ins.  Go.  v.  Blair,  130  Fed.  .975,  insurer  may  maintain  suit  to 
cancel  for  fraud  policy  providing  for  settlement  by  issuance  of  an- 
nuity contract  under  which  installments  payable  to  widow,  and  if 
ehe  died  before  all  annual  payments  made,  remainder  of  installments 
payable  to  children,  though  widow  had  sued  on  policy;  Glenn  v. 
West,  103  Va.  524,  49  S.  E.  672,  holder  of  equitable  title,  out  of  pos- 
session, cannot  sue  to  quiet  title,  one  in  possession  under  tax  deed.    * 

Syl.  4  (VIII,  5S8).  Equity — Dismissal  sua  sponte — Lack  of  juris- 
diction. 

Approved  in  Indian  Land  &  Trust  Co.  v.  Shoenfelt,  135  Fed.  48G,  68 
C.  C.  A.  196,  denying  equity  jurisdiction  single  trespass  on  farming 
land  where  probable  injury  not  shown  to  be  irremediable;  Kane 
V.  Luckman,  131  Fed.  621,  applying  rule  in  suit  for  specific  perform- 
ance of  contract  for  exchange  of  farm  for  cows. 

Distinguished  in  Southern  Pac.  E.  R.  Co.  v.  United  States,  200  IT. 
S.  3-i9,  50  L.  510,  26  Sup.  Ct.  29G,  affirming  133  Fed.  655,  66  C.  C.  A. 
581,  where  bill  shows  case  of  equitable  cognizance,  objection  on 
ground  of  adequacy  of  law  remed}',  is  waived  if  not  taken  by  plea, 
demurrer  or  answer  at  earliest  opportunity. 

23  Wall.  471-480,  23  L.  71,  GRAND  TOWER  CO.  v.  PHILLIPS. 

Syl.  1   (VIII,  589).     Sale — Option  to  receive  cash  for  deficiency. 

Distinguished  in  Davis  v.  Alpha  etc.  Cement  Co.,  134  Fed.  282, 
where  contract  for  sale  of  cement  provided  for  payment  of  certain 
sum  per  barrel  for  each  barrel  short  of  specified  number,  as  liqui- 
dated damages,  provision  was  binding. 

Syl.  2   (VIII,  5S9).     Damages — Price  at  place  of  delivery. 

Qualified  in  Indian  Mt.  .Tellico  Coal  Co.  v.  Asheville  Ice  etc.  Co., 
134  X.  C.  588,  47  S.  E.  121,  where  contract  to  sell  defendant  from 
plaintiffs  mine,  all  coal  it  may  require  during  specified  period,  is 
broken  because  of  strike  at  plaintiff's  mine,  latter  not  required  to 
buy  coal  from  other  miners  to  fill  contract. 

Sj-l.  3   (VIII,  589).     Damages — No  market  at  place  of  delivery. 

Approved  in  Salmon  v.  Helena  Box.  Co.,  147  Fed.  413,  415,  418, 
determining  measure  of  damages  in  action  by  seller  for  breach  of 
contract  for  sale  of  lumber;  American  Br.  Co.  v.  Camden  etc.  Ey. 
Co.,  135  Fed.  328,  68  C.  C.  A.  131,  where  plaintiff  contracted  to  build 
bridges  for  connection  of  extensions  of  electric  railways  by  certain 
time,  defendant  could,  against  contract  price,  recoup  interest  at  legal 
rate  on  money  expended  on  extensions  from  date  when  bridges  should 
have  been  completed  to  date  of  completion;  Marshall  v.  Clark,  78 
Conn.  11,  60  Atl.  742,  applying  rule  in  assessing  damages  for  breach 
of   contract   to   deliver   coal   sold  by    wholesaler  to   retailer;     National 


G93  Notes  on  U.  S.  Keports.  23  Wall.  492-529 

Coal  Tar  Co.  v.  Maiden  etc.  Light  Co.,  189  Mass.  237,  75  N.  E.  G26, 
applying  rule  in  action  for  breach  of  contract  for  sale  of  coal  tar. 

23  Wall.  492-503,  23  L.  121,  MOKAN  v.  PRATHER. 

Syl.  1   (VIII,  592).     Contracts — Construction  of  ordinary  words. 

Approved  in  Hampden  Trust  Co.  v.  Leary,  18G  Mass.  581,  72  N.  E. 
89,  construing  word  "may"  in  will  as  meaning  "must." 

23  Wall.  518-529,  23  L.  97,  THE  TREMOLO  PATENT. 

Syl.   1   (VIII,  594).     Amendment  of  bill  after  final  decree. 

Approved  in  Indianapolis  Traction  etc.  Co.  v.  Lawson,  143  Fed.  S3S, 
under  Burns'  Ind.  Ann.  St.  1901,  §  394,  relating  to  variance,  charge 
construing  complaint  as  covering  case  made  by  proof,  though  erro- 
neous, is  not  prejudicial  error;  Chicago  Motor  Vehicle  Co.  v.  Amer- 
ican Oak  Leather  Co.,  141  Fed.  520,  upholding  allowance  of  amend- 
ment of  petition  in  involuntary  bankruptcy,  so  as  to  allege  specific 
transfers  as  acts  of  bankruptcy  when  referee  so  found,  and  much 
testimony  thereon  taken  without  objection;  Dunn  v.  Mayo  Mills, 
134  Fed.  805,  67  C.  C.  A.  450,  upholding  amendment  of  complaint 
in  action  for  balance  due  on  contract,  where  mistake  made  in  copy- 
ing statement  of  claim. 

Syl.  3  (VIII,  595).     Patents — Profits  as  damages  for  infringement. 

Approved  in  Corbin  v.  Taussig,  137  Fed.  153,  apjilying  rule  in  ac- 
tion for  damages  for  invasion  of  territory  for  which  plaintiff  has 
exclusive  agency  for  sale  of  goods;  Baker  v.  Slack,  130  Fed.  520, 
65  C.  C.  A.  138,  in  determining  profits  made  by  defendant  from 
sale  of  article  in  unfair  trade,  expenses  of  making  sales  must  be 
deducted  from   gross   sales. 

Qualified  in  Regis  v.  Jaynes,  191  Mass.  252,  77  N.  E,  777,  in  de- 
termining profits  made  by  defendants  on  sale  of  trademarked  goods, 
general  expenses  which  were  not  increased  by  handling  unlawfully 
marked  goods  cannot  be  deducted  from  gross  profits. 


XCI  UNITED  STATES. 


91  U.  S.  21-27,  23  L.  193,  SEMMES  v.  UNITED  STATES. 

Syl.   2    (VITI,   601).     Amendment   of  writ  of   error  by   adding  seal. 

Approved  in  Kipp  v.  Burton,  29  Mont.  102,  101  Am.  St.  Rep.  .544, 
74  Pac.  87,  63  L.  R.  A.  325,  sale  under  execution  defective  for  want 
of  seal  made  prior  to  Act  March  2,  1899,  p.  145,  §  2,  was  validateil 
thereby  without  amendment  by  court. 

91  U.  S.  29-37,  23  L.  196,  FARMERS'  ETC.  NAT.  BANK  v.  DEAR 
TNG. 

Syl.   1   (VIII,  603).     Necessity  for  national  banks  is  for  Congress. 

Approved  in  Christopher  v.  Norvell,  201  U.  S.  225,  50  L.  736,  28 
Sup.  Ct.  502,  married  woman  is  liable  to  personal  judgment  for  as- 
sessment as  stockholder  in  national  bank  though  local  law  prohibits 
married  woman  from  binding  herself  personally. 

Syl.  3   (VIII,  604).     State  cannot  tax  federal  agencies. 

See  101  Am.  St.  Rep.  165,  note. 

Syl.  8  (VIII,  605).  Punishment  under  statute  creating  new  of- 
fense. 

Approved  in  Johnson  v.  Southern  Pac.  Co.,  196  U.  S.  17,  49  L. 
369,  25  Sup.  Ct.  158,  equipment  of  locomotive  and  diner  with  auto- 
matic cou]>lers  of  such  different  types  that  they  cannot  be  coupled 
to  each  other  automatieallydocs  not  satisfy  27  Stat.  531,  c.  196;  Kuhn 
V.  Kuhn,  125  Iowa,  451,  101  N.  W.  152,  Code,  §  3386,  prohibiting 
one  taking  or  causing  another  to  take  life  of  another  from  inheriting 
or  taking  by  will  any  part  of  deceased's  estate,  does  not  prohibit 
widow  murdering  husband  from  taking  distributive  share  under 
Code,  §  3366,  as  matter  of  contract;  Casey  v.  St.  Louis  Transit  Co., 
no  Mo.  App.  255,  91  S.  W.  426,  under  Rev.  St.  1899,  §  2864,  pro- 
viding for  forfeiture  of  fixed  sum  of  $5,000  for  wrongful  death  oc- 
curring through  negligence  of  officers  or  employees  of  corporation, 
complaint  seeking  recovery  of  less  sum,  is  bad;  Esquibel  v.  Chaves, 
12  N.  M.  499,  78  Pac.  511,  applying  in  prosecution  under  Com[i. 
Laws  1897,  §  1633,  punishing  circulation  of  ballot  containing  desig- 
nating device  of  another  party. 

91  U.  S.  37-44,  23  L.  200,  BROWN  v.  PIPER. 

Syl.  2    (VIII,  606).     Patents — Application  of  old  process. 

Approved  in  Capewell  v.  Goldsmith,  138  Fed.  686,  holding  void  C»^>^ 
well  patent   No.   630,972,  for   stick   pin   retainer. 

[694] 


695  Notes  on  U.  S.  Eeports.  91  U.  S.  45-5G 

Syl.  3    (Vni,  608).     Patent  infringement — Evidence  of  state  of  act. 

Approved  in  Brookfield  v.  Elmer  Glass  Works,  144  Fed.  419,  in  suit 
for  infringement,  whore  defense  is  noninfringement,  anterior  patents 
can  be  used  only  to  ascertain  prior  act  and  constitution  of  patent  in 
suit. 

Syl.  5   (VIII,  608).     Judicial  notice — Reference  to  scientific  books. 

Approved  in  Thomas  v.  St.  Louis  etc.  R.  Co.,  149  Fed.  754,  Thomas 
patent  No.  570,148,  for  lateral  support  for  sides  and  ends  of  cars,  is 
void  in  face  for  want  of  novelty;  Conderman  v.  Clements,  147  Fed.  917, 
holding  Conderman  patent  No.  669,621,  for  improvement  in  pleasure 
wheels,  void  for  lack  of  invention;  Baker  v.  Duncombe  Mfg.  Co.,  146 
Fed.  746,  holding  void  Baker  patent  Nos.  726,812,  and  736,346,  for  pro- 
cess of  treating  coffee;  Jackes-Evans  Mfg.  Co.  v.  Hemp,  140  Fed.  255. 
Evans  patent  No.  481,856,  for  stove-pipe  having  lock  for  engaging 
edges  of  each  joint  is  not  so  lacking  in  invention  as  to-  be  de- 
clared void  on  demurrer;  Panzl  v.  Battle  Island  Paper  etc.  Co.,  132  Fed. 
609,  court  referred  to  standard  publications  for  space  of  term  * '  Cha- 
motte ' '  and  held  valid  Panzl  patent  No.  644,367,  for  composition  for 
lining  vessels  for  storing  corrosive  liquids;  Matter  of  Viemeister,  179 
N.  Y.  241,  103  Am.  St.  Rep.  859,  72  N.  E.  99,  70  L.  R.  A.  796,  uphold- 
ing Laws  1900,  p.  1484,  §  2,  excluding  unvaccinated  children  from  pub- 
lic schools. 

Syl.  6   (VIII,  610).     Judicial  notice  cautiously  exercised. 

Approved  in  McGill  v.  Michigan  S.  S.  Co.,  144  Fed.  793,  where  work- 
man on  steamer,  knowing  that  oil  tank  partially  filled  with  oil,  leaving 
large  air  space  above  oil,  drilled  hole  through  top  of"  tank  by  light  of 
candle  which  caused  explosion,  knowledge  that  space  above  oil  wus 
filled  with  explosive  gas  not  imputed  to  him. 

Syl.  8    (VIII,  611).     Patent   for  preserving  fish — Want  of  novelty. 

Apiiroved  in  Voightmann  v.  Weis  etc.  Cornice  Co..  148  Fed.  853,  hohi- 
ing  void  Voightmann  patent  No.  600,186,  for  automatically  closing  fire- 
proof windows;  Fitzgerald  Aleat  Tree  Co.  v.  Morris,  142  Fed.  7G5,  hold- 
ing void  Ochmen  patent  No.  688,674,  for  meat  tree. 

91  U.  S.  45-56,  23  L.  203,  UPTON  v.  TRIBILCOCK. 

Syl.  6   (VIII,  616).     Corporations — Marking  stock  nonassessable. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776,  under 
N.  J.  Laws  1896,  c.  185,  §  49,  stockholders  receiving  stock  in  payment 
for  property  at  agreed  price  less  than  par  are  assessable  for  benefit 
of  creditors  by  bankruptcy  court  though  stock  purported  to  be  fully  paid 
up  and  nonassessable  and  property  paid  was  of  greater  actual  value 
than  stock. 

Syl.    9    (VIII,   617).     Contracts— Omission   to   read   before   signing. 

Approved  in  Burnes  v.  Burncs,  132  Fed.  493,  family  settlement  with 
respect  to  division  of  estate  not  set  aside  because  one  of  parties  thereto 


91  U.  S.  56-64  Notes  on  U,  S.  Eeports.  696 

signed  without  reading  it;  Colonial  etc.  Mtg.  Co.  v,  Jeter,  71  Ark.  188, 
71  S.  W.  947,  applying  rule  in  action  against  lessee  on  rent  notes;  dis- 
senting opinion  in  Gwaltney  v.  Provident  Sav.  Life  Assur.  Soc,  134  N. 
C.  560,  47  S.  E.  125,  majority  holding  one  suing  for  recovery  of 
premiums  paid  on  life  policy,  on  ground  that  he  was,  by  misrepresenta- 
tions of  agent  induced  to  accept  policy  different  from  that  agreed  on, 
may  testify  as  to  agreement  with  agent. 

Distinguished  in  New  Omaha  etc.  Light  Co.  v.  Rombold,  68  Neb.  6f>, 
93  N.  W.  972,  one  to  whom  receipt  in  full  settlement  of  all  damages, 
has  been,  in  order  to  procure  his  signature,  misread  so  as  to  cause  him 
lo  believe  it  is  settlement  of  certain  expenses  only,  may  dispute  its 
iulidity   though   he   signed   without   reading   it. 

Syl.  10  (VIII,  617).  Contracts — Eescission — Misrepresentations  as 
to  law. 

Approved  in  Burk  v.  Johnson,  146  Ted.  214,  where  defendant  as- 
signed right  to  organize  burial  societies  according  to  copyrighted  plan 
in  several  states,  misrepresentations  by  defendant  as  to  his  rights 
under  copj^right  are  not  ground  for  cancellation  of  contract. 

Syl.   13    (VIII,   618).     Lack   of  contradiction  makes   law  question. 

Approved  in  Burk  v.  Johnson,  146  Fed.  216,  where  defendant,  under 
misrepresentations  as  to  rights  under  copyright,  sold  right  to  use  copy- 
righted plan  for  establishment  of  burial  societies,  failure  of  complaint 
to  ascertain  rights  during  two  months  in  which  contract  remained  in 
escrow  barred  right  to  rescind  for  misrepresentations;  Kimber  v.  Young, 
137  Fed,  749,  70  C.  C.  A.  178,  construing  allegations  in  complaint  for 
deceit  in  sale  of  bonds,  that  defendant  represented  knew  bonds  were 
good  and  would  be  paid;  Greer  Co.  v.  Texas,  197  U.  S.  241,  49  L.  738, 
25   Sup.   Ct.   437,   arguendo. 

91  U.  S.  56-64,  23  L.  220,  SANGER  v.  UPTON. 

Syl.  3   (VIII,  621).     Bankruptcy — Ordering  unpaid  balance  on  stock. 

Approved  in  Smathers  v.  Bank,  135  N.  C.  417,  47  S.  E.  896,  where 
creditor's  bill  has  been  brought  and  receiver  appointed,  it  is  better  prac- 
tice to  enforce  stockholder's  liability  in  such  suit  instead  of  by  sub- 
sequent action  by  receiver. 

Syl.  4  (A''III,  621).  Stockholder's  right  to  question  corporation's 
bankruptcy  decree. 

Approved  in  Bennett  v.  Thorne,  36  Wash.  270,  78  Pac.  942,  68  L.  R. 
A.  113,  under  Const.,  art.  12,  §  11,  imposing  personal  liability  on  stock- 
holders of  banking  corporation  for  its  debts,  action  against  stockholders 
accrues  on  insolvency  of  bank. 

Syl.  10  (VIII,  623).     Corporations — Capital  stock  is  fund  for  debts. 

Approved  in  Tait  v.  Pigott,  32  Wasli.  348,  73  Pac.  365,  complaint  by 
corporation's  receiver  alleging  that  defendant  sold  his  stock  to  cor- 
poration and  received  certain  sum  out  of  company  's  assets  therefor,  and 


697  Notes  on  U.  S.  Eeports.  91  U.  S.  6u-91 

tliat  corporation  thereby  attenii)tetl  to  reduce  capital  stock  and  that  it 
was  insolvent,  is  sufficient  to  recover  amount  paid. 

Syl.   12    (VIII,  625).     Corporations — Creditor's  lien  on  capital  stock. 

Approved  in  Jahn  v.  Champagne  Lumber  Co.,  147  Fed.  633,  creditors' 
bill  against  stockholders  of  dissolved  corporation  seeking  to  hold  them 
as  trustees  of  property  which  they  have  divided  among  themselves  to 
defraud  creditors  and  seeking  accounting  as  to  unpaid  subscriptions, 
is  not  multifarious;  Easton  Nat.  Bank  v.  American  Brick  etc.  Co.,  69 
N.  J.  Eq.  334,  335,  60  Atl.  58,  bona  fide  purchasers  of  stock  reciting 
it  is  fully  paid  up  not  .bound  to  creditors  on  contract  of  original  sub- 
scriber  to   pay   par. 

Syl.  18   (VIII,  628).     Implied  agreement  to  pay  for  stock  in  full. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776,  under 
N.  J.  Laws  1896,  c.  185,  §  49,  stockholders  receiving  stock  in  payment 
for  property  at  agreed  price  less  than  par,  are  assessable  for  benefit  of 
creditors  by  bankruptcy  court  though  stock  purported  to  be  fully  paid 
up  and  nonassessable,  and  property  paid  was  of  greater  actual  value 
than    stock. 

91  U.  S.  65-72,  23  L.  384,  WEBSTER  v.  UPTON. 

Syl.  2   (VIII,  630).     Capital  stock  is  trust  fund  for  creditors. 

Approved  in  Vaughn  v.  Alabama  Nat.  Bank,  143  Ala.  578,  42  So.  65, 
stockholder  purchasing  stock  at  less  than  par  is  liable  to  corporate  cred 
iters  for  difference  between  purchase  price  and  par  value. 

Syl.  13  (VIII,  633).     Assignee  of  nonassessable  stock  liable  for  calls. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776,  under 
N.  J.  Laws  1896,  c.  185,  §  49,  stockholders  receiving  stock  in  payment 
for  property  at  agreed  price  less  than  par,  are  assessable  for  benefit  of 
creditors  by  bankruptcy  court  though  stock  purported  to  be  fully  paid 
up  and  nonassessable,  and  property  was  of  greater  actual  value  than 
stock;  People's  Home  Sav.  Bank  v.  Sadler,  1  Cal.  App.  195,  81  Pac. 
1031,  where  certificates  transferred  to  defendant  recited  that  they  were 
only  one-third  paid,  and  also  contained  by-law  that  balance  subject  to 
call  of  directors,  defendant  assumed  liability  of  assignors  to  corpora- 
tion, 

91  U.  S.  72-91,  23  L.  224,  UNITED  STATES  v.  UNION  PACIFIC  E.  R. 

Syl.  3   (VIII,  634).     Statutes — Intent  gleaned  from  words. 

Approved  in  Hartford  Fire  Ins.  Co.  v.  State,  76  Ark.  309,  89  S.  W. 
44,  under  act  Jan.  23,  1905,  foreign  insurance  company  which  belonged 
to  pool  to  fix  insurance  rates  for  places  other  than  in  Arkansas,  is  pro- 
hibited from  doing  business  here;  McDonald  v.  Doust,  11  Idaho,  40,  81 
Pac.  69,  holding  void  act  of  Feb.  28,  1905,  as  attempting  to  abolish 
an  organized  county;  State  v.  Kelly,  71  Kan.  821,  81  Pac.  453,  Laws 
1905,  p.  783,  is  void,  as  appropriating  money  for  works  of  interna! 
improvement;   Funkhouser  v.  Spahr,   102  Va.  312,  46  S.  E.  380,  undei 


91  U.  S.  92-121  Notes  on  U.  S.  Keports.  693 

Code    1SS7,   §    3485,   appellate   court   may    decide   cause   where   court   in 
divided. 

Syl.   7    (VIII,   G36).     Statutory  construction— Title  of   act. 

Approved  in  Lederer  &  Strauss  v.  Colonial  Invst.  Co.,  130  Iowa,  l.'^S. 
106  N.  W.  358,  under  Code  sections  relating  to  party-walls  owner  of 
party-wall  cannot  extend  beams  of  his  building  beyond   center  of  wall 

91  U.   S.   92-105,  23  L.  208,  NATIONAL  BANK  OF  COMMERCE  v. 
MERCHANTS'  NAT.  BANK. 

Syl.  8   (VIII,  638).     Rights  of  indorser  of  bill  of  lading. 
See   105   Am.   St.   Rep.   366,   note. 

Syl.    9    (VIII,    638).     Negotiability    of    bill    of    lading. 

Seo  105  Am.   St.  Rep.  338,  note. 

Syl.   10    (VIII,   638).     Delivery  of  goods   on  payn\ent   on   draft. 

See   105   Am.   St.   Rep.   374,   note. 

91  U.  S.  114-121,  23  L.  235,  SAWYER  v.  TURPIN. 

Syl.  3    (VIII,  640).     Bill  of  sale  given  as  security  for  debt. 

Approved  in  Tatman  v.  Humphrey,  184  Mass.  362,  100  Am.  St.  Rep. 
562,  68  N.  E.  845,  63  L.  R.  A.  738,  in  case  of  preference  by  way  of 
unrecorded  chattel  mortgage,  transfer  dates  from  acquisition  of  property 
under  mortgage. 

Syl.  5   (VIII,  641).     Bankruptcy — Bill  of  sale  given  as  security. 

Approved  in  Humphrey  v.  Tatman,  198  U.  S.  94,  49  L.  958,  25  Sup. 
Ct.  567,  taking  possession  of  mortgaged  property  under  unrecorded  chat- 
tel mortgage,  is  not  voidable  preference  though  possession  taken  within 
four  months  of  bankruptcy,  if  possession  so  acquired  is  good  as  against 
trustee  under  state  law;  Ludvigh  v.  Umstadter,  148  Feil.  321,  where 
bankrupt  and  another  bought  two  lots  in  common  and  later  formed  part 
nership  as  contractors  but  were  unsuccessful,  and  parties  built  two 
houses  on  lots,  and  deeded  one  lot  each  to  respective  wives,  houses  being 
built  partly  with  firm  funds  and  partly  with  individual  funds,  bank- 
rupt's trustee  had  no  claim  on  lot  conveyed  to  other  partner's  wife; 
In  re  Cutting,  145  Fed.  389,  chattel  mortgage  to  secure  antecedent 
debt  in  renewal  of  prior  mortgage,  is  not  preference  constituting  act 
of  ljankrui>tcy,  though  additional  property  included,  where  mortgagor  re- 
ceives further  present  security;  Stewart  v.  Hoffman,  31  Mont.  191,  193, 
81  Pac.  3,  4,  where  principal  gave  surety  right  to  take  possession  of 
certain  personalty  to  be  sold  and  proceeds  applied  to  debt,  but  instru- 
ment not  formally  executed,  and  within  four  months  of  bankruptcy 
chattel  mortgage  on  same  property  given  surety,  mortgage  not  prefer- 
ence; Christ  V.  Zehner,  212  Pa.  St.  192,  61  Atl.  823,  where  bill  of  sale 
to  secure  money  loaned  and  to  be  advanced,  given,  but  possession  not 
taken,  but  later  within  four  months  of  vendee's  bankruptcy,  bill  of  sale 


699  Notes  on  U.  S.  Reports.  91  U.  S.  122-159 

io'lorserl  to  show  tbat  loan  still  due  and  possession  given  vendor,  there 
was   no   preference. 

Distinguished  in  In  re  Noel,  137  Fed.  700,  702,  under  Md.  Gen.  Laws, 
art.  21,  §§  13-16,  requiring  mortgages  to  be  recorded  within  six  months 
where  renewal  mortgage  and  original  were  not  so  recorded,  last  one, 
though  recorded  later,  is  void  as  to  creditor's  and  mortgagor's  bank- 
ruptcy trustee. 

91  U.  S.   3  22-127,  23  L.  2.-8,  JACKSON  v.  JArivSON. 

Syl.  5   (VIII,  642).     Trusts — Husband's  purchase  in  wife's  name. 

Approved  in  In  re  Foss,  147  Fed.  792,  where  husband  when  free  from 
debt  paid  consideration  for  land  which  was  conveyed  to  wife,  presump- 
tion is  that  voluntary  settlement  upon  her  was  intended;  Savage  v. 
Savage,  141  Fed.  350,  deed  of  gift  by  husband  to  wife  at  time  when 
he  was  not  indebted,  and  which  was  duly  recorded,  is  valid  as  against 
his  subsequent  creditors  in  bankruptcy. 

91  U.  S.  127-134,  23  L.  2C0,  BALTIMORE  ETC.  R.  R.  CO.  v.  TRUS- 
TEES OF  SIXTH  PRESB.  CHURCH. 

Syl.  1  (VIII,  042).     Bill  of  exceptions — Depositions  in  transcript. 

Approved  in  United  States  v.  Choctaw  etc.  R.  R.  Co.,  3  Okl.  405,  41 
Pac.  75U,  followiug  rule;  Metropolitan  R.  R.  Co.  v.  Maefarland,  195 
IT.  S.  330,  49  L.  223,  25  Sup.  Ct.  28,  errors  in  refu-ing  requested  in- 
structions or  refusing  to  set  aside  assessment  in  condemnation  proceed- 
ings, not  considered  on  writ  of  error,  in  absence  of  properly  authenti- 
cated l)ill  of  exceptions,  though  transcript  contains  purported  instruc- 
tioi-.s  refused  and  other  papers. 

91  U.  S.  143-149,  23  L.  265,  ATIIERTON  v.  FOWLER. 

Syl.  5   (VIII,  045).     Writ  of  error  to  what  court  directed. 

Ap|)roved  in  Kentucky  v.  Powers,  139  Fed.  490,  criminal  i)rosecution 
is  removable  where  conviction  reversed  three  times  by  state  court  and 
acfusid  discriminated  in  selection  of  ,iury  and  under  state  law  rulings 
with  respect  to  juries  are  not  reviewable. 

91  U.  S.  149-150,  23  L.  267,  ROEMER  v.  SIMON. 

Syl.  1  (VIII,  645).     Rehearing  below  after  appeal  in  equity. 

Approved  in  Strand  v.  Griffith,  135  Fed.  741,  circuit  court  of  appeals 
car.U(jt  dismiss  appeal  on  motion  of  appellant  and  reman<l  cause  with 
directions  to  permit  amendment  of  pleading  on  showing  tiuit  facts  in- 
advertently omitted  therefrom  which  was  not  known  till  after  appeal 
taken. 

91  U.  S.  150-159,  23  L.  267,  ROBERTS  v.  RYER. 

Syl.  1  (VIII,  646).     New  use  for  old  machine  not  invention. 

Approved  in  Sloan  Filter  Co.  v.  Portland  Gold  Min.  Co.,  139  Fed.  26, 
holding  void  Sloan  patent  No.  587,874,  for  barrel  filter  for  use  in  filter- 


91  U.  S.  lGO-208  Notes  on  U.  S.  Reports.  700 

ing  precious  metal  solutions;  Mallon  v.  Gregg,  137  Fed.  77,  69  C.  C.  A. 
48,  upholding  Mallon  patent  No.  583,408,  for  automatic  mechanism  for 
unloading  and  feeding  sugar  cane. 

Syl.  3  (VIII,  647).  Extended  application  of  old  thought  Hot  in- 
vention. 

Approved  in  Voightmann  v.  Weis  etc.  Cornice  Co.,  148  Fed.  853, 
holding  void  Voightmann  patent  No.  600,186,  for  automatically  closing 
fire-proof  windows. 

91  U.  S.  160-171,  23  L.  271,  HALL  v.  LANNING. 

Syl.  1  (VIII,  648).     Jurisdiction  of  foreign  court  open  to  inquiry. 

Approved  in  National  Exchange  Bank  v.  "Wiley,  195  U.  S.  270,  49 
L.  190,  25  Sup.  Ct."  70,  judgment  taken  under  warrant  of  attorney 
annexed  to  note,  authorizing  confession  of  judgment  in  favor  of  holder, 
is  collaterally  attackable  where  party  in  whose  favor  it  was  rendered 
is  not  owner  of  note;  King  v.  Davis,  137  Fed.  227,  federal  court  cannot 
vacate  its  judgment  of  former  terms  founded  on  false  but  apparently 
valid  return  of  service  of  process;  Cuykendall  v.  Doe,  129  Iowa,  457, 
105  N.  W.  700,  applying  rule  to  judgment  confessed  under  power  of 
attorney. 

Syl.  8  (VIII,  649).     Personal  liability  of  nonresident  partner. 

See  103  Am.  St.  Eep.  312,  note. 

Syl.  11   (VIII,  650).     Partner's  contracts  after  dissolution  of  firm. 

Approved  in  People's  National  Bank  v.  Wilcox,  136  Mich.  578,  100 
N.  W.  28,  where  mortgage  is  executed  by  survivor  on  firm  property, 
to  raise  funds  to  pay  firm  debts,  mortgagees  have  first  lien  on  firm 
property  as  against  personal  creditors  of  surviving  partner. 

91  U.  S.  171-199,  23  L.  275,  SEWALL  v.  JONES. 

Syl.  3  (VIII,  650).    Infringing  device  need  achieve  as  good  result. 

Approved  in  Eegina  Co.  v.  New  Century  Music  Box  Co.,  138  Fed. 
909,  holding  void  Brachhausen  &  Eeissner  patent  No.  500,371,  for 
music  box;  Lourie  Imp.  Co.  v.  Lenhart,  130  Fed.  129,  64  C.  C.  A.  456, 
holding  Lenhart  patent  No.  415,542,  for  attachment  to  breaking  plows 
infringed  by  adjustable  sliding  plate  attached  by  bolt  and  slot  in 
plate  to  inner  side  of  clip  on  side  of  plow. 

91  U.  S.  200-206,  23  L.  299,  THE  FEEE  STATE. 

Syl.  3  (VIII,  652).     Collision — Departure  from  navigation  rules. 

Approved  in  Lake  Erie  Transp.  Co.  v.  Gilchrist  Transp.  Co.,  142  Fed. 
95,  applying  principle  where  one  of  two  vessels  violated  passing  agree- 
ment as  to  crossing  courses. 

91  U.  S.  206-208,  23  L.  302,  MITCHELL  v.  BOAED  OF  COMMES, 
Syl.  2  (VIII,  652).    Eestraining  tax — Change  to  evade  tax. 
Approved  in  Sisler  v.  Foster,  72  Ohio  St.  447,  74  N.  E.  642,  applying 

rule  where  legal  title  to  property  put  in  name  of  another  by  deed  of 


701  Notes  on  U.  S.  Reports.  91  U.  S.  20S-254 

trust;  dissenting  opinion  in  Monahan  v.  Monahan,  77  Vt.  154,  59  Atl. 
175,  70  L.  R.  A.  935,  majority  holding  complainant  seeking  to  impress 
securities  with  trust,  and  alleging  they  were  taken  in  defendant's 
name  without  his  knowledge,  not  denied  relief  because  of  fraudulent 
purpose  to  avoid  taxation  by  placing  securities  in  defendant's  name. 

91  U.  S.  208-224,  23  L.  302,  THE  SUNNYSIDE. 

Syl.  6  (VIII,  653).    Collision — Errors  of  one  vessel  as  excuse. 

Approved  in  The  City  of  Portsmouth,  143  Fed.  859,  where  ferryboat 
collides  with  barge  which  had  previously  gone  adrift  and  been  picked 
up  by  tug  and  was  in  tow  at  time  of  collision,  question  of  fault  in 
allowing  barge  to  drift  is  immaterial. 

Syl.  9  (VIII,  654).     Collision  without  fault— Damages. 
Approved  in  The  Jumna,  149  Fed.  173,  exonerating  all  vessels  for 
series  of  collisions  following  parting  of  tug's  hawser. 

Syl.  11   (VIII,  654).     Collision — Vigilance  and  experience  of  lookout. 

Approved  in  The  Vedamore,  137  Fed.  847,  70  C.  C.  A.  342,  large 
steamer  navigating  Chesapeake  Bay  on  foggy  night  with  lookout  one 
hundred  feet  from  stem  in  fault  for  collision  with  schooner  whose  fog 
signal  though  regularly  sounded  not  heard  by  lookout  till  too  late. 

91  U.  S.  225-23S,  23  L.  308,  POLLARD  v.  LYOX. 

Syl.  1   (VIII,  655).     Slander — Words  actionable  per  se. 

Approved  in  McDonald  v.  Nugent,  122  Iowa,  653,  98  X.  W.  507, 
words  charging  another  with  being  afflicted  with  venereal  disease  are 
slanderous  per  se  and  proof  of  their  utterance  establishes  malice  with- 
out other  evidence. 

Syl.  8  (VIII,  656).     'Words  not  actionable  per  se — Special  damages. 

Approved  in  Victor  Safe  etc.  Co.  v.  Deright,  147  Fed.  213,  language 
in  letter  by  competitor  in  disparagement  of  plaintiff's  goods  not 
actionable  in  absence  of  special  damages. 

91  U.  S.  238-246,  23  L.  314,  MUTUAL  BEX.  LIFE  IXS.  CO.  v.  TIS- 
DALE. 

Syl.  3  (VIII,  657).     Conclusiveness  of  grant  of  administration. 

Approved  in  Philip  v.  Heraty,  135  Mich.  455,  100  N.  W.  1S7,  grant 
of  administration  to  alleged  widow,  is  not  conclusive  as  to  widow- 
hood which  may  be  collaterally  attacked  by  one  who  took  no  part 
in  administration  proceedings;  Boehme  v.  Sovereign  Camp,  W.  O. 
W.,  98  Tex.  379,  380,  84  S.  W.  424,  where  action  on  life  policy  de- 
pended on  ground  of  suicide,  finding  at  inquest,  is  not  admissible. 

91  U.  S.  252-254,  23  L.  320,  WRIGHT  v.  TIBBITTS. 

Syl.  2   (VIII,  659).     Contingent  contract  for  presentation  of  claim. 

Approved  in  Xutt  v.  Knut,  200  U.  S.  21,  50  L.  363,  26  Sup.  Ct. 
216,  illegality  of  clause  in  contract  for  prosecution  of  claim  against 


91  U.  S.  257-283  Notes  on  U.  S.  Ecports.  702 

government  making  payment  of  compensation  lion  on  claim,  does  not 
avoid  part  of  contract  providing  for  compensation;  Field  v.  Sammis, 
12  N.  M.  48,  73  Pac.  621,  garnishee's  liability  to  principal  debtor 
is  measure  of  liability  to  creditor. 

91  U.  S.  257-267,  23  L.  321,  McMUKEAY  v.  BROWN. 

Syl.  4  (VIII,  611).     Mechanics'  lien  arise  by  operation  of  law. 
Approved  in  Great  Southern  etc.  Hotel  Co.  v.  Jones,  193  U.  S.  550, 

48  L.  788,  24  Sup.  Ct.  576,  upholding  Ohio  Eev.  Stat.,  §§  3184-31S5a, 
giving  mechanic 's  lien. 

91  U.  S.  270-274,  23  L.  346,  MOORE  v.  UNITED  STATES. 

Syl.  2  (VIII,  662).     Common  law — Use  in  construing  constitution. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  450,  50  L. 
265,  26  Sup.  Ct.  110,  United  States  may  exact  revenue  license  from 
dispensing  agent  of  state  which  has  taken  charge  of  liquor  business; 
Kepner  v.  United  States,  195  U.  S.  126,  49  L.  123,  24  Sup.  Ct.  797, 
right  of  government  appeal  for  acquittal  in  Philippine  court  of  first 
instance,  was  taken  away  by  32  Stat.  691,  c.  1396,  for  temporary 
government   of  Philippines;    Schick   v.   United   States,   195   U.   S.   69, 

49  L.  102,  24  Sup.  Ct.  826,  one  prosecuted  by  information  in  federal 
court  for  violation  of  Oleomargarine  Act  of  1886,  §  11,  may  waive  jury. 

Syl.  4    (VIII,   662).     Comparison   of   hand  writings. 

Approved  in  Castor  v.  Bernstein,  2  Cal.  App.  706,  84  Pac.  243, 
where  assignment  to  plaintiff  of  claim  sued  on  offered  in  evidence, 
release  may  be  offered  for  comparison  with  assignor's  signature  on 
assignment,  without  further  proof. 

91   U.  S.  275-283,  23  L.   347,  WELTON  v.   MISSOURI. 

Syl.   1   (VIII,  663).     State  occupation  tax. 

Approved  in  In  re  Sydow,  4  Ariz.  210,  211,  36  Pac.  216,  upholding 
Rev.  St.,  tit.  42,  par.  2239,  §  9,  as  amended  in  1893,  imposing  license 
tax  on  dealers  in  merchandise  excepting  local  farm  products  when 
sold  by  producer;  Adams  v.  Mississippi  Lumber  Co.,  84  Miss.  28,  36 
So.  69,  holding  void  Acts  1900,  p.  44,  §  8,  imposing  privilege  tax  on 
land,  timber  mill  companies,  and  exempting  sawmill  operators  do  not 
ship  out  of  state. 

Distinguished  in  State  v.  Whitcour,  122  Wis.  116,  99  N.  W.  469, 
holding  void  Eev.  St.  1898,  §  1570,  as  amended  in  1901,  imposing 
license  tax  on  peddlers,  and  exempting  certain  specified  classes. 

Syl.  2  (VIII,  G63).     Occupation  tax  is  tax  on  goods. 

Approved  in  Kchrer  v.  Stewart,  197  U.  S.  65,  49  L.  666,  25  Sup.  Ct. 
403,  upholding  Georgia  act  of  1900,  taxing  resident  agents  of  non- 
resident meat  packers;  Bacon  v.  Locke,  42  Wash.  220,  33  Pac.  722, 
holding  void  Laws  1905,  pp.  372,  373,  imposing  license  t&x  on  persona 
selling  goods  by  sample  after  shipment  into  state. 


r03  Xotes  on  U.  S.  Eeports.  91  U.  S.  275-233 

Syl.  4   (VIII,   664).     Congress  regulates   commerce. 

Approved  in  Howard  v.  Illinois  C.  R.  Co.,  148  Fed.  999,  holding  void 
.'^4  Stat.  232,  c.  3073,  making  interstate  carriers  liable  for  negligence 
resulting  in  injury  to   employees. 

Syl.  5   (VIII,  665).     Commerce  includes  what. 

Approved  in  Brooks  v.  Southern  Pac.  Co.,  148  Fed.  991,  and  Howard 
V.  Illinois  C.  R.  Co.,  148  Fed.  1000,  both  holding  void  34  Stat.  232,  c. 
3073,  making  interstate  carriers  liable  for  negligence  resulting  in  in- 
jury to  employees. 

Distinguished  in  dissenting  opinion  in  Northern  Securities  Co.  v. 
United  States,  193  U.  S.  392,  48  L.  723,  24  Sup.  Ct.  436,  majority 
holding  combination  of  stockholders  in  two  competing  interstate  rail- 
ways to  form  stock-holding  company  to  acquire  controlling  interest  in 
each  railway  in  exchange  for  its  own  stock  violates  anti  trust  act  of 
1S90. 

Syl.   8    (VIII,  660).     Uniform   regulation   of  interstate   commerce. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  883,  Laws  "Wis. 
Sp.  Scss.  1905,  p.  19,  c.  12,  providing  for  inspection  and  grading  of 
grain  at  Superior,  is  void  as  to  interstate  shipments;  Ex  parte  Deeds, 
75  Ark.  545,  87  S.  W.  1031,  holding  void  Kirby's  Digest,  §  6886,  im- 
posing tax  on  peddlers,  but  exempting  resident  merchants;  Common- 
wealth V.  Caldwell,  190  Mass.  356,  76  N.  E.  955,  Eev.  Laws,  c.  65,  §§ 
15,  16,  permitting  sale  by  peddlers  of  agricultural  products  of  United 
States  without  license,  but  forbidding  unlicensed  sales  of  such  products 
of  foreign  countries,  is  void;  Bacon  v.  Locke,  42  Wash.  217,  83  Pac. 
721,  holding  void  Laws  1905,  pp.  372,  373,  imposing  license  tax  on 
persons   selling  goods  by   sample   after   shipment  into   state. 

Syl.  10  (VIII,  66S).  When  congressional  protection  of  interstate 
commerce  ceases. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  882,  Laws 
Wis.  Sp.  Sess.  1905,  p.  19,  c.  12,  providing  for  inspection  and  grading 
of  grain  at  Superior,  is  void  as  to  interstate  shipments;  Commonwealth 
V.  Caldwell,  190  Mass.  357,  76  N.  E.  955,  Eev.  Laws,  c.  65,  §§  15,  16, 
permitting  sale  by  peddlers  of  agricultural  products  of  United  States 
without  license,  but  forbidding  unlicensed  sales  of  such  products  of 
foreign  countries,  is  void;  Gulf  etc.  Ey.  Co.  v.  State,  97  Tex.  286, 
78  S.  W.  499,  determining  that  shipment  of  grain  lost  interstate 
character  where  shipment  not  continuous;  Standard  Oil  Co.  v.  Fred- 
ericksburg, 10  Va.  88,  2  S.  E.  819,  corporation  selling  oil  which  it 
brings  from  foreign  state  and  mingles  with  general  mass  of  property 
in  state,  is  subject  to  city  license  tax. 

Distinguished  in  American  Steel  etc.  Co.  v.  Speed,  110  Tenn.  46,  lOQ 
Am.  St.  Eep.  814,  75  S.  W.  1042,  where  foreign  corporation  shipped 
goods  in  original  package  to  local  agent  and  delivered  in  that  form 
to    customers,   ninety   per   cent   of   goods   going   to   jobbers   outside   uf 


91  U.  S.  291-316  Notes  on  U.  S.  Eeports.  704 

state,   corporation   was   liable   to   merchant's   tax  imposed   by   act   of 
1901, 

Syl.  11  (VIII,  669).    Interstate  commerce — Inaction  by  Congress. 

Approved  in  Hart  v.  State,  100  Md.  607,  60  Atl.  460,  acts  1904,  p. 
186,  requiring  carriers  to  provide  separate  coaches  for  negroes  and 
whites,  and  making  it  an  offense  to  refuse  to  occupy  car  to  which 
passenger  is  assigned,  is  void  as  to  interstate  passengers. 

Syl.  12  (VIII,  671).     License  tax  on  peddlers  of  foreign  goods. 

Approved  in  Kirven  v.  Virginia-Carolina  Chemical  Co.,  145  Fed. 
293,  where  foreign  corporation  sold  goods  to  resident  of  state  on 
order  taken  subject  to  its  approval  by  local  agent  who  took  note 
payable  in  such  state,  it  may  sue  on  note  though  at  time  of  taking 
it,  it  had  not  complied  with  state  law  authorizing  it  to  do  business 
in  state;  In  re  Sydow,  4  Ariz.  210,  36  Pac.  215,  upholding  Eev.  St., 
tit.  42,  par,  2237,  §  9,  as  amended  in  1893,  imposing  license  tax  on 
dealers  in  merchandise  excepting  local  farm  products  when  sold  by  pro- 
ducer. 

91  U.  S.  291-294,  23  L.  352,  FORSYTHE  v.  KIMBALL. 

Syl.  1  (VIII,  673).  Notes — Parol  evidence  of  contempoiancous 
agreement. 

Approved  in  Earle  v.  Enos,  130  Fed.  470,  parol  agreement  by  bank 
made  at  time  of  delivery  of  accommodation  note  and  its  discount  by 
bank  that  it  would  not  look  to  maker  for  payment,  is  no  defense  to 
action  on  note;  Bank  v.  Moore,  138  N.  C.  532,  51  S.  E.  80,  in  action 
by  bank  receiver  on  note,  defendant  cannot  set  up  as  defense  agree- 
iiiont   that   he   should   not  be  liable   on   note. 

91  U.  S.  294-303,  23  L.  368,  DOW  v.  HUMBERT. 

Syl.  4  (VIII,  674).     Damages  are  compensation  for  injury. 

Approved  in  Mutual  Life  Assn.  v.  Ferrenbach,  144  Fed.  343,  where 
life  policy  wrongfully  canceled  for  nonpayment  of  premiums  which 
were  in  form  of  assessments,  and  pending  suit  insured  died,  damages 
are  amount  of  policy,  less  cost  of  carrying  it  to  maturity. 

91   U.  S.  308-316,  23  L.  392,  HOOVER  v.  WISE. 

Syl.  1   (VIII,  67).     Agent's  knowledge  is  principal's. 

Approved  in  Grier  v.  Tucker,  150  Fed.  664,  where  grocer  had  ceased 
to  sell  oleomargarine,  but  for  accommodation  of  two  customers  sent 
orders  in  their  names  to  manufacturer  who  sent  goods  to  local  branch, 
bill  to  customers  and  branch  left  packages  at  grocers  for  delivery 
to  customers  with  other  groceries,  grocer  not  liable  to  tax  as  whole- 
saler  under   oleomargarine    act. 

Syl.  4  (VIII,  675).     Principal  liable  for  agent's  fraud. 
Approved  in  Kill  v.  Trcnchard,  142  Fed.  22,  holding  principal  liable 
for   misri.']jreSLUtatious   of   agent   in   sale   of   timber  where   agent   mis- 


705  Notes  on  U.  S.  Reports.  91  U.  S.  330-340 

represented  boundaries  of  land,  and  purchaser  deceived  as  to  quantity 
of   timber. 

91  U.  S.  330-340,  23  L.  424,  SHEPLEY  v.  COWAN. 

Syl.  4   (VIII,  678).     Relation  back  of  land  patents. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S.  SS-j. 
60  L.  505,1 26  Sup.  Ct.  282,  purchaser  from  patentee  without  notice 
if  entrvman's  fraud  is  bona  fide  purchaser  within  Comp.  St.  1901, 
p.  1545,  though  he  acquired  interest  in  land  under  contract  for  standing 
timber  before  patent  issued;  United  States  v.  Anderson,  194  U.  S. 
399,  400,  48  L.  1039,  24  Sup.  Ct.  716,  government  cannot  retain,  as 
against  grantees  of  indemnity  lands,  money  collected  for  wrongful 
removal  of  stone  during  period  between  selection  and  approval  of 
selection;  Miocene  Ditch  Co.  v.  Jacobsen,  146  Fed.  683,  where  com- 
plainant appropriated  water  rights  and  began  construction  of  ditch, 
right  to  acquire  right  of  way  over  mining  claims  located  later  not 
affected  by  fact  that  ditch  not  completed  over  claims  till  after 
location;  Peyton  v.  Desmond,  129  Fed.  12,  63  C.  C.  A.  651,  homestead 
patentee  may  recover  value  of  timber  wrongfully  cut  after  initiation 
of  claim,  and  prior  to  issuance  of  patent;  Quinn  v.  Baldwin  Star 
Coal  Co.,  19  Colo.  App.  506,  76  Pac.  555,  where  land  entered  on  cer- 
tain day  and  later  entryman  permitted  to  amend  entry  as  of  date  of 
entry,  patents  issued  on  amended  entry  related  back  to  original 
entry;  Nicholson  v.  Congdon,  95  Minn.  194,  103  N.  W.  1036,  where 
application  for  entry  of  lands  accepted  though  not  accompanied  by 
purchase  price,  subsequent  payment  and  issuance  of  patent  perfected 
title  as  of  date  of  application,  and  sale  made  between  application 
and  payment  passed  title;  Washington  Eock  Co.  v.  Young,  29  Utah, 
121,  80  Pac.  387,  110  Am.  St.  Rep.  666,  where  entry  made  in  land 
office  on  faith  of  original  survey,  patent  relates  back  to  date  of 
entry  and  is  based  on  original  survey;  dissenting  opinion  in  Sproat 
v.  Durland,  2  Okl.  72,  35  Pac.  894,  majority  holding  settlement  on 
land  covered  by  existing  entry,  which  is  relinquished  as  result  of 
contest  begun  before  such  settlement,  confers  no  settlement  right. 

Syl.  8   (VIII,  679).     Public  lands — When  vested  rights  arise. 

Approved  in  Hy-Yu-Tse-Mil-Kin  v.  Smith,  194  U.  S.  414,  43  L. 
1046,  24  Sup.  Ct.  676,  Indian  residing  on  Umatilla  reservation  may 
insist  on  original  selection  made  under  Act  23,  Stat.  340,  c.  319,  as 
against  subsequent  allottee,  where  department  corrected  mistake  in 
refusing  allotment,  though  he  had  selected  other  land  afterward; 
Waldron  v.  United  States,  143  Fed.  418,  applying  rule  where  at  time 
25  Stat.  892,  c.  405,  took  effect,  woman  was  residing  on  lands  on 
ceded  part  of  reservation,  and  within  year  she  filed  election  co  take 
allotment,  but  claim  rejected  and  trust  patent  issued  to  another 
Indian  who  had  later  settled  thereon;  Tegarden  v.  Le  Marchel,  129  Fed. 
490,  state  statute  giving  defendant  in  ejectment  right  to  recover 
value  of  improvements  is  not  applicable  where  plaintiff  claims  under 
45 


91  U.  S.  330-340  Notes  on  U.  S.  Reports.  706 

government  patent  issued  after  improvements  made;  Nicholson  v. 
Congdon,  95  Minn.  193,  103  N.  W.  1035,  where  application  for  entry 
of  lands  accepted  though  not  accompanied  by  purchase  price,  sub- 
sequent payment  and  issuance  of  patent  perfected  title  as  of  date  of 
application,  and  sale  made  between  application  and  payment  passed 
title;  McDonald  v.  Union  Pac.  R.  Co.,  70  Neb.  350,  97  N.  W.  441, 
court  cannot  compel  conveyance  of  lands  subject  to  homestead  entry, 
to  one  who  has  been  denied  privilege  of  such  entry  by  land  depart- 
ment; McAllister  v.  Hutchison,  12  N.  M.  115,  75  Pac.  42,  locator  of 
mining  claim  has  no  such  title  or  interest  in  same  after  conveyance 
and  abandonment  thereof,  that  community  interest  of  wife  attaches; 
dissenting  opinion  in  Paine  v.  Foster,  9  Okl.  280,  60  Pac.  30,  majority 
refusing  to'  review  findings  of  Secretary  of  Interior;  dissenting 
opinion  in  Sproat  v.  Durland,  2  Okl.  52,  35  Pac.  888,  majority  holding 
settlement  on  land  covered  by  existing  entry  which  is  relinquished 
as  result  of  contest  begun  before  such  settlement,  confers  no  settle- 
ment  right. 

Syl.  10   (VIIT,  680).     Conclusiveness  of  land  officer's  decisions. 

Approved  in  Peyton  v.  Desmond,  129  Fed.  9,  63  C.  C.  A.  651,  and 
Paine  v.  Foster,  9  Okl.  224,  252,  261,  53  Pac.  112,  121,  60  Pac.  25, 
both  following  rule;  Miller  v.  Margerie,  149  Fed.  697,  in  suit  to  set 
aside  deed  by  Alaska  townsite  trustee  for  fraud,  complainant  must 
allege  facts  showing  that,  without  negligence  on  his  part,  he  was 
prevented  by  fraud  from  appearing  before  trustee  and  showing  right 
to  enter  property;  Jones  v.  Hoover,  144  Fed.  220,  equity  will  review 
acts  of  Land  Department  in  its  construction  of  law  applicable  to 
conditions  prevailing,  so  as  to  give  possession  where  necessary  to 
complete  purchase  of  lands;  Cagle  v.  Dunham,  14  Okl.  615,  78  Pac. 
562,  equity  will  not  set  aside  land  department  decision  because  per- 
jury was  committed  at  trial  before  department;  Estes  v.  Simmons, 
12  Okl.  544,  73  Pac.  305,  denying  equity  jurisdiction  where  facts  show- 
ing fraud  consisting  of  perjury  in  land  department  trial  do  not  show 
complainant  could  refute  testimony;  Cook  v.  McCord,  9  Okl.  209,  60 
Pac.  500,  findings  of  land  department  on  question  as  to  whether  or  not 
lot  has  been  abandoned,  are  conclusive  in  absence  of  fraud  or  mis- 
take; Barnes  v.  Newton,  5  Okl.  431,  48  Pac.  192,  successful  claimant 
in  land  department  may  enjoin  adversary  from  interfering  with  pos- 
session and  from  further  occupancy  of  premises;  Wilbourne  v.  Bald- 
win, 5  Okl.  280,  47  Pac.  1050,  denying  right  to  enjoin  Indian  agent 
from  removing  homesteader  from  lands  prior  to  disposal  of  lands  by 
land  department;  Cummings  v.  McDermid,  4  Okl.  280,  44  Pac.  278, 
holding  facts  alleged  insufficient  to  give  court  jurisdiction  to  set 
aside  award  of  townsite  board;  King  v.  Thompson,  3  Okl.  647,  39  Pac. 
467,  applying  rule  to  decisions  of  Oklahoma  townsite  trustees  appointed 
under  act  of  1890;  Adams  v.  Couch,  1  Okl.  34,  35,  39,  40,  26  Pac. 
1015,  1016,  1017,  while  contest  pending  in  land  department  ejectment 
does  not  lie;  Prosser  v.  Finn,  41  Wash.  608,  84  Pac.  405,  under  Eev. 


707  Notes  on  U.  S.  Eeports.  91  U.  S.  343-379 

St.  U.  S.,  §  452,  special  timber  agent  appointetl  by  Commissioner  of 
General   Land   Office   cannot   make   timber  culture   entry. 

Distinguished  in  Laramie  Xat.  Bank  v.  Steinlioff,  11  Wyo.  310,  71 
Pac.  995,  until  patent  issues  courts  cannot  determine  title. 

91  U.  S.  343-356,  23  L.  428,  UNION  PACIFIC  R.  R.  v.  HALL. 

Syl.  4  (VIII,  683).     Railroad  bridges  implied  in  railroad's  charter. 

Cited  in  Union  Pac.  R.  R.  Co.  v.  Mason  City  etc.  R.  R.  Co.,  199  U. 
S.   168,  50  L.   138,  26   Sup.   Ct.   19,   arguendo. 

Syl.  6  (VIII,  683).     Railroad  building  bridge  may  mortgage  it. 

Approved  in  Davis  v.  Cleveland  etc.  Ry.  Co.,  146  Fed.  411,  cars 
owned  by  railroad  and  delivered  by  it  to  other  companies  loaded  with 
freight  for  transportation  to  other  states  and  returned  loaded  or  empty 
to  owner,  are  not  attachable  under  laws  of  state  into  which  they  are 
carried;  Arrison  v.  Company  D,  12  N.  D.  559,  98  N.  W.  85,  corpora- 
tion organized  under  Laws  1897,  p.  159,  permitting  incorporation  by 
members  of  militia  to  erect  armory,  is  subject  to  mechanic's  lien  laws. 

Syl.  7   (VIII,  683).     Mandamus  to  compel  operation  of  railroad. 

Approved  in  McCarthy  v.  Street  Commissioners,  188  Mass.  340,  74 
N.  E.  660,  refusing  mandamus  at  suit  of  property  owner  to  compel 
construction  forthwith  by  city  authorities  of  street  laid  out,  merely 
because  of  delay  in  construction;  Clement  v.  Graham,  78  Vt.  320,  63 
Atl.  155,  granting  mandamus  to  compel  auditor  of  accounts  to  permit 
inspection  of  vouchers  on  file  in  his  office  to  private  citizen;  dissent- 
ing opinion  in  Strickland  v.  Knight,  47  Fla.  334,  36  So.  365,  majority 
refusing  to  enjoin  county  commissioners  from  issuing  liquor  license 
at  suit  of  individuals  where  special  injury  not  shown.  See  105  Am. 
St.  Rep.  123,  note. 

91  U.  S.  367-379,  23  L.  449,  KOHL  v.  UNITED  STATES. 

Syl.  1  (VIII,  686).     Condemnation  of  lauds  by  government. 

Approved  in  Town  of  Nachant  v.  United  States,  136  Fed.  276,  69 
L.  R.  A.  723,  70  C.  C.  A.  641,  in  condemnation  proceedings  by  United 
States  for  land  for  governmental  purposes,  government  cannot  stand 
on   local  law  as   to   rule   of   damages. 

Syl.  9   (VIII,  688).     Eminent  domain — Appropriation  for  purchase. 

Distinguished  in  Western  Union  Tel.  Co.  v.  Pennsylvania  E.  E.  Co., 
195  U.  S.  568,  569,  571,  574,  49  L.  322,  323,  324,  25  Sup.  Ct.  133,  tele- 
graph companies  not  granted  right  of  eminent  domain  or  right  to  so 
occupy  railroad  rights  of  way  by  act  of  July  24,  1866. 

Syl.  10  (VIII,  688).  Eminent  domain— Power  of  Secretary  of 
Treasury. 

Approved  in  United  States  v.  Certain  Lands  in  Narragansett,  145 
Fed.  657,  Secretary  of  War  has  discretionary  right  to  determine  what 
property  necessary  for  improvement  of  harbors;  dissenting  opinion  in 
Western  Union  Tel.  Co.  v.  Pennsylvania  E.  E.   Co.,  195   U.  S.  582, 


91  U.  S.  381-405  Notes    on  U.  S.  Eeports.  708 

49  L.  327,  25  Sup.  Ct.  133,  majority  holding  telegraph  companies  not 
granted  right  of  eminent  domain  or  right  to  oeciupy  railroad  rights  of 
way   by  act   of   July   24,   1866. 

Syl.  11   (VIII,  689).     Condemnation  proceedings  are  suits  at  law. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co., 
196  U.  S.  247,  248,  49  L.  465,  466,  25  Sup.  Ct.  251,  affirming  130  Fed. 
790,  holding  suit  for  condemnation  of  railway  right  of  way  by 
Kentucky  railroad  against  citizen  of  another  state,  is  removable; 
Metropolitan  E.  E.  Co.  v.  Macfarland,  195  U.  S.  328,  49  L.  222,  25 
Sup.  Ct.  28,  writ  of  error  is  only  mode  of  reviewing  District  of 
Columbia  court  of  appeals  judgment  sustaining  award  in  condemnation 
proceedings;  Buckhnnnon  etc.  E.  Co.  v.  Davis,  135  Fed.  709,  68  C.  C. 
A.  345,  where  federal  court  had  appointed  receiver  for  railroad  in 
liquidation  proceedings,  order  requiring  that  suit  against  receiver 
to  condemn  crossing  over  railroad's  right  of  way  be  brought  in 
federal  court  is  not  interference  with  state's  right  of  eminent  domain; 
State  V.  Chittenden,  127  Wis.  494,  107  N.  W.  508,  independent  pro- 
ceeding commenced  by  certiorari  in  an  action  under  Eev.  St.  1898, 
§  2595,  relating  to  place  of  trial  of  actions  against  state  or  its  officers. 

Syl.  12  (VIII,  689).  Circuit  court's  jurisdiction  in  condemnation 
proceedings. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  24,  49  L.  468,  2  Sup.  Ct.  251,  suit  for  condemnation  of  railway 
right  of  way  by  Kentucky  railroad  against  citizen  of  another  state, 
is    remo\nble. 

91  U.  S.  3S1-3S9,  23  L.  354,  THE  DOVE. 

Syl.    4    (\^III,    691).     Cross-bill    defined. 

Approved  in  Emery  Co.  v.  Tweedie  Trading  Co.,  143  Fed.  147,  new 
and  distinct  matters  not  included  in  original  libel,  but  arising  out  of 
separate  transactions  cannot  be  made  subject  matter  of  cross-libel 
in  admiralty. 

91  U.  S.  389-405,  23  L.  237,  COOKE  v.  UNITED  STATES. 

Syl.  1  (VIII,  691.)  Eesponsibilitics  of  government  on  commercial 
paper. 

See  101  Am.  St.  Eep.  151,  note. 

Syl.  7   (VIII,  692.)     Negligence  of  officials  as  barring  government. 

Approved  in  Walker  v.  United  States,  139  Fed.  413,  marshal  render- 
ing accounts  against  government  for  services  of  deputies,  which  have 
been  allowed  by  accounting  officers,  cannot  be  compelled  to  refund 
years  after  expiration  of  office  though  allowances  made  under  er- 
roneous construction  of  law. 

Syl.  8  (VIII,  692).  Government  not  bound  by  payment  of  forged 
note. 

Approved  in  Moore  v.  McGuire,  142  Fed.  808,  under  Ann.  Code,  Miss. 
1892,  §  3831,  action  of  board  created  thereby  determining  that  landa 


709  Notes  on  U.  S.  Eeports.  91  U.  S.  406-414 

sold  for  taxes  were  not  within  state  and  refunding  amount  paid  ttere- 
for  to  purchaser,  does  not  conclude  state. 

91  U.  S.  406-414,  23  L.  245,  SCUDDER  v.  UNION  NAT.  BANK. 
Syl.    2    (VIII,    93).     Law    governing   validity    of    contracts. 

Approved  in  Garrigue  v.  Kellar,  164  Ind.  680,  108  Am.  St.  Rep.  324, 
69  L.  R.  A.  870,  74  N.  E.  524,  note  executed  in  Illinois  by  married 
woman  as  surety,  while  domiciled  there,  is  enforceable  in  Indiana, 
though  payable  at  bank  in  latter  state  and  laws  thereof  prohibit 
married  woman's  contract  of  suretyship;  Ft.  Wayne  Trust  Co.  v. 
Sihler,  34  Ind.  App.  12,  72  N.  E.  498,  note  executed  in  Indiana,  by 
married  woman  as  surety,  though  secured  by  mortgage  on  land  in 
Missouri,  is  void;  Caldwell  v.  Seaboard  Air  Line  Ry.,  73  S.  C.  465,  53 
S.  E.  754,  in  action  by  servant  for  personal  injuries,  where  he  entered 
into  oral  contract  in  state  to  work  as  brakeman  in  another  state, 
and  in  latter  state  was  promoted,  it  was  for  jury  to  say  whether  he 
was  working  under  contract  made  in  this  state;  Frasier  v.  Charleston 
etc.  Ry.,  73  S.  C.  146,  52  S.  E.  966,  in  action  by  consignee  for  dam- 
ages to  freight  shipped  from  Georgia,  where  contract  limiting  liability 
is  void  unless  signed  by  shipper  at  time  of  shipment,  Georgia  law  gov- 
erns as  to  existence  of  contract. 

Syl.  3    (VIII,  695).     Law  governing  performances  of   contracts. 

Approved  in  Michaelsen  v.  Security  Mut.  Life  Ins.  Co.,  150  Fed. 
226,  under  New  York  law  in  case  of  anticipatory  breach  of  contract  by 
mutual  life  insurance  company,  remedy  of  insured  is  by  bill  in  equity 
to  compel  recognition  of  contract  or  tender  of  payments  due  thereunder 
till  maturity;  Anglo-American  Mtg.  etc.  Co.  v.  Wood,  143  Fed.  684, 
applying  rule  to  right  of  plaintiff  to  join  different  causes  of  action  in 
same  suit;  De  Sonora  v.  Bankers'  etc.  Casualty  Co.,  124  Iowa,  585, 
104  Am.  St.  Rep.  367,  100  N.  W.  536,  where  policy  intended  to  cover 
articles  sent  by  mail  recited  that  it  v.as  to  cover  shipments  between 
United  States  and  certain  countries  and  insured  located  in  Mexico,  law 
of  that  country  governed  in  determining  who  was  adult  within  policy 
requiring  packing  of  goods  in  presence  of  two  adults ;  Western  Union 
Tel.  Co.  V.  McNairy,  34  Tex.  Civ.  390,  78  S.  W.  970,  proof  that  common 
law  prevails  in  New  Mexico  does  not  defeat  action  against  telegraph 
company  for  mental  anguish  caused  by  failure  of  comj.ony  to  promptly 
deliver  telegram  sent  from  New  Mexico  to  Texas;  Brown  v.  Grates,  120 
Wis.  355,  357,  98  N.  W.  206,  contract  made  in  one  state,  to  be  per- 
formed in  another,  is  governed  as  to  its  validity  and  effect  by  law 
of  place  of  performance. 

Syl.   4    (VIII,   696).     Law   governing   remedies   on   contracts. 

Approved  in  Qark  v.  Eltinge,  38  Wash.  382,  80  Pac.  559,  107  Am. 
St.  Ren.  858,  only  exemptions  to  which  married  woman,  as  debtor,  is 
entitled  are  those  provided   by  law  of  state  of  suit. 


91  U.  S.  423-474  Notes  on  U.  S.  Koports.  710 

91   U.   S.   423-426,   23  L.   249,   EX   PARTE   FEENCII. 

Sj'l.   1    (VIII,  G97).     Eevorsal  of   part  of  issues. 

Approved  in  Anglo-American  Land  etc.  Co.  v.  Lombard,  132  Fed. 
735,  68  C.  C.  A.  89,  applying  rule  in  action  to  enforce  stockholder's 
liability. 

91  U.  S.  426-442,  23  L.  286,  NUDD  v.  BURROWS. 

Syl.  10  (VIII,  699).     Adoption  of  state  practice. 

Approved  in  Pittsburgh  Ey.  Co.  v.  Bloomer,  146  Fed.  722,  instruc- 
tions in  action  against  street  railway  for  injuries  by  being  thrown  by 
sudden  starting  of  car  while  alighting,  held  to  be  mere  expression  of 
opinion  is  to  effect  of  evidence;  Swift  v.  Jones,  145  Fed.  491,  in  ac- 
tion at  law  in  circuit  court  trial  judge  cannot  even  by  consent  of  par- 
ties order  trial  before  special  master  authorized  to  hear  and  pass  on 
issues  of  fact  and  report  findings  to  court ;  Williamson  v.  Liverpool 
etc.  Ins.  Co.,  141  Fed.  59,  Missouri  rule  that  filing  amended  petition  in 
compliance  with  erroneous  order  which  struck  out  parts  of  original  peti- 
tion, is  waiver  of  error,  does  not  bind  federal  courts  in  that  state ; 
Clement  v.  Wilson,  135  Fed.  750,  68  C.  C.  A.  387,  order  setting  aside 
verdict  and  granting  new  trial  is  not  reviewable  on  error;  Liverpool 
etc.  Ins.  Co.  v.  N.  &  M.  Friedman  Co.,  133  Fed.  716,  66  C.  C.  A.  543, 
separation  of  jury  after  submission  of  cause  in  federal  court  does  not 
vitiate  verdict. 

91  U.  S.  452-454,  23  L.  413,  TOWXSEND  v.  TODD. 

Syl.    1    (VIII,    700).     Following    state    statutory    construction. 

Approved  in  dissenting  opinion  in  James  v.  Gray,  131  Fed.  414,  65 
C.  C.  A.  3S5,  majority  holding  loan  by  wife  to  husband  from  separate 
estate  is  provable  in  bankruptcy  without  regard  to  its  enforceability 
under  state  law. 

91  U.  S.  4.54-474,  23  L.  356,  GRAND  TRUNK  R.  R.  v.  RICHARDSON. 

Syl.   1    (VIII,   701).     Railroads — Permitting  mills  on  right  of  way. 

Approved  in  McLucas  v.  St.  Joseph  etc.  Co.,  67  Neb.  613,  97  N.  W. 
313,  statute  of  limitations  is  no  defense  to  action  by  railroad  to  re- 
cover part  of  right  of  way  acquired  from  government  for  construction 
of  railroad;  Osgood  v.  Central  Vermont  Ry.  Co.,  77  Vt.  344,  60  Atl. 
140,  70  L.  R.  A.  930,  where  railroad  leased  piece  of  roadway  to  plain- 
tiff for  coal  shed  and  latter  agreed  to  indemnify  railroad  for  damage 
or  loss  caused  by  negligence  of  its  servants,  railroad  not  liable  for 
negligent   running  of  engine  into   shed   built  on  leased  premises. 

Syl.  4   (VIII,  701).     Negligence  defined. 

Approved  in  Continental  Ins.  Co.  v.  Chicago  etc.  Ey.  Co.,  97  Minn. 
480,  107  N.  W.  554,  where,  in  action  for  damages  caused  by  fire  from 
locomotive,    plaintiff    showed    prima    facie    negligence,    expert    evidenca 


711  Notes  on  U.  S.  Reports,  91  U.  S.  454-474 

that  engine  operated  in  careful  manner  not  sufficient  to  take  case  from 
jury. 

Syl.  6  (VIII,  703).  Locomotive  fires — Identity  of  particular  locomo- 
tive. 

Approved  in  Alabama  etc.  Ry.  Co.  v.  Aetna  Ins.  Co.,  82  Miss.  781, 
35 -So.  306,  and  Louisville  etc.  R.  R.  Co.  v.  Fort,  112  Tenn.  447,  80 
S.  W.  433,  both  following  rule;  Toledo  etc.  R.  R.  Co.  v.  Star  etc.  Mills 
Co.,  146  Fed.  957,  under  Rev.  St.  Ohio  1906,  §§  3365,  3366,  company 
not  required  to  overcome  presumjjtion  of  negligence  arising  from  fire 
by  preponderance  of  evidence  bearing  on  negligence;  Orient  Ins.  Co. 
V.  Northern  Pacific  Ry.  Co.,  31  Mont.  509,  78  Pac.  1037,  in  action  for 
burning  property  by  locomotive  sparks,  witness  may  testify  how  sparks 
thrown  by  engine  at  time  compared  with  sparks  thrown  by  other  en- 
gines; Louisville  etc.  R.  R.  Co.  v.  Short,  110  Tenn.  718,  77  S.  W.  937, 
in  action  for  fire  caused  by  locomotive  sparks,  evidence  of  other  fires 
set  by  other  engines  of  similar  construction,  is  admissible;  Gibbs  v. 
St.  Louis  etc.  R.  R.  Co.,  104  Mo.  App.  284,  78  S.  W.  837,  arguendo. 

Distinguished  in  Crissey  etc.  Lumber  Co.  v.  Denver  etc.  R.  R  Co., 
17  Colo  App.  296,  68  Pac.  676,  where  particular  engine  is  identified, 
evidence  of  fires  ignited  by  other  engines  is  inadmissible;  Spraigue  v. 
Atchison  etc.  Ry.  Co.,  70  Kan.  368,  78  Pac.  831,  where  there  is  no 
issue  as  to  emission  of  sparks  by  particular  engine,  evidence  showing 
that  other  engines  had  emitted  sparks  shortly  before  and  immediately 
after  fire    is  inadmissible. 

Syl.   10    (YIII,  704).     Liberal  construction  of  remedial  statutes. 

Approved  in  Conner  v.  Manchester  Assur.  Co.,  130  Fed.  746,  70  L. 
E.  A.  106,  65  C.  C.  A.  127,  under  policy  exempting  insurer  for  loss 
occasioned  by  civil  authority  company  not  liable  for  loss  caused  by 
spreading  of  fire  started  on  otlier  property  by  lawful  order  of  super- 
visors to  destroy  injurious  insects;  Phillips  v.  Durham  etc.  R.  R.  Co., 
138  N.  C.  20,  50  S.  E.  464,  railroad  liable  for  damage  to  property  not 
adjacent  to  right  of  way  where  fire  traversed  land  of  intermediate  own- 
ers. 

Syl.  12   (VIII,  704).     Proximate  cause  is  for  jury. 

Approved  in  Cincinnati  etc.  Ry.  Co.  v.  South  Fork  Coal  Co..  139 
Feil.  531,  railroad  is  lialsle  to  owner  of  lumber  piled  on  right  of  way 
with  its  consent  for  loss  by  fire  occurring  through  its  negligence;  South- 
ern Ry.  Co.  V.  Wilson,  138  Ala.  522,  35  So.  5G5,  keeping  cotton  on  rail- 
road's platform  not  negligence  as  matter  of  law  where  there  was  no 
notice  that  locomotives  equipped  and  operated  so  as  to  endanger  cotton ; 
Kansas  City  etc.  Ry.  Co.  v.  Blaker,  68  Kan.  2o0,  75  Pac.  73,  64  L. 
R.  A.  81  where  property  along  right  of  way  negligently  set  on  fire  by 
railroad  and  fire  cuniniuuicated  to  adjacent  property,  railroad  liable 
for  loss  of  latter. 


91  U.  S.  47-1-495  Notes  on  U.  S.  Kcports.  712 

91   U.   S.   474-479,   23   L.   388,   OSBORN  v.   UNITED   STATES. 

S_yl.    1    (VIII,   704).     Pardon    obliterates   crime. 

Approved  in  Fite  v.  State,  114  Tenn.  656,  88  S.  W.  943,  holding 
void  Shannon's  Code,  §  7423,  authorizing  commissioners  of  county  work- 
house to  allow  credits  for  good  behavior,  but  failing  to  prescribe 
schedule  of  credits;   State  v.  Lewis,  111  La.  696,  35  So.  817,  arguendo. 

91  U.  S.  479-487,  23  L.  363,  LLOYD  v.  FULTON. 

Syl.  3    (VIII,  705).     Following  state  decisions — Eulcs  of  property. 

Approved  in  In  re  Wood,  147  Fed.  878,  under  Wisconsin  laws  home- 
stead owned  by  bankrupt  is  exempt  though  purchased  while  insolvent 
with  proceeds  of  nonexempt  property ;  York  v.  Washburn,  129  Fed.  567, 
64  C.  C.  A.  132,  oral  contract  for  letting  of  property  located  in  Min- 
nesota for  more  than  one  year  is  not  void,  though  unenforceable,  and 
lessee  cannot  recover  earnest  money. 

Syl.  4  (VIII,  706).     Fraudulent  conveyance — Presumption  from  gift. 

Approved  in  Polk  Co.  Nat.  Bank  v.  Scott,  132  Fed.  900,  66  C.  C.  A. 
51,  voluntary  gift  by  husband  to  wife  at  time  when  he  was  liable  with 
others  on  notes  secured  by  property  owned  by  makers  jointly  and  of 
greater  value  than  notes  is  not  fraudulent;  Campbell  v.  Campbell,  129 
Iowa,  319,  105  N.  W.  584,  applying  rule  in  action  to  set  aside  gift  from 
parent  to  child  aljeged  to  be  fraudulent  as  to  creditors. 

91  U.  S.  489-495,  23  L.  374,  MILWAUKEE  ETC.  Ry  E.  v.  AEMS. 

Syl.  4   (VIII,  707).     When  exemjjlary  damages  allowed. 

Approved  in  Otto  Kuehne  Press  Co.  v.  Allen,  148  Fed.  609,  671,  un- 
der Mo.  Rev.  St.  1899,  §  2866,  exemplary  damages  not  recoverable  on 
mere  allegation  that  defendant's  negligence,  causing  death,  was  gross; 
Murray  v.  Pannaci,  130  Fed.  531,  65  C.  C.  A.  153,  one  removing  sand 
from  beach  in  front  of  plaintiff 's  lot  in  belief  of  legal  right  and  who 
ceased  on  plaintiff's  objection,  is  not  liable  for  exemplary  damages; 
Western  Union  Tel.  Co.  v.  Cashman,  132  Fed.  807,  65  C.  C.  A.  607, 
telegraph  company  not  liable  in  exemplary  damages  for  transmitting 
libelous  message  where  no  malice  shown;  Jackson  v.  American  etc.  Tel- 
egraph Co.,  139  N.  C.  356,  51  S.  E.  1018,  70  L.  E.  A.  738,  punitive  dam- 
ages allowed  for  wrongful  arrest  made  solely  to  put  plaintiff  tem- 
porarily out  of  way  so  as  to  prevent  his  resistance  to  entry  on  his  land ; 
Atchison  etc.  R.  E.  Co.  v.  Chamberlain,  4  Okl.  547,  548,  46  Pac.  500, 
applying  rule  in  action  against  railroad  for  injuries  sustained  while 
alighting  from  train  in  dark  at  unlighted  station.  See  101  Am.  St.  Eep. 
761,  note. 

Syl.  5  (VIII,  709)'.     Gross  negligence  defined. 

Approved  in  Kelly  v.  Malott,  135  Fed.  76,  67  C.  C.  A.  54S,  where 
declaration  characterized  defendant's  negligence  as  gross,  plea  setting 
Tip  contract  exempting  defendant  from  negligence  is  good;  Chicago  etc. 
Ey.  Co,  V.  Hamler,  215  111.  539,  541,  106  Am.  St.  Eep.  1&7,  74  N.  E.  710, 


713  Notes  on  U.  S.  Reports,  91  U.  S.  49.3-510 

where  Pullman  porter  injured  by  blowing  up  of  locomotive,  contract  witli 
Pullman  company  releasing  railroad  from  liability  for  injuries  is  com- 
plete defense  though  negligence  was  gross;  Raymond  v.  Portland  R.  R. 
Co.,  100  Me.  534,  62  Atl.  605,  holding  erroneous  instruction  that  if  con- 
ductor could  by  exercise  of  great  care  discover  what  passengers  wanted 
to  get  off  at  crossing  that  would  be  equivalent  to  actual  knowledge; 
aiarlotte  Trouser  Co.  v.  Seaboard  Air  Line  Ry.  Co.,  139  N.  C.  386,  51 
S.  E.  974,  where  carrier  knew  that  trunks  of  passenger  contained  samples 
but  received  them  as  baggage  it  was  liable  for  loss  sustained  through 
lack  of  ordinary  care  after  passenger  had  had  reasonable  time  to  re- 
move same;  dissenting  opinion  in  Davenport  v.  Southern  Ry.  Co.,  135 
Fed.  967,  68  C.  C.  A.  444,  majority  holding  complaint  against  non- 
resident railroad  and  its  resident  servants,  to  recover  for  death  caused 
by  negligent  acts  of  servants,  does  not  state  separable  controversy  re- 
movable by  railroad  alone. 

91  U.  S.  495-496,  23  L.  377,  WESTERN  UNION  TEL.  CO.  v.  EYSER. 

Syl.  1   (VIII,  710).     Exemplary  damages  when  allowed. 

Approved  in  Western  Union  Tel.  Co.  v.  Cashman,  132  Fed.  807,  65 
C.  C.  A.  607,  telegraph  company  not  liable  to  punitive  damages  for  trans- 
mission of  libelous  message  where  no  malice  shown. 

91  U.  S.  49G-503,  23  L.  377,  MAYER  v.  HELUMAN, 

Syl.  4  (VIII,  711).     Bankruptcy — Assignments  for  creditors. 
Approved  in  Mclntire  v.  Jennings,  38  Wash.  123,  80  Pac.  280,  under 

Bankr.   Act,   1898.   §   67e,  assignment   for  benefit  of  creditors  made   by 

bankrupt  more   than   four   months  before   petition  is   not  avoidable   by 

trustee  in  bankruptcy. 

Syl.  5  (VIII,  711).     Bankruptcy — State  assignment  law  not  suspended. 

Approved  in  Downer  v.  Porter,  116  Ky.  426,  76  S.  W.  136,  under  Ky. 
St.  ]899,  §  1910,  trustee  under  assignment  for  creditors  could  sue  to 
bring  property  previously  conveyed  into  trust  fund,  though  bankruptcy 
act  in  force;  Hilliard  v.  Burlington  Shoe  Co.,  76  Vt.  60,  56  Atl.  284, 
assignment  for  creditors  under  state  assignment  act  is  not  void  unless 
seasonably    impeached    by    bankruptcy    proceedings. 

91  U.  S.  503-510,  23  L.  398,  EARLE  v.  McVEIGH. 

Syl.  1   (VIII,  711).     Notice  is  essential  to  jurisdiction. 

Approved  in  Chatham  v.  Mansfield,  1  Cal.  App.  302,  82  Pac.  345, 
upholding  Code  Civ.  Proc,  §  1119,  pro^-jding  for  substituted  service 
where  person  whose  right  to  office  is  contested  cannot  be  found. 

Syl.  2    (VIII,  711).     Judgments  without  jurisdiction  are  void. 

Approved  in  King  v.  Davis,  137  Fed.  208,  under  Va.  Code  1904,  p. 
1684,  authorizing  substituted  service  by  delivery  at  defendant's  usual 
abode  and  by  giving  information  of  its  jiurport  to  wife  or  any  person 
found  there  who  is  member  of  family,  return  showing  service  by  leaving 


91  U.  S.  510-521  Kotes  on  U.  S.  Reports.  711 

copy  with  wife  but  not  stating  that  she  was  member  of  family,  is 
sufficient  and  judgment  thereon  vacated  on  motion  to  vacate  default 
judgment  in  scire  facias  proceedings. 

Syl.  3    (VIII,  712).     Constructive  notice,  when  allowed. 

Approved  in  Johnson  v.  Hunter,  147  Fed.  135,  under  Ark.  Laws  1S95, 
p.  88,  for  enforcement  of  payment  of  levee  taxes,  affidavit  that  de- 
fendant is  nonresident  of  county  and  absent  therefrom  and  that  there 
is  no  occupant  of  land,  is  prerequisite  to  service  by  publication;  King 
V.  Davis,  137  Fed.  206,  under  Va.  Code  1904,  p.  1684,  authorizing  sub- 
stituted service  by  posting  on  "front"  door  return  showing  service  by 
posting  on  "door"  does  not  show  valid  service. 

91  U.  S.  510-516,  23  L.  401,  AETNA  LIFE  i:^S.  CO.  v.  FRANCE. 

Syl.   1    (VIII,  712).     Insurance — What  is  material   misrepresentation. 

Approved  in  Atlas  Eed.  Co.  v.  New  Zealand  Ins.  Co.,  138  Fed.  499, 
construing  fire  policy  containing  "loss  payable"  indorsement  with 
reference  to  waiver  of  proyision  against  encumbrances;  Taylor  v.  Grand 
Lodge  A.  0.  U.  W.,  96  IMinn.  446,  105  N.  W.  410,  where  laws  of  bene- 
ficial order  restricted  membership  to  those  under  forty-five  years,  false 
understatement  in  application  of  age  by  one  over  such  age  avoided  cer- 
tificate; Thomas  v.  Travelers'  Ins.  Co.,  13  N.  D.  450,  101  N.  W.  901, 
applying  rule  where  life  policy  provided  that  it  was  to  take  effect  only 
when  first  premium  paid  while  insured  in  good  health,  and  premium  paid 
while  insured  suffered  from  latent  disease;  Willoughby  v.  Fidelity  etc. 
Co.,  16  Okl.  554,  85  Pac.  716,  applying  rule  in  construing  bank  official's 
bond. 

Distinguished  in  Eupert  v.  Supreme  Court  U.  O.  F.,  94  Minn.  295, 
102  N.  W.  716,  holding  where  questions  as  to  physical  condition  include 
trivial  ailments  which  do  not  affect  risk  they  are  not  warranties;  Collins 
V.  Metropolitan  Life  Ins.  Co.,  32  Mont.  338,  IDS  Am.  St.  Rep.  578,  80 
Pac.  610,  where  insured  warranted  he  was  not  connected  with  sale  of 
liquor,  proof  that  he  occasionally  waited  on  customers  of  saloon  keeper 
as  favor  merely  and  -nithout  compensation,  is  not   breach  of  warranty. 

91  U.  S.  516-521,  23  L.  414,  LATHROP  v.  DRAKE. 

Syl.  2    (VIII,  714).     Bankruptcy  jurisdiction — Suits  by  assignee. 

Approved  in  Bush  v.  Elliott,  202  U.  S.  480,  50  L.  1116,  26  Sup. 
Ct.  668,  diversity  of  citizenship  not  necessary  in  circuit  court  suit 
bv  bankruptcy  trustee  for  moneys  due  bankrupt  at  time  of  adjudica- 
tion where  bankrupt  could  have  sued  in  federal  court;  Doroshow  v. 
Ott  134  Fed.  742,  67  C.  C.  A.  644,  decree  in  equity  suit  in  district  court 
by  bankruptcy  trustee  against  adverse  claimant  to  property  is  not 
reviev.able  by  circuit  court  of  appeals  under  Bankr.  Act,  §  24b. 

Syl.  4  (VIII,  714).  Bankruptcy — Citizenship — Suit  by  assignee  to 
recover    assets. 

Approved  in  In  re  Benedict,  140  Fed.  58,  where  receiver  appointed  in 
involuntary  proceedings,  district  court  of  another  district  in  which  prop- 


715  Notes  on  U.  S.  Reports.  91  U.  S.  521-536 

erty  of  bankrupt  is  situated  may  appoint  ancillary  receiver  to  preserve 
property  pending  selection  of  trustee. 

91  U.  S.  521-526,  23  L.  403,  EYSTEK  v.  GAFF. 

Syl.    4    (VIII,    715).     Bankruptcy    assignee   bound    by    foreclosure. 

Approved  in  Miller  v.  Rickey,  146  Fed.  586,  corporation  organized 
by  defendant  in  federal  court  to  vibich  he  has,  pending  suit,  conveyed 
property  subject  of  litigation  may  be  enjoined  from  prosecuting  suit 
in  state  court  for  deterniinaLion  of  rights  therein;  In  re  Martens,  144 
Fed.  823,  under  Bankr.  Act,  §  70a,  where  jjlcdgor  converted  securities 
into  money  pursuant  to  contract  rights  he  may  prove  unsatisfied  bal- 
ance of  claim;  King  v.  Davis,  137  Fed.  240,  holding  Va.  Code  1904,  p. 
1903,  relating  to  effect  of  lis  pendens  on  bona  fide  purchasers  does  not 
apply  to  federal  courts;  Rothschild  v.  Leonhard,  33  Ind.  App.  459,  71 
N.  E.  675,  where  suit  brought  to  reform  deed  executed  by  one  having 
legal  title  and  record  title  was  in  defendant,  purchaser  from  defendant 
pendente  lite  c';'.irgeal)le  with  notice  though  no  lis  pendens  filed;  Moul- 
ton  v.  Kolodzik,  97  Minn.  425,  107  N.  W.  155,  construing  law  of  lis 
pendens. 

Syl.  5  (VIII,  716).  Bankruptcy  adjudication — Effect  on  other  pro- 
ceedings. 

Approved  in  Skilton  v.  Codington,  185  N.  Y.  85,  77  N.  E.  791,  where 
trustee  sold  bankrupt 's  personalty,  which  was  covered  by  mortgage,  un- 
der order  of  court,  and  reserved  out  of  proceeds  amount  to  pay  liens 
which  might  be  established  against  property,  mortgagee  could  sue  trus- 
tee in  state  court  to  establish  claim;  Jcnseu-King  Bird  Co.  v.  Williams, 
35  Wash.  165.  76  Pac.  935,  federal  bankruptcy  law  did  not  suspend 
jurisdiction  of  state  courts  in  insolvency  where  no  bankruptcy  proceed- 
ings instituted   respecting  matter  in  controversy. 

Syl.  7    (VIII,  718).     Intervention  by  bankrupt's  assignee. 

Approved  in  Linstroth  Wagon  Co.  v.  Ballew,  149  Fed.  964,  where 
prior  to  involuntary  petition,  claimant  sued  in  state  court  for  recovery 
of  personalty  fraudulently  purchased  by  bankrupt  and  property  seized, 
subsequently  appointed  bankruptcy  trustee  who  intervened  is  concluded 
by  decree  therein;  Sellers  v.  Hayes,  163  Ind.  430,  72  N.  E.  122,  sale, 
made  in  defiance  of  Burns'  Ann.  St.  1901,  §  G037a,  et  seq.,  of  stock 
of  goods,  cannot  be  impeached  by  seller 's  bankruptcy  trustee. 

91  U.  S.  526-536,  23  L.  416,  GOULD  v.  EVANSVILLE  ETC.  R.  R.  CO. 

Syl.  2   (YIII,  719).     Replication  after  overruling  demurrer  as  waiver. 

Approved  in  Morris  v.  Dunbar,  149  Fed.  407,  where  demurrer  to  dec- 
laration sustained  with  leave  to  discontinue  on  payment  of  costs,  but 
no  discontinuance  had  nor  judgment  entered,  writ  of  error  did  not  lie. 

Syl.  7   (VIII,  720).     To  what  res  adjudicata  applies. 
Approved  in  United  States  etc.  Co.  v.  BraiUey.   143  Fed.  530,  decree 
of   dismissal  for  failure   to   prosecute  is   not   res  adjudicata;    Ayres  v. 


91  U.  S.  536-537  Notes  on  U.  S.  Reports.  716 

Cone,  138  Fed.  781,  where  validity  of  claim  of  petitioning  creditor  in 
involuntary  bankruptcy  put  in  issue  by  bankrupt's  answer  and  issue 
determined  in  favor  of  creditor,  claim  cannot  be  contested  when  filed 
for  allowance  before  referee;  Belcher  Land  Mortgage  Co.  v.  Norris, 
34  Tex.  Civ.  113,  78  S.  W.  392,  on  foreclosure  of  mortgage  where  usury 
set  up  as  defense,  pleading  showing  former  judgment  sustaining  validity 
of  judgment  lien  is  sufficient  plea  of  res  ad  judicata. 

Syl.  8    (VIIT,  720).     Conclusiveness  of  judgment  on  demurrer. 

Approved  in  Lockhart  v.  Leeds,  12  N.  M.  167,  76  Pac.  315,  following 
rule;  Coram  v.  Ingersoll,  148  Fed.  173,  dismissal  by  Montana  court  on 
sustaining  statutory  objection  to  introduction  of  any  evidence  under 
complaint  on  ground  that  it  did  not  state  facts  sufficient  to  constitute 
cause  of  action  is  res  adjudicata;  Board  of  County  Commrs.  v.  Cross, 
12  N.  M.  75,  73  Pac.  616,  where  demurrer  to  complaint  sustained  in 
determination  of  which  material  issues  had  to  be  passed  on,  and  dis- 
missal entered  on  refusal  to  amend,  judgment  is  bar  to  later  action  on 
same  cause  of  action. 

Syl.   10    (VIII,  721).     Judgment  on  demurrer,  when  not  bar. 

Approved  in  Brakefield  v.  Lucas,  10  Okl.  587,  64  Pac.  11,  judgment 
that  one  defendant  recover  costs  and  that  there  is  no  joint  liability 
does  not  bar  separate  action  by  same  plaintiff  against  such  defendant 
for  conversion  of  same  subject  matter;  Duke  v.  Postal  Telegraph  Co., 
71  S.  C.  101,  50  S.  E.  677,  where  complaint  in  second  action  for  dam- 
ages supplies  allegations,  omission  of  which  rendered  first  complaint 
demurrable,  sustaining  of  demurrer  to  first  complaint  is  not  res  ad- 
judicata; State  V.  McEldowney,  54  W.  Va.  701,  47  S.  E.  652,  dismissal 
of  one  suit  not  bar  to  second  suit  stating  facts  not  alleged  in  first  bill; 
Frye  v.  Miley,  54  W.  Va.  332,  46  S.  E.  138,  suit  to  set  aside  fraudulent 
conveyance  for  legal  demand  by  creditor  at  large  before  debt  is  due 
must  be  disnussed  without  prejudice. 

91  U.  S.  536-540,  23  L.  420,  LOWER  v.  UNITED  STATES. 
Syl.  3   (VIII,  722).     Mandamus  to  compel  audit  for  taxation. 

See  98  Am.   St.  Rep.  879,  note. 

91  U.  S.  540-557,  23  L.  440,  BARNES  v.  DISTRICT  OF  COLUMBIA. 

Syl.  1   (VIII,  723).     Powers  of  municipality  dependent  on  legislature. 

See  101  Am.  St.  Rep.  170,  note. 

Syl.  6    (VIII,  723).     Who  are  municipal  officers. 

Approved  in  dissenting  opinion  in  Ex  parte  Lewis,  45  Tex.  Cr.  38, 
108  Am.  St.  Rep.  929,  73  S.  W.  823,  majority  holding  void  Galveston 
special  charter  of  1904.     See   108  Am.   St.  Rep.   166,   note. 

Syl.  8   (VIII,  724).     Municipality  liable  for  acts  of  boards. 
Approved  in   Denver  v.   Spencer,   34   Colo.  276,   82   Pac.   592,  2  L,  R. 
A.   (N.  S.)   147,  city  liable  for  injuries  sustained  by  fall  of  jjark  stand 


717  Notes  on  U.  S.  Eeports.  91  U.  S.  557-5G9 

negligently  constructed  by  park  commissioners;  Hourigan  v.  Norwich, 
77  Conn.  365,  59  Atl.  489,  holding  city  liable  for  wrongful  death  by 
negligence  of  agents  in  enlargement  of  city  water  reservoir. 

Syl.  9   (VIII,  724).     Liability  of  cities  for  negligent  construction. 

Approved  in  City  of  Guthrie  v.  Swan,  5  Okl.  783,  51  Pac.  564,  fol- 
lowing rule;  Krause  v.  Juneau,  2  Alaska,  635,  holding  Juneau  liable 
for  injuries  due  defective  sidewalk;  Carson  v.  Genesee,  9  Idaho,  256, 
108  Am.  St.  Rep.  127,  74  Pac.  865,  cities  incorporated  under  general 
laws  of  Idaho  are  liable  for  injuries  caused  by  defective  sidewalk; 
Matheny  v.  Aiken,  68  S.  C.  181,  47  S.  E.  62,  remedy  given  by  Code 
1902,  §§  2008,  2012,  to  private  person  whose  property  outside  of  city 
is  damaged  by  sewage  emptying  into  stream  is  exclusive  and  such  per- 
son cannot  sue  city  for  tort  or  to  abate  nuisance;  dissenting  opinion  in 
South  Carolina  v.  United  States,  199  U.  S.  472,  50  L.  274,  26  Sup.  Ct. 
110,  majority  holding  United  States  may  exact  revenue  license  from  dis- 
pensing agents  of  state  which  has  taken  charge  of  liquor  business.  See 
notes  108  Am.  St.  Eep.  159;   103  Am.  St.  Rep.  261. 

Syl.   10    (VIII,   726).     Scope   of   municipality's   liability. 

Approved  in  In  re  School  Committee,  26  R.  I.  166,  58  Atl.  629, 
upholding  Pub.  Laws  1903,  p.  33,  c.  1101,  abolishing  school  districts  and 
vesting    property    thereof    in    towns. 

91  U.  S.  557,  23  L.  445,  MAXWELL  v    DISTRICT  OF  COLUMBIA. 

Syl.   1    (VIII,   727).     Liability  of  municipality  for  torts. 

Approved  in  Matheny  v.  Aiken,  68  S.  C.  181,  47  S.  E.  62,  remedy 
gi\en  by  Code  1902,  §§  2008,  2012,  to  private  person  whose  property 
outside  of  city  is  damaged  by  sewage  emptying  into  stream,  is  exclusive 
and  such  person  cannot  sue  city  for  tort  or  to  abate  nuisance. 

91   U.  S.  557,  558,  25  L.  446,  DANT  v.   DISTRICT  OF  COLUMBIA. 

Syl.   1    (VIII,  727).     Liability  of  municipality   for  torts. 

Approved  in  Matheny  v.  Aiken,  68  S.  C.  181,  47  S.  E.  62,  remedy 
given  by  Code  1902,  §§  2008,  2012,  to  private  person  wliose  property 
outside  of  city  is  damaged  by  sewage  emptying  into  stream,  is  exclu- 
sive    and   such    person   cannot   sue   city    for   tort   or   to    abate    nuisance. 

91  U.  S.  566-569,  23  L.  448,  UNITED  STATES  v.  NORTON. 

Syl.  1    (VIII,  728).     Money  order  act  not  revenue  law. 

Distinguished  in  Bryant  Bros.  Co.  v.  Robinson,  149  Fed.  325,  suit  in 
state    court   against   defendant   as   postmaster   is   reasonable. 

Syl.   2    (VIII,  728).     What  are  revenue  laws. 

Approved  in  Brown  v.  Elder,  32  Colo.  535,  77  Pac.  856,  Sess.  Laws 
1902,  f.  3,  relating  to  revenue  does  not  contain  more  than  one  subject 
though  it  taxes  inheritances  as  well  as  property. 


91  U.  S.  570-594  Notes  on  U.  S.  Kepbrta.  718 

Syl.  3  (VIII,  728).  Limitations — Embezzlement  of  money  order  office 
moneys. 

Distinguished  in  State  v.  Snyder,  182  Mo.  504,  82  S.  W.  24,  66  L.  E. 
A.  490,  special  plea  of  limitations  by  defendant  in  criminal  prosecu- 
tion does  not  entitle  him  to  separate  preliminary  trial  of  plea. 

91  U.  S.  570-577,  23  L.  455,  MEYEE  v.  AETHUE. 

Syl.   1    (VIII,   728).     Duties— Manufactures   of   metal   defined. 

Approved  in  Von  Bernuth  v.  United  States,  133  Fed.  801,  imita- 
tion silk  yarn  made  from  cotton  waste  dutiable  as  silk  yarn. 

91  U.  S.  584-586,  23  L.  433,  HALDEMAN  v.  UNITED  STATES. 

Syl.   3    (VIII,   729).     Judgment— What   is   nonsuit. 

Approved  in  Wetmore  v.  Crouch,  188  Mo.  655,  87  S.  W.  956,  dis- 
missal for  failure  to  furnish  additional  security  for  costs  is  nonsuit 
within  Eev.  St.  1899,  §  4285,  providing  for  new  action  in  one  year 
after  nonsuit;  Lindsay  v.  Allen,  112  Tenn.  652,  82  S.  W.  174,  volun- 
tary dismissal  by  consent  is  not  bar  to  another  action. 

Syl.  4  (VIII,  729).     Nonsuit  as  bar. 

Approved  in  Lindsay  v.  Allen,  112  Tenn.  652,  653,  654,  82  S.  W. 
174,  voluntary  dismissal  by  consent  is  not  bar  to  another  action. 

91  U.  S.  587-594,  23  L.  328,  TWIN  LICK  OIL  CO.  v.  MAEBUEY. 

Syl.  1  (VIII,  730).     Eelation  of  director  to  corporation  is  fiduciary. 

Approved  in  In  re  Castle  Braid  Co.,  145  Fed.  230,  235,  upholding 
contract  between  corporation  and  directors  for  purchase  of  latter 's 
stock;  Martin  v.  Santa  Cruz  Water  Storage  Co.,  4  Ariz.  175,  36  Pac. 
37,  action  of  three  of  five  corporation  directors  in  voting  one  of 
themselves  salary  as  secretary  is  void;  McConnell  v.  Combination 
Min.  etc.  Co.,  30  Mont.  258,  104  Am.  St.  Eep.  703,  76  Pac.  200,  hold- 
ing void  resolution  of  four  directors  voting  three  directors  salaries, 
predicated  on  by-laws  previously  passed  by  five  directors  including 
four   first   mentioned. 

Syl.  2    (VIII,  731).     Contracts  between   fiduciaries  are  voidable. 

Approved  in  Beach  v.  McKinnon,  148  Fed.  736,  bill  by  receiver  of 
corporation  against  director  for  accounting  as  to  notes  payable  to 
corporation  and  transferred  to  defendant,  merely  alleging  that  notes 
were  property  of  corporation,  is  insufficient. 

Distinguished  in  Attalla  Iron  Ore  Co.  v.  Virginia  etc.  Coke  Co., 
Ill  Tenn.  534,  77  S.  W.  775,  setting  aside  contract  between  corpora- 
tion and  new  company  secretly  formed  by  its  managers  and  another. 

Syl.    3    (Vm,    732).     Eatification    of    contracts    between    fiduciaries. 

Approved  in  Kessler  v.  Ensley  Co.,  129  Fed.  402,  contract  by  which 
officers  have  obtained  property  of  corporation  by  fraud  may  be  rati- 
fied by  directors  and  disinterested  majority  of  stockholders. 


719  Notes  on  U.  S.  Reports,  91  U.  S.  587-594 

Syl.   4    (VIII,   732).     Directors  represent   shareholders. 

Approved  in  Hearst  v.  Putnam  Min.  Co.,  28  Utah,  198,  107  Am.  St. 
Rep.  698,  77  Pac.  757,  66  L.  R.  A.  784,  stockholders  cannot  in  own 
right  sue  to  set  aside  conveyance  on  ground  of  fraud  giving  rise  to 

trust. 

Syl.  7   ("VIII,  732).     Director's  contract  with  corporation. 

Approved  in  Pacific  Vinegar  etc.  Wks.  v.  Smith,  145  Cal.  369,  104 
Am.  St.  Rep.  42,  78  Pac.  554,  president  of  corporation  cannot  pur- 
cliase  notes  payable  to  corporation  and  indorse  them  to  himself  in- 
dividtialiy;  Schnittger  v.  Old  Home  etc.  Min.  Co.,  144  Cal.  607,  78 
Pac.  10,  upholding  loan  by  certain  directors  to  corporation  where 
matter  carried  by  sufficient  vote  of  other  directors,  though  lending 
members  voted  for  transaction;  Griffith  v.  Blackwater  Boom  etc.  Co., 
55  W.  Va.  615,  48  S.  E.  446,  09  L.  R.  A.  124,  determining  rule  for 
compensation  whore  director  made  contract  with  corporation  which 
was  partly  executed  and  later  abrogated  by  court  at  suit  of  stock- 
holders. 

Syl.    8    (VIII,    734).     Director    may   purchase   at   foreclosure. 

Approved  in  Burns  v.  Cooper,  140  Fed.  277,  guardian's  sale  of 
ward  "s  property  under  order  of  court  is  voidable  where  guardian  pro- 
cures sale  for  purpose  of  transferring  title  to  himself;  Marquam  v. 
Ross,  47  Or.  414,  83  Pac.  862,  trust  company  holding  title  in  trust 
to  manage  encumberoil  projierty  <".nd  making  advances  under  contract, 
could  purchase  at  foreclosure  sale  under  prior  mortgage. 

Syl.  9    (VIII,  734).     Laches — Rescission  of  contract   for  fraud. 

Approved  in  Arbuckle  v.  Kelley,  144  Fed.  27S,  refusing  to  set 
aside  tax  sale  for  irregularities  after  lapse  of  eighteen  years  where 
they  have  become  valuable;  Ryason  v.  Dunten,  164  Ind.  96,  73  N.  E. 
77,  applying  rule  where  during  minority  of  cotenant  other  cotenant 
purchased  at  foreclosure  sale;  Sunter  v.  Sunter,  190  Mass.  456,  77 
"N'.  E.  498,  suit  by  wards  to  set  aside  sale  of  laud  by  guardian  in- 
directly to  himself  not  barred  though  not  brought  within  statutory 
time  where  brought  soon  after  learning  of  fraud;  Brown  v.  Kemiuorer, 
211  Pa.  522,  63  Atl.  823,  six  years'  delay  in  bringing  suit  to  set 
aside  execution  sale  for  fraud  or  treat  transaction  as  trust  ami 
standing  by  while  another  dealt  with  property  in  manner  inconsistent 
with   trust   is   laches. 

Svl.  10  (VIII,  736).  Rescission — Matters  considered  in  determining 
laches. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  10.  6G  Pac.  556,  55  L. 
R.  A.  658,  applying  rule  where  there  was  eight  years'  delay  in  seek- 
ing to  enforce  trust  in  mining  claims;  Griffith  v.  Blackwater  Boom  Co., 
55  W.  Va.  619,  48  S.  E.  448,  69  L.  R.  A.  124,  determining  rule  for 
compensation  where  director  made  contract  with  corporation  which 
was  partly  executed  and  later  abrogated  by  court  at  suit  of  stock- 
holders. 


91  U.  S.  603-617  Notes  on  U,  S.  Eeports.  720 

Syl.  11  (Vlir,  736),  Laches — Fraud — Speculative  delay  not  per- 
mitted. 

Approved  in  Kessler  v.  Ensley,  141  Fed.  169,  where  former  director 
bought  land  of  trustees  of  land  company  to  whom  property  was  con- 
veyed to  sell  to  pay  debts,  and  he  sold  lots,  built  town,  and  made 
improvements,  stockholders  barred,  by  four  years'  delay,  from  setting 
aside  purchase;  Patterson  v.  Hewitt,  11  N.  M.  31,  66  Pac.  651,  55 
L.  R.  A.  658,  applying  rule  to  eight  years'  delay  in  seeking  to  enforce 
trust   in   mining   claims. 

Syl.  12  (VIII,  736).  Fraud — Fluctuating  values — Prompt  rescis- 
sion. 

Approved  in  Patterson  v.  Hewitt,  195  U.  S.  319,  49  L.  218,  25  Sup. 
Ct.  35,  affirming  11  N.  M.  26,  33,  66  Pac.  559,  561,  55  L.  R.  A.  658, 
applying  rule  to  eight  years'  delay  in  seeking  to  enforce  trust  in  mining 
claims;  Stevens  v.  McChrystal,  150  Fed.  89,  where  applicant  for  mining 
patent  agreed  to  convey  to  contestant  portion  of  property  on  demand 
for  deed  after  issuance  of  patent  on  payment  of  certain  sum,  five 
years'  delay  in  demand  and  tender  bars  specific  performance;  Socrates 
Quicksilver  Mines  v.  Carr  Realty  Co.,  130  Fed.  298,  64  C.  C.  A.  539, 
applying  rule  where  one  locator  sought  relief  against  other  locators 
of  mining  claim  for  fraud;  Cole  v.  Birmingham  Union  Ry.  Co.,  143 
Ala.  435,  39  So.  405,  suit  by  stockholder  in  street  railroad  to  set 
aside  sale  of  property  to  another  company  for  its  shares  of  stock 
bouglit  ten  years  after  transfer  and  two  years  after  knowledge,  is 
barred;  Hall  v.  Nash,  33  Colo.  507,  81  Pac.  251,  apjilying  rule  where 
stockholder  had  knowledge  of  surrender  of  mining  lease  by  corpora- 
tion and  obtaining  other  leases  in  which  president  was  interested; 
Bridley  v.  Johnson,  11  Idaho,  700,  83  Pac.  931,  applying  rule  where 
one  executed  note  payable  in  one  year  secured  mortgage  on  un- 
patented mine,  and  note  not  paid  for  twelve  years  after  other  party 
had  done   assessment  and  development  work. 

Distinguished  in  Hill  v.  Hall,  191  Mass.  268,  77  N.  E.  837,  where 
client  sued  attorneys  to  rescind  sale  of  bonds  seven  months  after 
completion  of  transaction  and  within  one  mouth  after  expiration  of 
option  given  one  of  defendants  to  repurchase  at  higher  price,  action 
not  barred. 

91    U.    S    603-617,    23   L.   405,    OILMAN   v.   ILLINOIS    ETC.    TELE- 
GRAPH CO. 

Syl.  4   (VIII,  738).     Joinder  of  ejectment  and  foreclosure. 

Approved  in  Hatcher  v.  Hendrie  etc.  Supply  Co.,  133  Fed.  271,  68 
C.  C.  A.  19,  under  Colorado  statute  remedy  on  mechanic's  lien  and 
on  debt  may  be  pursued  in  single  action. 


721  Notes  on  U.  S.  Eeports.  91  U.  S.  618-637 

91    U.    S.    G18-G37,    23    L.    214,    DOWS    v.    XATIOXAL   EXCHANGE 
BANK. 

Syl.  3  (VIII,  741).     Invoice  as  evidence  of  title. 

Approved  in  In  re  Smith  &  Nixon  Piano  Co.,  149  Fed.  113,  con* 
struing  contract  whereby  pianos  sold  to  corporation  under  agreement 
providing  that  corporation  pay  cash  for  each  piano  it  sold,  though 
invoice  recited  that  shipper  sold  pianos  to  corporation  as  bailment 
and  not  sale;  In  re  Wood,  140  Fed.  964,  where  bankrupt  wrote  to 
claimant  for  articles  to  be  shown  at  fair  and  they  were  billed  to  him 
"subject  to  next  spring's  terms,"  and  shortly  before  bankruptcy 
demand  made  for  goods  was  refused,  claimant  could  not  recover 
property  from  trustee;  John  Deere  Plow  Co.  v.  McDavid,  137  Fed. 
811,  70  C.  C.  A.  422,  construing  contract  consigning  goods  for  sale 
on  commission  under  warranty  for  safety  of  goods  as  one  of  agency 
and  not  conditional  sale;  In  re  Miller,  135  Fed.  869,  where  claimant 
sold  goods  to  bankrupt  who  could  sell  at  his  discretion,  with  option 
to  pay  price  on  goods  sold  or  return  goods,  claimant  could  not  re- 
cover unsold  goods  as  against  bankruptcy  trustee. 

Syl.  4  (VIII,  741).     Bill  of  lading— Title  on  payment  of  draft. 

Approved  in  Portland  etc.  Co.  v.  British  etc.  Ins.  Co.,  130  Fed.  864, 
65  C.  C.  A.  334,  following  rule;  Greenwood  Grocery  Co.  v.  Canadian 
etc.  Elevator  Co.,  72  S.  C.  453,  110  Am.  St.  Kep.  629,  52  S.  E.  192, 
2  L.  K.  A.  (N.  S.)  79,  buyer  has  no  right  to  possession  of  goods  by 
tender  of  less  than  amount  of  draft;  General  Electric  Co.  v.  Southern 
Ey.,  72  S.  C.  254,  110  Am,  St.  Kep.  603,  51  S.  E.  696,  where  freight 
shipped  under  bill  of  lading  with  draft  attached,  and  bill  of  lading 
was  to  shipper's  order  and  to  notify  third  party,  carrier  could  not 
deliver  freight  to  latter  without  surrender  of  bill  of  lading.  See  105 
Am.   St.   Kep.    366,   368,   note. 

Syl.  5  (VIII,  741).     Transfer  of  bill  of  lading  passes  title. 

Approved  in  Bush  v.  Export  Storage  Co.,  136  Fed.  933,  where 
manufacturing  corporation  leased  part  of  premises  to  warehouse  com- 
pany and  stored  its  goods  in  such  warehouse,  receiving  receipts  which 
it  pledged,  and  corporation  used  up  goods  and  replaced  them  with 
others,  pledgee  took  good  title;  Mather  v.  Gordon,  77  Conn.  344,  59 
Atl.  425,  where  seller  drew  draft  attached  to  bill  of  lading,  which 
was  discounted  by  plaintiff,  and  on  buyer's  failure  to  accept  goods  or 
pay  draft,  plaintiff  delivered  goods  to  seller  for  resale,  seller's  cred- 
itors could  not  attach  goods;  Mitchell  v.  Baker,  208  Pa.  379,  57  Atl. 
761,  where  manufacturer,  under  seller's  direction,  ships  goods  to 
purchaser,  bill  of  sale  being  made  out  in  seller's  name  who  indorses 
it  to  buyer,  title  passes  to  buyer  on  indorsement  of  bill  of  lading  and 
delivery  of  goods  to  carrier.  See  105  Am.  St.  Kep.  358,  368,  note. 
46 


91  U.  S.  638-667  Notes  on  U.  S.  Eeports.  722 

Syl.  11  (VIII,  743).  Eebuttal  of  presumption  as  to  bill  of  lading 
passing  title. 

Approved  in  Hamilton  v.  Schlitz  Brewing  Co.,  129  Iowa,  1S2,  105 
N.  W.  442,  fact  that  nonresident  seller  took  bill  of  lading  in  name 
of  local  agent  who  indorsed  same  and  it  was  sent  with  draft  showing 
delivery  not  to  be  made  to  buyer  in  this  state  until  payment,  does  not 
show  as  matter  of  law  that  sale  took  place  in  this  state. 

91  U.  S.  638-642,  23  L.  252,  KNOTTS  v.  STEAENS. 

Syl.  2  (Vin,  744).    Posthumous  child — Equitable  conversion. 
See  101  Am.  St.  Eep.  870,  note. 

91  U.  S.  646-656,  23  L.  341,  PHILLIPS  ETC.  CONSTEUCTION  CO. 
v.  SEYMOUE. 

Syl.  1  (VIII,  745).     Special  findings  when  not  disturbed  on  appeal. 

Approved  in   Michigan   Home   Colony   Co.   v.   Tabor,   141   Fed.   333, 

disapproving  practice  of  filing  large  number  of  assignments  of  error. 

Syl.  7  (VIII,  746).     Contract  requiring  performance  on  certain  day. 

Approved  in  Michigan  Home  Colony  Co.  v.  Tabor,  141  Fed.  336, 
where  contract  for  sale  of  land  required  payment  of  balance  of  pur- 
chase money  on  specified  day  and  that  on  such  payment  vendor  should 
on  demand  thereafter  execute  deed,  vendor  could  not  sue  for  purchase 
price  without  tendering  deed;  HoUiday  v.  Wright,  134  Mich.  611,  96 
N.  W.  950,  where  stock  subscriber  tenders  bank  stock  and  demands 
repayment  pursuant  to  agreement  with  promoter,  it  is  no  defense  to 
action  for  money  paid  that  he  has  not  paid  for  stock  as  assessments 
were  made,  as  per  contract,  where  corporation  accepted  payment  after 
delay;  Powers  v.  Eude,  14  Okl.  395,  79  Pac.  94,  applying  rule  to  sale 
of  land. 

Syl.  8   (VIII,  746).     Waiver  of  nonperformance  on  fixed  day. 

Approved  in  Wing  &  Bostwick  Co.  .v.  United  States  Fidelity  &  G. 
Co.,  150  Fed.  677,  where  building  contract  does  not  specify  penalty 
for  noncompletion  within  time  limit,  and  time  not  of  essence  of 
contract,  damages  for  failure  to  complete  in  time  is  rental  value. 

91  U.  S.  656-667,  23  L.  336,  NEW  LAMP  ETC.  CO.  v.  ANSONIA 
BEASS  ETC.  CO. 

Syl.  8  (VIII,  749).     Collateral  attack  on  bankruptcy  decree. 

Approved  in  Silvey  v.  Tift,  123  Ga.  80S,  51  S.  E.  750,  1  L.  R.  A. 
(N.  S.)  386,  where  petition  for  involuntary  bankruptcy  set  out 
preferential  transfer  to  certain  firm,  adjudication  is  conclusive  of 
status  of  bankrupt  as  such. 

Syl.  14   (VIII,  749).     Statutory  construction — Eepugnancy  avoided. 

Approved  in  In  re  United  Button  Co.,  140  Fed.  506,  claim  for  un- 
liquidated damages  resulting  from  injury  to  property  of  another,  not 
reduced  to  judgment,  cannot  he  lii|iii(,!alcd  under  Bankr.  Act  1898, 
§  63b. 


723  Notes  on  U.  S.  Reports.  91  U.  S.  667-730 

91  U.  S.  667-690,  23  L.  290,  458,  FLOEIDA  v.  ANDERSON. 

Syl.  7  (VIII,  751).     Florida  improvement  act — Option  of  trustees. 

Approved  in  Wilson  v.  Mitchell,  43  Fla.  119,  121,  30  So.  706,  707, 
under  Internal  Improvement  Act,  §  3,  where  trustees  exercised  dis- 
cretion to  purchase  and  cancel  bonds  interest  ceased  to  run  thereon 
unless    interest    coupons   previously   canceled    and   negotiated, 

91  U.  S.  092-703,  23  L.  379,  THE  COLORADO. 

Syl.  11  (VIII,  753).     Collision — Duty  to  slacken  speed  in  dark. 

Approved  in  Quinctte  v.  Bisso,  136  Fed.  831,  69  C.  C.  A.  825,  holding 
tug  ascending  Mississippi  above  New  Orleans  in  fog  at  speed  of  nine 
miles  liable  for  running  down  person  crossing  in  skiff. 

Syl.   12   (VIII,  754).     Collision — What  is  excessive  speed. 
Approved  in  In  re  Clyde  S.  S.  Co.,  134  Fed.  97,  six  knots  is  excessive 
Bpeed  for  steamer  in  thick  fog  in  frequented  part  of  ocean« 

91  U.  S.  704-712,  23  L.  421,  WARREN  v.  SHOOK. 

Syl.  3  (VIII,  754).    Broker  defined. 

Approved  in  Gemundt  v.  Shipley,  98  Md.  662,  57  Atl.  13,  where 
nonresident  owned  property  in  county  which  he  managed  and  collected 
rents  from  and  also  from  property  held  as  cotenant,  receiving  com- 
mission from  cotenant,  he  cannot  be  sued  in  such  county  under  Code, 
art.  75,   §   132,  authorizing  suit  in  county  where  business  carried  on. 

91  U.  S.  716-730,  23  L.  454,  NICHOLS  v.  EATON. 

Syl.  3  (VIII,  755).  Bankruptcy  trustees  to  give  beneficiary  for- 
feited interest. 

Approved  in  In  re  McKay,  143  Fed.  673,  where  will  bequeathed 
directed  trustee  to  pay  interest  of  certain  fund  to  wife  and  son  as 
designated  in  will,  title  to  fund  vested  in  trustee  and  did  nut  pass 
to  bankruptcy  trustee  of  wife  and  son. 

Syl.  5  (VIII,  756),    Life  estate— Right  to  rents. 

Distinguished  in  Sprinkle  v.  Leslie,  36  Tex.  Civ.  357,  81  S.  W. 
1018,  where  will  gave  devisee  right  to  rent  property  but  prohibited 
sale  of  mortgage  thereof,  and  provided  for  vesting  of  title  in  her 
heirs  aftej-  her  death,  restriction  against  alienation  is  void,  though 
devisee  took  only  life  estate. 

Syl.  6   (VIII,  756).     Wills— Debts  of  grantee. 

Approved  in  Mason  v.  Rhode  Island  etc.  Trust  Co.,  78  Conn.  85, 
61  Atl.  58,  construing  will  as  creating  valid  spendthrift  trust;  Kessner 
V.  Phillips,  189  Mo.  524,  107  Am.  St.  Rep.  368,  88  S.  W.  68,  where 
deed  conveyed  title  on  condition  that  land  be  not  liable  for  grantee  's 
debts  contracted  during  specified  term  and  that  grantee  could  not 
sell  or  encumber  for  certain  period  except  to  will  same,  spendthrift 
trust  not  created. 


92  U.  S.  1-10  Notes  on  U.  S.  Eeports.  724 

(VIII,  755.)  Miscellaneous.  Cited  in  Woodbury  v.  Sparrel  Print, 
187  Mass.  429,  73  N.  E.  548,  under  Rev.  Laws;  c.  159,  §  3,  cl.  8, 
authorizing  suit  to  reach,  in  payment  of  debt,  property  fraudulently 
conveyed,  "debt"  includes  contract  obligations  for  which  amount 
due  not  definitely  ascertained. 


XCII  UNITED  STATES. 


92  U.  S.  1-10,  23  L.  521,  BLEASE  v.  GARLINGTON. 

Syl.  2  (VIII,  759).    Equity — Examiner  cannot  decide  objections. 

Approved  in  Nelson  v.  United  States,  201  U.  S.  114,  50  L.  685,  2(5 
Sup.  Ct.  358,  immateriality  of  evidence  sought  to  be  elicited  before 
special  examiner  does  not  justify  refusal  to  answer;  Dowagiac  Mfg. 
Co.  v.  Lochren,  143  Fed.  216,  following  rule;  Cassett  v.  Mitchell  Coal 
&  Coke  Co.,  150  Fed.  37,  order  in  action  against  railroad  for  violation 
of  interstate  commerce  act,  requiring  certain  railroad  officials  to  pro- 
duce certain  papers  at  trial,  is  final  decision  reviewable  on  error;  Bank 
of  Eavenswood  v.  Johnson,  143  Fed.  465,  and  In  re  Eomine,  138  Fed. 
839,  both  holding  referee  in  bankruptcy  in  taking  testimony  must 
allow  question  to  be  answered  though  it  is  improper,  and  note  question, 
objection  and  ruling  in  record;  Butte  etc.  Min.  Co.  v.  Montana  Ore 
Purch.  Co.,  139  Fed.  843,  845,  applying  rule  on  taking  depositions  in 
action  at  law;  Perry  v.  Eubber  Tire  Wheel  Co.,  138  Fed.  837,  applying 
rule  where  depositions  taken  under  Rev.  St.,  §  863. 

Syl.  4  (VIII,  759).     Equity — Testimony  must  be  reduced  to  writing. 

Approved  in  New  England  Phon.  Co.  v.  National  Phon.  Co.,  14S 
Fed.  324,  witness  whose  testimony  is  being  taken  orally  before  ex- 
aminer cannot  refuse  to  answer  question  on  ground  that  questions  are 
immaterial;  Bank  of  Ravenswood  v.  Johnson,  143  Fed.  466,  and  In  re 
Romine,  138  Fed.  841,  both  holding  whei^e  objections  to  evidence  be- 
fore referee  sustained,  referee  at  request  of  party  offering  same  need 
not  certify  objections  to  court. 

Syl.  5  (VIII,  759).    Equity — Ruled  out  testimony  must  be  in  record. 

Approved  in  Dowagiac  Mfg.  Co.  v.  Lochren;  143  Fed.  213,  214,  215, 
following  rule;  United  Cigarette  etc.  Co.  v.  Wright,  132  Fed.  198, 
applying  rule  to  equity  pleading. 

Distinguished  in  Lacroix  v.  Tyberg,  149  Fed.  782,  on  taking  deposi- 
tions to  be  used  in  contest  before  Patent  Office,  witness  required  to 
answer  questions  where  testimony  may,  on  one  theory  of  case,  be 
relevant;  Independent  B.  P.  Co.  v.  Boorman,  137  Fed.  996,  where  part 
of  answer  in  equity  setting  up  particular  defense  has  been  stricken 
out  on  ground  of  irrelevancy,  court  of  another  district  in  which  testi- 


725  Notes  on  U.  S.  Reports.  92  U.  S.  10-31 

mony   is   being   taken    before    examiner   will,    on    objections,    exclude 
testimony  in  support  of  sucli  defense. 

Syl.  7  (VIII,  760).    Sales — Means  of  knowledge  open  to  both. 

Approved  in  Kimber  v.  Young,  137  Fed.  749,  70  C.  C.  A.  178,  in 
action  for  deceit  in  sale  of  corporation  bonds,  falsity  of  representa- 
tions that  defendant  knew  bonds  were  good  and  that  they  would  be 
jiuid  at  maturity  does  not  create  liability. 

92  U.  S.  10-2G,  23  L.  524,  GAINES  v.  FUENTES. 

Syl.  2  (VIII,  760).    Federal  jurisdiction — Diverse  citizenship. 

Approved  in  Peyton  v.  Desmond,  129  Fed.  5,  63  C.  C.  A.  651,  up- 
holding jurisdiction  over  action  for  damages  for  conversion  of  timber 
wrongfully  cut  from  plaintiff's  land. 

Syl.  3  (VIII,  7G0).     Circuit  court's  jurisdiction  on  removal. 

Distinguished  in  Cochran  v.  Montgomery  County,  199  U.  S.  269. 
50  L.  187,  26  Sup.  Ct.  58,  holding  decision  of  circuit  court  of  appeals 
final  where  suit  removed  for  local  prejudice. 

Syl.  5  (VIII,  761).     Equity  jurisdiction  to  set  aside  probate. 

Approved  in  Medill  v.  Snyder,  71  Kan.  597,  81  Pae.  219,  time  lim- 
ited by  statute  of  wills  for  bringing  action  in  district  court  is  not 
extended  by  Code  Civ.  Proc,  §  23. 

Syl.  6  (VIII,  761).    Federal  equity  jurisdiction  to  set  aside  probate. 

Distinguished  in  O'Callaghan  v.  O'Brien,  199  U.  S.  104,  109,  50  L. 
109,  110,  25  Sup.  Ct.  727,  diverse  citizenship  does  not  give  federal 
jurisdiction  of  bill  to  declare  nonexistence  of  will  and  nullity  of  its 
state  probate,  where  under  state  law  will  contest  is  ancillary  to  orig- 
inal  probate   proceedings. 

Syl.  7  (VIII,  762).     Eemoval — Controversy  between  diverse  citizens. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  248,  49  L.  466,  25  Sup.  Ct.  251,  proceeding  in  eminent  domain 
under  Ky.  Stat.,  §§  835-839,  where  requisite  diversity  of  citizenship 
exists,  is  removable;  Johnson  v.  Computing  Scale  Co.,  139  Fed.  344, 
where  amount  claimed  in  complaint  in  state  court  is  sufficient  to  give 
federal  jurisdiction,  plaintiff  cannot  defeat  jurisdiction  after  removal 
by  affidavit  showing  he  is  entitled  to  less  than  jurisdictional  amount; 
Buckhannon  etc.  R.  Co.  v.  Davis,  135  Fed.  709,  68  C.  C.  A.  345,  order 
requiring  that  suit  against  federal  receiver  to  condemn  crossing  over 
right  of  way  should  be  brought  in  federal  court  does  not  interfere 
with  state's  right  of  eminent  domain;  Barber  Asphalt  etc.  Co.  v. 
Morris,  132  Fed.  949,  67  L.  R.  A.  761,  66  C.  C.  A.  55,  Duluth  charter 
relating  to  appeals  from  allowance  or  rejection  of  claims,  does  not 
restrict  federal  jurisdiction  to  enforce  judgments  on  such  claims. 

92  U.  S.  27-31,  23  L.  597,  HALL  v.  UNITED  STATES. 

(VIII,  765.)  Miscellaneous.  Cited  in  United  States  v.  Foreman, 
5  Okl.  253,  48  Pac.  97,  one  suing  government  in  territorial   court  to 


92  U.  S.  41-90  Notes  on  U.  S.  Keports.  726 

recover  money  paid  for  land  on  wMch  entry  erroneously  allowed  and 
afterward  canceled  need  not  show  surrender  of  duplicate  receipt  and 
relinquishment  of  claims  to  land. 

92  U.  S.  41-49,  23  L.  646,  EGBERTS  v.  UNITED  STATES. 

Syl.  1  (VIII,  706).  Compensation  for  services  rendered  at  official's 
request. 

Approved  in  Slavens  v.  United  States,  196  U.  S.  238,  49  L.  461,  25 
Sup.  Ct.  229,  mail  contractor  not  entitled  to  extra  compensation  for 
services  outside  terms  of  contract  performed  on  unauthorized  demand 
of  postmaster,  where  on  Postmaster  General's  protest  he  was  relieved 
from  such  services. 

92  U.  S.  73-77,  23  L.  697,  SHUEY  v.  UNITED  STATES. 

Syl.  3  (VIII,  768).  Eeward  for  arrest  and  for  information  leading 
to  arrest. 

Approved  in  McClaughry  v.  King,  147  Fed.  46.5,  affirming  135  Fed. 
196,  reward  for  arrest  of  each  of  parties  convicted  of  certain  crime, 
is  not  earned  by  merely  giving  information  which  leads  to  arrest; 
Smith  V.  Vernon  County,  188  Mo.  506,  107  Am.  St.  Rep.  324,  87  S. 
W.  950,  70  L.  R.  A.  59,  where  reward  offered  for  "apprehension  and 
conviction,"  one  apprehending  felon  and  turning  him  over  to  officer 
who  testified  at  trial  from  which  conviction  resulted  earned  reward; 
Ralls  County  v.  Stephens,  104  Mo.  App.  119,  78  S.  W.  292,  where  one 
knowing  of  crime  and  of  reward  for  apprehension,  arrest  and  con- 
viction, located  suspect  and  telegraphed  sheriff  to  arrest  him,  which 
was  done,  and  he  was  turned  over  to  informant  who  elicited  con- 
fession, informant  entitled  to  reward  as  against  sheriff;  dissenting 
opinion  in  McClaughry  v.  King,  147  Fed.  469,  majority  holding  re- 
ward for  arrest  of  each  of  parties  convicted  of  certain  crime,  not 
earned  by  merely  giving  information  as  to  whereabouts  of  suspect. 

92  U.  S.  85-90,  23  L.  561,  CHEATHAM  v.  UNITED  STATES. 

Syl.  2  (VIII,  769).     Recovery  of  taxes  paid  not  of  right. 

Approved  in  Chi'istie  Street  Com.  Co.  v.  United  States,  129  Fed. 
508,  where  petition  for  recovery  of  taxes  paid  under  duress  shows  that 
plaintiff  had  appealed  to  Internal  Revenue  Commissioner  for  redress, 
action  is  subject  to  limitations  imposed  by  Rev.  St.,  §§  3226,  3227. 

Syl.  3  (VIII,  770).     Courts  cannot  control  tax  collection. 

Approved  in  Christie  Street  Com.  Co.  v.  United  States,  129  Fed.  508, 
denying  circuit  court's  jurisdiction  under  Comp.  St.  1901,  p.  752, 
over  action  to  recover  tax  exacted  under  duress;  McConnel  v.  Hamp- 
ton, 164  Ind.  549,  73  N.  E.  1092,  refusing  to  enjoin  assessor  from 
placing  on  tax  duplicate  assessments  for  property  omitted  in  past  years 
where   assessor   had  initiated  proceedings   therefor. 


727  Notes  on  U.  S.  Keports,  92  U.  S.  90-101 

92  U.  S.  90-93,  23  L.  678,  WALKER  v.  SAUVINET. 

Syl.  2   (VIII,  770).     Jury  trial  not  privilege  of  citizenship. 

Approved  in  Tilley  v.  Cbx,  119  Ga.  870,  47  S.  E.  221,  upholding  Civ. 
Code,  1895,  §  5331,  authorizing  court  to  direct  jury  where  there  is  no 
conflict  in  evidence;  Light  v.  Canadian  County  Bank,  2  Okl.  550,  37 
Pac.  1077,  upholding  statutory  proceedings  for  arrest  and  bail  of 
debtors;  Gunn  v.  Union  E.  E.  Co.,  27  R.  I.  322,  62  Atl.  119,  upholding 
Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supreme  court  to  direct 
judgment  without  further  trial  by  jury. 

Syl.  3   (VIII,  771).     "When   due   process  complied   with. 

Approved  in  St.  Louis  v.  Gait,  179  Mo.  17,  77  S.  W.  879,  63  L.  E. 
A.  778,  upholding  ordinance  prohibiting  one  from  permitting  growth 
of  weeds  on  his  premises. 

Syl.  4   (VIII,  771).     What  is  due  process  of  law  in  states. 

Approved  in  In  re  Francis,  136  Fed.  913,  under  Bankr.  Act  1898, 
§  2,  subd.  3,  where  it  is  alleged  that  debt  for  which  bankrupts  liable 
created  by  fraud,  that  two  had  absconded  and  other  in  jail,  appoint- 
ment of  receiver  before  adjudication  without  notice  to  incarcerated 
bankrupt,  is  due  process;  Wenham  v,  State,  65  Neb.  402,  91  N.  W. 
423,  58  L.  E.  A.  825,  upholding  act  of  1889,  regulating  hours  of  labor 
of  females  employed  in  certain  lines  of  work. 

92  U.  S.  93-101,  23  L.  699,  MAGEE  v.  MANHATTAN  LIFE  INS.  CO. 

Syl.   1    (VIII,   772).     Fraud  vitiates   surety's   contract. 

Approved  in  Orleans  etc.  Ey.  Co.  v.  International  Const.  Co., 
113  La.  413,  37  So.  11,  surety  released  by  change  in  contract  with 
reference  to  work. 

Syl.  2  (VIII,  773).  Surety's  defense  after  loss — Facts  within 
knowledge. 

Approved  in  American  Bonding  Co.  v.  Pueblo  Inv.  Co.,  150  Fed.  23, 
surrender  of  premises  by  lessee  during  term  does  not  relieve  surety 
from  liability  for  matured  obligations;  Eeed  v.  Munn,  148  Fed.  761, 
refusing  to  enforce,  for  laches,  trust  with  reference  to  mining  claims. 

Syl.   3    (VIII,   773).     Principal   and   surety- — Disclosures   required. 

Approved  in  Watertown  Savings  Bank  v.  Mattoon,  78  Conn.  394, 
62  Atl.  624,  where  sureties  on  bank  ofiicial's  bond  did  not  sign 
at  request  of  directors,  fact  that  directors  knew  of  prior  embezzle- 
ment of  which  they  did  not  inform  sureties,  does  not  release  them; 
Sherman  v.  Harbin,  125  Iowa,  181,  100  N.  W.  631,  where  mutual  life 
association  not  asked  by  surety  as  to  president 's  past  conduct,  asso- 
ciation not  guilty  of  fraudulent  concealment  avoiding  bond;  Wright  v. 
German  Brewing  Co.,  103  Md.  380,  03  Atl.  SOS,  fraudulent  conceal- 
ment of  fact  that  principal  wliile  in  (Miiulny  of  obligee  had  committed 
forgery,  is  no   defense  to  action  uii  buinl. 


92  U,  S,  101-129  Notes  on  U.  S.  Reports.  728 

92  U.  S.  101-105,  23  L.  471,  NEBLETT  v.  MACFARLAND. 

Syl.  2  (VIII,  774).  Depreciation  of  property  fraudulently  con' 
veyed. 

Approved  in  Green-Duvergey,  146  Cal.  389,  390,  80  Pac.  238,  239, 
where  one  from  whom  conveyance  obtained  by  fraud  gave  notice 
of  rescission  immediately  on  discovery  of  fraud  and  tendered  back 
certificate  of  deposit  he  had  received  as  consideration,  he  was  entitled 
to   rescission  on   tendering  back  amount   of   certificate. 

92  U.  S.  107-111,  23  L.  486,  STOTT  v.  RUTHERFORD. 

Syl.  1  (VIII,  774).     Lease — "Grant"  and  "devise"  construed. 

Approved  in  Shenk  v.  Stahl,  35  Ind.  App.  497,  74  N.  E.  540,  words 
"granted  and  leased"  in  contract  relating  to  land  for  gas  wells, 
being  merely  covenant  for  quiet  enjoyment,  contract  is  lease. 

92  U.  S.  116-121,  23  L.  488,  KITTREDGE  v.  RACE. 

Syl.  3  (VIII,  775).  Pendency  of  equity  suit — Abatement  of  law 
action. 

Approved  in  Cheshire  Prov.  Inst,  v,  Anglo-American  etc.  Co.,  132  Fed. 
969,  66  C.  C.  A.  122,  judicial  proceedings  by  bank  commissioners  under 
state  law  to  wind  up  bank  in  which  assignee  is  appointed,  do  not 
dissolve  corporation  so  as  to  preclude  federal  judgment  against  bank; 
Thiel  Detective  etc.  Co.  v.  McClure,  130  Fed.  57,  where  at  time 
creditor  of  decedent  filed  federal  bill  for  accounting  by  executor, 
state  suit  for  similar  purpose  had  been  filed,  to  which  complainnnt 
not  made  party,  federal  bill  not   maintainable. 

Syl.  4   (VIII,  775).     Costs  in  equity. 

Approved  in  Western  Coal  etc.  Co.  v.  Petty,  132  Fed.  604,  where 
federal  suit  against  two  defendants  as  joint  trespassers  was  dis- 
missed as  to  one  for  want  of  jurisdiction,  and  plaintiff  sued  him  in 
state  court,  securing  judgment,  which  was  paid,  and  defendant  in 
federal  court  secured  dismissal  on  filing  amended  answer  setting  up 
such  payment,  such  defendant  entitled  to  costs;  Consolidated  etc.  Min. 
Co.  V.  Baker,  131  Fed.  991,  plaintiff  in  ejectment  for  mining  prop- 
erty and  also  in  equity  to  enjoin  trespass  by  same  defendant,  recover- 
ing in  both  eases,  entitled  to  costs  in  both,  though  it  only  recovered 
as  to  part  of  ground. 

Distingui.shed  in  Nutter  v.  Brown,  58  W.  Va.  240,  52  S.  E.  90,  1  L. 
R.  A.  (N.  S.)  1083,  decree  in  equity  respecting  allowances  of  expenses 
and    compensation    of    receiver    appealable. 

92  U.  S.  122-129,  23  L.  679,  FIRST  NAT.  BANK  v.  NATIONAL  EX- 
CHANGE BANK. 

Syl.  1   (VIII,  776).     Implied  powers  of  national  banks. 
See  111  Am.  St.  Rep.  318,  note. 


729  Notes  on  U.  S.  Eeports.  92  U.  S.  142-161 

Syl.  4  (VIIT,  777).     Xational  bank  cannot  deal  in  stocks. 

Approved  in  First  Nat.  Bank  v.  Converse,  200  U.  S.  439,  50  L.  542, 
26  Sup.  Ct.  306,  national  bank  cannot  take  in  exchange  for  debt 
against  insolvent  corporation,  stock  in  corporation  organized  to  buy 
and  sell  assets  of  insolvent  corporation, 

Syl.  3  (VIII,  777).     National  bank's  compromise  by  taking  stock. 

Approved  in  Westminster  Bank  v.  New  England  etc.  Works,  73 
N.  H.  476,  111  Am.  St.  Eep.  640,  62  Atl.  974,  following  rule;  Morris 
V.  Third  Nat.  Bank,  142  Fed.  32,  national  bank  which  has  become 
owner  of  notes  secured  by  mortgage  may  agree  with  holders  of  con- 
flicting mortgages  to  represent  all  in  action  to  enforce  security,  re- 
spective rights  in  property  to  be  determined  later;  Fidelity  Ins.  Co. 
v.  German  Sav.  Bank,  127  Iowa,  598,  103  N.  W.  960,  insurance  com- 
pany may  accept  stock  in  bank  as  reorganized,  in  payment  of  part  of 
deposit  in  insolvent  bank,  though  acquisition  of  stock  outside  of 
Bcope  of  business;  Hill  v.  Shilling,  69  Neb.  157,  95  N.  W.  25,  applying 
rule  to  savings  bank;  dissenting  opinion  in  First  Nat.  Bank  v.  Con- 
verse, 200  U.  S.  441,  50  L.  543,  26  Sup.  Ct.  306,  majority  holding 
national  bank  cannot  take  in  exchange  for  debt  of  insolvent  corpora- 
tion, stock  in  corporation  organized  to  buy  and  sell  assets  of  insolvent 
corporation. 

Distinguished  in  Merchants'  Nat.  Bank  v.  Wehrmann,  202  U.  S.  300, 
50  L.  1040,  26  Sup.  Ct.  613,  national  bank  cannot  become  absolute 
owner,  in  satisfaction  of  debt,  of  shares  represented  by  transferable 
certificates  in  land  partnership. 

92  U.  S.  142-156.  23  L.  701,  MABKEY  v.  LANGLEY. 

Syl.  2   (VIII,  779).     Power  requiring  cash  sale — Departure  beneficial. 

Appi-oved  in  Green  Real  Estate  Co.  v.  St.  Louis  Mut.  House  Bldg. 
Co.,  196  Mo.  372,  93  S.  W.  1115,  fact  that  purchaser  at  sale  by  trustee 
in  deed  of  trust  did  not  pay  all  of  money  for  several  days  did  not 
make  it   sale   on  credit,  in  violation  of   deed  requiring  sale  for  cash; 

Syl.  5  (VIII,  779).     Liens  attach  to  proceeds  of  sale  of  property. 

Approved  in  Hagerstown  v.  Groh,  101  Md.  564,  61  Atl.  469,  mort- 
gagee who  is  satisfied  with  award  made  in  condemnation  proceedings 
affecting  property  may  file  bill  in  equity  to  establish  his  claim  against 
fund  awarded  as   damages. 

92  U.  S.  156-161,  23  L.  537,  TERRY  v.  TUBMAN. 

Syl.  3  (VIII,  780).     Stockholiler's  liability  enforceable  in  equity. 

Distinguished  in  MiUer  v.  Smith,  26  E.  I.  150,  58  Atl.  635,  66  L.  R. 
A.  473,  equity  suit  by  creditors  of  Colorado  corporation  on  behalf 
of  themselves  and  others  who  may  come  in,  to  enforce  stockholder's 
double  liability  under  1  Mills  Ann.  St.  Colo.  §  533,  not  maintainable. 


92  U.  S.   171-2JG  Notes  on  U.  S.  Reports.  7^0 

Syl.  4   (VIII,  7S1).     Limitations  against  bank  stockholder's  liability. 

Approved  in  Bennett  v.  Thorne,  36  Wash.  265,  78  Pac.  940,  68  L. 
E.  A.  113,  action  against  bank  stockholders  for  additional  liability 
accrues  on  insolvency  of  bank  and  must  be  enforced  within  six  years. 

92  U.  S.  171-175,  23  L.  469,  CAEEY  v.  BROWN. 

Syl.  1  (VIII,  782).     Cestui — Necessary  party — Trustee's  suit. 

Approved  in  Woodward  v.  Davidson,  150  Fed.  844,  where  railroad 
appointed  trustee  to  acquire  realty  for  it,  and  he,  through  broker,  ob- 
tained contract  for  purchase  of  land  running  to  other  brokers, 
and  contract  assigned  to  him,  he  could  sue  in  his  own  name  for 
specific  performance  to  use  of  railroad;  In  re  E.  T.  Kenney  Co.,  130 
Fed.  455,  where  creditors  of  bankrupt,  before  bankruptcy,  assigned 
claims  to  committee  in  trust  to  purchase  property  and  sell  same  for 
benefit  of  assignees,  latter  could  not  prove  equitable  interest  as 
claims  against  bankrupt  estate;  Virginia  etc.  Power  Co.  v.  Fisher, 
104  Va.  133,  136,  51  S.  E.  202,  203,  bondholder  cannot  sue  to  fore- 
close mortgage  unless  trustee  has  been  requested  and  neglected  so  to 
do,    or    cannot    act. 

92  U.  S.  176-179,  23  L.  480,  BAKER  v.  WHITE. 

Svl.  1  (VIII,  786).     Final  judgment — Reversal  and  ordering  new  trial. 

Approved  in  Clement  v.  Wilson,  135  Fed.  750,  68  C.  C.  A.  387,  fol- 
lowing rule. 

92  U.  S.  179-183,  23  L.  542,  BUEBANK  v.  BIGELOW. 

Syl.   1    (VIII,   783).     Bankruptcy — Jurisdiction  of   circuit   court. 

Approved  in  In  re  Owings,  140  Fed.  741,  bankruptcy  court  cannot 
allow  bankrupt  domiciled  in  district  homestead  in  lands  situated  in  an- 
other district;  In  re  Benedict,  140  Fed.  59,  bankruptcy  court,  may, 
where  receiver  appointed  in  another  district,  appoint  ancillary  receiver 
to  preserve  property  in  its  district. 

92  U.  S.  183-186,  23  L.  481,  SMITH  v.  VOGES. 

Syl.  1   (VIII,  784).     Fraudulent  conveyance  by  husband  to  wife. 

Approved  in  Aldous  v.  Olverson,  17  S.  D.  200,  95  N.  W.  920,  con- 
veyanee  by  husband  to  wife,  duly  recorded  and  not  made  with  intent 
to  defraud  subsequent  creditors,  cannot  be  attacked  by  them,  though 
it  is  in  fraud  of  existing  creditors. 

92  U.  S.  214-256,  23  L.  563,  UNITED  STATES  v.  REESE. 

Syl.  4  (VIII,  789).  Discrimination  prohibited  by  fifteenth  amend- 
ment. 

Apj)roved  in  Porter  v.  Commissioners  Kingfisher  Co.,  6  Okl.  556,  51 
Pac.  743,  holding  void  act  of  1897,  providing  for  election  of  separate 
school  boards  for  whites  and  negroes  within  each  school  district;  Pope 
V.  Williams,  98  Md.  71,  103  Am.  St.  Rep.  379,  56  Atl.  545,  66  L.  R.  A. 


731  Notes  on  U.  S.  Eeports.  92  U.  S.  259-275 

39S,  upholding  act  of  1902,  providing  that  no  one  coming  from  another 
state  can  register  as  voter  until  one  year  after  declaration  of  intent 
to   become  voter. 

Syl.  2    (VIII,   788).     Immunities,  how  protected. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  27,  50  L.  645,  26  Sup.  Ct. 
387,  denial,  in  summoning  or  impaneling  jurors,  of  equal  rights  secured 
by  federal  law  to  accused,  give  right  of  removal;  Ex  parte  Riggins,  134 
Fed.  422,  refusing  to  discharge  on  habeas  corpus  one  indicted  for  con- 
spiracy under  Rev.  St.,  §§  5508,  5509,  in  lynching  negro  accused  of 
crime  to  prevent  his  enjoyment  of  constitutional  rights;  Smiley  v. 
Kansas,  196  U.  S.  455,  49  L.  550,  25  Sup.  Ct.  289,  arguendo. 

Syl.  3  (VIII,  788).  Fifteenth  amendment  confers  no  right  of  suf- 
frage. 

Approved  in  State  v.  "Weber,  96  Minn.  430,  105  N.  W.  493,  upholding 
constitutional  provision  limiting  suffrage,  as  respects  naturalized  cit- 
izens, to  such  as  are  admitted  three  months  prior  to  election. 

Syl.   6    (VIII,   789).     Penal   act   partly  void,   void   in   toto. 

Approved  in  United  States  v.  Ju  Toy,  198  U.  S.  262,  49  L.  1044,  25 
Sup.  Ct.  644,  upholding  Comp.  St.  19U1,  p.  1303,  making  decision  of 
appropriate  department  on  right  of  Chinese  to  enter  conclusion  on 
federal  courts  in  habeas  corpus ;  Brooks  v.  Southern  Pac.  Co.,  148  Fed. 
994,  and  Howard  v.  Illinois  C.  E.  Co.,  148  Fed.  1004,  both  holding  void 
federal  employees'  liability  act  of  1906;  Cella  Com.  Co.  v.  Bohlinger, 
147  Fed.  423,  425,  holding  void  Ark.  act  of  1901,  authorizing  personal 
judgment  against  foreign  corporation  on  cause  of  action  in  favor  of 
resident  on  service  of  summons  on  state  auditor,  as  to  corporations 
doing  business  in  state ;  McDonald  v.  Southern  Exp.  Co.,  134  Fed. 
289,  holding  void  S.  C.  act  of  1904,  prohibiting  shipment  of  shad  beyond 
limits  of  state;  State  v.  Cudahy  Packing  Co.,  33  Mont,  187,  190,  191, 
82  Pac.  835,  836,  837,  holding  void  Pen.  Code,  §  321,  prohibiting  com- 
binations to  fix  prices,  and  Pen.  Code,  §  325,  exempting  persons 
engaged  in  agriculture  or  horticulture. 

92   U.    S.   259-275,    23    L.    543,    IIEXDEESOX   v.    MAYOR    OF    XEW 
YORK. 

Syl.   1   (VIII,  791).     Effect  determines  constitutionality  of  statute. 

Approved  in  Ex  parte  Bakley,  148  Fed.  62,  patents  of  minor  under 
eighteen  who  has  enlisted  in  navy  without  their  consent  are  entitled 
to  his  discharge  on  habeas  corpus;  Myers  v.  United  States,  140  Fed. 
650,  action  of  Quebec  in  imposing  license  fee  for  cutting  wood  on 
public  lands  which  is  reduced  when  wood  is  made  into  pulp  in  Canada, 
is  imposition  of  export  duty  within  Tariff  Act  1897,  c.  11,  §  1,  sched. 
M,  par.  393,  providing  for  countervailing  duty ;  dissenting  opinion  in 
Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S.  39.  49  L.  934,  25  Sup.  Ct. 
552,  majority  upholding  Missouri  state  imposing  inspection  fee  on  n::ilt 


92  U.  S.  275-285  Notes  on  U.  S.  Eeports.  732 

liquors   shipped    from    other   states    and   held   there    for   sale    and   con- 
sumption. 

Syl.  2  (VIII,  792).     Immigrant  per  capita  tax  on  shipowners. 

Distinguished  in  Harrell  v.  Speed,  113  Tenn.  229,  106  Am.  St.  Rep. 
814,  81  S.  W.  841,  one  running  bar  on  boat  plying  between  Arkansas 
and  Tennessee  is  subject  to  tax  inposed  by  Tennessee  statute  for 
running  bar  while  vessel  is  at  Tennessee  landing. 

Syl.  4  (VIII,  793).  Police  power — Regulation  of  interstate  com- 
merce. , 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S.  336, 
48  L.  700,  24  Sup.  Ct.  436,  combination  by  stockholders  in  two  com- 
peting interstate  railways  to  form  stockholding  corporation  which 
should  require,  in  exchange  for  its  own  stock,  controlling  interest 
in  each  railroad,  violates  anti-trust  act  of  1890,-  McDonald  v.  Southern 
Exp.  Co.,  134  Fed.  288,  holding  void  S.  C.  act  of  1904,  prohibiting  ship- 
ment of  shad  beyond  limits  of  state;  Hall  v.  Chicago  etc.  Ry.  Co.,  149 
Fed.  566,  arguendo. 

Syl.  6   (VIII,  795).     Immigrant  lav/s  exclusively  for  Congress. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  883,  holding 
void  Laws  Wis.  1905,  p.  37,  c.  19,  providing  for  inspection,  grading 
and  weighing  of  grain  at  Superior,  and  prohibiting  sales  under  Minne- 
sota grades. 

92  U.  S.  275-281,  CHY  LUNG  v.  FREEMAN. 

Syl.  4  (VIII,  796).  Commerce — Requiring  immigrant  bond  of  ship- 
owners. 

Approved  in  McDonald  v.  Southern  Exp.  Co.,  134  Fed.  288,  holding 
void  S.  C.  act  of  1904,  prohibiting  shipment  of  shad  beyond  limits 
of  state. 

92  U.  S.  281-285,  23  L.  707,  UNITED  STATES  v.  ROSS. 

Syl.  2  (VIII,  798).  Circumstantial  evidence  must  prove  circum- 
stances. 

Approved  in  Vernon  v.  United  States,  146  Fed.  125,  126,  holding 
evidence,  in  prosecution  for  bribery  under  Rev.  St.,  §  5451,  insuffi- 
cient to  warrant  finding  that  defendant  made  promise  or  gave  money 
to  officer  to  aflfect  official  action,  or  to  prove  offense  committed  in  dis- 
trict; United  States  etc.  Guaranty  Co.  v.  Des  Moines  Nat.  Bank,  145 
Fed.  279,  presumption  of  innocence  of  others  having  access  to  cash 
is  not  sufficient  to  raise  inference  that  principal  on  surety  bond  was 
negligent  or  dishonest;  State  v.  Kelly,  77  Conn.  271,  58  Atl.  707, 
where  defendant  accused  of  poisoning  wife  claimed  suicide,  evidence  that 
she  at  times  was  despondent  and  said  she  had  stomach  trouble  and  no  de- 
sire to  live,  is  inadmissible;  Young  v.  Montgomery,  161  Ind.  70,  67 
N.  E.  685,  upholding  instruction  in  will  contest  withdrawing  issue  as  to 
undue  influence;    Western  Travelers'   Ace.  Assn.   v.   Holbrook,   65   Neb. 


733  Notes  on  U.  S.  Eeports.  92  U.  S.  28G-315 

472,  91  N.  W.  277,  where  circumstantial  evidence  showed  that  person 
has  been  injured  by  falling  from  dangerous  height,  it  is  presumed  that 
fall  was  accidental;  East  Tennessee  etc.  E.  E.  Co.  v.  Lindamood,  111 
Tenn.  473  474,  78  S.  W.  103,  where  there  is  no  evidence  of  nature 
of  defect  in  brake  which  caused  it  to  lurch  forward  while  being  set, 
thereby  injuring  brakeman,  expert  evidence  that  certain  enumerated 
defects  would  cause  such  lurch  is  inadmissible;  Gulf  etc.  Ey.  v.  Mat- 
thews, 32  Tex.  Civ.  145,  73  S.  W.  418,  holding  evidence  in  action 
against  railroad  for  death  of  one  run  over  by  train  showed  deceased, 
when  struck,  was  lying  on  track  and  not  walking. 

Distinguished  in  Bryan  v.  United  States,  133  Fed.  501,  66  C.  C.  A.  369, 
where  indictment  charged  in  one  count,  passing  of  counterfeit  5-cent 
pieces,  and  in  other  possession  of  molds  for  counterfeiting  25-cent 
pieces,  dismissal  of  latter  does  not  necessitate  exclusion  of  evidence  of 
finding  25-cent  molds  in  possession  of  defendant. 

Syl.  3    (VIII,   799).     Presumption   that  officers  perform  duties. 

Approved  in  Davis  v.  Moyles,  76  Tt.  36,  56  Atl.  177,  petition  to  legis- 
lature for  grant  of  lands  reciting  confiscation  of  lands  by  state,  and  acts 
granting  land   also  reciting  confiscation,  not  eviilcnce  of  confiscation. 

92  U.  S.  2S6-288,  23  L.  709,  NEW  YOEK  LIFE  IXS.  CO.  v.  HEXDEEN. 
Pyl.  1  (Vlli,  SCO).     Federal  question — State  decision  on  general  law. 
See  97  Am.  St.  Ecp.  720,  note. 

92  U.  S.  2S9-299,  23  L.  910,  TOWNSHIP  OF  ELMWOOD  v.  MARCY. 

Syl.  2  (VIII,  800).     Following  state  statutory  construction. 

Approved  in  City  of  Sioux  Falls  v.  Farmers'  Loan  etc.  Co.,  136  Fed. 
730,  69  C.  C.  A.  373,  where  in  suit  to  restrain  city  from  constructing 
waterworks,  complainant's  rights  were  acquired  under  city  contract, 
federal  courts  follow  state  court  construction  of  state  laws  with  refer- 
ence to  city's  power  to  increase  debt  to  construct  waterworks. 

92   U.   S.   307-315,   23   L.   552,   COMMISSIONERS   OF  LAEAMIE   CO. 
v.  ALBANY  CO. 

Syl.  1    (VIII,  802).     What  are  municipal  corporations. 

Ap})roved  in  Lincoln  Co.  v.  Brock,  37  Wash.  17,  79  Pac.  478,  county  is 
municipal  corporation  within  constitutional  provision  prohibiting  appro- 
priation of  right  of  way  for  use  of  corporations  other  than  municipal 
until  full  compensation  made;  dissenting  opinion  in  Allen  v.  Eeed,  10 
Okl.  134,  149,  63  Pac.  870,  875,  majority  holding  void  St.  1893,  c.  23, 
relating  to  change  of  county  seats. 

Syl.  3   (VIII,  803).     Alteration  of  municipal  charters. 

Approved  in  Attorney  General  v.  Lowrey,  199  U.  S.  239,  50  L.  170, 
26  Sup.  Ct.  27,  upholding  Mich.  Laws  1901,  No.  315,  relating  to  school 
districts;  Worcester  v.  Worcester  etc.  St.  Ey.  Co.,  196  IT.  S.  549.  49 
L.  595,  25  Sup.  Ct.  327,  upholding  Mass.  Laws  1898,  c.  578,  abrogating 


92  U.  S.  315-342  Notes  on  U.  S.  Keports.  734 

provisions  of  contract  between  street  railway  and  city  with  reference  to 
paving   of   streets   through   which   company    has   franchise. 

Syl.  4  (VIII,  803).     Municipal  corporations  are  public  corporations. 

Approved  in  Saginaw  County  Suprs.  v.  Hubinger,  137  Mich.  76,  100 
N.  W.  263,  upholding  Loc.  Acts  1901,  p.  114,  No.  335,  providing  for 
county  road  system  in  certain  county  and  impliedly  repealing  act  of 
1895,  providing  for  township  road  systems. 

Syl.  5   (Vni,  803).     Division  of  municipality — Debts  of  old. 

Approved  in  Planters'  etc.  Bank  v.  Huiett  Tp.,  132  Fed.  628,  fact  that 
after  township  issued  bonds  it  was  transferred  to  new  county  does  not 
affect  liability  of  its  people  or  property  for  payment  of  bonds;  Taylor 
v.  Pine  Grove  Township,  132  Fed.  567,  where  after  issue  of  township 
bonds,  boundaries  changed  so  as  to  include  new  territory,  all  territory 
and  property  therein  is  liable  for  payment  of  bonds;  Shoshone  County 
V.  Thompson,  11  Idaho,  143,  81  Pac.  76,  under  §  5  of  Act  of  1903, 
annexing  part  of  Shoshone  county  to  Nez  Perce  county,  tax  sale  cer- 
tificates and  tax  deeds  and  delinquent  taxes  belong  to  Shoshone  county; 
Little  Rock  v.  North  Little  Rock,  72  Ark.  202,  79  S.  W.  787,  arguendo. 

92  U.  S.  315-320,  23  L.  515,  REPUBLICAN  RIVER  BRIDGE  CO.  v. 
KANSAS  ETC.  RY.  CO. 

Syl.  2  (VIII,  805).     Review  of  evidence  in  state  court's  record. 
Approved  in  Clipper  Min.  Co.  v.  Eli  Min.  etc.  Co.,  194  U.  S.  222,  48 
L.  94S,  24  Sup.  Ct.  632,  applying  rule  to  validity  of  placer  mining  claim. 

92   U.   S.  327-330,   23  L.   511,  BROWN  v.  ATWELL. 

Syl.  1   (VIII,  807).     Record  must  show  federal  question  decided. 

Approved  in  Mathew  v.  Wabash  Ry.  Co.,  115  Mo.  App.  481,  81  S.  W. 
648,  error  to  federal  supreme  court  lies  in  action  for  injuries  to  pas- 
fecnger  on  interstate  railroad  where  defendant  alleged  it  had  equipped 
engines  and  cars  with  automatic  couplers  and  wheel  brakes  required 
by  interstate  commission  and  that  such  equipment  increased  hazard. 

92  U.  S.  330-342,  23  L.  556,  ANGLE  v.  NORTHWESTERN  MUT.  LIFE 
INS.  CO. 

Syl.  2   (A^III,  808).     Notes — Implied  authority  to  fill  blanks. 

Approved  in  Theard  v.  Gueringer,  115  La.  247,  38  So.  981,  where 
owner  and  payee  of  note  for  $2,600,  indorsed  by  her  in  blank,  left  it  with 
notary  who  sold  it  for  $2,000,  and  mortgage  security  sold  by  owner, 
purchaser  depositing  amount  of  note  in  court,  purchaser  of  note  limited 
to  $2,000  of  fund;  Smith  v.  Willing,  123  Wis.  382,  101  N.  W.  694, 
where  note  on  printed  form  had  name  of  paj-ee  blank,  not  negotiable 
though  it  contained  provision  for  confession  uf  juilgnieut  in  favor  of 
holder. 


735  Notes  on  U.  S.  Eeports.  92  U.  S.  347-371 

Syl.  3  (VTIT,  809).     Alteration  of  instruments  avoids  them. 

Approved  in  Hecht  v.  Shenners,  126  Wis.  30,  105  N,  W.  310,  Laws 
1899,  p.  681,  c.  356,  declaring  materially  altered  note  valid  in  hands 
of  holder  in  due  course  not  connected  with  alteration,  does  not  apply 
to  altered  note  transferred  before  act  took  effect. 

92  U.  S.  347-358,  23  L.  719,  EECHENDORFER  v.  FABER. 

Syl.  1    (VIII,  811).     Conclusiveness  of  allowance  of  patent  shows. 

Approved  in  Los  Angeles  Art  Organ  Co.  v.  Aeolian  Co.,  143  Fed.  884, 
holding  Tremaine  &  Pain  patent  No.  552,796,  for  improvements  in  me- 
chanical musical  instruments,  infringed  by  Fleming  patent  No.  659,442. 

Syl.  2  (VIII,  811).     Patentability  of  combination. 

Approved  in  Thomas  v.  St.  Louis  etc.  R.  Co.,  149  Fed.  755,  holding 
void  Thomas  patent  No.  570,148,  for  car  truss;  American  Choc.  Mach. 
Co.  v.  Helmstetter,  142  Fed.  980,  holding  Holmes'  patent  No.  592,205, 
for  chocolate  dipping  machine,  not  infringed  by  machine  of  Weeks  pat- 
ent No.  634,633;  Johnson  v.  Foos  Mfg.  Co.,  141  Fed.  87,  holding  void 
Johnson  patent  No.  654,550,  for  improvements  in  machine  for  separating 
cotton-seed  and  hulls  from  fiber;  Brown  Bag  Filling  Mach.  Co.  v. 
Drohen,  140  Fed.  101,  upholding  Cummings  patent  No.  573,171,  for 
paper-bag  filling  machine;  Dodge  Coal  Storage  Co.  v.  New  York  etc. 
E.  R.  Co.,  139  Fed.  986,  987,  holding  void  Piez  &  Beaumont  patents  Nos. 
668,900,  and  688,111,  for  improvements  in  cold-storage  apparatus;  West 
Boylston  Mfg.  Co.  v.  Wallace,  137  Fed.  927,  928,  holding  void  Mitchelsen 
patent  No.  718,499,  for  tenting  cloth. 

Distinguished  in  Thomson-Houston  El.  Co.  v.  Ohio  Brass  Co.,  129  Fed. 
379,  upholding  Van  Depoele  patent  No.  394,039,  for  insulated  turn- 
buckle. 

92  U.  S.  362-371,  23  L.  483,  SCAMMON  v.  KIMBALL. 

Syl.  2  (VIII,  813).     Offset  against  stockholder's  liability. 

Approved  in  In  re  Shults,  132  Fed.  575,  solvent  partnership  which  is 
indebted  to  bankrupt  cannot  set  off  against  such  debt  claim  due  from 
bankrupt  estate  to  one  of  partners. 

Distinguished  in  Smith  v.  Perry,  197  Mo.  452,  459,  95  S.  W.  340,  343, 
where  estate  of  cestui  que  trust  was  insolvent,  trustee's  estate  in  action 
for  accounting  may  set  off  claims  held  by  trustee  individually  against 
cestui  que  trust. 

Syl.  5  (VIII,  813).     Relation  between  bank  and  depositor. 

Approved  in  Burton  v.  United  States,  196  U.  S.  302,  49  L.  488,  25 
Sup.  Ct.  243,  indictment  charging  receipt  of  check  at  St.  Louis  and  al- 
leging payment  thereof  to  him  there  not  supported  by  proof  of  receipt 
in  Washington  of  St.  Louis  check  deposited  in  Washington  bank  and  im- 
mediately credited  to  defendant. 


92  U.  S.  377-417  Notes  on  U.  S.  Eeports.  736 

Syl.  6  (VIII,  814).     Banker's  setoff  against  insurance  policy. 

Approved  in  Brown  v.  Pegram,  149  Fed.  520,  judgment  debtor  may  en- 
join collection  of  judgment  on  allegation  of  setoffs  against  beneficial 
owners,  though  setoffs  are  unliquidated  legal  demands;  Tomlinson  v. 
Bank  of  Lexington,  145  Fed.  826,  where  manufacturing  company  agreed 
with  its  bank  that  subsequent  deposits  be  applied  to  prior  overdrafts, 
deposits  so  applied  not  preferences  though  company  insolvent  when  de- 
posits made.     See  111  Am.  St.  Rep.  422,  note. 

Syl.  7  (VIII,  814).     Setoff  against  assignee  for  creditors. 

Approved  in  Frank  v.  Mercantile  Nat.  Bank,  182  N.  Y.  267,  108  Am. 
St.  Rep.  805,  74  N.  E.  842,  notes  made  by  bankrupt  but  not  due  at  time 
of  bankruptcy  may  be  set  off  in  action  in  state  court  by  assignee  on 
claim   against   holder   of   notes. 

92  U.  S.  377-382,  23  L.  610,  PIEDMONT  ETC.  LIFE  INS.  CO.  v.  EW- 
ING. 

Syl.  1    (VIII,  815).     Burden  on  insurer  to  answers  untrue. 
Approved  in  Logan  v.  Provident  Sav.  Life  Assur.  Society,  57  W.  Va. 
391,  50  S.  E.  532,  following  rule. 

Distinguished  in  O'Connor  v.  Grand  Lodge  A.  O.  U.  W.,  146  Cal.  494, 
80  Pac.  692,  holding  evidence  showed  that  insured 's  answer  in  applica- 
tion that  he  had  not  been  a£3icted  with  rheumatism  was  willfully  false. 

Syl.  2  (VIII,  816).     Acceptance  of  offer  after  new  knowledge. 

Approved  in  Thompson  v.  Travelers'  Ins.  Co.,  13  N.  D.  453,  101  N.  TV. 
902,  holding  insurer  not  liable  where  disease  from  which  insured  suffered 
at  time  first  premium  paid  not  known  until  his  death ;  Whitman  v.  Mil- 
waukee Fire  Ins.  Co.,  128  Wis.  131,  107  N.  W.  293,  5  L.  R.  A.  (N.  S.) 
407,  arguendo. 

92  U.  S.  382-390,  23  L.  660,  SAVAGE  v.  UNITED  STATES. 

Syl.  1  (VIII,  816).     Waiver  of  gold  by  acceptance  of  treasury  notes. 

Approved  in  San  Juan  v.  St.  John's  Gas  Co.,  195  U.  S.  521,  49  L. 
305,  25  Sup.  Ct.  108,  agreement  that  payment  in  United  States  currency 
should  extinguish  larger  amount  due  under  lighting  contract  estimated  in 
Porto  Rican  money  is  binding  where  there  was  dispute  as  to  medium  of 
payment. 

92  U.  S.  412-417,  23  L.  684,  BUTLER  v.  THOMSON. 

Syl.  1  (VIII,  818).     Statute  of  frauds — Broker's  memorandum  of  sale. 

Approved  in  Gardiner  v.  McDonogh,  147  Cal.  320,  81  Pac.  966,  where 
contract  of  sale  recited  purchase  of  "500  sax  Bayo  at  $3.50  per  100," 
parol  evidence  admissible  to  show  * '  Bayo ' '  meant  Bayou  beans,  and  ' '  per 
100"  meant  per  hundred  pounds;  Reid  v.  Alaska  Packing  Co.,  43  Or.  438, 
73  Pac.  340,  contract  for  sale  of  goods  exceeding  $50  in  value,  memo- 
randa of  which  executed  by  broker  are  delivered  to  each  party,  contract 
also  being  entered  on  broker's  books,  is  not  within  statute   of  frauds. 


737  Notes  on  U.  S.  Eeports.  93  U.  S.  426-449 

92  U.  S.  426-432,  23  L.  494,  IVES  v.  HAMILTON. 

Syl.  1  (VIII,  819).     Issues  in  action  for  infringement  of  patent. 

Approved  in  Edison  etc.  Elec.  Co.  v.  Grouse  etc.  Elec.  Co.,  146  Fed. 
547,  construing  Metzger  patent  No.  489,682,  for  electric  lamp  socket  and 
holding  it  infringed;  Columbia  Wire  Co.  v.  Kokomo  etc.  Co.,  143  Fed. 
122,  holding  Bates'  patent  No.  365,723,  for  wire-barbing  machine  valid 
and  infringed  by  machine  of  Friederick  patent  No.  711,303;  Benbow 
etc.  Mfg.  Co.  V.  Simpson  Mfg.  Co.,  132  Fed.  616,  construing  Schroeder 
patent  No,  535,465,  for  means  for  operating  washing-machines  and 
holding  it   infringed. 

Syl.  2  (VIII,  819),     Patents— Use  of  equivalents. 

Approved  in  Universal  Brush  Co.  v.  Sonn,  146  Fed.  531,  533,  holding 
Morrison  patent  No.  717,014,  for  method  of  making  brushes,  infringed 
by  method  of  Sonn  patent  No.  791,510;  International  Mfg.  Co.  v.  H.  F. 
Brammer  Mfg.  Co.,  138  Fed.  398,  construing  Flagman  patent  No.  608,220, 
for  mechanical  movement  for  use  in  washing-machines  and  holding  it  in- 
fringed by  device  of  Martin  patent  No.  736,285;  Letson  v.  Alaska  Pack- 
ers' Assn.,  130  Fed.  143,  64  C.  C.  A.  463,  holding  Jensen  patent  No. 
376,804,  for  can-capping  machine  infringed  by  Letson  &  Burpee  patent 
macliine. 

92  U,  S,  432-438,  23  L.  724,  THE  AMERICA. 

Syl.  5  (VIII,  820).     Collision — Damages  and  costs  both  at  fault. 

Approved  in  The  City  of  Birmingham,  138  Fed.  560,  reversing  with 
costs  in"  appellate  court;  The  Steam  Dredge  No.  1,  134  Fed.  167,  69 
L.  E.  A.  292,  67  C.  C.  A.  67,  dividing  damages  where  government  in- 
spector negligently  placing  himself  in  light  of  hawser  injured  by  breaking 
of  bitt  through  negligence  of  dredge  employee. 

92  U.  S.  447-449,  23  L.  496,  OTIS  v.  CULLUM. 

Syl.  1  (VIII,  821).     Liability  of  vendors  of  void  municipal  bonds. 

Approved  in  Hinkley  v.  Champaign  Nat.  Bank,  216  111.  566,  75  N.  E. 
213,  assignment  of  judgment  rendered  on  confession  on  power  of  attorney 
whereby  assignor  covenants  that  there  is  due  on  judgment  specified 
sum  and  that  he  will  not  collect  or  release  same,  does  not  make  him 
liable  for  damages  resulting  from  defendant's  opening  and  defeating 
judgment. 

Distinguished  in  Union  Bank  v,  Oxford  etc.  E.  Co.,  143  Fed.  19S,  199, 
where  officer  of  railroad  authorized  to  sell  town  aid  bonds  by  directors, 
during  negotiations  stated  that  bonds  were  good  and  had  been  so  ad- 
judged by  court,  but  bonds  were  in  fact  void,  purchaser  could  recover 
consideration  paid. 

47 


D2  U.  S.  449-494  Notes  on  U.  S.  Eeports.  738 

92  U.  S.  449-454,  23  L.  730,  BAENEY  v.  WATSON. 

Syi.  3   (A^III,  823).     Time  to  protest  against  illegal  duties. 

Distinguished  in  Kahn  v.  Herold,  147  Fed.  580,  where  at  time  executors 
paid  internal  revenue  inheritance  tax  on  life  estate  under  protest  they 
did  not  know  life  tenant  had  died,  payment  not  voluntary. 

92  ir.  S.  454-456,  23  L.  620,  TERRY  v.  COMMERCIAL  BANK. 

Syl.  3    (VIII,  823).     Insolvent  banks — Discharge   of  stockholders. 

Cited  in  Dickinson  v.  Saunders,  129  Fed.  20,  63  C.  C.  A.  666,  argu- 
endo. 

92  U.  S.  467-473,  23  L.  733,  TYNG  v.  GRINNELL. 

Syl.  2   (VIII,  824).     Extent  of  review  of  special  findings. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  734,  68 
C.  C.  A.  89,  reciting  practice  on  appeal  where  there  is  special  finding 
in  law  action  tried  to  court;  Webb  v.  National  Bank  of  Republic,  146 
Fed.  719,  arguendo. 

92  U.  S.  473-479,  23  L.  735,  MILLER  v.  DALE. 

Syl.  4   (VIII,  825).     Conclusiveness  of  patent  on  confirmed  grant. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  633,  72  Pac.  32,  where 
Congress  confirmed  grant  to  such  of  grantees  as  had  not  forfeited 
rights  by  noncompliance  with  grant,  burden  of  proving  forfeiture  is  on 
party  alleging  it. 

92   U.  S.  480-483,  23   L.   478,   KENNARD  v.  LOUISIANA.     • 

Syl.  4  (VIII,  826).  Due  process — Ofiicers — Statute  regulating  re- 
movals. 

Approved  in  Chatham  v.  Mansfield,  1  Cal.  App.  302,  82  Pac.  345, 
upholding  Code  Civ.  Proc,  §  1119,  providing  that  when  person  whose 
right  to  ofiice  is  contested  cannot  be  found  he  may  be  served  by  leaving 
copy  at  house  of  last  residence  five  days  before  time  specified  in  notice. 

Distinguished  in  dissenting  opinion  in  Territory  v.  Albright,  12  N.  M. 
316,  78  Pac.  211,  majority  holding  assessor  appointed  pursuant  to  Laws 
1903,  p.  80,  amending  act  dividing  Bernadillo  county,  on  day  before 
latter  act  went  into  eii'ect  not  entitled  to  ofiice. 

92  U.  S.  484-494,  23  L.  579,  TOWN  OF  COLMA  v.  EAVES. 

Syl.  1   (VIII,  826).     Recitals  in  municipal  bonds. 

Approved  in  Piatt  v.  Hitchcock  Co.,  139  Fed.  933,  applying  rule  where 
county  commissioners  invested  with  power  to  make  assessments,  made 
recital  in  precinct  bonds  that  they  were  issued  under  authority  of  specified 
statute  fixing  limit  on  bond  issues;  Green  Co.  v.  Shortell,  116  Ky.  126, 
75  S.  W.  254,  where  county  aid  bonds  contained  no  recital  as  to  au- 
thority of  issuing  officers  or  as  to  performance  of  conditions  precedent, 
county  not  estopped  to  plead  noncompliance  with  conditions. 


739  Notes  on  U.  S.  Eeporta.  92  U.  S.  494-541 

92  U.  S.  494-502,  23  L.  583,  TOWN  OF  VENICE  v.  MURDOCK. 

Syl.  2  (VIII,  830).     Following  state  statutory  construction. 

Approved  in  Three  States  Lumber  Co.  v.  Blanks,  133  Fed.  482,  69 
L.  R.  A.  283,  66  C.  C.  A.  353,  state  decisions  as  to  what  will  excuse 
plaintiff  for  nonreturn  of  property  replevied,  under  Tennessee  statutes, 
are  not  binding  on  federal  court;  Wiemer  v.  Louisville  Water  Co., 
130  Fed.  255,  state  decision  denying  mandamus  to  compel  certain  action 
on  part  of  water  company  does  not  bind  federal  court  in  equity  suit 
under  similar  circumstances,  where  under  state  statutes  as  previously 
construed,  court  must  have  held  that  mandamus  did  not  lie  against 
corporation  like  defendant. 

92  U.  S.  503-509,  23  L.  621,  CONVERSE  v.  CITY  OF  FORT  SCOTT. 

(VIII,  831.)  Miscellaneous.  Cited  in  dissenting  opinion  in  City  of 
Wichita  v.  Old  Colony  Trust  Co.,  132  Fed.  654,  66  C.  C.  A.  19,  arguendo. 

92  U.  S.  509-516,  23  L.  738,  CARROL  v.  GREEN. 

Syl.  1    (VIII,  831).     When  limitations  run  on  stockholder's  liability. 

Approved  in  Bennett  v.  Thorne,  36  Wash.  265,  78  Pac.  940,  68  L.  R. 
A.  113,  action  to  enforce  bank  stockholder's  additional  liability  must 
be   enforced  six  years   after  bank's   insolvency. 

Syl.  3    (VIII,  832).     Stockholder's  liability  is  contract  liability. 

Approved  in  dissenting  opinion  in  McClaine  v.  Rankin,  197  U.  S.  167, 
168,  49  L.  708,  709,  25  Sup.  Ct.  410,  majority  holding  personal  liability 
of  national  bank  stockholders  for  debts  of  bank  is  not  contractual 
liability,  for  purpose  of  applying  statute  of  limitations. 

Distinguished  in  McClaine  v.  Rankin,  197  U.  S.  162,  49  L.  706,  25 
Sup.  Ct.  410,  personal  liability  of  national  bank  stockholders  for  debts 
of  bank  is  not  contract  liability,  for  purpose  of  applying  statute  of 
limitations. 

92  U.  S.  520-530,  23  L.  742,  UNITED  STATES  v.  DICKELMAN. 
Syl.  2  (VIII,  833).     Martial  law. 
See  98  Am.  St.  Rep.  773,  note. 

92  U.  S.  531-541,  23  L.  623,  BOARD  OF  LIQUIDATION  v.  McCOMB. 

Syl.  1   (VIII,  834).     State  not  suable  without  consent. 

Approved  in  Southern  Ry.  Co.  v.  Greensboro  Ice  etc.  Co.,  134*  Fed. 
93,  suit  against  state  corporation  commission  to  enjoin  violation  of  order 
alleged  to  interfere  with  interstate  commerce  is  not  one  against  state ; 
Berman  v.  Minnesota  etc.  Society,  93  Minn.  127,  100  N.  W.  732,  state 
agricultural  society  cannot  be  sued  for  wrongful  conduct  of  its  servants. 

Syl.  3  (VIII,  835).     Mandamus  to  compel  official  duty. 
Approved  in  Smith  v.   Alrxander,   146   Fed.   108,   denying  preliminary 
injunction  in  suit  against  state  commissioners,  purpose  of  which  is  to 


92  U.  S.  542-569  Notes  on  U.  S.  Keports.  740 

^CC^ite  enforcement  of  contract  between  complainant  and  state  according 
»j    rojiplainant's   interpretation.     See    108    Am.    St.   Eep.    838,   note. 

Syl.  4  (VIII,  836).     Injunction  to  restrain  of&cial  action. 

Approved  in  Burke  v.  Snively,  208  111.  337,  70  N.  E.  329,  bill  to  re- 
strain canal  commissioners  from  applying  sums  appropriated  by  statute 
to  maintenance  of  canal  on  ground  that  act  was  void,  is  not  suit  against 
6tate. 

82  U.  S.  542-569,  23  L.  588,  UNITED  STATES  v.  CRUIKSHANK. 

Syl.  5   (VIII,  838).     First  ten  amendments  restrict  government. 

Approved  in  Ex  parte  Munn,  140  Fed.  783,  federal  court  cannot 
on  habeas  corpus  discharge  one  confined  for  contempt  by  state  court 
for  refusing  to  answer  questions  on  ground  that  questions  might  in- 
criminate him;  In  re  Briggs,  135  N.  C.  121,  47  S.  E.  404,  upholding 
Code,  §  1215,  providing  that  no  one  shall  be  excused  in  prosecution 
from  testifying  touching  any  gambling  done  by  himself  or  others,  but 
that  no  evidence  given  by  him  shall  be  used  against  him  in  crim- 
inal prosecution;  Schissler  v.  State,  122  Wis.  378,  99  N.  W.  596,  G8 
L.  E.  A.  940,  upholding  Eev.  St.  1898,  §  4699,  providing  that  after 
jury  has  found  on  sjiecial  issue  that  defendant  was  not  insane  at 
time  of  commission  of  offense,  his  trial  on  plea  of  not  guilty  shall 
proceed  before  same  jury. 

Syl.  6  (VIII,  839).  Government's  grant  of  privileges  to  citizens 
restricted. 

Approved  in  Curley  v.  United  States,  130  Fed.  6,  64  C.  C.  A.  369, 
Rev.  St.,  §  5440,  relating  to  conspiracies  to  defraud  United  States  ap- 
plies to  rights  of  United  States  created  subsequent  to  its  passage. 

Syl.  11    (VIII,  840).     Fourteenth  amendment  adds  no  rights. 

Approved  in  United  States  v.  Moore,  129  Fed.  635,  federal  courts 
liave  no  jurisdiction  to  punish  conspiracy  to  oppress  citizen  to  pre- 
vent him  from  establishing  miner's  union  in  a  state,  in  furtherance 
of  whi<'h  defendants  assaulted  such  citizen;  McKinster  v.  Sager,  163 
Ind.  679,  106  Am.  St.  Eep.  268,  72  N.  E.  857,  68  L.  E.  A.  273,  hold- 
ing void  act  of  1903,  making  void  as  to  certain  creditors  sales  by 
merchant  of  stock  except  on  complying  with  statutory  conditions; 
Schissler  v.  State,  122  Mo.  378,  99  N.  W.  597,  68  L.  E.  A.  940,  up- 
holding Eev.  St.  1898,  §  4699,  providing  that  after  jury  has  found  on 
special  issue  that  defendant  was  not  insane  at  time  of  commission  of 
offense,  his  trial  on  plea  of  guilty  shall  proceed  before  same  jury. 

Syl.  13   (VIII,  841).     Suffrage  not  attribute  of  citizenship. 

Approved  in  State  v.  Weber,  96  Minn.  430,  105  N.  W.  493,  up- 
holding constitutional  provisions  limiting  suffrage,  as  respecting  nat- 
uralized citizen  to  such  as  are  admitted  three  months  prior  to  election; 
Porter  v.   Commissioners  of  Kingfisher  Co.,  6   Okl.   556,  51  Pac.  743, 


74x  Notes  on  U.  S.    Reports.  92  U.  S.  575-618 

holding  void  act  of  1897,  providing  for  election  of  separate  school 
boards  for  white  and  colored  people. 

Syl.  14  (VIII,  841).  Indictment — Conspiracy  to  prevent  suffrage 
by  negroes. 

Approved  in  United  States  v.  Allen,  150  Fed.  154,  155,  indict- 
ment under  Rev.  St.,  §  4046,  averring  that  defendant  was  clerk  em- 
ployed in  money  order  office,  and  charging  offense  in  language  of 
statute,  is  insufficient;  United  States  v.  Green,  136  Fed.  652,  658, 
holding  insufficient  indictment  under  Rev.  St.,  §  5451,  for  bribing 
government  officer,  and  upholding  indictment  under  Rev.  St.,  §  5440, 
for  conspiracy  to  defraud  United  States;  Curley  v.  United  States, 
130  Fed.  3,  64  C.  C.  A.  369,  arguendo. 

Syl.    15    (VIII,   842).     Requisites   of  indictment. 

Approved  in  United  States  v.  Martindale,  146  Fed.  291,  under  in- 
dictment against  national  bank  official  for  misapplication  of  funds 
by  drawing  checks  on  bank  when  he  had  no  deposit,  where  there 
is  apparent  credit  on  books,  government  cannot  show  fictitious  credit 
of  previous  deposit;  United  States  v.  Green,  136  Fed.  641,  643,  656, 
G58,  659,  holding  insufficient  indictment  under  Rev.  St.,  §  5451,  for 
bribery  and  upholding  indictment  under  Rev.  St.,  §  5440,  for  con- 
spiracy to  defraud  United  States;  State  v.  Rosenblatt,  185  Mo.  121, 
83  S.  W.  977,  upholding  indictment  under  Rev.  St.  1899,  §  2194, 
punishing  setting  up  of  gambling  device;  State  v.  Van  Pelt,  136 
N.  C.  639,  672,  49  S.  E.  180,  191,  68  L.  R.  A.  760,  holding  insuffi- 
cient indictment  charging  conspiracy  to  injure  one  in  his  business 
because  he  was  unfair  to  union  labor;  State  v.  Piper,  73  N.  H.  228, 
60  Atl.  743,  holding  void  indictment  under  statute  punishing  bank 
official  making  false  entry  in  books  with  intent  to  deceive  any 
bank  official  or  bank  commissioners;  Slover  v.  Territory,  5  Okl.  509, 

49  Pac.  1010,  holding  void  indictment  for  robbery  stating  that  goods 
were  taken  from  person  or  immediate  presence  of  person  robbed. 

Distinguished  in  State  v.  Collett,  9  Idaho,  613,  75  Pac.  272,  upholding 
information  charging  larceny  of  one  horse. 

92  U.   S.   575-618,  23"  L.   663,  STATE  RAILROAD  TAX  CASES. 

Syl.  2   (VIII,  846).     Capital  stock  and  franchises  taxable. 

Approved  in  State  v.  Savage,  65  Neb.  747,  91  X.  W.  721,  follow- 
ing rule;   New  York  v.  State  Board  of  Tax  Commrs.,   199  U.   S.  40, 

50  L.  76,  25  Sup.  Ct.  715,  N.  Y.  Laws  1899,  c.  712,  imposing  special 
franchise  tax,  does  not  impair  obligation  of  contract  by  which  street 
railways  granted  franchise  in  consideration  of  payment  of  percen- 
tage of  earnings;  American  Smelting  etc.  Co.  v.  People,  34  Colo.  246, 
82  Pac.  533,  upholding  Sess.  Laws  1902,  p.  73,  c.  3,  §  65,  imposing 
annual  license  tax  on  foreign  corporations  based  on  capital  stock, 
Sco  105  Am.  St.  Rep.  701,  note. 


92  U.  S.  575-618  Notes  on  U.  S.  Kcportg.  742 

Syl.  5  (VIII,  847).  Taxation — Value  of  corporate  property,  how  de- 
termined. 

Approved  in  State  v.  Savage,  65  Neb.  759,  91  N.  W.  725,  following 
rule;  Consolidated  Gas  Co.  v.  Mayor,  101  Md.  553,  109  Am.  St.  Kep. 
594,  61  Atl.  537,  1  L.  E.  A.  (N.  S.)  263,  holding  under  Code  Pub. 
Sess.  Laws  1904,  art.  81,  §§  2,  92,  210,  appeal  tax  court  in  assessing 
value  of  easements  in  street  belonging  to  gas  company  cannot  charge 
corporation  company's  own  outstanding  obligation. 

Syl.  6  (VIII,  847).     Taxation— Situs  of  personalty. 

Approved  in  Chicago  etc.  E.  Co.  v.  State,  128  Wis.  665,  108  N.  W. 
589,  upholding  Laws  1903,  p.  491,  c,  315,  relating  to  taxation  of  rail- 
way property. 

Syl.  7  (VIII,  848).    Increase  of  assessed  value  without  notice. 

Approved  in  Hodge  v.  Muscatine  County,  121  Iowa,  490,  104  Am.  St. 
Eep.  304,  96  N.  W.  971,  67  L.  E.  A.  624,  upholding  Code,  §  5007, 
imposing  tax  on  vendor  of  cigarettes  and  on  buildings  used  in  their 
manufacture  or  sale;  Streight  v.  Durham,  10  Okl.  369,  61  Pac.  1099, 
applying  rule  to  action  of  city  board  of  equalization  under  Stat. 
1893,  §  5620;  Foster  v.  Eowe,  128  Wis.  335,  107  N.  W.  639,  uphold- 
ing Rev.  St.  1898,  §§  1077a,  b,  providing  for  appointment  of  com- 
missioners to  equalize  values  between  different  municipalities  in 
counties. 

oyl.  8  (VIII,  849).  Conclusiveness  of  board's  determination  of 
values. 

Approved  in  Kersey  v.  Terre  Haute,  161  Ind.  474,  68  N.  E.  1029, 
upholding  city  ordinance  taxing  vehicles  using  streets  but  omitting 
to   tax   street-cars,   automobiles   and   vehicles    of   nonresidents. 

Distinguished  in  Consolidated  Gas  Co.  v.  Mayor,  101  Md.  558,  109 
Am.  St.  Eep.  598,  61  Atl.  538,  1  L.  E.  A.  (N.  S.)  263,  where,  in  con- 
test over  alleged  assessment  of  street  easements  belonging  to  corpo- 
ration, it  appeared  there  was  no  assessment,  there  is  no  presumption 
in  favor  of  its  accuracy;  Bardwick  v.  Dillon,  7  Okl.  549,  54  Pac. 
789,  board  of  equalization  in  equalizing  assessment-rolls  cannot  in- 
crease valuation  of  property  of  individual  in  excess  of  its  true  cash 
value. 

Syl.  9  (Vlir,  849).  Different  rule  of  taxation  for  railroads  and 
persons. 

Approved  in  Michigan  E.  E.  Tax  Cases,  138  Fed.  239,  upholding 
Michigan  act  of  1901,  providing  for  assessment  of  railroad  property. 

Syl.   10   (VIII.  8+9).     What  is  uniformity  of   taxation. 
Approved  in  Chicago  etc.  E.  Co.  v.  State,  128  Wis.  615,  108  N.  W. 
571,  upholding  taxation  of  railroad  as  unit. 


743  Notes  on  U.  S.  lleports.  92  U.  S,  575-618 

Syl.  11   (VIIT,  850).     Injunction  against  collection  of  tax. 

Approved  in  Illinois  Life  Ins.  Co.  v.  Newman,  141  Fed.  431,  de- 
nying federal  equity  jurisdiction  to  enjoin  collection  of  state  tax 
on  ground  of  illegality,  though  such  power  conferred  in  state  courts; 
Western  Inv.  etc.  Co.  v.  Murray,  6  Ariz.  222,  56  Pac.  730,  under  Laws 
1897,  Act  No.  51,  relating  to  taxation  of  national  bank  shares, 
assessment  of  shares  in  name  of  bank  instead  of  in  name  of  share- 
holders is  mere  irregularity;  Humbird  Lumber  Co.  v.  Thompson,  11 
Idaho,  629,  83  Pac.  946,  complaint  in  suit  to  enjoin  assessor  from 
selling  property  to  satisfy  tax  levy  regular  in  form  that  only  al- 
leges "  cas:h  value"  or  ''fair  value,"  does  not  comply  with  Sess. 
Laws  1901,  p.  2:58,  §  10;  McConnell  v.  Hampton,  164  Ind.  550,  T.^ 
N.  E.  1092,  where  assessor  has  initiated  proceedings  to  place  on  tax 
duplicates  assessments  for  personalty  omitted  in  previous  years,  in- 
junction refused  at  suit  of  taxpayer;  dissenting  opinion  in  San  Fran- 
cisco Nat.  Bank  v.  Dodge,  197  U.  S.  Ill,  49  L.  687,  25  Sup.  Ct.  384. 
majority  holding  discrimination  against  national  and  in  favor  of 
state  banks  results  from  taxation  of  national  bank  shares  under  Cal. 
Pol.  Code,  §§  3G0S-3610,  at  market  value,  where  value  of  franchise 
not  included  in  computing  market  value  of  shares  in  state  banks. 

Distinguished  in  Fargo  v.  Hart,  193  U.  S.  503,  48  L.  767,  24  Sup. 
<'t.  498,  enjoining  assessment  of  property  of  nonresident  express  on 
mileage  basis. 

Syl.  13  (VIII,  852).     Injunction  against  excessive  tax — Tender. 

Approved  in  Wilson  v.  Green,  135  N.  C.  353,  354,  47  S.  E.  473; 
Halff  V.  Green,  10  Okl.  339,  62  Pac.  817,  Lasater  v.  Green,  10  Okl. 
337,  62  Pac.  816,  and  Collins  v.  Green,  10  Okl.  250,  62  Pac.  815,  all 
following  rule;  Couts  v.  Cornell,  147  Cal.  563,  109  Am.  St.  Eep. 
168,  82  Pac.  195,  applying  rule  in  suit  to  declare  invalid  assessment 
for  taxes  and  sales  and  certificates  made  thereunder;  Denver  v. 
Kennedy,  33  Colo.  93,  80  Pac.  126,  applying  rule  in  suit  to  annul 
excessive  improvement  assessment;  Power  v.  Detroit,  139  Mich.  39, 
102  N.  W.  292,  where  taxpayer  refuses  to  pay  any  portion  of  his 
assessment  for  street  improvement  and  litigates  whole  of  it,  he  is 
liable  for  interest  and  penalties  fixed  on  portion  of  assessment  held 
valid;  Douglas  v.  City  of  Fargo,  13  N.  D.  486,  101  N.  W\  925,  apply- 
ing rule  in  suit  to  set  aside  delinquent  tax  sale  and  to  cancel  assess- 
ment. 

Distinguished  in  Jones  v.  Holzapfel,  11  Okl.  422,  68  Pac.  516,  en- 
joining collection  of  assessment  without  tender  where  entire  tax  fails 
by  reason  of  illegality  of  assessment. 

Syl.  14  ("VIII,  853).     Following  state  statutory  construction. 

Approved  in  Columbia  Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130 
Fed.  175,  under  Georgia  constitution,  city  cannot  exempt  water  com- 
pany from  payment  of  ad  valorem  tax  on  its  property  for  city  pur- 
poses. 


92  U.  S.  618-637  Notes  on  U.  S.  Ecports.  744 

Syl.  15  ("VTII,  853).  State  tax  on  proportional  mileage. 

Approved  in  State  v.  Canadian  Pac.  Ry.  Co.,  100  Me.  207,  60  Atl. 
903,  where  railroad  is  chartered  to  operate,  in  connection  with  trans- 
portation business,  steamer  lines  across  waters  beyond  its  termini, 
length  of  such  lines  should  be  excluded  from  computation  in  deter- 
mining franchise  tax;  Chicago  etc.  R.  Co.  v.  State,  128  Wis.  663, 
108  N.  W.  588,  upholding  Laws  1903,  p.  491,  c.  315,  applying  average 
rate  of  taxation  on  general  property  for  one  year  on  value  of  railway 
property  as  to  such  year. 

92  U.  S.  618-625,  23  L.  513,  LEWIS  v.  UNITED  STATES. 

Syl.  7   (VIII,  855).     Equity— Marshaling  assets. 

Approved  in  Harrigan  v.  Gilchrist,  121  Wis.  345,  99  N.  W.  975, 
receiver  may  burden  trust  fund  with  expense  of  converting  into 
money  property  in  which  he  has  only  equitable  title,  creditors  of  in- 
solvent having  property  as  collateral,  though  no  surplus  is  obtain- 
able therefrom. 

Distinguished  in  Van  Winkle  v.  Blachford,  54  W.  Va.  650,  46  S. 
E.  601,  creditor  of  insolvent,  after  having  applied  on  debt  due  him 
value  of  securities  in  his  hands,  can  prove  only  balance  due  him 
against  estate  of  insolvent. 

Syl.  8  (VIII,  855).     Pledgee  may  enforce  direct  remedy. 

Approved  in  Sternberger  v.  Sussman,  69  N.  J.  Eq.  200,  60  Atl.  19G, 
mortgagee  may  foreclose,  though  mortgage  is  also  lien  on  lands  in 
another  state  which  are  adequate  security. 

92  U.  S.  625-631,  23  L.  62S,  TOWN  OF  CONCOED  v.  PORTSMOUTH 
SAVINGS  BANK. 

Syl.  2  (VIII,  856).     Municipal  bonds  to  pay  railroad  donation. 

Approved  in  Paige  v.  Town  of  Rochester,  137  Fed.  665,  where  town 
railroad  aid  subscription  provides  that  selectmen  were  authorized 
to  contract  with  railroad,  which  contract  should  embody  terms  of 
"foregoing  note,"  making  of  contract  not  necessary  to  entitle  rail- 
road's receiver  to  benefit  of  subscription  on  compliance  with  terms 
of  note;  Farmers 'Loan  etc.  Co.  v.  Sioux  Falls,  131  Fed.  912,  city 
could  not,  under  Const.  S.  D.,  art.  13,  §  4,  as  amended  in  1902,  issue 
bonds  for  waterworks  on  note  taken  before  its  adoption,  under  stat- 
ute providing  that  majority  of  electors  should  be  determined  by  vote 
for  maj'or  at  last  preceding  city  election. 

92  U.  S.  631-637,  23  L.  631,  COUNTY  OF  MOULTRIE  v.  SAVINGS 
BANK. 

Syl.  3   (VIII,  857).     Municipal   aid  bonds — Subsequent  prohibition. 

Approved  in  May  v.  Cass  County,  12  N.  D.  142,  96  N.  W.  294,  where 
county  commissioners  issued  twenty-year  drainage  bonds  under  Rev. 
Codes   1899,   §   1474,  but   before   bonds   actually  signed   and   delivered 


,745  Notes  on  U.  S.  Eeports.  92  U.  S.  G65-728 

statute  amended  so  that  bonds  issued  thereunder  should  mature  in 
from  three  to  seven  years,  amendment  did  not  apply  to  such  bonds; 
Red  River  Furnace  Co.  v.  Tennessee  etc.  E.  R.  Co.,  113  Tenn.  716, 
87  S.  W.  1020,  where  after  popular  vote  council  passed  resolution 
authorizing  mayor  to  subscribe  for  stock,  but  no  subscription  made 
until  cin;ht  months,  later,  subscription  not  completed  until  actual  sub- 
scription, 

92  U.  S.  605  676,  23  L.  757,  CENTRAL  R.  R.  ETC.  CO.  v.  GEORGIA. 

Syl.  1  (VIII,  862).  Dissolution  of  old  by  consolidation  of  cor- 
porations. 

Api)roved  in  Gladding  v.  Saint  Matthews  Church,  25  R.  I.  635,  105 
Am.  St.  Rep.  904,  57  Atl.  863,  where  testatrix  bequeathed  property 
to  New  York  corporation,  but  before  her  death  corporation  consoli- 
dated with  another  under  N.  Y.  Laws  1896,  p.  23,  consolidated  corpo- 
ration does  not  take  under  will. 

92  U.  S.  695-698,  23  L.  763,  THE  ALABAMA  AND  THE  GAME- 
COCK. 

Syl.   1   (Vlir,  866).     Collision— Both  vessels   at  fault. 

Distinguished  in  The  Eagle  Point,  136  Fed.  1014,  whore  two  Brit- 
ish vessels  are  both  in  fault  for  collision  on  high  seas,  cargo  owner 
may  recover  full   damages  from  either  vessel. 

92  U.  S.  698-716,  23  L.  690,  HOT  SPRINGS  CASE. 

Syl.  3  (VIII,  867).  Reservation  to  government — Withdrawal  from 
pre-emption. 

Approved  in  McDonald  v.  Union  P.  R.  Co.,  70  Neb.  350,  97  N.  W. 
441,  state  court  has  no  jurisdiction  to  compel  conveyance  of  lands 
subject  to  homestead  entry  to  one  who  has  been  denied  privilege  of 
making  entry  by  federal  land  officials. 

92  U.  S.  716-723,  23  L.  764,  BURDELL  v.  DENIG. 

Syl.  3  (VIII,  868).     Profits  as  damages  for  patent  infringement. 

Distinguished  in  Brown  v.  Lanyon,  148  Feb.  839,  action  at  law  can- 
not be  maintained  for  sole  purpose  of  recovering  profits  made  by 
patent  infringer. 

92  U.  S.  724-728,  23  L.  767,  HAMMOND  v.  MASON  &  HAMLIN 
ORGAN  CO. 

Syl.  1  (VIII,  869.)     "Legal  representatives"  include  assignees. 

Approved  in  Lowry  v.  City  of  Duluth,  94  Minn.  99,  101  N.  W. 
1061,  under  Duluth  charter  requiring  affidavit  by  contractor  or  per- 
sonal representative  that  all  claims  for  labor  have  been  paid,  as- 
signee of  balance  due  on  contract  may  make  affidavit. 


92  U.  S.  733-760  Notes  on  U.  S.  Eeports,  746 

Syl.  3  (VIII,  870).     Demand  not  necessary  where  delivery  refused. 

Approved  in  Eoehford  v.  School  District,  17  S.  D.  544,  97  N.  W. 
747,  complaint  in  action  on  school  district  order  alleging  that  pay- 
ment refused    need  not  allege  demand. 

92   U.   S.   733-760,   23   L.   634,   LEAVENWORTH   ETC.   R.   R.    CO.   v 
UNITED   STATES. 

Syl.  2  (VIII,  870).  Statutes — Rights  against  government  not  im- 
plied. 

Approved  in  Story  v.  Woolverton,  31  Mont.  355,  78  Pac.  590,  fed- 
eral act  of  Feb.  13,  1891,  granting  Montana  one  section  of  land  of 
former  military  reservation  to  be  selected  so  as  to  embrace  buildings 
and  improvements  thereon,  did  not  grant  right  to  use  of  water .  of 
stream  from  which  government  had  taken  water  by  means  of  ditch 
across  other  lands. 

Syl.   3    (VIII,   871).     Land   grants   in   praesenti. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
334,  50  L.  504,  26  Sup.  Ct.  282,  doctrine  of  relation  protects  bona 
fide  purchaser  of  timber  lands  from  patentees  against  consequences 
of  entryman's  wrongful  conduct;  United  States  v.  Montana  Lumber 
etfc.  Co.,  196  U.  S.  577,  49  L.  605,  25  Sup.  Ct.  367,  until  government 
survey  of  odd  and  even  sections  within  limits  of  railroad  grant  of 
July  2,  1804,  government  may  recover  value  of  timber  cut  from  land; 
State  V.  Trustees  of  Internal  Improvement  Fund,  47  Fla.  322,  35  So. 
993,  applying  rule  in  construing  act  of  Congress  March  3,  1845, 
granting  school  lands  to  Florida;  Sage  v.  Rudnick,  91  Minn.  331,  100 
N.  W.  107,  applying  rule  to  grant  by  state  under  Sp.  Laws  1867,  p. 
11,  c.  9;  Okanogan  Co.  v.  Cheetham,  37  Wash.  687,  80  Pac.  263,  70 
L.  E.  A.  1027,  where  general  public  had  used  highway  for  seven 
years  over  public  lands  before  homestead  entry,  such  user  was  ac- 
ceptance of  grant  made  by  Rev.  St.  U.  S.,  §  2477;  dissenting  opinion 
in  Sage  v.  Eudnick,  91  Minn.  328,  98  N.  W.  90,  majority  holding  that 
time  during  which  right  of  plaintiff's  grantor  was  in  litigation  in  fed- 
eral land  office    does  not  count  in  computing  limitations. 

Syl.  6   (VIII,  873).     Indians'  right  of   occupancy. 

Approved  in  Winters  v.  United  States,  143  Fed.  748,  grantee  of 
public  lands  outside  of  Ft.  Belknap  reservation  could  not*  acquire 
exclusive  right  to  waters  of  Milk  river  for  irrigation  under  desert 
land  act  of  1891. 

Syl.  7  (VIII,  874).  Lands  appropriated  severed  from  public  do- 
main. 

Approved  in  United  States  v.  Chicago  etc.  Ry.  Co.,  148  Fed.  890, 
893,  where  at  time  of  passage  of  railroad  grant  act  and  at  time  of 
filing  location  map  lands  within  place  limits  were  selected  by  state 
agents  as  swamp  lands,  but  selections   not   approved,  such  lands   not 


747  Notes  on  U.  B.  Reports.  92   U.  S.  761-766 

excluded  from  grant;  Oregon  etc.  R.  Co.  v.  United  States,  148  Fed. 
GOG,  and  United  States  v.  Oregon  etc.  R.  Co.,  143  Fed.  771,  both 
holding  railroad  grant  of  July  25,  1866,  did  not  embrace  land  which 
at  time  of  passage  of  act  was  subject  to  live  homestead  entry,  thougli 
entry  relinquished  prior  to  filing  of  map  of  definite  location;  North- 
ern Lumber  Co.  v.  O'Brien,  139  Fed.  616,  619,  withdrawal  of  public 
laiuls  along  route  of  railroad  in  aid  of  which  land  grant  made,  by 
land  officials  before  definite  location  of  road,  excludes  them  from 
subsequent  grant;  Gibson  v.  Anderson,  131  Fed.  42,  65  C.  C.  A.  277, 
where  mining  locations  on  Indian  reservation  made  on  day  act  sul)- 
jecting  such  lands  to  mineral  entry  passed,  but  on  same  day  resolu- 
tion jiassod  suspending  operation  of  act  until  later  day,  right  to  lo- 
cate suspended;  Scott  v.  Carew,  196  U.  S.  Ill,  49  L.  406,  25  Sup. 
Ct.  193,  under  act  of  April  22,  1826,  lands  appropriated  for  military 
reservation  could  not  be  pre-empted  till  post  abandoned;  State  v. 
Trustees  of  Internal  Improvement  Fund,  47  Fla.  325,  35  So.  995, 
swiiinj)  land  acts  of  Congress  of  Sept.  28,  1850,  and  March  3,  1857, 
do  not  embrace  lands  granted  to  Florida  by  act  of  March  3,  1845. 

92  U.  S.  761-766,  23  L.  769,  NEWHALL  v.  SANGER. 

Syl.  1  (VIII,  877).     What  lands  are  public  lands. 

Approved  in  United  States  v.  Chicago  etc.  Ry.  Co.,  148  Fed.  89."), 
where  at  time  of  passage  of  act  of  May  12,  1864,  granting  to  Iowa 
state  aid  lands,  and  at  time  of  filing  railroad  location  map,  certain 
lands  within  place  limits  were  selected  by  state  agents  as  swam  > 
lands,  but  selections  not  approved,  such  lands  passed  by  grant;  Mor- 
ris v.  Bean,  146  Fed.  433,  determining  right  to  appropriate  wateri 
running  through  Indian  reservation;  Northern  Lumber  Co.  v.  O'Brici', 
139  Fed.  616,  withdrawal  of  public  lands  along  route  of  railroad  in 
aid  of  which  land  grant  made,  by  land  officials  before  definite  loca- 
tion of  road,  excludes  them  from  subsequent  grant. 

Syl.  3  (VIII,  878).     Lands  within  sub  judice  Mexican  grant. 

Approved  in  Scott  v.  Carew,  196  U.  S.  Ill,  49  L.  406,  25  Sup.  Ct 
193,  under  act  of  April  22,  1826,  lands  appropriated  for  military  res- 
ervation could  not  be  pre-empted  till  post  abandoned;  United  States 
V.  Chicago  etc.  Ry.  Co.,  148  Fed.  889,  where  at  time  of  passage  of  land 
grant  act  and  at  time  of  filing  location  map,  certain  lands  within 
place  limits  were  selected  by  state  agents  as  swamp  lands,  but  se- 
lections not  approved,  such  lands  passed  by  grant;  United  States  v. 
Tully,  140  Fed.  904,  determining  whether  lands  occupied  but  not 
legally  reserved  for  military  post  were  such  so  as  to  give  federal 
court  jurisdiction  over  crime  committed  thereon;  Southern  Pac.  R. 
Co.  V.  United  States,  133  Fed.  666,  66  C.  C.  A.  581,  where  at  time 
of  attaching  of  railroad  land  grant  certain  lands  within  place  limits 
were    within    boundaries   of   Mexican    grant    as    previously    surveyed. 


93  U.  S.  4-24  Notes  on  U,  S.  Keports.  748 

railroad   grant   did  not   include   sucli  lands,   though   on   later   survey 
some  of  such  land  excluded. 

Syl.  4  (VIII,  879).     Statutes — Importing  words  to  change  meaning. 

Approved  in  United  States  v.  Simon,  146  Fed.  94,  under  Bankr. 
Act  1898,  c.  541,  §  7,  providing  that  no  testimony  given  by  bankrupt 
shall  be  used  against  him  in  criminal  proceeding,  bankrupt  cannot 
be  convicted  of  perjury  for  false  testimony  given  in  support  of  claim 
filed  against  bankrupt  estate. 


XCIII  UNITED  STATES. 


93  U.  S.  4-14,  23  L.  782,  SOUTH  CAROLINA  v.  GEORGIA. 

Syl.  7  (Vni,  882).  Commerce — Removal  of  obstructions  to  navi- 
gation. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  386,  up- 
holding Comp.  St.  1901,  p.  3545,  requiring  alteration  of  bridges  on 
determination  of  Secretary  of  War  that  bridge  obstructs  navigation. 

Syl.  9  (Vni,  883).  Commerce — Harbor  improvement  acts — Secre- 
tary of  War. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  387,  up- 
holding Comp.  St.  1901,  p.  3545,  requiring  alteration  of  bridges  in 
determination  of  Secretary  of  War  that  bridge  obstructs  navigation. 

93  U.  S.  18-24,  23  L.  787,  EX  PARTE  PARKS. 

Syl.  1  (VIII,  883).     Supreme  court — Matters  reviewable. 

Approved  in  Bradford  v.  Southern  Ry.  Co.,  195  U.  S.  250,  49  L, 
181,  25  Sup.  Ct.  55,  writs  of  error  from  circuit  court  of  appeals  can- 
not   be   prosecuted   without   security  for   costs. 

Syl.  2   (VIII,  884).     Matters  reviewable  on  habeas  corpus. 

Approved  in  Hyde  v.  Shine,  199  U.  S.  83,  50  L.  97,  25  Sup.  Ct. 
7G0,  sufficiency  of  indictment  not  reviewable  on  habeas  corpus  to 
sustain  removal  to  another  district;  Dimmick  v.  Tompkins,  194  U. 
S.  552,  48  L.  1115,  24  Sup.  Ct.  780,  error  in  sustaining  indictment 
which  fails  to  charge  with  sufficient  certainty  same  particular  fact 
not  reviewed  on  habeas  corpus  after  conviction;  Kepner  v.  United 
States,  195  U.  S.  130,  49  L.  124,  24  Sup.  Ct.  797,  arguendo. 

Syl.  3   (VIII,  885).     Habeas  corpus — Lack  of  jurisdiction. 

Approved  in  Jamison  v.  Wunbish,  130  Fed.  361,  discharging  on 
habeas  corpus  one  sentenced  by  police  court  for  miuor  offense  to 
seven   months   on   chaiu-gaug;     Ex   parte   Harlan,   1    Okl.   50,   27   Pac. 


749  Notes  on  U.  S.  Reports.  93  U.  S.  24-37 

921,  habeas  corpus  does  not  lie  where  trial  court  acquired  jurisdic- 
tion of  subject  matter  and  of  person  to  determine  whether  indict- 
ment sufficiently  charged  perjury;  dissenting  opinion  in  Rush  v. 
Buckley,  100  Me.  338,  61  Atl.  781,  70  L.  R.  A.  464,  arguendo. 

Syl.  8  ("VIII,  887).     Habeas  corpus — Jurisdiction  only  inquired  into. 

Approved  in  Ex  parte  Moran,  144  Fed.  601,  604,  upholding  jurisdic- 
tion of  circuit  court  of  appeals  on  habeas  corpus  to  review  jurisdic- 
tion of  territorial  court  to  imprison  one  convicted  of  capital  crime. 

Syl.  9  (VIII,  887).  Habeas  corpus — Review  of  sufficiency  of  indict- 
ment. 

Approved  in  Ex  parte  Moran,  144  Fed.  604,  refusing  to  discharge 
on  habeas  corpus  one  convicted  by  territorial  court  under  indictment 
by  illegally  selected  and  disqualified  grand  jurors. 

93  U.  S.  24-37,  23  L.  789,  NEW  YORK  LIFE  INS.  CO.  v.  STATHAM. 

Syl.  1  (VIII,  887).     Life  policy  not  contract  for  year. 

Approved  in  Stramback  v.  Fidelity  etc.  Ins.  Co.,  94  Minn.  287,  102 
N.  W.  733,  and  Stinchcombe  v.  New  York  Life  Ins.  Co.,  46  Or.  321, 
80  Pac.  215,  both  following  rule;  Provident  Sav.  Life  etc.  Soc.  v. 
Taylor,  142  Fed.  712,  affirming  Taylor  v.  Provident  Sav.  Life  etc. 
Soc,  134  Fed.  934,  applying  rule  to  policy  running  for  five  years  pro- 
viding for  payment  of  first  premium  in  advance  and  for  payment  of 
equal  sum  every  year. 

Syl.  4  (VIII,  8S9).  Insurance — Forfeiture  for  nonpaymQnt  of 
premiums. 

Approved  in  Nederland  Life  Ins.  Co.  v.  Minert,  199  U.  S.  181,  50 
L.  143,  26  Sup.  Ct.  15,  prefixing  words  "conditions  of  your  policy 
provide"  to  notice  of  time  for  payment  of  premium  required  by  stat- 
ute  does   not   render   notice   insufficient. 

Distinguished  in  Battin  v.  Northwestern  Mut.  L.  Ins.  Co.,  130  Fed. 
876,  65  C.  C.  A.  358,  declaration  on  policy  alleging  that  when  pre- 
mium became  due  insured  paid  less  sum  which  was  accepted  on  ac- 
count and  credit  given  for  balance,  is  sufficient  allegation  of  waiver 
of  clause  forfeiting  policy  for  nonpayment. 

Syl.  5   (VIII,  889).     Insurance — Premiums — Time  of  essence. 

Approved  in  M'Dougald  v.  New  York  Life  Ins.  Co.,  146  Fed.  679, 
where  insurer  made  no  attempt  to  cancel  California  policy  until  af- 
ter lapse  of  one  year  after  default  in  premium,  Laws  N.  Y.  1897, 
p.  92,  §  2,  prohibiting  forfeiture  for  nonpayment  within  one  year 
unless  notice  mailed  to  insured,  is  not  applicable;  Mutual  Life  Ins. 
Co.  V.  Blair,  130  Fed.  974,  where  equity  has  jurisdiction  of  persons 
and  subject  matter  of  bill  to  cancel  policy  for  fraud  prior  to  in- 
sured's death,  death  of  insured  before  answer  and  action  on  policy 
do    not   deprive    court   of   jurisdiction;   London   etc.   Accident    Co.    v. 


33  U.  S.  38-63  Notes  on  U.  S.  Eeports.  750 

Siwy,  35  Ind.  App.  346,  66  N.  E.  483,  where  employer's  liability  pol- 
icy required  assured  to  give  immediate  notice  of  claim  on  account 
of  accident  to  employee,  failure  to  give  notice  immediately  works  for- 
feiture; Supreme  Lodge  K.  of  H.  v.  Jones,  35  Ind.  App.  130,  69 
N.  E.  721,  applying  rule  to  fraternal  benefit  insurance. 

Distinguished  in  Graham  v.  Security  Mut.  Life  Ins.  Co.,  72  N.  J. 
L.  304,  62  Atl.  683,  holding  provision  in'  life  policy  as  to  forfeiture 
for  nonpayment  of  premium  waived;  Aetna  Life  Ins.  Co.  v.  Fallow, 
110  Tenn.  729,  77  S.  W.  939,  where  according  to  course  of  business 
between  insurer's  general  agent  and  insured  latter  directed  to  retain 
premiums  till  called  for,  insurer  estopped  to  deny  liability  for  failure 
to  pay   premium  prior  to  accident. 

Syl.   11    (VIII,  891).     What  is  value   of  insurance   policy. 

Approved  in  Mutual  etc.  Life  Assn.  v.  Eerrenbach,  144  Fed.  346, 
damages  for  wrongful  cancellation  of  policy  for  nonpayment  of  pre- 
miums which  were  in  form  of  assessments  are  amount  of  policy 
less  cost  of  carrying  it  to  maturity,  on  six  per  cent  basis  as  of  date 
of   cancellation. 

93  U.  S.  38-41,  23  L.  794.     TERRY  v.  ABRAHAM. 

Syl.   1    (VIII,   892).     Modification   of   decree   on   appeal — Parties. 

Approved  in  Graj^  v.  Grand  Forks  etc.  Co.,  138  Fed.  345,  346,  on 
appeal  by  bankruptcy  trustee  from  bankruptcy  court  decree  allowing 
claims  for  expenses  of  administration,  claimants  must  be  before  court 
to  warrant  determination  of  question. 

93  U.  S.  46-55,  23  L.  797,  BEAVER  v.  TAYLOR. 

Syl.  4   (VIII,  894).     Object  of  exception  to   instructions. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  Min.  etc.  Co.,  147  Fed. 
908,  where  judge  after  instructing  jury,  but  before  sending  them  out, 
retired  to  chambers  with  counsel  and  there  heard  and  allowed  ex- 
ceptions, he  need  not  afterward  allow  further  exceptions. 

93  U.  S.  55-G3,  23  L.  798,  GRYMES  v.  SANDERS. 

Syl.  1  (VIII,  895).     Equitable  relief  for  mistake  of  fact. 

Approved  ,in  Vallentyne  v.  Immigration  Land  Co.,  95  Minn.  198, 
103  N.  W.  1029,  refusing  to  rescind  executory  contract  for  sale  of 
land  on  ground  of  mistake  not  mutual;  Travelers'  Ins.  Co.  v.  Jones, 
32  Tex.  Civ.  149,  73  S.  W.  979,  applying  rule  with  reference  to  con- 
tract of  insurance  requiring  payments  of  premium  in  installments 
where   insured   only   made   mistake. 

Syl.  2  (VIII,  895).     Equitable  relief  for  mistake — Negligence. 

Approved  in  Newman  v.  Kay,  57  W.  Va.  125,  49  S.  E.  936,  contract 
for  sale  of  land  in  gross  cannot  be  rescinded  because  of  mutual  mis- 
take as  to   quantity  of  land  sold,  where  no  fraud  shown. 


751  Notes  on  U.  S.  Reports.  93  U.  S.  72-78 

Syl.  3   (VI TT,  89G).     Rescission  of  contract  for  fraud — Diligence. 

Approved  in  Richardson  v.  Lowe,  149  Fed.  628,  where  four  months  af- 
ter possession  defendant  learned  of  misrepresentations  as  to  richness 
of  mines  but  continued  to  work  them  for  two  years,  he  cannot  set 
up  fraud  in  defense  of  suit  to  foreclose  purchase  money  mortgage; 
Burk  V.  Johnson,  146  Fed.  218,  when  purchaser  of  assignment  of  right 
to  organize  burial  associations  under  copyrighted  plan  discovered 
falsity  of  seller's  representations  within  month  after  sale,  but  con- 
tinued to  operate  under  contract  for  over  one  year,  fraud  waived; 
Burnes  v.  Burncs,  137  Fed.  800,  70  C.  C.  A.  357,  applying  rule  to  fam- 
ily settlement  of  estate;  Russell  v.  Russell,  129  Fed.  439,  widow  not 
barred  by  laches  from  maintaining  suit  to  set  aside  antenuptial  agree- 
ment for  fraud,  instituted  immediately  after  losing  prior  suit  for 
its  reformation  where  she  always  asserted  invalidity  of  agreement; 
Reeley  v.  Sceley-Howe-Le  Van  Co.,  130  Iowa,  629,  631,  105  N.  W. 
nSl,  382,  where  sale  induced  by  fraudulent  representations  of  buyer, 
and  latter  sold  some  of  goods  and  seller  attempted  to  collect  purchase 
price  on  all,  seller  ratified  entire  sale;  Spcicher  v.  Thompson,  141 
Mich.  666,  104  N.  W.  1108,  where  purchasers  of  majority  stock  of 
corporation  became  its  managers,  continued  business  after  learning 
of  fraud  on  part  of  sellers ;Pattcrson  v.  Hewitt,  11  N.  M.  42,  66  Pac. 
564,  55  L.  R.  A.  658,  applying  rule  with  reference  to  assertion  of 
claims  arising  out  of  verbal  agreement  with  reference  to  abandon- 
ment of  conflicting  mining  locations  and  making  of  new  locations; 
Burnham  v.  Burnliam,  119  Wis.  516,  97  N.  W.  179,  where  one  ex- 
pressed approval  of  deed  and  settlement,  and  after  employing  coun- 
j-el  to  contest  same  for  fraud  procured  mortgage  to  pay  debts  in  pur- 
!:uance  of  settlement,  he  ratified  same. 

93  U.  S.  72-78,  23  L.  806,  CHEMUNG  CANAL  BANK  v.  LOWERY. 

Syl.  2   (VIII,  900).     Demurrer  raising  defense  of  limitations. 

Approved  in  Providence  Gold  Min.  Co.  v.  Marks,  7  Ariz.  79,  60  Pac. 
940,  in  action  to  estaljlish  adverse  claim  to  mining  location  issue  that 
action  not  brought  within  thirty  days  after  adverse  claim  filed,  as 
required  by  XJ.  S.  Rev.  St.,  §  2326.  cannot  be  raised  on  motion  for  judg- 
ment or  to  strike  comi)laint  from  files. 

Syl.  3  (VIII,  901).  Following  state  practice — Demurrer  for  limita- 
tions. 

Approved  in  J.  W.  Bishop  Co.  v.  Shelhorse,  141  Fed.  646,  under  Vir- 
ginia practice  declaration  in  action  for  wrongful  death  alleging  in 
one  count  separate  acts  of  negligence,  any  one  of  which  would  constitute 
sufficient  cause  for  action,  but  which  may  have  beeu  concurrent  causea 
producing  injury,  is  prjper. 


93  U.  S.  78-108  Notes  on  U.  S.  Eeporta.  752 

93  U.  S.  78-85,  23  L.  807,  EYAN  v.  CAETER. 

Syl.  3   (VIII,  901).     Title— Statute  confirming  land  claims. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  628,  629,  631,  72  Pac. 
31,  32,  when  Congress  confirmed  Mexican  grant  as  recommended  by  New 
Mexico  Surveyor  General,  it  adjudicated  title  valid  for  all  laud  claimed; 
Kneeland  v.  Korter,  40  Wash.  469,  82  Pac.  611,  1  L.  E.  A.  (N.  S.) 
745,  where  tide  land  between  high  and  low  water  mark  within  place 
limits  of  railroad  grant  had  been  surveyed  and  defined  and  railroad 
had  performed  conditions  before  state  admitted,  railroad  entitled  to 
land  under  constitution  by  which  state  disclaimed  title  to  patented  tide 
lands,  though  patent  issued  after  constitution  adopted. 

Syl.  4   (VIII,  902).     Statutes — Exceptions  in   proviso. 

Approved  in  Long  v.  Pennsylvania  E.  Co.,  149  Fed.  600,  under  P.  L. 
N.  J.  1906,  p.  525,  authorizing  actions  by  married  woman  in  own  name 
for  torts  against  her  or  her  separate  property,  husband  is  improper 
party;  Gould  v.  New  York  Life  Ins.  Co.,  132  Fed.  930,  under  proviso 
to  Bankr.  Act  1898,  §  70a,  subd.  5,  giving  right  to  bankrupt  to  retain 
life  policy  having  surrender  value  by  paying  value  to  trustee,  policy 
having  no  valid  value  as  assets  does  not  pass  to  trustee. 

93  U.  S.  92-96,  23  L.  815,  DEESSER  v.  MISSOURI  &  IOWA  EY.  & 
CON.  CO. 

Syl.   5    (VIIT,   905).     Amount   recoverable   by  bona   fide   purchaser. 

Approved  in  Gamble  v.  Eural  Ind.  School  Dist.,  132  Fed.  524,  pur- 
f^liaser  of  overdue  and  dishonored  municipal  bond  of  face  value,  including 
interest  of  over  $2,000,  for  $50,  bond  being  invalid  in  hands  of  original 
holder,  of  which  purchaser  had  notice,  can  recover  only  purchase  price 
though  seller  was  bona  fide  purchaser. 

93  U.  S.  99-108,  23  L.  819,  SHEELOCK  v.  ALLING. 

Syl.  4   (VIII,  "908).     Legislation  affecting  interstate  commerce. 

Approved  in  Howard  v.  Illinois  Central  E.  Co.,  148  Fed.  1001,  hold- 
ing void  employer's  liability  act  of  1906;  Kavanaugh  v.  Southern  Ey. 
Co.,  120  Ga.  63,  47  S.  E.  527,  upholding  Civ.  Code  1895,  §  2298,  re- 
lating to  liability  of  connecting  railroads  for  through  shipments;  Com- 
monwealth V.  Strauss,  191  Mass.  555,  78  N.  E.  139,  upholding  Eev! 
Laws,  c.  56,  §  1,  prohibiting  persons  doing  business  in  state  from  mak- 
ing it  condition  of  sale  of  goods  that  purchaser  shall  not  deal  in  goods 
of  others;  People  v.  Eeardon,  184  N.  Y.  457,  112  Am.  St.  Eep.  646,  77 
N.  E.  979,  upholding  Laws  1905,  pp.  474,  477,  §§  315,  324,  imposing 
tax  on  transfers  of  corporate  shares;  Walker  v.  Southern  Ey.  Co.,  137 
N.  C.  168,  49  S.  E.  86,  upholding  Acts  1903,  p.  999,  penalizing  railroad 
failing  to  transport  goods  received  for  shipment  to  place  within  state, 
for  more  than  four  days  after  their  receipt.  See  98  Am.  St.  Eep.  607, 
note. 


753  Notes  on  IT.  S.  Reports.  93  U.  S.  108-130 

S)l.  6  (VIII,  909).  Congressional  regulation  of  interstate  commerce 
exclusive. 

Approved  in  Howard  v.  Illinois  Central  R.  Co.,  148  Fed.  1002,  hold- 
ing  void   employer's  liability   act    of   1906. 

93  U.  S.  108-116,  23  L.  822,  TIPPECANOE  CO.  COMMISSIONERS  v. 

LUCAS. 

Syl.   5    (VIII,  912).     Municipalities — State  may   restrict   powers. 

Approved  in  Worcester  v.  Worcester  etc.  St.  Ry.  Co.,  196  U.  S. 
550,  49  L.  596,  25  Sup.  Ct.  327,  city  cannot  invoke  contract  clause  of 
constitution  against  abrogation  by  state  statute  of  provisions  of  contract 
between  railroad  and  city  with  reference  to  street  paving;  Augusta  v. 
Augusta  Water  Dist.,  101  Me.  152,  63  Atl.  665,  Augusta  Water  District 
is  municipal  corporation  and  under  Rev.  St.,  c.  9  §  6,  its  property  ia 
exempt  from  municipal  taxation;  Lincoln  Co.  v.  Brock,  37  Wash.  17, 
79  Pac.  478,  county  is  municipal  corporation  within  Const.,  art.  1,  §  16, 
providing  that  no  right  of  way  shall  be  appropriated  for  use  of  any 
corporation  other  than  municipal,  until  compensation  made;  dissenting 
opinion  in  Ex  parte  Lewis,  45  Tex.  Cr.  38,  108  Am,  St.  Rep.  929,  73 
S.  W.  824,  majority  holding  void  Galveston  special  charter  creating 
board  of  commissioners,  two  of  whom  to  be  locally  elected  and  three 
appointed  by  governor. 

Syl.  7   (VIII,  913).     Legislative  control  over  municipal  property. 

Approved  in  Worcester  v.  Worcester  etc.  St.  Ry.  Co.,  196  U.  S.  551, 
49  L.  596,  25  Sup.  Ct.  327,  city  cannot  invoke  contract  clause  of  con- 
stitution against  abrogation  by  state  statute  of  provisions  of  contract 
between  city  and  street  railway  with  reference  to  street  paving. 

93  U.  S.  116-123,  23  L.  825,  HOME  INS.  CO.  v.  CITY  COUNCIL  OF 
AUGUSTA.  ■ 

Syl.  4  (A^III,  914).  Contracts — Taxation — Foreign  corporations  do- 
ing business. 

Approved  in  Bishoff  v.  State,  43  Fla.  80,  30  So.  812,  ordinance  im- 
posing occupation  tax  does  not  create  contract  right ;  Norfolk  etc.  Ry.  Co. 
V.  Suffolk,  103  Va.  501,  49  S.  E.  G59,  Suffolk  Charter,  §  18,  providing  for 
occupation  tax,  authorizes  license  tax  on  railroad  doing  business  in  town, 
though  it  is  liable  to  penalty  under  statute  for  failure  to  do  business. 

93  U.  S.  124-130,  23  L.  826,  COUNTY  OF  CALHOUN  v.  AMERICAN 
EMIGRANT  CO. 

Syl.   3    (VIII,   914).     Delivery   of   deed   in   escrow— Title. 

Approved  in  Powers  v.  Rude,  14  Okl.  391,  79  Pac.  93,  where  deed  de- 
posited in  escrow  to  be  delivered  to  railroad  when  it  agreed  to  construct 
depot  in  certain  place,  grantee  acquires  no  title  by  obtaining  it  prior  to 
performance  of  condition. 
4S 


93  U.  S.  130-150  Notes  on  U.  S.  Ecports.  754 

Syl.  6   (VIII,  915).     Estoppel  by  acts  of  corporation. 

Approved  in  Stewart  v.  "Wright,  147  Fed.  328,  holding  bank  liable  for 
acts  of  cashier  in  assisting  in  furtherance  of  scheme  to  swindle  by  means 
of  fake  footraces  by  lending  banking   facilities  to   conspirators. 

93  U.  S.  130-143,  23  L.  833,  CLAFLIN  v.  HOUSEMAN. 

Syl.  2  (VIII,  915).  Effect  of  defendant's  bankruptcy  on  state  juris- 
diction. 

Approved  in  Jackman  v.  Eau  Claire  Nat.  Bank,  125  Wis.  481,  104  N. 
W.  103,  under  Bankr.  Act  1898,  §  23b,  state  court  has  jurisdiction  over 
action  by  trustee  to  recover  value  of  property  transferred  as  prefer 
ence. 

Syl.  5    (VIII,  916).     Concurrent  and  exclusive  jurisdiction. 

Approved  in  Jackman  v.  Eau  Claire  Nat.  Bank,  125  Wis.  482,  104 
N.  W.  103,  under  Bankr.  Act  1898,  §  23b,  state  court  has  jurisdiction 
over  action  by  trustee  to  recover  value  of  property  transferred  as  pref- 
erence. 

Syl.  10   (VIII,'  918).     State  suit  by  assignee  in  bankruptcy. 

Approved  in  United  States  etc.  v.  United  States  etc.  Guaranty  Co., 
78  Vt.  451,  63  Atl.  583,  action  in  name  of  United  States  on  contractor's 
bond  given  under  Comp.  St.  1901,  p.  2523,  may  be  brought  in  state 
court. 

93  U.  S.  143-150,  23  L.  855,  IIENDEICK  v.  LINDSAY. 

Syl.  3   (VIII,  919).     Damage  to  promisee  is  good  consideration. 

Approved  in  In  re  Dressier,  135  Fed.  498,  68  C.  C.  A.  207,  where 
securities  loaned  by  claimant  to  A.,  who  pledged  them  to  secure  loans 
and  thereafter  bankrupt  of  which  A.  is  a  member  took  over  all  prop- 
erty and  assumed  all  liabilities,  transaction  not  within  statute  of  frauds. 

Syl.  5    (VIII,  919).     Assumpsit  by  third  party  beneficiary. 

Approved  in  Fish  v.  First  Nat.  Bank,  150  Fed.  526,  where  articles 
of  agreement  recited  that  one  partner  had  given  note  for  money  used 
for  firm  and  provided  that  same  should  be  firm  obligation,  but  Ijcfore 
maturity  firm  dissolved  and  other  partner  succeeded  to  business  and 
assumed  liabilities,  partner  is  liable  on  note;  Tucker  v.  Curtin,  148  Fed. 
934,  transfer  of  stock  by  husband  to  wife  as  gift  by  surrendering  old 
certificate  to  corporation  which,  by  his  direction,  issues  new  one  to  wife, 
is  transfer  through  third  person,  constituting  perfect  gift;  Foster  v. 
Leininger,  33  Ind.  App.  674,  72  N.  E.  105,  where  contract  for  release 
of  telephone  right  of  way  given  in  consideration  of  placing  telephone  in 
houses  of  parties  giving  release  and  in  plaintiff's  house,  plaintiff  could 
sue  for  failure  to  put  telephone  in  his  house  though  he  is  not  privity 
to   contract. 


755  Notes  on  U.  S.  Ecports.  93  U.  S.  150-1G3 

93  U.  S.  150-155,  23  L.  840,  O'HAEA  v.  MacCONNELL. 

Syl.  6  (VIII,  921).     Dismissal  of  appeal — Satisfaction  of  judgment. 

Approved  in  Hubbard  v.  State,  71  Ark.  469,  75  S.  W.  853,  defendant 
convicted  of  misdemeanor  by  executing  mortgage  to  secure  fine  does 
not  lose  right  to  appeal. 

Distinguislied  in  Betts  v.  State,  67  Neb.  206,  93  N.  W.  169,  respond- 
ent in  mandamus  who  has  performed  commands,  after  allowance  of 
supersedeas,  and  before  motion  for  new  trial,  disposed  of,  not  entitled 
to  review  of  question  whether  writ  should  have  been  granted. 

93  U.  S.  155-163,  23  L.  843,  KERRISON  v.  STEWART. 

Syl.  2  (VIII,  922).  Suit  by  trustees — Beneficiaries  not  necessary 
parties. 

Approved  in  Atlantic  Trust  Co.  v.  Chapman,  145  Fed.  823,  receiver 
appointed  at  foreclosur.e  suit  by  trustee  in  corporation  mortgage  need 
not  make  intervening  bondholders  parties  to  suit  against  trustee  for 
expenses  of  receivership;  In  re  E.  T.  Kenney  Co.,  136  Fed.  455, 
beneficial  interest  of  assignors  who  had  assigned  claims  against  bank- 
rupt to  committee  to  purchase  bankrupt's  property  and  sell  it  for  as- 
signors, in  net  proceeds  of  claims  assigned  after  administration  of 
trust  by  committee  not  provable  in  bankruptcy;  Virginia  etc.  Power 
Co.  V.  Fisher,  104  Va.  136,  51  S.  E.  203,  bondholder  cannot  foreclose 
railroad  mortgage  unless  trustee  has  been  requested  and  neglected  so 
to  do  or  is  unable  to  act;  Thompson  v.  Price,  37  Wash.  398,  79  Pac. 
952,  where  owner  of  fee  deeded  land  he  held  for  benefit  of  town  and  to 
be  sold  to  best  advantage  and  proceeds  applied  to  pay  grantor's 
debts,  grantors  not  necessary  parties  to  foreclosure  of  mortgage  exist- 
ing at   time   of   date. 

Distinguished  in  Bockfinger  v.  Foster,  10  Okl.  493,  62  Pac.  800,  in 
action  against  townsite  trustees,  to  whom  patent  issued,  to  declare 
trust  in  favor  of  adverse  claimant,  townsite  lot  claimants  are  necessary 
parties. 

Syl.  3  (VIII,  923).     Beneficiaries  bound  by  judgment  against  trustee. 

Approved  in  In  re  Tiffany,  147  Fed.  316,  state  judgment  in  suit  by 
bankrupt's  trustee,  refusing  to  set  aside  transfer  of  property  made 
by  bankrupt  as  fraudulent,  concludes  creditors,  who  cannot  set  up 
same  to  defeat  discharge  in  bankruptcy;  National  Salt  Co.  v.  In- 
graham,  143  Fed.  809,  determining  extent  of  bar  of  judgment  against 
corporation's  trustee  to  hold  stock  on  rights  of  certificate  holder; 
Gray  v.  Grand  Forks  Merc.  Co.,  138  Fed.  345,  on  appeal  by  bankruptcy 
trustee  from  judgment  allowing  claims  for  expenses  of  administration, 
claimants  are  necessary  parties  to  determination  of  validity  of  judg- 
ment; Bowling  Green  Trust  Co.  v.  Virginia  etc.  R.  Co.,  132  Fed.  924, 
holders  of  minority  bonds  of  railroad  cannot  intervene  on  foreclosure 
of  mortgage  to  displacement  of  trustee  suing  on  request  of  majority 
solely  on  ground  that  directors  are  bondholders  and  directors  of  rail- 
road; Oklahoma  City  v.  McMaster,  12  Okl.  584,  73  Pac.  1016,  holding 


93  U.  S.  1G3-169  Notes  on  U.  S.  Ecports,  756 

city  bound  by  judgment  against  townsite  trustees  and  in  favor  of 
occupying  claimants. 

93  U.  S.   163-169,  23  L.  858,  TILTON  v,  COFIELD, 

Syl.  5  (VIII,  925).     Amendment  introducing  new  cause  of  action. 
Approved  in  Dunn  v.  Mayo  Mills,  134  Fed.   806,  67  C.   C.  A.  450, 
upholding  allowance  of  amendment  in  action  for  balance  due  on  con- 
tract, with  reference  to  statement  of  claim. 

Syl.  7  (VIII,  925).     Amendment  of  pleading  attachment. 

Approved  in  First  Nat.  Bank  v.  Fish,  2  Alaska,  350,  upholding 
amendment  of  undertaking  on  attachment  before  judgment;  Kipp  v. 
Burton,  29  Mont.  102,  101  Am.  St.  Eep.  44,  74  Pac.  87,  63  L.  E.  A. 
325,  sale  made  under  execution  defective  for  want  of  seal  made  prior 
to  act  of  1899,  p.  145,  was  validated  without  amendment  by  court; 
Jaffray  v.  Wolf,  4  Okl.  321,  47  Pac.  502,  amendment  of  attachment  affi- 
davit showing  defendant  had  entirely  disposed  of  property  purchased 
of  plaintiffs  and  that  plaintiffs  could  not  replevy  same,  is  proper. 

Syl.  8  (VIII,  926).     Collateral  attack  on  judgment. 

Distinguished  in  Mankato  v.  Barber  Asphalt  Pav.  Co.,  142  Fed.  341, 
defendant  in  state  court  is  not  concluded  by  judgment  therein,  where 
no  conflict  over  custody  of  specific  property  arises,  from  suing  in 
federal  court  on  same  cause  of  action. 

Syl.  10  (VIII,  926).     Purchase  of  property  pendente  lite. 

Approved  in  Miller  &  Lux  v.  Eickey,  146  Fed.  586,  corporation 
organized  by  defendant  in  federal  suit  to  which  he  has,  pendente  lite, 
conveyed  water  rights  in  litigation,  may  be  enjoined  from  prosecuting 
state  suit  to  determine  such  rights;  Hargrove  v.  Cherokee  Nation,  129 
Fed.  190,  63  C.  C.  A.  276,  in  suit  to  recover  land  by  Indian  tribesman 
under  30  Stat.  495,  §  3,  where  purchaser  is  brought  in  by  amended 
complaint  it  is  unnecessary  to  allege  that  membership  in  tribe  dis- 
allowed; Bergman  v.  Inman,  43  Or.  460,  99  Am.  St.  Eep.  771,  72  Pac. 
1087,  in  action  to  enforce  statutory  liability  against  one  destroying 
property  covered  by  logger's  lien,  domestic  judgment  'declaring  there 
was  lien  on  logs  when  removed  from  state  by  defendant  is  admissible; 
Scudder  v.  Cox,  35  Tex.  Civ.  417,  80  S.  W.  873,  purchaser  pendente 
lite  cannot  collaterally  attack  judgment. 

Distinguished  in  King  v.  Davis,  137  Fed.  240,  Va.  Code  1SS7,  § 
356G,  relating  to  lis  pendens,  does  not  apply  to  federal  courts; 
Powell  V.  National  Bank  of  Commerce,  19  Colo.  App.  69,  74  Pac.  540, 
where  complaint  filed  August  21st,  and  receiver  appointed  same  day, 
but  receiver  discharged  on  day  following  and  later  on  same  day 
defendant  executed  chattel  mortgage  to  one  having  notice  of  proceed- 
ings, and  on  August  29th,  order  of  discharge  vacated  and  order  of 
21st  reinstated,  chattel  mortgage  subject  to  receivership. 


757  Notes  on  IT.  S,  Eeporta.  93  U.  S.  1G9-188 

93  U.  S.  1G9-173,  23  L.  812,  FRENCH  v.  FYAN. 

Syl.    1    (VIII,   927).     Swamp   land   act — Grant   in   praesenti. 

Approved  in  Kittel  v.  Trustees  etc.  Improvement  Fund,  139  Fed. 
947,  upholding  Florida  grant  of  swamp  lands  before  identification  and 
patent   by   government. 

Syl.  3  (VIII,  928).     Conclusiveness  of  decision  of  special  tribunal. 

Approved  in  Semer  v.  Auditor  General,  133  Mich.  574,  95  N.  W.  734, 
where  lands  bid  off  to  state  for  taxes  for  more  than  eight  consecutive 
years  without  application  to  redeem  and  statutory  report  under  Acts 
1895,  No.  154,  §  127,  filed,  owner  could  not  attack  proceedings. 

Syl.  4  (VIII,  929).     Conclusiveness  of  issuance  of  land  patent. 

Approved  in  Le  Murehcl  v.  Teegarden,  133  Fed.  1827,  one  attacking 
land  patent  for  mistake  of  fact  must  plead  and  prove  evidence  before 
department  from  which  mistake  resulted,  particular  mistake  and  way 
in    which   it   occurred. 

Syl.  5   (VIII,  930).     Swamp  land  patents — Conclusiveness. 

Approved  in  United  States  v.  Chicago  etc.  Ey.  Co.,  148  Fed.  891, 
where  at  time  of  passage  of  railroad  grant  act  and  at  date  of  filing 
location  map  certain  lands  within  grant  were  embraced  in  lists  of  lands 
selected  by  state  as  swamp  lands,  which  list  filed  with  the  Land  De- 
partment, but  not  approved,  such  lands  not  excluded  from  grant; 
Kerns  v.  Lee,  142  Fed.  992,  acceptance  by  Land  Department  of  final 
proofs  from  homesteader  and  issuance  of  patent  is  conclusive  that 
land  was  not  swamp  at  time  of  passage  of  swamp  land  act;  Welsh  v. 
Callvert,  34  Wash.  255,  75  Pac.  873,  where  lands  were  sold  by  state  as 
second-class  tide  lands,  claim  by  subsequent  applicant  to  purchase 
thereof  as  oyster  lands  that  deed  did  not  include  lands  applied  for  is 
untenable. 

93  U.  S.  174-188,  23  L.  872,  BANK  OF  KENTUCKY  v.  ADAMS  EX- 
PRESS CO. 

Syl.  1  (VIII,  932).     Express  companies  are  common  carriers. 

Approved  in  Despeaux  v.  Pennsylvania  R.  Co.,  133  Fed.  1011,  where 
plaintiffs  filed  assumpsit  against  railroad  to  recover  for  unlawful 
discrimination  as  authorized  by  Pa.  P.  L.  72,  they  could  not,  fourteen 
years  thereafter,  amend  charging  defeadants  with  common-law  liability 
on  ground  that  charges  were  unreasonable;  Southern  Exp.  Co.  v. 
Rose  Co.,  124  Ga.  585,  53  S.  E.  186,  5  L.  R.  A.  (N.  S.)  619,  granting 
mandamus  at  suit  of  private  party  to  compel  express  company  to  trans- 
port   goods. 

Syl.  4  (VIII,  933).     Contract  limiting  carrier's  liability. 

Approved  in  Cau  v.  Texas  etc.  Ry.  Co.,  194  U.  S.  431,  48  L.  1057, 
24  Sup.  Ct.  663,  exemption  of  carrier  from  liability  for  damages 
by  fire  expressed  in  bill  of  lading  is  valid  though  option  to  ship 
under  common-law  liability  not  actually  presented  to  shipper;  Arthuf 


93  U.  S.  188-208  Notes  on  U.  S.  Eeports.  753 

V.  Texas  etc.  Ey.  Co.,  139  Fed.  130,  where  shipper  accepted  bill  of 
lading  for  transportation  of  cotton  containing  fire  exemption  clause 
without  requesting  rate  under  common-law  liability,  carrier  not  liable 
for  loss  by  fire  not  due  to  its  negligence;  Southern  Express  Co.  v. 
Eothenberg,  87  Miss.  659,  40  So.  65,  stipulations  in  contract  of  ex- 
press company  that  negligence  of  railroad  shall  not  be  imputed  to 
express  company  and  limiting  liability  for  loss  to  $50  irrespective  of 
value  of  package,  are  void. 

Syl.  10  (VIII,  935).     Eailroad  as  express  company's  agent. 

Approved  in  American  Express  Co.  v.  Ogles,  36  Tex.  Civ.  409,  81 
S.  W.  1025,  where  express  company  obtained  from  railroad  a  train 
for  particular  shipment  of  stock,  shipment  being  accompanied  by 
express  messenger,  though  train  operated  by  railroad  crew,  express 
company  is  liable  for  railroad's  negligence. 

93  U.  S.  188-198,  23  L.  846,  UNITED  STATES  v.  FOETY-THREE 
GALLONS   OP  WHISKY. 

Syl.  1  (Vni,  938).     Eegulation  of  commerce  with  Indians. 

Approved  in  Eenfrow  v.  United  States,  3  Okl.  166,  41  Pac.  90, 
Indian  who  has  received  allotment  of  land,  taken  oath  of  allegiance 
and  become  elector  of  state,  is  within  inhibition  of  Eev.  St.,  §  2139, 
prohibiting  sale  of  liquor  to  Indians,  where  government  has  not  re- 
leased him  from  control  of  Indian  agent. 

Syl.  8  (VIII,  939).     Treaty  prevails  over  conflicting  state  statute. 

Approved  in  In  re  "Wyman,  191  Mass.  279,  77  N.  E.  380,  under 
Russian  treaty  of  1S32,  vice-consul  is  entitled  to  letters  of  administra- 
tion of  estate  of  Eusiian  citizen  to  exclusion  of  public  administrator. 

93  U.  S.  199-208,  23  L.  829,  OBER  v.  GALLAGHER. 

Syl.  8  (VIII,  940).    Equity  gives  complete  relief. 

Approved  in  Southern  Pac.  R.  Co.  v.  United  States,  133  Fed.  657, 
G6  C.  C.  A.  5S1,  upholding  equity  jurisdiction  over  suit  by  United 
States  against  railroad,  its  mortgagees  and  others  to  determine  what 
portion  of  lands  erroneously  patented  to  railroad  under  grant  are  bona 
fide  purchasers  for  cancellation  of  patents  to  lands  not  so  disposed 
of  and  for  accounting  for  moneys  received  by  railroad  for  lands  sold; 
In  re  Leeds  Woolen  Mills,  129  F«d.  926,  where  one  obtained  possession 
of  goods  from  bankruptcy  court's  receiver  which  latter  had  no 
authority  to  surrender,  and  sells  same,  bankruptcy  court  may,  in  suit 
to  compel  him  to  restore  it,  determine  question  of  ownership;  Clark  Co. 
Court  V.  Warner,  116  Ky.  807,  76  S.  W.  829,  where  after  appeal  to 
county  court  for  ferry  privilege  and  appeal  to  circuit  court  party  ap- 
peared, pending  such  cause,  county  court  of  county  on  other  side  of 
river  had  no  jurisdiction  of  application  by  such  party  for  identical 
ferry  privilege;  Cohe  v.  Ricketts,  111  Mo.  App.  110,  85  S.  W.  132, 
where  state  court  acquired  jurisdiction  of  suit  to  wind  up  affairs  of 
building  association  prior   to  federal  suit   for  same   persons,  it  could 


759  Notes  on  U.  S.  Eeports.  93  U.  S.  209-2.38 

finally  determine  same  notwithstanding  federal  suit;  McConnell  v. 
Combination  etc.  Co.,  30  Mont.  2.50,  104  Am.  St.  Rep.  703,  76  Pac. 
197,  though  complaint  in  action  against  corporation  oflficers  for  fraud- 
ulently misappropriating  funds  is  insufficient  to  consider  it  as  brought 
on  behalf  of  others  than  plaintiffs,  averment  that  they  bring  it  for 
others  as  well  is  immaterialj  Grogan  v.  Valley  Trading  Co.,  30  Mont. 
235,  76  Pac.  213,  in  action  to  redeem  where  deed  absolute  given  as 
security  for  debt,  court  may  determine  plaintiff's  right  of  possession 
where  defendant  makes  no  claim  except  under  deed. 

93  U.  S.  209-216,  23  L.  849,  SHERMAN  v.  BUICK. 

Syl.  1  (VIII,  941).     School  lands— Prior  settlement. 

Distinguished  in  Gonzales  v.  French,  4  Ariz.  82,  33  Pac.  503,  under 
Rev.  St.,  §§  1946,  2275,  where  settlers  on  school  section  failed  to  assert 
pre-emption  claim  after  survey,  but  sold  possessions,  purchaser  acquired 
no  interest  in  lands. 

93  U.  S.  217-224,  23  L.  860,  MORGAN  v.  LOUISIANA. 

Syl.  2  (VIII,  944).  Tax  exemption — Foreclosure  purchaser  of  rail- 
road. 

Approved  in  Rochester  v.  Rochester  Ry.  Co.,  182  N.  Y.  118,  74  N. 
E.  959,  70  L.  R.  A.  773,  where  street  railway  was  by  statute  exempt 
from  expense  of  repaving  between  tracks,  right  to  exemption  did  not 
pass  to  lessee. 

Syl.  3   (VIII,  946).     Term  "franchise"  defined. 

Approved  in  Wicomico  Co.  Conimrs.  v.  Bancroft,  135  Fed.  981,  under 
Code  Md.  ISSS,  art.  23,  §§  187,  188,  relating  to  formation  of  corpora- 
tion by  purchaser  on  foreclosure  of  railroad,  reorganized  company 
acquired  immunity  from  taxation  for  term  conferred  on  original  com- 
pany by  special  statutes;  Lake  Drummond  Canal  Co.  v.  Commonwealth, 
103  Va.  347,  352,  49  S.  E.  509,  511,  under  statute  providing  that 
cori>oration  organized  on  foreclosure  sale  of  corporation  shall  succeed 
to  all  rights  and  privileges  of  old,  immunity  from  taxation  granted 
to  original  compan}-"  did  not  pass  to  purchaser. 

93  U.  S.  242-247,  23  L.  779,  GARFIELDE  v.  UNITED  STATES. 

Syl.   3    (VIII,  951).     Cancellation   of  mail   contract — Indemnity. 

Approved  in  Slavens  v.  United  States,  196  U.  S.  236,  49  L.  460,  25 
Sup.  Ct.  229,  Postmaster  General  may  cancel  mail  contract  service 
under  which  has  been  materially  decreased  by  using  street-cars  to 
carry  mail. 

93  U.  S.  247-258,  23  L.  882,  WHITESIDE  v.  UNITED  STATES. 

Syl.  6   (VIII,  952).     Government  not  liable  for  officer's  acts. 

Approved  in  United  States  v.  Kauhoc,  147  Fed.  187,  where  one  liable 
on  postmaster's  bond  called  by  inspector  to  pay  embezzlement  and  on 
request   for   extension   of    time    inspector    g;;mted    extension    provided 


03  U.  S.  238-271  Notes  on  U.  S.  Eeports.  7G0 

note  executed  to  government  for  amount  of  default  note  was  void; 
Orange  Co.  v.  Texas  etc.  E.  E.  Co.,  35  Tex.  Civ.  363,  80  S.  W.  671, 
■where  tax  collector  collected  taxes  before  rolls  delivered  to  him  and 
failed  to  turn  in  taxes,  taxpayer  is  liable  therefor. 

93  U.  S.  258-266,  23  L.  893,  BAEKLEY  v.  LEVEE  COMMTSSIONEES. 

Syl.  1  (VIII,  953).  Mandamus  to  officers — Aboiitiou — Expiration 
of  term. 

Ajiproved  in  Marra  v.  San  Jacinto  etc.  Irr.  Dist.,  131  Fed.  790,  where 
irrigation  district  organized  under  Cal.  Acts  1887,  p.  29,  c.  34,  issued 
and  sold  bonds,  remedy  of  holder  thereof  after  judgment  and  execu- 
tion unsatisfied  was  mandamus  to  compel  levy  of  assessment  and  not 
suit  in  equity  for  receivership;  People  v.  Davidson,  2  Cal.  App.  99, 
83  Pac.  160,  effect  of  County  Government  Act,  §  56,  as  amended  in 
1901,  providing  that  in  townships  of  less  than  six  thousand  population 
there  shall  be  but  one  constable,  was  to  abolish  two  previously  existing 
offices  and  created  new  one,  and  former  incumbent  could  not  hold  over. 

93  U.  S.  2G6-271,  23  L.  896,  BEOUGHTON  v.  PENSACOLA. 

Syl.  1  (Vm,  954).  Corporation — Obligation  of  contracts  survives 
dissolution. 

Approved  in  Folsom  v.  Greenwood  Co.,  137  Fed.  450,  69  C.  C.  A. 
473,  where  statute  incorporated  township,  authorized  it  to  issue  aid 
bonds  and  provided  that  county  officer  levy  taxes  therefor  and  county 
boundaries  changed  so  that  township  put  in  another  county,  latter  is 
liable  for  bonds;  Ex  parte  Folsom,  131  Fed.  504,  holding  void  constitu- 
tional amendment  of  1902,  abolishing  organization  of  townships  which 
had  issued  aid  bonds;  Hopkins  v.  Crossley,  138  Mich.  565,  101  N.  W. 
823,  where  funds  of  volunteer  fire  department  created  by  statute  were 
placed  in  hands  of  trustees  for  specified  purpose,  after  purpose  of  cor- 
poration ceased  and  corporation  dissolved  fund  did  not  escheat  to 
state. 

Syl.  3  (Vm,  955).  Change  in  municipality's  charter — Same  terri- 
tory. 

Approved  in  Gamble  v.  Eural  etc.  School  Dist.,  146  Fed.  119,  fol- 
lowing rule;  Pepin  Tp.  v.  Sage,  129  Fed.  660,  64  C.  C.  A.  169,  de- 
termining liability  for  bonds  issued  by  village  which  was  created 
from  territory  of  city  and  township  and  later  act  creating  village 
repealed;  Pratt  v.  Dudley,  73  Ark.  541,  84  S.  W.  783,  construing  acts 
1901,  p.  27,  relating  to  creation  of  levee  districts;  Board  Co.  Commrs. 
Greer  Co.  v.  Clarke,  12  Okl.  209,  70  Pac.  210,  Greer  County,  Oklahoma, 
is  liable  for  valid  obligations  of  Greer  County,  Texas,  prior  to  transfer 
of  territory  of  such  county  to  former  state;  School  Dist.  No.  76  v.  Capi- 
tol Nat.  Bank,  7  Okl.  50,  54  Pac.  311,  school  warrant  drawn  by  county 
clerk  on  county  treasurer,  under  Laws  1890,  §  6412,  to  be  paid  out  of 
separate  school  fund,  is  not  township  or  school  district  obligation; 
City  of  Guthrie  v.  Wylie,  6  Okl.  66,  55  Pac.  105,  provisional  city  of 
Guthrie  did  not  become  de  jure  corporation  prior  to  its  attempt  to 


761  Notes  on  U.  S.  Eeports.     "        93  U.  S.  271-284 

comply  with  act  of  May  2,  1890,  relative  to  incorporation  of  villages; 
Blackburn  v.  Oklahoma  City,  1  Okl.  295,  31  Pac.  783,  Oklahoma  City 
on  becoming  de  jure  corporation  is  liable  for  contracts  made  while  it 
was  de  facto  corporation;  City  of  Guthrie  v.  Territory,  1  Okl.  202,  31 
Pac.  194,  11  L.  E.  A.  418,  where  village  has  changed  to  city  since 
liability  of  village  for  debts  of  provisional  organization  fixed  by 
legislature,  city  is  liable  for  such  debts. 

Distinguished  in  Folsom  v.  Greenwood  Co.,  130  Fed.  733,  county 
which  under  state  law  can  only  contract  such  debts  as  are  authorized 
by  statute  is  not  liable  on  bonds  issued  before  county  created  by 
township  which  formerly  was  part  of  another  county;  Wichman  v. 
Placerville,  147  Cal.  164,  81  Pac.  538,  Stat.  1859,  p.  77,  reincorporating 
Placerville  repealed  bond  act  of  1863,  authorizing  city  to  issue  bonds, 
and  reincorporated  city  could  not  issue  bonds. 

93  U.  S.  271-274,  23  L.  925,  DALTOX  v.  JENNINGS. 

Syl.  1   (VIII,  957).     Patent  for  hair  net— Want  of  novelty. 

Approved  in  West  Boylston  Mfg.  Co.  v.  Wallace,  137  Fed.  926, 
holding  void,  for  want  of  novelty,  Mitchelsen  patent  No.  718,499,  for 
tenting  cloth. 

93   U.  S.  274  284,  23  L.   914,  WINDSOR  v.  McVIEGH. 

Syl.  1  (VIII,  957).     Judgment  in  condemnation — Denial  of  hearing. 

Approved  in  King  v.  Davis,  137  Fed.  214,  where,  in  ejectment,  there 
was  no  necessity  for  inquiry  and  court  entered  order  reciting  that 
defendant's  time  to  plead  having  expired  cause  was  set  down  for 
inquiry,  recital  was  equivalent  to  order  making  office  judgment  final. 

Syl.  3  (VIII,  959).  Confiscation  proceedings — Refusal  to  hear 
owner. 

Approved  in  State  v.  Mosman,  112  Mo.  App.  548,  87  S.  W.  77,  under 
statute  requiring  trial  de  novo  on  justice  court  appeals,  circuit  court 
has  jurisdiction  to  try  justice  court  appeal  though  justice's  judgment 
is  in  excess  of  jurisdiction. 

Syl.  4  (VIII,  959).  Confiscation  proceedings — Sentence  without 
notice. 

Approved  in  Klenk  v.  Byrne,  143  Fed.  1010,  decree  foreclosing  tax 
lien  without  notice  to  owner  rendered  by  court  prior  to  suit  is  void; 
Aldredge  v.  School  District  No.  16,  10  Okl.  698,  65  Pac.  97,  con- 
demnation proceedings  are  void  where  no  notice  thereof  given  owner 
of  property  taken. 

Distinguished  in  Bennett  v.  Bennett,  16  Okl.  181,  83  Pac.  555, 
where  alimony  pendente  lite  granted  and  on  trial  day  defendant  in 
default  asks  leave  to  answer  without  obeying  alimony  order,  and 
court  grants  leave  conditioned  on  payment  of  alimony  in  seven  days, 
default  on  refusal  to  accept  such  leave  is  proper. 


93  U.  S.  274-2S4         .    Notes  on  U.  S.  Keports.  762 

Syl.  5   (VIII,  961).     Collateral  attack  on  judgment. 

Approved  in  C.  C.  Taft  Co.  v.  Century  Sav.  Bank,  141  Fed.  371, 
omission  in  petition  in  involuntary  bankruptcy  of  allegation  that 
defendant  owes  debts  amounting  to  $1,000  is  jurisdictional;  Sylvester 
V.  Willson,  2  Alaska,  335,  order  removing  administrator  must  show 
compliance  with  statutory  requirements;  In  re  Burkell,  2  Alaska,  110, 
where  justice  of  peace  erroneously  added  "at  hard  labor"  to  sen- 
tence, habeas  corpus  will  not  lie;  Wilson  v.  Gaylord,  77  Ark.  479,  92 
S.  W.  27,  proof  of  conveyance  pursuant  to  decree  in  suit  to  enforce 
payment  of  levee  taxes,  without  proof  of  title  to  land  in  parties, 
does  not  show  sufiicient  title  in  purchaser  to  maintain  ejectment; 
State  ex  rel.  Duffy  v.  Civil  District  Court  of  Orleans,  112  La.  196,  36 
So.  320,  failure  to  file  petition  for  prohibition  again'st  punishment  for 
contempt,  in  time,  is  immaterial  where  court  had  no  authority  to 
punish  contempt;  Keele  v.  Weeks,  118  Mo.  App.  273,  94  S.  W.  779, 
heir  whose  application  to  oppose  allowance  of  claim  against  decedent 
is  denied  may  pursue  remedy  under  Eev.  St.  1899,  §  214,  authorizing 
heir  to  move  to  vacate  order  allowing  claim;  Parker  v.  Lynch,  7  Okl. 
651,  56  Pac.  1089,  upholding  jurisdiction  over  suit  to  declare  resulting 
trust  in  lands  alleged  to  have  been  wrongfully  patented;  Turner  v. 
Barraud,  102  Va.  338,  46  S.  E.  322,  where  only  mention  of  infant 
defendant  as  shown  by  record  is  in  bill  and  exception  of  answer  of 
guardian  ad  litem  appointed  for  other  infant  defendants  whose  in- 
terests are  adverse  to  first,  use  of  phrase  "infant  defendants"  in 
decree  is  not  recognition  of  such  infant  as  party;  State  v.  Godfrey, 
54  W.  Va.  72,  46  S.  E.  192,  granting  prohibition  restraining  mayor 
from  aiding  at  trial  of  prosecution  of  invalid  gambling  ordinance; 
dissenting  opinion  in  Daniels  v.  Homer,  139  N.  C.  268,  51  S.  E.  1010, 
3  L.  E.  A.  (N.  S.)  997,  majority  upholding  Acts  Gen.  Assem.  1905, 
c.  292,  §  9,  relating  to  seizure  and  sale  of  appliances  used  in  illegal 
fishing;  Black  v.  Vermont  Marble  Co.,  1  Cal.  App.  722,  82  Pac.  1002, 
arguendo. 

Distinguished  in  Estate  of  Sutro,  143  Cal.  492,  77  Pac.  404,  failure 
to  file  complaint  within  time  required  by  Code  Civ.  Proc,  §  1664, 
relating  to  determination  of  rights  in  estate  being  administered,  does 
not  deprive  court  of  jurisdiction;  Bennett  v.  Bennett,  16  Okl.  184,  83 
Pac.  556,  where  alimony  pendente  lite  granted,  and  on  trial  day  de- 
fendant in  default  asks  leave  to  answer  without  obeying  alimony 
order,  and  court  grants  leave  conditioned  on  payment  of  alimony  in 
seven  days,  default  on  refusal  to  accept  such  leave  is  proper. 

Syl.  6   (VIII,  963).     Sentence  for  felony  without  jury  void. 

Approved  in  King  v.  Davis,  137  Fed.  213,  where,  in  ejectment,  there 
was  no  necessity  for  inquiry  and  court  entered  order  reciting  that 
defendant's  time  to  plead  having  expired  cause  was  set  down  for 
inquiry,   recital   was   equivalent   to   order   making   office   judgment   fiual. 


7G3  Notes  on  U.  S.  Ecports.  93  U.  S.  284-301 

93  U.  S.  284-2S8,  23  L.  918,  BIGELOW  v.  EEKKSHIEE  INS.  CO. 

Syl.  4   (VIII,  965).     Insurance — Exception  of  suicide — Insanity. 

Approved  in  Eobson  v.  United  Order  of  Foresters,  93  Minn.  26,  100 
N.  W.  382,  where  benefit  certificate  made  by-laws  and  medical  ex- 
amination part  of  contract,  and  by-laws  and  examination  provided 
for  avoidance  of  policy  in  case  of  suicide,  sane  or  insane,  where  in- 
sured committed  suicide  while  insane  society  not  liable;  Tisch  v. 
Home  Circle,  72  Ohio  St.  258,  74  N.  E.  191,  where  holder  of  benefit 
certificate  agreed  to  abide  by  by-laws,  and  by-law  adopted  after 
issuance  of  certificate  provided  for  forfeiture  of  certificate  in  case 
of  suicide,  sane  or  insane,  and  holder  committed  suicide,  society  not 
liable;  Childress  v.  Fraternal  Union  of  America,  113  Tenn.  256,  82  S. 
W.  833,  where  policy  contained  clause  making  it  incontestable  after 
two  years,  except  as  to  representations  as  to  age  and  use  of  alcohol, 
and  clause  reducing  indemnity  one-third  in  case  of  suicide,  beneficiary 
can  only  recover  one-third  in  case  of  suicide  after  two  years. 

93  U.  S.  291-301,  23  L.  898,  INDIANAPOLIS  &  ST.  L.  E.  E.  CO.  v. 
HOE  ST. 

Syl.   2    (VIII,   907).     Instructions  in   language   of   court — Eequests. 

Approved  in  Mathieson  Alkali  Works  v.  Mathieson,  150  Fed.  251, 
upholding  instructions  relating  to  effect  of  incompetent  work  in  action 
for  services  under  contract;  Armour  v.  Carlas,  142  Fed.  724,  applying 
rule  in  action  for  personal  injuries  sustained  by  collision  between 
two  carriages  at  crossing;  Mountain  Copper  Co.  v.  Van  Buren,  133 
Fed.  7.  66  C.  C.  A.  151,  applying  rule  in  action  for  wrongful  death  of 
servant. 

Syl.  3   (VIII,  96S).     Care  required  to   passenger  on   cattle   train. 

Approved  in  Indianapolis  etc.  Terminal  Co.  v.  Lawson,  143  Fed. 
837,  where  street-car  company  gave  free  use  of  cars  to  members  of 
convention  and  passenger  injured  in  collision,  company  is  liable  for 
want  of  ordinary  care,  and  burden  to  show  negligence  is  on  plaintiff; 
Southern  Ey.  Co.  v.  Burgess,  W3  Ala.  368,  42  So.  36,  upholding  in- 
struction in  action  for  injuries  to  passenger  on  freight  train,  that 
carrier  owes  to  passenger  duty  to  exercise  highest  degree  of  diligence 
known  to  very  diligent  persons  engaged  in  same  business;  Southern 
Ey.  Co.  V.  Cunningham,  123  Ga.  94,  50  S.  E.  980,  applying  rule  where 
passenger  on  mixed  train  was  injured  by  bumping  of  train  while 
standing  on  sidetrack;  Eadley  v.  Columbia  Ey.  Co.,  44  Or.  336,  346, 
75  Pac.  214,  217,  one  riding  on  engine  of  freight  train  which  carried 
passengers,  at  direction  of  engineer,  and  injured  by  derailment  of 
engine,  is  guilty  of  contributory  negligence  in  riding  on  engine; 
Weaver  v.  Ann  Arbor  E.  E.  Co.,  139  Mich.  600,  102  N.  W.  1041, 
one  riding  on  drover's  pass  is  passenger  for  hire  and  his  release  of 
liability  for  damages  on  account  of  negligence  of  carrier  is  void; 
Mannon  v.  Camden  etc.  Ey.  Co.,  56  W.  Va.  556,  49  S.  E.  451,  apply- 


93  U.  S.  302-320  Notes  on  U.  S.  Ecports.  764 

ing    rule    when    street-car    passenger    injured    by    jumping    from    car 
when  wires  broke. 

Syl,  6   (VIII,  9G9).     Burden  of  proving  negligence. 

Approved  in  Indianapolis  etc.  Transit  Co.  v.  Haines,  33  Ind.  App. 
66,  69  N.  E.  188,  following  rule;  The  Nellie,  130  Fed.  215,  applying 
rule  in  action  for  injury  to  vessel  from  obstruction  in  bottom  along- 
side defendant's  wharf;  Southern  Pac.  Co.  v.  Tomlinson,  4  Ariz.  134, 
33  Pac.  712,  applying  rule  when  one  killed  at  railroad  crossing; 
The  M.  S.  Ilucy  Co.  v.  Johnston,  164  Ind.  497,  73  N.  E.  999,  applying 
principle  in  action  for  injuries  to  factory  operation  by  unguarded 
machinery. 

Syl.  10   (VIII,  971).     Federal  courts^ — State  law  as  to  instructions. 

Approved  in  Liverpool  etc.  Ins.  Co.  v.  N.  &  M.  Friedman  Co.,  133 
Fed.  716,  66  C.  C.  A.  543,  separation  of  jury  after  submission  of 
cause   is   not   error. 

Syl.   11    (VIII,   971).     Following  state  procedure. 

Approved  in  Swift  v.  Jones,  145  Fed.  491,  circuit  judge,  in  action 
at  law  cannot  order  trial  before  special  master  authorized  to  hear 
and  pass  on  issues  of  fact  and  report  findings  to  court;  Williamson 
V.  Liverpool  etc.  Ins.  Co.,  141  Fed.  59,  Missouri  rule  that  filing  of 
amended  petition  in  compliance  with  erroneous  order  striking  out 
parts  of  petition  is  waiver  of  error  is  not  binding  on  federal  courts; 
dissenting  opinion  in  Boston  etc.  E.  Co.  v.  Gokey,  149  Fed.  46,  ma- 
jority holding  circuit  court  of  appeals  has  no  jurisdiction  over  ques- 
tion   challenging    circuit    court 's    jurisdiction. 

Syl.  13   (VIII,  973).     Eeview — New  trials  discretionary. 

Approved  in  Clement  v.  Wilson,  135  Fed.  750,  68  C.  C.  A.  387,  fol- 
lowing rule;  Trafton  v.  United  States,  147  Fed.  514,  federal  court 
has  no  jurisdiction  over  motion  for  new  trial  in  criminal  case  made 
after  expiration  of  term  at  which  sentence  pronounced. 

93  U.  S.  302,  23  L.  8S5,  MAETIN  v.  HAZARD  POWDER  CO. 

Syl.   1    (VIII,   974).     Finality   of   acceptance   of  appeal   bond. 

Approved  in  Crown  Cork  etc.  Co.  v.  Standard  Stopper  Co.,  136  Fed. 
184,  69  C.  C.  A.  519,  order  fixing  amount  of  bond  on  appeal  from  in- 
terlocutory  iujunction    order    is   not    reviewable    on   appeal. 

93  U.  S.  302-320,  23  L.  863,  THE  ATLAS. 

Syl.   2    (VIII,  974).     Damages  recoverable  for   collision. 

Approved  in  The  Rickmers,  142  Fed.  309,  holding  vessel  injured  in 
collision  not  entitled  to  damages  for  permanent  injury  in  addition 
to  repairs,  where  all  known  injuries  repaired  and  experts  testified  to 
depreciation  of  reason  of  collision. 


765  Notes  on  U.  S.  Eeports.  93  U.  S.  321-337 

Syl.  7  (VIII,  975).     Collision — Who  bears  inevitable  loss. 

Approved  in  Erie  etc.  Transp.  Co.  v.  Erie  K.  Co.,  142  Fed.  13, 
final  decree  in  collision  suit  determining  fault  of  collision  and  ap- 
portioning damages  bars  independent  suit  by  one  vessel  against  other 
to  enforce  contribution  to  cargo  damage  which  was  refused  in  first 
suit. 

Syl.  12  (VIII,  976).     Collision — Eecovery  by  innocent  cargo  owner. 

Approved  in  The  Hamilton,  146  Fed.  728,  when  two  vessels  be- 
longing to  different  owners  collided  through  common  fault,  and  both 
owners  brought  limitation  of  liability  proceedings,  damages  against 
both  vessels  are  recoverable  by  personal  representatives  of  drowned 
passengers  and  crew  of  both  vessels;  The  Eagle  Point,  136  Fed.  1011, 
1013,  where  two  British  vessels  are  in  fault  for  collision  on  high  seas, 
cargo  owner  may  recover  full  damages  from  either  vessel  in  American 
admiralty   court. 

93  U.  S.  321-32G,  23  L.  886,  TALTY  v.  FREEDMAN'S  S.  &  T.  CO. 

Syl.  4   (VIII,  978).     Offer  to  pay  not  equivalent  of  tender. 
Approved   in   Wilkins   v.   Redding,  70   Neb.    187,   97   N.   W.   210,    de 
terminiug   suflieicncy   of  tender  where   debt   secured   by   pledge. 

93  U.  S.  320-337,  23  L.  927,  BRANT  v.  VIRGINIA  COAL  &  IRON  CO. 

Syl.   1    (VIII,   979).     Devise  for  life   with   power   of   disposal. 

Approved  in  Anderson  v.  Mcssinger,  146  Fed.  938,  construing  es- 
tate of  sons  under  will  declaring  that  if  either  of  two  sons  died 
without  descendants  survivor  should  take  his  estate,  and  making 
provision  in  case  survivor  died  without  descendants;  Widows'  Home 
V.  Lippardt,  70  Ohio  St.  290,  71  N.  E.  774,  will  giving  wife  estate 
in  fee  simple  with  power  to  sell  as  she  may  see  fit,  gives  widow 
power  to  convey  fee  of  whole;  Glore  v.  Seroggins,  124  Ga.  925,  53 
S.  E.  691,  will  devising  property  to  wife  for  life  to  give  to  children 
as  they  became  of  age,  created  life  estate  in  wife,  with  remainder  to 
children. 

Distinguished  in  Parks  v.  Robinson,  138  N.  C.  273,  50  S.  E.  650, 
will  leaving  property  to  wife  for  life  and  at  her  disposal,  gave  wife 
power   to   convey  fee. 

Syl.  3   (VIII,  980).     Equitable  estoppel — Conduct  or  declarations. 

Approved  in  United  States  Fid.  etc.  Co.  v.  Ridgley,  70  Neb.  628, 
97  N.  W.  838,  where  employer's  indemnity  bond,  issued  on  application 
of  employee,  contained  provision  that  it  should  be  binding  on  obligor 
unless  signed  by  employee,  it  is  not  binding  on  obligor  unless  signed 
by  employee. 

Syl.    6    (VIII,    982).     Estoppel    with    respect    to    realty. 
Approved    in    Weidemann    v.    Springfield    Breweries    Co.,    78    Conn. 
665,  63  Ati.  164,  where  mortgagor  assigned  to  mortgagee  claim  for  in- 


93  U.  S.  337-351  Notes  on  U.  S.  Eeports.  766 

surance  money  under  agreement  that  money  when  paid  should  be 
applied  to  debt,  which  agreement  subsequently  modified  so  that 
money  was  to  be  applied  to  general  indebtedness,  mortgagee  not  es- 
topped as  against  second  mortgagee  from  applying  money  according 
to  later  agreement;  Price  v.  Stratton,  45  Fla.  544,  33  So.  647,  denying 
right  to  assert  estoppel  against  dedication  of  street  where  records  show 
street;  Eastwood  v.  Standard  Mines  etc.  Co.,  11  Idaho,  202,  81  Pac. 
383,  where  mine  owner  gave  option  to  corporation  and  with  his 
knowledge  notice  of  ownership  by  corporation  posted  on  mine,  he 
cannot   assert   ownership   as   against    miners'   liens. 

93   U.   S.  337-340,  23   L.   930,  THE  JUANITA. 

Syl.  2  (VIII,  983).  Collision — Apportionment  of  damages — Both 
at   fault. 

Approved  in  The  Hamilton,  146  Fed.  728,  where  two  vessels  be- 
longing to  different  owners  collide  through  common  fault  and  both 
owners  brought  limitation  proceedings,  damages  against  both  vessels 
are  recoverable  by  representatives  of  passengers  and  crew  of  both 
vessels. 

93  U.   S.  341-344,  23  L.  901,  SMITH  v.   GAINES. 

Syl.  2   (VIII,  983).     Summary  proceedings  against  appeal  sureties. 

Approved  in  Empire  etc.  Min.  Co.  v.  Hanley,  136  Fed.  103,  69 
C.  C.  A.  87,  where  on  affirmance  on  appeal,  appellee  filed  in  trial 
court  motion  to  proceed  containing  notice  to  sureties  on  supersedeas 
bond  that  he  would  apply  for  summary  decree  on  bond,  court  could 
render   summary   judgment   against   surety. 

Syl.  3  (VIII,  982).  Appeal — Conclusiveness  of  sureties — Executive 
return. 

Approved  in  Flynn  v.  Kalamazoo  Circuit  Judge,  138  Mich.  128,  101 
N.  W.  222,  amendment  of  sheriff's  return  as  to  matter  of  fact  can- 
not  be   compelled   by   mandamus. 

93   U.   S.   344-347,   23   L.   949,   COCKLE   v.   FLACK. 

Syl.  1  (VIII,  984).     Usury  is  for  jury. 

Approved  in  Waxahachie  Loan  etc.  Co.  v.  Turner,  32  Tex.  Civ. 
282,  74  S.  W.  792,  holding,  in  action  for  penalty  for  usury  on  loans 
accompanied  by  cotton  contracts,  evidence  showed  cotton  contracts 
not  genuine   but   mere  cover  for  usury. 

93  U.   S.   347-351,  23  L.   923,  WISWALL  v.   CAMPBELL. 

Syl.  1  (VIII,  985).  Review  of  bankruptcy  court's  appellate  judg- 
ment. 

Distinguished  in  In  re  Weisen,  135  Fed.  443,  in  proceedings  to  com- 
pel bankrupt  to  pay  money  alleged  to  be  still  in  his  hands,  stenog- 
rapher's notes  of  bankrupt's  testimony  at  creditor's  meeting  is  ad- 
missible  but    testimony   of   other   witnesses    is   not. 


707  Notes  on  U.  S.  Eeports.  93  U.  S.  352-387 

Syl.  3  (VIII,  985).  Bankruptcy — Creditor's  proceedings  to  prove 
demands. 

Api)rovo(l  in  In  re  T.  E.  Hill  Co.,  148  Fed.  833,  defects  in  citation 
and  bond  in  baiilcruptcy  a[ipeal  not  being  jurisdictional,  they  are 
curable  after  time  limited  for  appeal;  In  re  Francis,  136  Fed.  913, 
under  Bankr.  Act,  §  2,  subd.  3,  where  indebtedness  of  bankrupts 
created  by  fraud,  and  two  had  absconded  and  other  w^s  in  jail,  ap- 
pointment of  receiver  before  adjudication,  without  notice  to  im- 
prisoned  one,   is  valid. 

Syl.  4  (VIII,  98G).  Eankruj)tcy — Speedy  distribution. 
Approved  in  Clendening  v.  Eed  River  etc.  Bank,  12  X.  D.  60, 
94  N.  \V.  90-1,  in  action  by  bankruptcy  trustee  to  recover  preferences, 
testimony  of  referee  to  effect  that  he  did  not  adjudicate  on  question 
of  right  of  defendant  to  retain  items  is  inadmissible  as  contradicting 
order  allowing  defendant's  claim. 

93  U.  S.  352-355,  23  L.  950,  COWDREY  v.  GALVESTON  ETC.  E.  E. 
CO. 

Syl.  3    (VIII,  987).     Receivers — Allowance  of  counsel  fees. 

Ap])roved  in  Butler  v.  Con  well,  14  Wyo.  172,  82  Pac.  951,  where 
creditors  of  insolvent  consented  to  complainant's  employment  as  their 
attorney  to  recover  for  their  benefit  funds  belongiiij,'  to  insolvent, 
coniphiinant  entitled  to  preferred  claim  on  fund  for  value  of  services 
Avhether   fund   recovered   before   or   after   appointment   of   receiver. 

93  U.  S.  306-379,  23  L.  907,  COHN  v.  UNITED  STATES  CORSET  CO. 

Syl.  1   (VIII,  989).     Patents— Prior  public  use. 

Approved  in  Comptograph  Co.  v.  Universal  etc.  Mach.  Co.,  142  Fed. 
543,  where  inventor  of  computing  machine  took  model  to  Census 
Bureau,  where  it  was  used  for  week  to  test  its  efEciency  and  several 
years  later  he  obtained  patent,  patent  valid;  Victor  Talking  Mach. 
Co,  V.  American  Graph.  Co.,  140  Fed.  866,  Berliner  patent  No.  534,543, 
for  improvements  in  talking  machines  not  invalidated  by  prior  pub- 
lic use;  Pettibone  v.  Pennsylvania  Steel  Co.,  133  Fed.  737,  applying 
rule  where  foreign  patent  claimed  to  have  anticipated  American  pat- 
ent, 

93  U.  S.  379-387,  23  L.  920,  DODGE  v.  FEEEDMAN'S  SAVINGS  & 
TRUST  CO. 

Syl.   2    (VIII,   990).     Declarations   of   possession   of   land. 

Approved  in  Phillips  v.  Laughlin,  99  Me.  36,  105  Am.  St.  Rep. 
253,  58  Atl.  68,  declarations  by  predecessor  in  title  of  party  to  action 
involving  title,  as  to  invalidity  of  deed,  are  inadmissible. 

Syl.  4  (VIII,  991).     Payment  by  stranger  is  purchase  of  note. 
Approved  in  Sturgis  v.  Baker,  43  Or.  243,   72  Pac.  746,  where  note 
sent  to  bank  for  collection  was  paid   after  maturity  by  cashier  who 


93  U.  S.  387-502  Notes  ou  U.  S.'Ecports.  7G8 

was   not   liable   thereon,   transaction   is   purchase   by   cashier   and   not 
payment. 

93   U.  S.   387-392,  23  L.   931,  CALLANAN  v.   HUELEY. 

Syl.  1   (VIII,  991).     Tax  deed  conclusive  of  regularity  of  sale. 

Approved  in  O  'Keef  e  v.  Dillenbeek,  15  Old.  444,  83  Pac.  542,  where 
purchaser  under  delinquent  tax  deed  valid  on  face  has  taken  pos- 
session, former  owner  cannot  avoid  deed  unless  action  brought  within 
one   year   after   recording  of   deed. 

93  U.  S.  424-429,  23  L.  9G4,  OSTEEBEEG  v.  UNION  TEUST  CO.  OF 
NEW   YOEK. 

Syl.   2    (VIII,   99G).     Tax  lien   prior   to   execution   sale. 

Approved  in  Tinsley  v.  Atlantic  Mines  Co.,  20  Colo.  App.  63,  77 
Pac.  13,  where  on  foreclosure  of  mortgage,  one  made  defendant  un- 
der allegation  that  he  claimed  interest  subject  to  the  mortgage,  dis- 
claimed, saying  he  claimed  under  tax  lien,  he  could  not  be  com- 
pelled to  litigate  title  in  such  action;  Hadley  v.  Hadley,  114  Tenn. 
174,  87  S.  W.  254,  upholding  Acts  1897,  pp.  5,  19,  §§  4,  27,  changing 
tax  sj'stem,  re-enacted  in  1899,  1901  and  1903,  under  which  lien  for 
taxes  assessed  to  life  tenant  attaches  to  interest  of  remainderman; 
Eichmond  v.  Williams,  102  Va.  741,  47  S.  E.  846,  creditors  secured 
by  trust  deed  are  not  owners  of  land,  within  Acts  1891-92,  p.  505, 
providing   notice   to   owners   before   improvement   assessments   levied. 

03  U.  S.  465-486,  23  L.  941,  WIGGINS  v.  PEOPLE    ETC.  IN  UTAH. 

Syl.   3    (VIII,   1000).     Homicide— Threats   of   decedent. 

Approved  in  Lawson  v.  Territory,  8  Okl.  3,  56  Pac.  699,  where  in 
prosecution  for  murder  question  as  to  who  was  aggressor  was  in  is- 
sue, it  is  error  to  refuse  continuance  on  account  of  absence  of  witness 
who   would   testify   that   decedent   had  threatened   to   kill   defendant. 

93  U.  S.  486-502,  23  L.  952,  SMITH  v.  GOODYEAE  DENTAL  ETC, 
CO. 

Syl.  2   (VIII,  1002),     Patents — General  use  of  process. 

Approved  in  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140  Fed.  171,  up- 
holding Schrader  patent  No.  592,920,  for  engraving  machine  for 
etching  glassware;  Thompson-Houston  El.  Co.  v.  Ohio  Brass  Co.,  130 
Fed.  547,  upholding  Van  Depoele  patents  Nos.  393,278  and  396,313, 
for   trolley  crossings  or  switches  for  overhead   electric   conductors. 

Syl.  3   (VIII,  1003).     Patents — Substitution  of  materials. 

Approved  in  New  York  Belting  etc.  Co.  v.  Sierer,  149  Fed.  770, 
Furness  &  Watts  patent  No.  527,961,  for  tile  floor,  is  void  for  lack 
of  invention;  Keasbey  etc.  Mfg.  Co.  v.  Philip  Carey  Mfg.  Co.,  139 
Fed.  577,  upholding  Hanmore  patent  No.  545,843,  for  nonconducting 
covering  for  steam  pipes;  General  Electric  Co.  v.  Yost  Elec.  Mfg. 
Co.,   139  Fed.   570,   holding   void  Painter  patent  No,   718,378,  for  in- 


7G9  Notes  ou  U.  S.  Keports,  93   U.  S.  514-548 

sulating  lining  for  lamp  sockets;  Imperial  Bottle  Cap  etc.  Co.  v. 
Crown  Cork  etc.  Co.,  139  Fed.  322,  holding  Painter  patent  No. 
468,258,  for  bottle-stopper,  not  anticipated;  Rumford  Chem.  Wks.  v. 
New  York  etc.  Co.,  134  Fed.  388,  67  C.  C.  A.  367,  upholding  Catlin 
patent  No.  474,811,  for  baking-powder. 

Syl.    5    (VIII,    10053).     English    patents    date    from    when. 

Approved  in  Columbus  Chain  Co.  v.  Standard  Chain  Co.,  148  Fed. 
630,  holding  Carroll  patent  No.  620,826,  for  device  for  regulating 
dimensions  of  chain  links  anticipated  by  Goerke'a  Swiss  patent, 

Syl.   7    (VIII,   1005).     Second  petition  for  patent. 

Approved  in  Hayes-Young  Tin  Plate  Co.  v.  St.  Louis  Transit  Co., 
137  Fed.  82,  83,  70  C.  C.  A.  1,  holding  delay  causing  abaudomuent 
of  application  not  unavoidable. 

93  U.  S.  514-527,  23  L.  938,  WHITE  v.  LUNXIG. 

Syl.  1  (VIII,  1006).     Boundaries — Descriptions  in  deeds. 

Distinguished  in  Talley  v.  Schlatitz,  180  Mo.  238,  79  S.  W.  163, 
where  in  ejectment  defendant  relied  on  tax  deed  which  failed  to 
describe  land  involved,  evidence  as  to  intention  of  sheriff  in  making 
deed,  for  purpose  of  showing  that  he  intended  to  describe  land  in- 
volved,  is   inadmissible. 

Syl.   3    (VIII,    1007).     Boundaries — Monuments    control   courses. 

Approved  in  Security  Land  etc.  Co.  v.  Burns,  193  U..  S.  179,  48 
L.  671,  24  Sup.  Ct.  425,  courses  and  distances  set  forth  in  official 
plat  and  referred  to  in  patents  which  show  alleged  meander  line  of 
lake  as  one  boundary  control  as  against  actual  boundary  of  lake, 
where  survey  grossly  fraudulent;  Alaska  Gold  Mining  Co.  v.  Bar- 
bridge,  1  Alaska,  321,  325,  rejecting  field-notes  in  construing  mining 
patent. 

Syl.  4  (VIII,  1007).  Boundaries — Monuments  inconsistent  with 
calls. 

Approved  in  Ecese  v.  Wright,  98  Md.  2S1,  50  Atl.  978,  in  suit  to 
enjoin  nuisance,  incorporation  of  allegation  in  bill  that  mistake  ex- 
isted in  defendant's  deed  as  to  description  of  alley  in  which  nuisance 
was  maintained  was  not  fatal  on  demurrer  where  title  to  property 
and  alleys  admitted. 

93  U.  S.  527-548,  23  L.  SOS,  HOME  INS.  CO.  v.  BALTIMOEE  WARE- 
HOUSE CO. 

Syl.    1    (VIII,    1007).     Construction    of    insurance    policies. 

Approved   in   American   Cer.   Co.   v.   Western    Assur.    Co.,    148   Fed. 
79,  where  policy  insured  A,  loss  payable   to  B  as  its  interest  might 
appear,    A    was    insured. 
49 


93  U.  S;  548-558  Notes  on  U.  S.  Reports.  770 

Syl.   2    (VIII,   1008).     Warehousemen  insure  in   own  names. 

Approved  in  Home  Ins.  Co.  v,  Koob,  113  Ky.  369,  68  S.  W.  455, 
101  Am.  St.  Eep.  354,  58  L.  R.  A.  58,  misrepresentation  by  insured 
as  to  amount  due  on  mortgage  was  not  material  where  there  was  no 
considerable    difference    between    true    balance    and    representation. 

Syl.  4   (VIII,  1009).     Policy  to  warehouse  covers  what. 

Approved  in  Johnston  v.  Charles  Abresch  Co.,  123  Wis.  135,  136, 
107  Am.  St.  Rep.  995,  101  N.  W.  397,  policy  on  all  stock  of  goods 
and  materials  belonging  to  insured  or  held  by  him  in  trust  or  storage, 
insured  against  loss  to  any  property  held  in  trust  and  not  merely 
insured's  interest  therein, 

Syl.  6  (VIII,  1009).     Insurance — Admissibility  of  adjustments. 

Approved  in  State  v.  Nevada  etc.  E.  E.  Co.,  28  Nev.  209,  81  Pac. 
103,  on  issue  as  to  earning  capacity  of  railroad  for  taxing  purposes, 
it  is  error  to  permit  expert  who  had  examined  books  to  give  opinion 
as  to  what  items  should  be  properly  charged  to  operation  expenses 
and   what   excluded. 

Syl.  7  (VIII,  1009).  Admission  of  irrelevant  evidence  not  re- 
versible  error. 

Approved  in  Brown  v.  Uijited  States,  142  Fed.  4,  applying  rule  in 
criminal    prosecution. 

Syl.  8  (A'lII,  1010).     Insurance — Admission  of  offer  of  compromise. 

Approved  in  dissenting  opinion  in  Misner  v.  Strong,  181  N.  Y.  177, 
73  N.  E.  970,  in  action  to  establish  ownership  of  undivided  interest 
in  vessel  and  for  accounting  of  earnings,  admission  of  offer  of  com- 
promise by  defendant  is  harmless  where  defendant  testified  to  same 
thing. 

93  U.  S.  548-558,  23  L.  983,  STANTON  v.  EMBREY. 

Syl.  2  (VIII,  1010).     Pendency  of  prior  suit  in  other  jurisdiction. 

Approved  in  Burk  v.  McCaft'rey,  136  Fed.  696,  and  German  Savings 
&  L.  See.  V.  Tull,  136  Fed.  12,  69  C.  C.  A.  1,  both  following  rule; 
Guardian  Trust  Co.  v.  Kansas  City  etc.  Ry.  Co.,  146  Fed.  340,  ac- 
tion against  purchaser  at  foreclosure  on  its  liability  to  pay  debt  of 
mortgagor  under  reorganization  scheme  is  not  bar  to  determination 
by  court  rendering  foreclosure  decree  of  priority  of  other  liens  to 
mortgage-  liens;  Mankato  v.  Barber  Asphalt  Pav.  Co.,  142  Fed. 
340,  defendant  in  state  court  not  concluded  by  state  judgment  ren- 
dered after  he  has  recovered  judgment  in  federal  court;  Slaughter 
V.  Mallet  Land  etc.  Co.,  141  Fed.  290,  pendency  of  state  action  to  try 
title  and  to  remove  cloud  from  title  is  not  ground  for  abatement 
of  subsequent  federal  suit  to  quiet  title;  Franklin  v.  Conrad-Stan- 
ford Co.,  137  Fed.  744,  70  C.  C.  A.  171,  state  suit  to  foreclose  mort- 
gage  securing  note  in   which  property   sold  and   proceeds   applied   on 


771  Notes  on  U.  S.  Eeports.  93  U.  S.  575-586 

amount  due  on  note,  but  in  which  no  formal  deficiency  judgment 
reiulcred,  is  not  bar  to  federal  action  on  note  for  amount  of  de- 
ficiency; Barber  Asphalt  Pav.  Co.  v.  Morris,  132  Fed.  948,  67  L. 
K.  A.  761,  66  C.  C.  A.  55,  where  one  having  claim  against  city  sued 
in  federal  court,  it  is  error  to  stay  proceedings  pending  determina- 
tion of  state  court  appeals  under  charter  providing  for  such  appeals 
and  prohibiting  payment  of  claims  pending  appeals;  Guaranty  Trust 
Co.  V.  North  Chicago  St.  E.  Co.,  130  Fed.  807,  65  C.  C.  A.  65,  pend- 
ency of  federal  creditor's  suit  against  street  railway  for  whom  re- 
ceiver appointed  but  whose  road  is  operated  by  receiver  of  lessee 
does  not  authorize  enjoining  of  state  suit  by  stockholders  to  enjoin 
delivery  of  amended  lease;  Lake  County  v.  Schradsky,  31  Colo.  184, 
71  Pac.  1106,  pendency  of  writ  of  error  to  United  States  supreme 
court  to  review  dismissal  for  want  of  jurisdiction  in  circuit  court, 
where  no  supersedeas  granted,  doss  not  bar  state  action  on  same 
cause  of  action;  National  Tube  Co.  v.  Smith,  57  W.  Va.  216,  110  Am. 
St.  Eep.  776,  50  S.  E.  719,  1  L.  E.  A.  (X.  S.)  195,  refusing  to  re- 
strain prosecution  of  garnishment  in  justice  court  action  for  debt 
where  in  another  state  injunction  enjoining  garnishee  from  paying 
money  under  judgment  of  justice    is  pending. 

Syl.  5  (VIII,  1013).  Attorney — Contingent  contract — Government 
claim. 

Approved  in  Whinery  v.  Brown,  36  Ind.  App.  282,  75  N.  E.  G07, 
upholding  contract  between  attorney  and  client  for  contingent  fee 
dependent  on  amount  of  recovery;  Field  v.  Sammis,  12  N.  M.  48,  iH 
Pac.   621,   arguendo. 

93  U.  S.  575-586,  23  L.  978,  THE  IDAHO. 

Syl.    1    (VIII,    1016).     Excuse    for    bailee's    nondelivery. 

Approved  in  National  Newark  Banking  Co.  v.  Delaware  etc.  E. 
E.  Co.,  70  N.  J.  L.  779,  103  Am.  St.  Eep.  825,  58  Atl.  312,  66  L.  E. 
A.  595,  applying  rule  where  consignee  sold  goods  in  advance  of  their 
arrival;  Wheeler  &  Wilson  Mfg.  Co.  v.  Brookfield,  70  N.  J.  L.  707, 
58  Atl.  354,  under  state  statute  warehouseman  delivering  goods  to 
receipt  holder  after  claim  by  one  purporting  to  be  owner,  is  not  liable 
in  trover  to  purported  owner. 

Syl.  3  (VIII,  1017).     Carriers — Bailee's  duty  to  restore  property. 

Approved  in  Sweeney  v.  Waterhouse,  39  Wash.  514,  81  Pac.  1006, 
where  one  after  shipping  goods  consigned  to  himself  sells  goods  in 
transit  and  surrenders  and  assigns  bill  of  lading  to  purchaser,  who 
receives  part  of  goods,  carrier  not  estopped,  in  action  by  shipper 
for  failure  to  deliver  balance,  to  deny  shipper's  title. 

Syl.    4    (VIII,    1017).     Bailment— Title    in    third    person. 
See   105   Am.   St.   Eep.   350,   note. 


93  U.  S.  5S6-G2:  Notes  on  U.  S.  Eeporta.  772 

Syl.   6    (VIII,   1017).     Bill   of   lading   represents   ownership. 

Approved  in  Watkins  Nat.  Bank  v.  Cleveland  etc.  Ey.  Co.,  117 
Mo.  App.  254,  93  S.  W.  846,  carrier's  liability  to  one  to  whom  bills 
of  lading  have  been  negotiated,  for  issuing  same  before  it  had  re- 
ceived freight  in  violation  of  Kev.  St.  1899,  §  5052,  is  not  changed 
by   its   subsequent   receipt   thereof. 

Syl.    9    (VIII,    1018).     Eights   of   willful    confuser   of    goods. 

Approved  in  McKnight  v.  United  States,  130  Fed.  666,  65  C.  C.  A. 
37,  doctrine  of  confusion  of  goods  does  not  apply  to  cattle.  See 
101   Am.   St.  Eep.   915,  note. 

93  U.  S.  586-589,  23  L.  982,  UNITED  STATES  v.  THOMPSON. 

Syl.  1   (VIII,  1018).     Eights  of  government  sued  in  state  court. 

Approved  in  United  States  v.  Choctaw  etc.  E.  E.  Co.,  3  Okl.  454, 
41  Pac.  746,  in  action  in  which  name  of  United  States  authorized 
to  be  used  for  private  parties  as  relators  for  protection  of  private 
interests,  such  parties  not  exempt  from  security  for  costs  on  writ 
of  error;  dissenting  opinion  in  State  v.  Marsh,  134  N.  C.  192,  47 
S.  E.  9,  67  L.  E.  A.  179,  majority  holding  where,  on  appeal  from 
conviction  for  rape,  judgment  reversed  for  want  of  material  allega- 
tion in  indictment  as  shown  in  record,  but  such  allegation  omitted 
from  record  by  misprision  of  clerk,  supreme  court  could,  after  term 
at  which  reversal  had,  issue  certiorari  to  correct  record  and  reset  case. 

Syl.   2    (VIII,   1019).     Supreme   court — Eeview  of  state   decisions. 
See  97  Am.  St.  Eep.  720,  note. 

93  U.  S.  595-599,  23  L.  814,  WEST  WISCONSIN  E.  E.  CO.  v.  SUPEE- 
VISOES. 

Syl.   1    (VIII,   1019).     Tax   exemptions   are   repealable. 

Approved  in  Baltimore  etc.  Ey.  Co.  v.  Wicomico  Co.,  103  Md.  290, 
292,  63  Atl.  683,  general  assessment  law  of  1896,  declaring  property 
of  all  railroads  liable  to  municipal  taxation  valid  as  to  corporation 
formed  under  Code  1888,  §§  187,  188,  by  purchaser  at  foreclosure  of 
railroad  having  tax  immunity. 

93  U.  S.  605-612,  23  L.  959,  DESMAEE  v.  UNITED  STATES. 

Syl.  2   (VIII,  1022).     Domicile  continues  till  other  acquired. 

Approved  in  Flynn  v.  Fidelity  &  Casualty  Co.,  145  Fed.  266,  per- 
mitting amendment  of  removal  petition  after  record  on  removal  filed, 
by  alleging  directly  citizenship  of  plaintiff's  assignor,  where  record 
already  shows  such  citizenship  in  legal   effect. 

93  U.  S.  619-625,  23  L.  989,  SUPEEVISOES  v.  LACKAWANNA. 

Syl.   1   (VIII,   1023).     Implications  in   contracts. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  812,  con« 
struing   covenant   in   oil  lease   as  condition. 


773  Notes  on  U.  S.  Eeports.  93  U.  S,  631-G4I 

Syl.    2    (Vm,    1023).     Statutes— Eepeals    by    implication. 

Approved  in  dissenting  opinion  in  Allen  v.  Eeed,  10  Okl.  155,  63 
Pac.  877,  majority  holding  void  Stat.  1893,  c.  23,  relating  to 
change   of   county   seats. 

93  U.  S.  631-634,  23  L.  993,  DONALDSON  v.  FAEWELL. 

Syl.  1  (VIII,  1023).  Fraud — Inducement  to  give  credit — Insol- 
vency. 

Approved  in  Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  190,  40 
L.  720,  25  Sup.  Ct.  415,  claim  for  ties  necessary  to  preservation  of 
railroad  furnished  within  six  months  of  receivership  not  preferred 
over  lien  of  mortgage  recorded  prior  to  tie  contract;  In  re  Levi,  148 
Fed.  655,  seller  cannot  rescind  sale  though  at  time  of  delivery  vendee 
had  reasonable  ground  to  believe  he  could  not  pay  and  did  not 
intend  to  pay,  though  no  such  belief  or  intent  inferable  as  of  date 
of  sale;  In  re  Woollcott,  140  Fed.  460,  personal  property  exemption 
allowed  debtor  by  state  law  cannot  be  claimed  by  bankrupt  out  of 
goods  which  he  obtained  by  falsely  representing  himself  as  agent; 
Joyner  v.  Earlcy,  139  N.  C.  50,  51  S.  E.  779,  where,  in  replevin, 
plaintiff  simply  alleged  ownership  and  wrongful  detention,  but  proved 
defendant  obtained  possession  by  false  representations,  complaint 
amendable  by  allegations  of  fraud  and  deceit. 

Syl.   2    (VIII,   1025).     Bankruptcy— Fraud— Title   of  assignee. 

Approved  in  Hewit  v.  Berlin  Machine  Works,  194  U.  S.  303,  48 
L.  988,  24  Sup.  Ct.  690,  bankruptcy  trustee  is  not  subsequent  pur- 
chaser in  good  faith,  within  N.  Y.  Laws  1897,  c.  418,  §  112,  avoiding 
conditional  sales;  Smith  v.  Au  Gres  Twp.,  150  Fed.  264,  holding  wit- 
ness may  testify  after  bankrupt's  death  to  admissions  made  by  bank- 
rupt concerning  his  estate  while  he  was  yet  owner  thereof;  In  re 
Eeynolds,  133  Fed.  589,  where,  after  adjudication,  property  of  bank- 
rupt taken  bj^  mortgagee  under  chattel  mortgage  given  more  than 
four  months  prior  to  petition,  and  trustee  sued  mortgagee  in  state 
court  to  recover  value  of  property,  he  cannot  thereafter  bring  sum- 
mary proceedings  in  bankruptcy  court  to  recover  property. 

93  U.  S.  634-641,  23  L.  995,  HEYDENFELDT  v.  DANEY  ETC.  MIN- 
ING CO. 

Syl.   1    (VIII,   102G).     Liberal   construction  of  statutes. 

Approved  in  United  States  v.  Eaisch,  144  Fed.  488,  Eev.  St.,  § 
5424,  prohibits  felonious  making  of  certificate  of  naturalization  by 
one  other  than  applicant  or  his  witness;  Brown  v.  Woods,  2  Okl.  604, 
39  Pac.  474,  attorney  suspended  in  district  court  of  county  in  which 
he  has  been  elected  county  attorney  cannot  perform  duties  while 
suspension  in  force. 


93  U.  S.  644-674  Notes  on  U.  S.  Eeports.  774 

Syl.  3   (VIII,   1026).     School  land   grants  in  praesenti. 

Approved  in  State  v.  Jennings,  47  Fla.  319,  35  So.  992,  act  of 
Congress  of  March  3,  1845,  granting  school  lands  in  Florida  being 
grant  in  praesenti,  grant  immediately  attached  when  by  survey  a 
sixteenth  section  or  fractional  part  thereof  exists  in  any  township, 
by   relation  to   date   of  grant. 

93  U.  S.  644-663,  23  L.  998,  TAMELING  v.  UNITED  STATES  FREE- 
HOLD ETC.  CO. 

Syl.   2   (VIII,  1028).     Review  of  confirmation  of  Mexican  grants. 
Explained    in    Catron    v.    Laughlin,    11    N.    M.    624,    627,    631,    72 
Pac.    29,   30,   32,    construing   confirmation    of   Mexican    grant. 

Syl.  4   (VIII,   1029).     Statute  confirming  land  claims. 
Explained  in  Catron  v.  Laughlin,  11  N.  M.  626,  72  Pac.  30,  constru- 
ing confirmation  of  Mexican  grant. 

93  U.  S.  664-674,  23  L.  1003,  HERVEY  v.  RHODE  ISLAND  LOCO- 
MOTIVE WORKS. 

Syl.  1  (VIII,  1029).     States  regulate  property  transfers. 

Approved  in  Reed  v.  Munn,  148  Fed.  748,  where  claimants  of  con- 
flicting mining  locations,  in  order  to  adjust  controversy,  conveyed  to 
trustee,  equitable  interest  of  owners  under  agreement  was  subject 
to  execution;  In  re  Greene,  134  Fed.  138,  139,  where  chattel  mortgage 
was  recorded  in  town  where  property  located,  it  was  good  as  to  cred- 
itors though  not  filed  in  state  where  both  mortgagor  and  mortgagee 
resided;  In  re  Smith,  132  Fed.  303,  goods  in  possession  of  bankrupt, 
purchased  by  him  for  resale  under  contract,  reserving  title  to  seller 
until  payment,  condition  being  void  as  to  creditors  without  notice 
because  not  recorded  as  required  by  statute,  pass  to  bankruptcy 
trustee;  In  re  Brannock,  131  Fed.  820,  recordation  in  Nebraska  where 
mortgagor  resides  is  not  constructive  notice  to  creditors  where  prop- 
erty situated  in  Iowa,  when  mortgage  made;  Smead  v.  Chandler,  71 
Ark.  511,  76  S.  W.  1068,  65  L.  R.  A.  353,  trust  deed  executed  in  Missouri 
by  insolvent  Missouri  corporation  to  secure  certain  creditors  is  not  void 
in  Arkansas;  Cooper  v.  Philadelphia  Worsted  Co.  (Lees  v.  Harding 
etc.  Co.),  68  N.  .J.  Eq.  629,  60  Atl.  355,  where  contract  with  reference 
to  title  of  chattels  situated  in  another,  state  is  made  in  that  state 
between  resident  thereof  and  New  Jersey  corporation,  to  be  there 
performed,  law  of  that  state  determines  effect  of  contract;  State  v. 
Fidelity  etc.  Co.,  35  Tex.  Civ.  220,  80  S.  W.  547,  municipal  securities 
deposited  with  state  treasurer  by  foreign  corporation  in  accordance 
with  statute  requiring  such  deposit  in  order  to  do  business  in  state 
are   taxable   by   state. 

Syl.  3  (VIII,  1030).     Chattel  mortgages — Law  governing. 

Distinguished  in  Studebaker  Bros.  Co.  v.  Man.  U  Wyo.  78,  82  Pac. 
5,  where   vendee  in  conditional  sale   which  is  lien    removes  property 


775  Notes  on  U.  S.  Eeports.  94  U.  S.  4-22 

Bold  to  another  state,  without  knowledge  of  vendor,  latter  may  en- 
force lien  in  other  state  against  subsequent  bona  fide  purchasers,  with- 
out complying  with  registration  laws  of  such  state. 

Syl.  4  (VIII,  1031).     Purpose  of  contract  controls. 

Approved  in  Unitype  Co.  v.  Long,  143  Fed.  317,  contract  for  lease 
of  macliine  for  term  for  total  rental  payable  in  installments,  with 
option  to  lessee  to  extend  term  at  same  rental  or  buy  machine  for 
certain  amount  less  rentals  paid,  is  conditional  sale;  In  re  Tice,  139 
Fed.  53,  where  machinery  delivered  to  bankrupt  under  contract  that 
he  should  pay  certain  installment  sums  as  rental  and  on  final  payment 
he  was  to  get  bill  of  sale,  but  there  was  no  provision  for  return  ex- 
cept for  default  in  payment,  there  was  conditional  sale  and  not  bail- 
ment; In  re  Sheets  Printing  &  Mfg.  Co.,  136  Fed.  991,  contract  leasing 
machine  for  term  at  rental  payable  monthly  and  giving  lessee  option 
to  purchase  during  term  for  certain  sum  less  amount  paid  in  rental,  is 
conditional  sale;  Great  Western  Mfg.  Co.  v.  Bathgate,  15  Okl.  102, 
79  Pac.  907,  holding  real  estate  mortgage  superior  to  vendor's  lien 
under  conditional  sale  of  machinery  attached  to  premises  where  sale 
not  recorded  till  after  mortgage;  Yarborough  v.  Hughes,  139  N.  C. 
203,  51  S.  E.  905,  arguendo. 


XCIV  UNITED  STATES. 


94  U.  S.  4-6.  24  L.  34,  HOADLEY  v.  SAN  FEANCISCO, 
Sj'l.  4  (IX,  7).     Eemoval — Action  under  city  ordinance. 
Approved  in  Bowden  v.  San  Francisco,  199  U.  S.  600,  50  L.  328,  26 

Sup.   Ct.   748,   following  rule. 

Distinguished  in  McCune  v.  Essig,  199  U.  S.  388,  50  L.  240,  26  Sup. 
Ct.  78,  upholding  removal  of  suit  by  daughter  of  deceased  homesteader 
to  establish  title  under  state  laws  as  against  widow  to  whom  patent 
issued  under  Eev.  St.,  §  2291. 

94  U.  S.  6-11,  24  L.  40,  PIKE  v.  EVANS. 

Syl.  2  (IX,  8).     Judicial  sales — Seizure — Five  years'  possession. 

Approved  in  Nagel  v.  Clement,  113  La.  196,  36  So.  936,  following 
rule;  Landry  v.  Laplos,  113  La.  701,  37  So.  607,  irregularity  in  not 
making  succession  sale  at  proper  place  is  cured  by  five  years'  pre- 
scription. 

94  U.  S.  14-22,  24  L.  49,  EX  PAETE  CUTTING, 
Syl.  4  (IX,  9).     Appeal — Order  refusing  intervention. 
Approved  in  Land  Title  etc.  Co.  v.  Tatnall,  132  Fed.  307,  65   C.  C 

A.  671,  following  rule. 


94  U.  S.  22-86  Notes  on  U.  S.  Reports.  .776 

94  TJ.  S.  22-28,  24  L.  51,  HUMES  v.  SCEUGGS. 

Syl.  1   (IX,  9).     Replication  denies  what. 

Approved  in  Pinney  v.  Pinney,  46  Fla.  572,  35  So.  100,  following 
rule;  Robinson  v.  American  Car  etc.  Co.,  132  Fed.  166,  answer  speci- 
fically traversing  allegations  of  bill  for  infringement  of  patent  and 
also  containing  general  denial  puts  in  issue  all  material  allegations  of 
bill,    though   as    to    one    allegation    it    is   not    technically    responsive; 

94  U.  S.  29-50,  24  L.  54,  UTLEY  v.  DONALDSON. 
Syl.   1    (IX,  II).     Telegrams  constituting  contracts. 
Approved  in  110  Am,  St.  Rep.  746,  754,  note. 

Syl.  2  (IX,  11).     Contracts  construed  to  operate  fairly. 

Approved  in  dissenting  opinion  in  Atlas  Red.  Co.  v.  New  Zealand 
Ins.  Co.,  138  Fed.  513,  majority  construing  insurance  policy  containing 
"loss  payable"  clause  as  not  permitting  encumbrance  of  property. 

94  U.  S.  50-51,  23  L.  64,  DOYLE  v.  WISCONSIN. 

Syl.  1  (IX,  11).     Amended  act  used  in  construing  amendment. 

Approved  in  Schmidt  v.  United  States,  133  Fed.  260,  66  C.  C.  A. 
389,  under  Comp.  St.  Supp.  1903,  p.  191,  and  Comp.  St.  1901,  p.  3Go4, 
one  knowingly  swearing  falsely  to  material  fact  in  naturalization 
proceedings  in  state  court  is  punishable  for  perjury  in  federal  court. 

94  U.  S.  53-69,  24  L.  65,  UNITED  STATES  v.  BOSTWICK. 

Syl.   3    (IX,   12).     Tenant   cannot   commit   waste. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  811,  812,  con- 
struing covenant  in  oil  lease  as  condition. 

94  U.  S.  76-86,  24  L.  42,  STORM  v.  UNITED  STATES. 

Syl.  1  (IX,  14).     Bill  of  exceptions  necessary  to  review  errors. 

Approved  in  Cassatt  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  42,  under 
Rev.  St.,  §  724,  party  cannot  be  required  to  produce  books  and  paj^ers 
before  trial. 

Syl.  4   (IX,  15).     Receipt  of  consideration  as  estoppel. 

Approved  in  Underwood  Typewriter  Co.  v.  Century  Realty  Co.,  118 
Mo.  App.  203,  94  S.  W.  788,  where  lessor  in  lease  prohibiting  assign- 
ment thereof  without  his  consent  promised  in  writing  to  give  consent 
on  lessee  procuring  desirable  tenant,  promise  was  enforceable  on  pro- 
curement of  acceptable  tenant. 

Syl.  5    (IX,   15).     Sealed   instrument   needs   no   consideration. 

Distinguished  in  American  Agricultural  Co.  v.  Kennedy,  103  Va. 
179,  48  S.  E.  871,  contract  by  which  plaintiff  agrees  to  sell  and  de- 
fendant agrees  to  buy,  without  other  consideration,  and  providing 
that  plaintiff  may  cancel  at  any  time,  is  void. 


777  Notes  on  U.  S.  Ecports.  94  U.  S.  92154 

94    U.    S.    92-97,    24    L.    68,    CONSOLIDATED    FKUIT-JAR    CO.    V. 
WEIGHT. 

Syl.  2  (IX,  16).    "Patents— Prior  use. 

Approved  in  Bradley  v.  Eccles,  138  Fed.  914,  holding  TTannan  re- 
issue. No.  11,260,  for  improvements  in  thill  couplings,  void  for  public 
use. 

Syl.  4  (IX,  17).     Estoppel  by  silence. 

Approved  in  Eck  v.  Kutz,  132  Fed.  777,  where  complainant  had 
complete  conception  of  device  which  he  reduced  to  practical  form, 
he  did  not  abandon  same,  because  for  business  reasons  he  let  matter 
rest  for  over  three  years. 

94  U.  S.  97,  98,  24  L.  32,  SMITH  v.  UNITED  STATES. 

Syl.  1    (IX,  17).     Dismissal  of  appeal — Accused  a  fugitive. 

Approved  in  State  v.  Scott,  70  Kan.  693,  79  Pac.  126,  dismissing 
appeal   where   after   appeal   defendant   became    fugitive. 

94  U.  S.  98-100,  24  L.  70,  OMAHA  v.  HAMMOND. 

Syl.  1  (IX,  17).     Municipality — "Work  done  under  officer. 

Approved  in  Norcross  v.  Wyman,  187  Mass.  28,  72  N.  E.  348,  apply- 
ing principle  where  building  contract  provided  that  decision  of 
architect   as   to   specifications   shall   be   final   and   binding. 

Distinguished  in  Drainage  Com.  v.  National  Contracting  Co.,  136 
Fed.  794,  under  Acts  La.  1896,  p.  162,  No.  114,  relating  to  drainage, 
neither  drainage  commission  nor  its  engineer  could  consent  to  sub- 
stitution of  cheaper  material  for  that  specified  in  contract. 

94  U.  S.  104-110,  24  L.  46,  COMMISSIONERS  OF  DOUGLAS  CO.  v. 
BOLLES. 

Syl.  3  (IX,  19).     Bonds — Purchaser  from  bona  fide  purchaser. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  applying 
rule  to  assignees  of  county  aid  bonds  issued  to  railroad  before  de- 
cision construing  constitutional  provision  alleged  to  have  been  violated 
by  statute  under  which   bonds  issued. 

94  U.  S.  Ill,  24  L.  31,  HUEST  v.  HOLLIXGSWOETH. 

Syl.  1    (IX,  20).     Taking  both  appeal  and  writ  of  error. 

Approved  in  United  States  v.  Hung  Chang,  134  Fed.  20,  67  C.  C.  A. 
93,  appeal  is  proper  proceeding  for  review  by  circuit  court  of  appeals 
of  judgment  of  district  court  on  app»eal  from  order  of  commissioner 
for  deportation  of  Chinaman. 

94  U.  S.  113-154,  24  L.  77,  MUNN  v.  ILLINOIS. 

Syl.    1    (IX,   23).     Statutes   presumed    valid. 

Approved  in  Highland  Boy  Gold  Min.  Co.  v.  Striekley.  28  Utah,  231, 
107  Am.  St.  Eep.  711,  78  Pac.  297,  upholding  Sess.  Laws  1901,  p.  19, 


94  U.  S.  113-154  Notes  on  U.  S.  Eeporta.  778 

c.    25,    authorizing   condemnation   for   construction   and    operatioa   of 
tramways  for  mine  development. 

Syl.  2  (IX,  23).     Use  of  property  so  as  not  to  injure  others. 

Approved  in  State  v.  Durein,  70  Kan.  31,  80  Pac.  993,  state  con- 
stitutional amendment  prohibiting  manufacture  and  sale  of  liquor, 
except  for  medicinal  and  scientific  use,  did  not  abridge  legislature's 
power  to  prohibit  liquor  traffic. 

Syl.  5   (IX,  25).     Regulation  of  property  devoted  to  public  use. 

Approved  in  Weems  Steamboat  Co.  v.  People's  Steamboat  Co.,  141 
Fed.  456,  458,  459,  single  carrier  by  leasing  cannot  exclude  other  carriers 
from  wharf  built  on  navigable  river  at  terminus  of  public  highway  in 
country  where  it  is  only  means  by  which  public  can  reach  river; 
Denninger  v.  Recorder's  Court,  145  Cal.  641,  79  Pac.  364,  upholding 
ordinance  fixing  maximum  gas  rate,  and  making  it  misdemeanor  to 
charge  more;  Chicago  v.  Cicero,  210  111.  298,  71  N.  E.  359,  upholding 
Hurd's  Rev.  St.  1901,  p.  347,  §  26,  relating  to  organization  of  sanitary 
districts;  Western  Union  Tel.  Co.  v.  State,  165  Ind.  492,  76  N.  E.  103, 
where  telegraph  company  in  connection  with  other  business  buys 
continuous  market  quotations  and  sells  same  to  others,  for  such  time 
as  to  make  quotations  necessary  to  business,  it  must  supply  them  to  all 
on  equal  terms;  United  States  Express  Co.  v.  State,  164  Ind.  211,  73 
N.  E.  106,  upholding  Burns'  Ann.  St.  1901,  §  3312a,  requiring  express 
companies  to  deliver  parcels  to  consignees  in  cities  having  specified 
population;  Adams  Express  Co.  v.  State,  161  Ind.  346,  67  N.  E.  1039, 
upholding  Acts  1901,  p.  149,  c.  93,  prohibiting  unjust  discrimination 
by  express  company  against  any  other  company  engaged  in  same 
business;  Bedford  etc.  Stone  Co.  v.  Oman,  115  Ky.  379,  73  S.  W.  1040, 
railroad  managing  switch  from  its  line  to  appellant's  quarry  cannot 
refuse  to  transport  freight  belonging  to  appellee,  owner  of  nearby 
quarry;  Brown  v.  Gerald,  100  Me.  372,  109  Am.  St.  Rep.  526,  61  Atl. 
794,  70  L.  R.  A.  472,  electric  power  company  granted  right  of  eminent 
domain  has  no  power  of  eminent  domain  for  purpose  of  supplying 
power  for  manufacturing  purposes;  Ex  parte  Kair,  28  Nev.  147,  80 
Pac.  466,  upholding  Stat.  1903,  p.  33,  imposing  penalty  on  anyone 
working  more  than  eight  hours  a  day  in  any  mine  or  ore-reduction  mill; 
New  York  Cement  Co.  v.  Consolidated  Cement  Co.,  178  N.  Y.  176,  70 
N.  E.  453,  holding  part  of  canal  conveyed  under  Laws  1899,  p.  958,  c. 
469,  which  was  continued  in  i;se  after  abandonment  of  balance  was 
public  highway;  Corporation  Com.  v.  Atlantic  Coast  Line  R.  Co.  (Rail- 
road Connection  Case),  137  N.  C.  15,  49  S.  E.  196,  upholding  Acts  1899, 
pp.  291,  304,  §§  1,  21,  giving  corporation  commission  power  to  require 
railroad  to  make  reasonable  connection  with  trains  of  other  roads; 
Hilton  Lumber  Co.  v.  Atlantic  Coast  Line  R.  Co.  (Railroad  Discrimina- 
tion Case),  136  N.  C.  483,  48  S.  E.  814,  under  Laws  1899,  p.  301,  c. 
164,  §  13,  railroad  carrying  raw  materials  to  factories  cannot  charge 
factory  which  agrees  to  ship  manufactured  product  over  same  road  less 
than  it  charges  factory  refusing  to  so  agree;  Webster  v.  State,  110  Teun. 


779  Notes  on  U.  S.  Eeports.  94  U.  S.  113-154 

505,  82  S.  W.  182,  upholding  act  prohibiting  sale  of  liquor  within  four  miles 
of  institutions  of  learning,  though  sales  by  manufacturers  in  whole- 
sale packages  exempted;  State  v.  White  Eiver  Power  Co.,  39  Wash. 
667,  82  Pac.  152,  2  L.  E.  A.  (N.  S.)  842,  taking  land  by  power  com- 
pany which  has  no  power  to  enter  cities  is  taking  for  private  use; 
dissenting  opinion  in  Wright  v.  Hart,  182  N.  Y.  350,  75  N.  E.  411, 
2  L.  E.  A.  (N.  S.)  338,  majority  holding  void  Laws  1902,  p.  1249,  c. 
528,  making  sales  of  stock  of  goods  in  bulk  fraudulent  and  void  as  to 
creditors  unless  certain  conditions  complied  with.  See  102  Am.  St. 
Eep.  819,  note, 

Distinguished  in  Louisville  etc.  E.  E.  Co.  v.  West  Coast  Naval  etc. 
Co.,  198  U.  S.  500,  49  L.  1142,  25  Sup.  Ct.  745,  wharf  in  city  harbor 
at  foot  of  public  street,  built  by  railroad  for  purpose  of  facilitating 
transportation  of  through  freight,  is  not  public  wharf  of  which  shipper 
can  demand  use  on  payment  of  hire. 

Syl.  6  (IX,  43).  Eegulation  of  compensation — Property  devoted 
to   public  use. 

Approved  in  Earitan  Eiver  E.  E.  Co.  v.  Traction  Co.,  70  N.  J.  L. 
744,  58  Atl.  336,  upholding  agreement  between  railroad  and  competitor 
that  during  limited  period  former  will  not  reduce  present  rates  unless 
required  by  law;  Jacquelin  v.  Erie  E.  E.  Co.,  69  N.  J.  Eq.  444,  445, 
61  Atl.  23,  denying  preliminary  injunction  to  prevent  discontinuance 
of   railroad  station. 

Syl.  7  (IX,  49).  Propriety  of  legislative  interference  is  for  legis- 
lature. 

Distinguished  in  Dobbins  v.  Los  Angeles,  195  U.  S.  235,  237,  49  L. 
175,  176,  25  Sup.  Ct.  18,  holding  void  city  ordinance  narrowing  limits 
within  which  gasworks  may  be  erected  so  as  to  include  property  pur- 
chased for  that  purpose,  where  change  not  demanded  by  public  wel- 
fare; In  re  Smith,  143  Cal.  371,  77  Pac.  181,  holding  void  county  ordi- 
nance making  it  misdemeanor  to  maintain  gasworks  within  certain 
district  which  was  very  sparcely  settled  and  no  house  existed  within 
three  hundred  yards  of  existing  gas  plant;  State  v.  Marble,  72  Ohio 
St.  33.  106  Am.  St.  Eep.  570,  73  N.  E.  1066,  70  L.  E.  A.  835,  upholding 
Act  of  1902,  regulating  practice  of  medicine,  as  applied  to  Christian 
Science,  is  valid  exercise  of  police  power. 

Syl.  8  (IX,  49).     Vested  rights  in  rule  of  law. 

Approved  in  Cottonwood  Lumber  Co.  v.  Hardin.  78  Ark.  98,  92  S. 
W.  llliO,  upholding  act  providing  that  unimproved,  uninclosed  lands 
deemed  in  possession  of  one  paying  taxes  for  seven  years  under  color 
of  title;  Kenneweg  v.  County  Commrs.  of  Allegany  Co.,  102  Md.  127, 
62  Atl.  252,  upholding  Acts  1904,  p.  870,  c.  508,  §  105,  prescribing  time 
for    holding    primaries    by    different    parties. 

Syl.  9  (IX,  50).     Commerce — Eegulation  of  warehouses. 
Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  879,  Laws  Wis. 
Sp.  Sess.  1905,  p.  19,  c.  12,  relating  to  inspection  and  grading  of  grain 


94  U.  S.  155-178  Notes  on  U.  S.  Eeports.  780 

at  Superior  and  prohibiting  sales  according  to  Minnesota  grades,  is  void 
as  to  interstate  commerce;  Orient  Ins.  Co.  v.  Northern  Pacific  Ey.  Co., 
31  Mont.  510,  78  Pac.  1038,  under  Civ.  Code,  §  393,  subd.  25,  corporation 
may  be  formed  for  warehousing  goods  for  shipment;  People  v.  Miller, 
178  N.  Y.  198,  204,  205,  70  N.  E.  473,  476,  where  entire  business  of 
domestic  corporation  consists  of  transportation  of  goods  from  outside 
states  into  state  and  vice  versa,  is  not  subject  to  franchise  tax. 

Distinguished  in  Hart  v.  State,  100  Md.  608,  612,  60  Atl.  401,  402, 
Acts  1904,  p.  186,  c.  109,  requiring  carriers  to  provide  separate  coaches 
for  whites  and  negroes  and  making  it  offense  for  passenger  to  refuse 
to  occupy  car  assigned,  is  void  as  to  interstate  passengers. 

Syl.  13  (IX,  55).     Scope  of  guaranty  in  fourteenth  amendment. 

Approved  in  City  of  lola  v.  Birnbaum,  71  Kan.  603,  81  Pac.  199, 
Gen.  St.  1901,  §  2501,  providing  for  recovery  of  damages  against  cities 
on  account  of  acts  of  mobs,  applies  to  all  bodily  injuries. 

(IX,  21.)  Miscellaneous.  Cited  in  Ex  parte  Berger,  193  Mo.  27,  90 
S.  "W.  761,  3  L.  E.  A.  (N.  S.)  530,  upholding  Eev.  St.  1899,  §  2358, 
making  it  misdemeanor  to  receive  greater  interest  than  two  per  cent 
per  month. 

94  U.  S.  155-164,  24  L.  94,  CHICAGO  ETC.  E.  E.  CO.  v.  IOWA. 

Syl.  5  (IX,  57).     Commerce — State  railroad  rate  regulation. 

Distinguished  in  Hart  v.  State,  100  Md.  60S,  612,  60  Atl.  461,  4C2, 
Acts  1904,  p.  186,  c.  109,  requiring  carriers  to  provide  separate  coaches 
for  whites  and  negroes  and  making  it  offense  for  passenger  to  refuse  to 
occupy  car  assigned,  is  void  as  to  interstate  passengers. 

Syl.  7  (IX,  58).     Classification  of  railroads — Uniformity. 

Approved  in  Houston  etc.  E.  Co.  v.  Storey,  149  Fed.  504,  Texas 
railroad  commission,  under  statute,  may  fix  different  rates  for  different 
carriers;  Lacy  v.  Armour  Packing  Co.,  134  N.  C.  573,  47  S.  E.  55, 
upholding  Laws  1903,  p.  339,  §  56,  imposing  license  tax  on  packing- 
houses; Cincinnati  St.  Ey.  Co.  v.  Horstman,  72  Ohio  St.  109,  73  N.  E. 
1078,  upholding  amendatory  act  of  April  22,  1896,  known  as  Eodger's 
Law;  State  v.  Fraternal  Knights,  35  Wash.  345,  77  Pac.  503,  upholding 
Laws  1901,  p.  362,  c.  174,  §  12,  requiring  subsequently  formed  fraternal 
insurance  societies  to  adopt  mortuary  assessment  rates  not  lower 
than  Fraternal  Congress  Mortality   Table. 

94  U.  S.  164-178,  24  L.  97,  PEIK  v.  NORTHWESTEEN  E.  E.  CO. 

Syl.  4  (IX,  59).     Commerce— State  rate  regulation. 

Distinguished  in  Hart  v.  State,  100  Md.  608,  612,  60  Atl.  461,  462, 
Acts  1904,  p.  186,  c.  109,  requiring  carriers  to  provide  separate  coaches 
for  whites  and  negroes  and  making  it  offense  for  passenger  to  refuse 
to  occupy  car  assigned,  is  void  as  to  interstate  passengers. 


781  Notes  on  U.  S.  Reports.  94  U.  S.  181-214 

Syl.  G  (IX,  61)      Ecasonableness  of  rates  is  for  legislature. 

Approved  in  Earitan  Eiv.  E.  E.  Co.  v.  Middlesex  etc.  Co.,  70  N.  J. 
L.  744,  58  Atl.  336,  upholding  agreement  between  railroad  and  com- 
petitor that  during  limited  period  former  will  not  reduce  present 
rates  unless  required  by  law. 

94  U.  S.  181-187,  24  L.  102,  STONE  v.  WISCONSIN. 

Syl.  3   (IX,  65).     Following  state  statutory  construction. 

Approved  in  dissenting  opinion  in  James  v.  Gray,  131  Fed.  414,  65 
C.  C.  A.  385,  majority  holding  loan  by  wife  to  husband  from  separate 
estate  is  provable  against  his  bankrupt  estate,  irrespective  of  its  en- 
forceability under  state  law. 

94  U.  S.  187-202,  24  L.  34,  DUNBAE  v.  MYEES. 

Syl.  2  (IX,  66).     Patents — Sufficiency  of  disclaimer. 

Approved  in  Sample  v.  American  Soda  Fountain  Co.,  134  Fed.  403, 
disclaimer  may  be  filed  in  patent  office  during  pendency  of  infringe- 
ment suit  though  case  has  been  heard  on  appeal. 

Syl.  5  (IX,  66).     Matters  disclaimed  no  part  of  invention. 

Approved  in  ]!llanhattan  etc.  Constr.  Co.  v.  ITelios-Ilpton  Co.,  135 
Fed.  802,  construing  Baker  patent  No.  684,340,  for  regulator  for  arc- 
lamp  circuit. 

Syl.  10   (IX,  06).     Patents— Substitution  of  materials. 

Approved  in  Sloan  Filter  Co.  v.  Portland  Gold  Min.  Co.,  139  Fed. 
26,  holdiiig  void  Sloan  patent  No.  587,874,  for  barrel  filter  for  use  in 
filtration  of  precious  metal  solutions. 

Syl.  12  (IX,  67).     Patents— Addition. of  equivalents. 

Approved  in  Bullock  Elec.  Mfg.  Co.  v.  General  Elcc.  Co.,  140  Fed. 
419,  holding  Eeist  patent  No.  508,637,  for  improvement  in  armature 
cores,  void  for  want  of  invention;  American  Carriage  Co.  v.  Wyeth, 
139  Fed.  392,  holding  void  "Wyeth  patent  No.  400,381,  for  sleigh- 
runner  for  wheeled  vehicle. 

94  U.  S.  207-214,  24  L.  112,  ATLANTIC  DELAINE  CO.  v.  JAMES. 

Syl.  1  (IX,  68).     Cancellation  of  instruments— Fraud  and  injury. 

Approved  in  Fowler  v.  Fowler,  135  Fed.  410,  holding  evidence  in- 
sufficient to  show  complainant,  in  suit  to  set  aside  deed  of  her  interest 
in  brother's  estate,  induced  to  execute  deed  by  fraudulent  representa- 
tions; Bush  V.  Preseott  etc.  Ey.  Co.,  76  Ark.  501,  89  S.  W.  88,  fact 
that  party  fraudulently  induced  to  compromise  cause  of  action  might 
obtain  relief  by  motion  to  reinstate  action  does  not  bar  suit  to  cancel 
compromise;  Seymour  Water  Co.  v.  Seymour,  163  Ind.  129,  70  N.  E. 
517,  refusing  to  cancel  contract  between  city  and  water  company, 
whereby  latter  agreed  to  furnish  certain  pressure  for  fire  protection 
and  furnish  water  for  domestic  uses,  for  noncompliance  with  terms; 
Lynch  v.  United  States,  13  Okl.  145,  73  Pac.  1097,  United  States  can- 


94  U.  S.  214-260  Notes  on  U.  S.  Reports.  782 

not  sue  to  cancel  patent  obtained  by  bribery  and  perjury  solely  for 
benefit  of  third  party;  Johnson  v.  Swanke,  128  Wis.  73,  107  N.  W. 
482,  5  L.  R.  A.  (N.  S.)  1048,  refusing  to  cancel  note  or  enjoin  its 
transfer  where  it  was  given  for  purchase  of  horse,  which  purchase  was 
induced  by  fraud. 

94  U.  S.  214-219,  24  L.  115,  UNITED  STATES  v.  SMITH. 

Syl.  2  (IX,  69).     Government's  liability  on  contracts. 

Approved  in  Mountain  Copper  Co.  v.  United  States,  142  Fed.  629, 
refusing  to  enjoin  operation  of  smelter  at  suit  of  government  which 
owned  neighboring  land  unfit  for  cultivation  and  sparsely  wooded. 

Syl.  3   (IX,  69).     Conclusiveness  of  court  of  claims  findings. 

Approved  in  District  of  Columbia  v.  Barnes,  197  U.  S.  150,  49  L. 
700,  25  Sup.  Ct.  401,  following  rule. 

94  U.  S.  225-238,  24  L.  72,  CAMMEYER  v.  NEWTON. 

Syl.  2  (IX,  71).    Assignment  of  invention  before  patent. 

Approved  in  In  re  Dann,  129  Fed.  497,  bankrupt's  incorporeal  in- 
terest in  invention  pending  application  for  patent  does  not  pass  to 
trustee  under  Bankr.  Act,  §  70a,  cl.  5. 

Syl.  7  (IX,  71).    Infringement  by  government  agent. 

Approved  in  dissenting  opinion  in  International  Postal  Supply  Co. 
V.  Bruce,  194  U.  S.  608,  48  L.  1138,  24  Sup.  Ct.  820,  majority  holding 
patentee  for  improvements  in  stamp-canceling  machine  cannot  enjoin 
use  by  postmaster  of  infringing  machines  of  which  United  States  is 
lessee,  during  term  of  lease.     See  108  Am.  St.  Rep.  836,  note. 

94  U.  S.  238-245,  24  L.  118,  INMAN  STEAMSHIP  CO.  v.  TINKER. 

Syl.  1  (IX,  71).     Commerce — State  tonnage  tax  void. 

Approved  in  Way  v.  New  Jersey  Steamboat  Co.,  133  Fed.  191,  192, 
holding  void  Laws  N.  Y.  1897,  p.  701,  §  63,  compelling  master,  owner 
or  consignee  of  vessel  entering  port  to  pay  for  services  of  harbor- 
master certain  sum  per  ton  per  annum  based  on  registered  tonnage. 

94  U.  S.  246-248,  24  L.  122,  FOSTER  v.  MASTER  ETC.  NEW 
ORLEANS. 

Syl.  1  (IX,  72).    Commerce — State  law — Survey  of  hatches. 

Approved  in  Territory  v.  Denver  etc.  R.  R.  Co.,  12  N.  M.  434,  78 
Pac.  76,  upholding  act  of  1901,  prohibiting  exportation  of  uninspected 
hides. 

94  U.  S.  258-200,  24  L.  153,  UNITED  STATES  v.  YOUNG. 

Syl.  4  (IX,  75).     Certiorari  as  auxiliary  process. 

Approved  in  Whitney  v.  Dick,  202  U.  S.  139,  50  L.  966,  26  Sup.  Ct. 
584.  circuit  court  of  appeals  cannot  issue  certiorari  as  original  pro- 
ceeding to  review  conviction  in  inferior  federal  court. 


783  Notes  on  U.  S.  Reports.  94  U.  S.  260-288 

94  U.  S.  260-277,  24  L.   154,  TOWN  OF  SOUTH  OTTAWA  t.  PER- 
KINS. 

Syl.  1  (IX,  75),     Statutes — Legislative  journals  showing  passage. 

Approved  in  Callison  v.  Brake,  129  Fed.  200,  63  C.  C.  A.  354,  up- 
holding Laws  1899,  p.  114,  e.  4722,  relating  to  damages  recoverable 
for  wrongful  death  of  minor  child. 

Syl.  3  (IX,  75).     Passage  of  statutes. 

Approved  in  Bray  v.  Williams,  137  N.  C.  390,  49  S.  E.  888,  fact 
that  defendant  in  action  to  recover  penalty  for  failure  to  record 
licenses  procured  passage  of  statute  releasing  him  from  penalties  on 
agreement  that  plaintiff  in  action  should  have  no  time  to  oppose  it, 
does  not  estop  defendant  from  pleading  statute  in  defense. 

Syl.  4   (IX,   76).     Following  state  statutory   construction. 

Distinguished  in  Great  Southern  etc.  Hotel  Co.  v.  Jones,  193  U. 
S.  546,  48  L.  786,  24  Sup.  Ct.  576,  upholding  Ohio  Rev.  St.,  §§  3184- 
31S5a,  giving  lien  on  property  of  owner  to  subcontractors,  laborers 
and  those  furnishing  materials  for  use  by  contractor  in  executing 
contract. 

Syl.  6   (IX,  76).     Statutes — Evidence  of  existence. 

Approved  in  Rogers  v.  State,  72  Ark.  567,  82  S.  W.  170,  holding 
void  anti-gambling  act  of  1901,  as  not  having  been  passed  according 
to  constitution. 

Syl.  7  (IX,  77),    All  bound  to  know  law. 

Approved  in  Sauer  v.  Gillett,  20  Colo.  App.  371,  78  Pac.  1070,  under 
Mills'  Ann.  St.,  §  4403,  subd.  6,  relating  to  town  bonds  for  water- 
works, bonds  issued  under  ordinance  which  did  not  provide  for  levy 
are  void  in  hands  of  bona  fide  purchaser  irrespective  of  recitals  as 
to  issuance  in  compliance  with  law, 

94    U.    S.    278  288,    24    L.    59,    COMMISSIONERS    MARION    CO.    v. 
CLARK. 

Syl.  1  (IX,  78).     County  bonds — Law  in  force  at  issuance. 

Approved  in  dissenting  opinion  in  Wright  v.  East  Riverside  Irr. 
Dist.,  138  Fed.  324,  majority  holding  where  irrigation  district  bonds 
issued  under  Cal.  St.  1887,  p.  35,  had  lithographed  name  of  their 
secretary  attached  to  coupons  and  name  of  his  successor  signed  to 
bonds  when  delivered,  but  lithographed  signature  of  preceding  secre- 
tary to  coupons  not  changed,  bonds  were  void. 

Syl.  3  (IX,  78).     When  nonsuit  warranted. 

Approved  in  American  etc.  Plate  Co.  v.  Pittsburgh  etc.  R.  Co., 
143  Fed.  795,  holding  railroad  not  liable  to  owner  of  property  burned 
where  one  of  its  trains  ran  between  fire  and  place  where  firemen  were 
preparing  to  run  hose;  Bank  of  Havelock  v.  Western  Union  Tel.  Co., 
141  Fed.  527,  upholding  direction  of  verdict  in  action  for  damages 
for    transmission    of    unauthorized    telegram,    where    evidence    insuffi- 


94  U.  S.  288-299  Notes  on  U.  S.  Keports.  784 

cient,  though  grounds  on  which  verdict  directed  were  untenable; 
Swift  V.  Johnson,  138  Fed.  875,  where  father  abandoned  family  and 
contributed  nothing  to  support,  and  son  contributed  earning  to 
mother,  father  cannot  recover  substantial  damages  for  death  of  son; 
Busby  V.  Anderson  etc.  Power  Co.,  136  Fed.  158,  69  C.  C.  A.  154, 
upholding  direction  of  verdict  in  action  by  servant  for  injuries, 
where  relation  of  master  and  servant  not  shown;  Roessler  etc.  Co.  v. 
Peterson,  134  Fed,  791,  67  C.  C.  A.  295,  applying  rule  in  action  by 
servant  for  injuries  sustained  while  slacking  lime;  Pacific  Lumber 
Co.  V.  Moffat,  134  Fed.  838,  67  C.  C.  A.  442,  upholding  direction  of 
verdict  for  defendant  in  action  for  breach  of  contract  made  by  de- 
fendant's agent  in  giving  order  of  lumber  at  exorbitant  price,  object 
of  which  was  to  fraudulently  compel  defendant  to  pay  debt  of  his 
assignor  in  business;  Gibson  v.  Canadian  Pacific  Nav.  Co.,  1  Alaska, 
414,  holding  longshoreman  injured  while  unloading  vessel  not 
contributorily  negligent  because  he  knew  appliances  were  defective 
in  manner  in  which  used;  Kielbeck  v.  Chicago  etc.  R.  Co.,  70 
Neb.  576,  97  N.  W.  751,  upholding  verdict  for  defendant  in  action 
for  collision  at  crossing  where  defendant's  witnesses  heard  whistle 
and  plaintiffs  testified  they  did  not  hear  it;  Chicago  etc.  Ry.  Co.  v. 
Sporer,  69  Neb.  15,  94  N.  "W.  994,  holding  evidence  did  not  con- 
clusively show  that  whistle  not  blown  at  crossing;  Gunn  v.  Union  K. 
E.  Co.,  27  R.  I.  326,  62  Atl.  120,  upholding  Gen.  Laws  1896,  c.  251, 
§  11,  authorizing  supreme  court  to  direct  verdict  without  further 
trial  by  jury;  Hehir  v.  Rhode  Island  Co.,  26  R.  L  32,  58  Atl.  247, 
applying  rule  in  action  for  negligence;  dissenting  opinion  in  Daven- 
port V.  Southern  Ry.  Co.,  135  Fed.  968,  68  C.  C.  A.  444,  arguendo. 

Syl.  5   (iX,  80).     Bonds — Purchaser  from  bona  fide  purchaser. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  where 
railroad  acquired  county  aid  bonds  prior  to  state  decision  construing 
constitutional  provision,  which  bond  statute  violated,  its  assignees 
purchasing  after  decision  are  bona  fide  purchasers. 

94  U.  S.  288-299,  24  L.  103,  FULLER  v.  YEUTZER. 

Syl.  1   (IX,  81).     Patents — Claim  for  result. 

Approved  in  Manhattan  etc.  Co.  w.  Helios-Upton  Co.,  135  Fed.  788, 
holding  void  Baker  patent  No.  684,165,  for  method  of  regulating 
electric  current. 

Syl.  6  (IX,  82).  Patents — Combination  of  old  elements — Infringe- 
ment. 

Approved  in  Imperial  Bottle  Cap.  etc.  Co.  v.  Crown  Cork  etc.  Co., 
139  Fed.  323,  holding  Painter  patent  No.  468,258,  for  bottle-stopper, 
not  infringed  by  device  of  Abbott  patent  No.  704,167. 


785  Notes  on  U.  S.  Reports.  94  U.  S.  308-342 

94    U.    S.    30S-310,    24    L.    161,    MACKALL    v.    CHESAPEAKE    ETC. 
CANAL  CO. 

Syl.  1  (IX,  83).     Tax  sale  of  exempt  property  void. 

Approved  in  Lancy  v.  Boston,  186  Mass.  132,  71  N.  E.  304,  where 
part  of  tract  taken  for  railroad,  another  part  for  highway  and  re- 
mainder left  to  owner,  sale  of  whole  tract  for  single  undivided  tax 
on  who.le  tract  is  void. 

Syl.  2  (IX,  83).     Forfeiture  of  privileges,  how  raised. 

Approved  in  Newport  News  etc.  Ry.  etc.  Co.  v.  Hampton  Roads  Ry. 
etc.  Co.,  102  Va.  807,47  S.  E.  843,  failure  to  complete  street  railway  line 
within  time  limited  cannot  be  taken  advantage  of  in  action  by  com- 
petitor to  enjoin  construction  of  line. 

94  U.  S.  315-321,  24  L.  192,. UNITED  STATES  v.  FOX. 

Syl.  2  (IX,  84).     Law  governing  disposition  of  realty. 

Approved  in  Kane  v,  Luckman,  131  Fed.  618,  refusing  specific  per- 
formance of  contract  for  purchase  of  cows  in  exchange  for  farm;  Hall 
V.  Gabbert,  213  111.  215,  72  N.  E.  808,  right  of  bastard  to  inherit  prop- 
erty in  Illinois  is  governed  solely  by  laws  thereof;  Succession  of 
Kasling,  114  La.  296,  38  So.  174,  validity  of  will  made  in  Louisiana 
by  citizen  of  Louisiana  bequeathing  realty  situated  in  Mississippi 
must  be  tested  by  laws  of  Mississippi;  Moen  v.  Moen,  16  S.  D.  214, 
92  N.  W.  14,  where  prior  to  taking  effect  of  Comp.  Laws,  §  3403,  non- 
resident alien  acknowledged  in  writing  paternity  of  bastard,  on  his 
death  after  enactment  of  §  3403,  child  inherited  his  realty  in  South 
Dakota. 

94  U.  S.  321-342.  24  L.  224,  BARNEY  v.  KEOKUK. 

Syl.  5  (IX,  87).     Riparian  owner  takes  accretions. 

Approved  in  McBride  v.  Steinweden,  72  Kan.  513,  83  Pac.  823, 
where  Mississippi  river  is  part  of  boundary  between  Kansas  and 
Missouri  and  course  of  river  is  changed  by  accretion,  center  of  main 
channel  continues  to  be  boundary. 

Syl.  7   (IX,  87).     State  law  governs  title  to  tide  lands. 

Approved  in  Frank  v.  Goddin,  193  Mo.  394,  91  S.  W.  1058,  riparian 
owner  of  land  in  Missouri  owns  only  to  low-water  mark;  Franzini  v. 
Layland,  120  Wis.  82,  97  N.  W.  503,  unsurveyed  islands  in  navigable 
river  pass  with  conveyance  of  surveyed  land  to  which  they  are  ap- 
purtenant. 

•Syl.  8  (IX,  88).  Land  grant  bordering  on  river. 
Approved  in  dissenting  opinion  in  Kneeland  v.  Korter,  40  Wash. 
374,  82  Pac.  613,  1  L.  R.  A.  (N.  S.)  745,  majority  holding  where  tide 
lands  within  limits  of  railroad  grant  identified  and  surveyed  prior 
to  admission  of  state  railroad  entitled  to  land  under  state  constitu- 
tional provision  disclaiming  title  to  patented  tide  lands,  though  patent 
issued  after  constitution. 
5Q 


94  U.  S.  343-347  Notes  on  XT.  S.  Eeports.  786 

Syl.  10   (IX,  89).     Street  bordering  on  river — Access. 

Approved  in  Conradt  v.  Miller,  2  Alaska,  436,  granting  injunction 
to  prevent  building  of  wharves  by  private  persons  on  navigable 
stream  in  front  of  plaintiff's  property;  Brown  v.  Electric  Co.,  138 
N.  C.  538,  107  Am.  St.  Eep.  554,  51  S.  E.  C4,  69  L.  E.  A.  631,  electric 
light  company  granted  right  to  erect  poles  in  streets  cannot  cut  down 
trees  on  edge  of  sidewalks  without  compensating  abutting  owners. 

Syl.  11  (IX,  89).     Grant  of  right  of  way  over  street. 

Approved  in  Whittaker  v.  Atlanta  etc.  E.  Co.,  143  Fed.  585,  under 
Ga.  Civ.  Code,  §  2167,  lot  owner  cannot  enjoin  construction  of  rail- 
road along  street,  approved  by  council,  on  ground  that  change  of  grade 
will  injure  lot. 

Syl.  12  (IX,  90).     Authorizing  building  on  street. 

Approved  in  Conradt  v.  Miller,  2  Alaska,  436,  granting  injunction 
to  prevent  building  of  wharves  by  private  persons  on  navigable 
stream  in  front  of  plaintiff's  property. 

Syl.  14  (IX,  91).     Authorizing  packet  depot — Navigable  waters. 

Approved  in  Muhlker  v.  New  York  etc.  E.  E.  Co.,  197  U.  S.  567,  49 
L.  876,  25  Sup.  Ct.  522,  owner  of  realty  abutting  on  city  street  who 
has  contract  right  to  easement  of  light  and  air  may  enjoin  change 
from  surface  to  elevated  railroad  made  under  statutory  command; 
McAlpine  v.  Chicago  etc.  Ey.  Co.,  68  Kan.  212,  75  Pac.  75,  64  L.  E. 
A.  85,  arguendo. 

94  U.  S.  343-347,  24  L.  229,  FIEST  NAT.  BANK  v.  WHITMAN. 

Syl.   1    (IX,  91).     Action  by  payee  of   check  against  bank. 

Approved  in  dissenting  opinion  in  Burton  v.  United  States,  196 
U.  S.  309,  49  L.  491,  25  Sup.  Ct.  243,  majority  holding  indictment 
charging  receipt  of  cheek  at  St.  Louis  and  alleging  payment  thereon 
there  not  supported  by  evidence  of  receipt  of  St.  Louis  check  in 
Washington,  deposited  in  local  bank,  and  paid  at  St.  Louis,  where 
amount  thereof  immediately  on  deposit,  credited  by  Washington  bank 
to  defendant;  Guthrie  Nat.  Bank  v.  Gill,  6  Okl.  563,  54  Pac.  435, 
where  depositor  makes  draft  on  his  bank  and  then  makes  assignment 
for  creditors,  refusal  of  payment  of  draft  when  presented  after  as- 
signment does  not  give  right  of  action  against  drawee. 

Distinguished  in  Bank  of  Indian  Territory  v.  First  Nat.  Bank,  109 
Mo.  App.  671,  83  S.  W.  537,  payment  of  draft  by  drawee  estops  him 
from  showing  that  he  was  mistaken  in  supposing  he  had  mone^  in 
bis  hands  to  pay  it. 

Syl.  3   (IX,  92).     Certification  of  check  discharges  drawer. 

Approved  in  Noble  v.  Doughten,  72  Kan.  354,  83  Pac.  1054,  de- 
termining lack  of  diligence  where  substituted  check  sent  through 
clearing-house  on  day  after  its  receipt. 


787  Notes  on  U.  S.  Reports.  94  U.  S.  348-371 

Syl.  4  (IX,  92).     Forgery  of  check — Settlement  of  accounts. 

Approved  in  Western  Union  Tel.  Co.  v.  Bi-Metallic  Bank,  17  Colo, 
App.  233,  C8  Pac.  116,  where  bank  paid  check  on  face  of  indorsement, 
which  was  made  to  "Daley,"  while  check  was  payable  to  Daily, 
bank  is  liable. 

Syl.  5   (IX,  93).     Payment  of  check — Unauthorized  indorsement. 

Approved  in  Merchants'  Bank  v.  Prudential  Ins.  Co.,  110  Mo.  App. 
66,  84  S.  W.  102,  indorsement  of  payee's  name  on  check  without 
authority  creates  no  privity  of  contract  between  drawer  and  drawee. 

94  U.  S.  348-350,  24  L.  194,  EX  PARTE  FLIPPIN. 

Syl.  1  (IX,  93).     Jurisdiction  continues  till  satisfaction. 
Cited  in  King  v.  Davis,  137  Fed,  233,  arguendo. 
Syl.  3   (IX,  93).     Mandamus  to  control  decision. 
Sec  98  Am.  St.  Rep.  892,  note. 

94  U.  S.  351-371,  24  L.  195,  CROMWELL  v.  SAC  COUNTY. 

Syl.  1   (IX,  93),     Judgment  as  bar. 

Approved  in  Fayerweather  v.  Ritch,  195  U.  S.  300,  49  L.  210,  25  Sup, 
Ct.  58,  holding  validity  of  releases  res  adjudicata  where  decree  could 
not  have  been  rendered  without  upholding  releases;  Bredin  v.  National 
Metal  etc.  Co.,  147  Fed.  743,  interlocutory  decree  in  infringement  suit 
is  conclusive  in  subsequent  suit  where  it  has  ripened  into  final  decree; 
United  States  Fastener  Co.  v,  Bradley,  143  Fed.  530,  decree  of  dis- 
missal for  failure  to  prosecute  is  not  res  adjudicata;  Robinson  v. 
American  Car  etc.  Co.,  142  Fed.  172,  decree  in  infringement  suit  sub- 
mitted on  pleadings  sustaining  sufficiency  of  answer  denying  plaintiff 
was  inventor  of  device  bars  second  suit  for  infringement;  Westing- 
house  etc.  Co.  V.  Kansas  City  So.  Ry.  Co.,  137  Fed.  31,  upholding 
joinder  of  cause  of  action  on  mechanic's  lien  with  cause  of  action  on 
equitable  preference;  Groton  Bridge  etc.  Co.  v.  Clark  etc.  Brick  Co., 
136  Fed.  34,  68  C.  C.  A.  577,  where,  in  action  on  contract,  defendant 
answers  and  counterclaims  for  damages  for  breach  by  plaintiff,  and 
fails  to  appear  at  trial,  judgment  bars  subsequent  suit  on  same  facts 
set  up  in  counterclaim;  Gordon  v.  Ware  Nat.  Bank,  132  Fed.  449,  67 
L.  R.  A.  550,  65  C.  C.  A.  580,  judgment  foreclosing  pledge  of  lifo 
insurance  policy  bars  administrator  from  claiming  proceeds;  Allen 
V,  City  of  Davenport,  132  Fed.  221,  G5  C.  C.  A.  041,  whore  in  suit 
by  property  owners  street-paving  contract  declared  void  and  enforce- 
ment of  assessment  enjoined,  judgment  barred  suit  by  city  to  enforce 
lien  on  quantum  meruit  under  curative  statute;  Third  Nat.  Bank  v. 
Atlantic  City,  130  Fed.  754,  65  C.  C.  A.  177,  applying  rule  where  bill 
to  establish  right  to  fund  setting  out  grounds  of  right  was  taken  pro 
confesso  and  decree  rendered  thereon;  Koehler  v.  Holt  Manufacturing 
Co.,  146  Cal.  337,  80  Pac.  74,  decree  in  action  for  monthly  dues 
under  order  by  third  person  that  order  had  been  revoked  is  res 
adjudicata  in  suit  for  other  installments;  Allis  v.  Hall,  76  Conn,  328, 


94  U.  S.  351-371  Notes  on  U.  S.  Eeports.  788 

56  Atl.  640,  where  by  mutual  mistake  mortgage  did  not  except  from 
covenant  against  encumbrances  principal  of  prior  mortgage,  and  mort- 
gagee recovered  for  breach  of  covenant,  mortgagor  could,  after  de- 
cision denying  cross-coinplaint  for  reformation  on  ground  of  laches, 
restrain  enforcement  of  judgment;  Stethem  v.  Skinner,  11  Idaho,  379, 
82  Pac.  452,  where  water  decree  is  clear  as  to  stream  from  which 
distribution  should  be  made,  water-master  cannot  examine  findings 
for  directions;  Cannon  v.  Castleman,  162  Ind.  8,  C9  N.  E.  456,  where 
one  sued  on  contract  purposely  omits  to  set  up  defense  of  fraud  in 
obtaining  contract,  judgment  against  him  is  res  adjudicata  in  suit  for 
relief  against  such  judgment  on  ground  of  fraud  in  contract;  Defrics 
V.  McMeans,  121  Iowa,  541,  97  N,  W.  65,  judgment  that  land  contracts 
not  assessable  for  particular  year  estops  defendant  from  claiming 
they  were  assessable  for  subsequent  year;  Lockhart  v.  Leeds,  12  N. 
M.  162,  76  Pac.  314,  judgment  for  defendant  on  bill  to  declare 
mining  location  void  for  fraud  and  violation  of  agreement  to  locate 
for  plaintiff  bars  suit  to  have  property  declared  held  in  trust  for 
plaintiff;  Board  of  County  Commrs.  v.  Cross,  12  N.  M.  78,  73  Pac. 
617,  judgment  after  sustaining  demurrer  where  complaint  not  amended 
and  in  determination  of  which  material  issues  of  suit  decided  is  bar 
to  new  action;  Pakas  v.  Hollingshead,  184  N.  Y.  217,  112  Am.  St. 
Rep.  606,  77  N.  E.  42,  3  L.  E.  A.  (N.  S.)  1042,  where  goods  are  de- 
liverable and  payable  in  installments,  judgment  for  damages  for  non- 
delivery of  part  of  goods  bars  action  for  failure  to  deliver  balance; 
Lidwell  V.  Bidwell,  139  N.  C.  411,  52  S.  E.  58,  2  L.  R.  A.  (K  S.)  324, 
Vfliere,  after  defendant  obtained  divorce  in  North  Dakota  in  which 
plaintiff  appeared,  latter  sued  in  Massachusetts  and  divorce  denied 
on  ground  of  validity  of  first  divorce,  Massachusetts  decree  is  binding 
in  maintenance  suit;  Territory  v.  Hopkins,  9  Okl.  150,  59  Pac.  981, 
applying  rule  where  decree  upheld  county  bonds;  Randall  v.  Carpenter, 
25  R.  I.  642,  57  Atl.  866,  finding  in  suit  for  agreed  compensation  for 
•services  that  services  not  rendered  is  conclusive  in  action  on  quantum 
meruit;  Memphis  City  Bank  v.  Smith,  110  Tenn.  360,  75  S.  W.  1071; 
judgment  for  bank  in  action  against  indorscr,  in  which  cross-bill,  to 
which  pledgor  of  security  joined,  to  recover  usury,  is  res  adjudicata 
assumpsit  for  conversion  of  pledge;  W.  C.  Belcher  Land  Mtg.  Co.  v. 
Norris,  34  Tex.  Civ.  113,  78  S.  W.  392,  judgment  in  action  by  land 
owner  to  cancel  mortgage  on  ground  that  mortgagee  knew  mortgagor 
was  not  owner,  upholding  mortgage,  concludes  owner  on  foreclosure 
where  he  pleads  usury;  Hearst  v.  Putnam  Min.  Co.,  28  Utah,  200,  107 
Am.  St.  Rep.  698,  77  Pac.  758,  66  L.  R.  A.  784,  decree  in  suit  by  stock- 
holders to  cancel  conveyance  of  corporation's  property  for  fraud  con- 
cludes other  stockholders  in  subsequent  suit  for  same  purpose  based  on 
same  facts;  State  v.  Mortensen,  27  Utah,  44,  74  Pac.  351,  denying  re- 
hearing in  criminal  case  where  question  of  misconduct  of  jury  de- 
termined on  prior  appeals;  Compton  v.  Seattle,  38  Wash.  525,  80  Pac. 
760,  applying  rule  to  condemnation  proceedings;  Davis  v.  Schmidt,  126 
Wis.  469,  110  Am.  St.  Rep.  938,  106  N.  W.  122,  judgment  for  interest 
on  note  binds  party  against  whom  rendered  in  subsequent  action  on 


789  Notes  on  U.  S.  Eeports.  94  U.  S.  351-371 

note  itself  in  which  same  matters  are  in  issue;  Pereles  v.  Gross,  126 
Wis.  132,  110  Am.  St.  Rep.  901,  105  N.  W.  222,  applying  rule  in  suit 
by  mortgagees  to  claim  proceeds  of  damages  recovered  by  lot  owner 
for  injuries  to  land. 

Syi.  2  (IX,  96).     Judgment  bar  only  as  to  matters  in  issue. 

Approved  in  Ex  parte  Ow  Guen,  148  Fed.  927,  where  on  return  of 
Chinese  his  claim  that  he  was  merchant  not  investigated  by  immigra- 
tion officials,  but  he  was  depctfted  because  of  former  status  as  un- 
registered laborer,  decision  not  conclusive  against  right  to  enter  as 
merchant;  Delaware  etc.  R.  Co.  v.  Kutter,  147  Fed.  58,  wliere  in  action 
for  money  due  on  contract  only  defense  pleaded  was  breach  of  con- 
tract, judgment  therein  does  not  bar  action  for  wrongful  termination 
of  contract;  Leonard  v.  Simplex  etc.  Heating  Co.,  145  Fed.  946,  where 
bill  in  infringement  alleged  that  defendant  claimed  right  to  make  in- 
fringing articles  by  virtue  of  another  patent  and  that  same  was  void, 
but  defendant  did  not  set  up  patent  as  defense,  decree  for  complainant 
not  bar  to  suit  for  infringement  of  second  patent;  Harrison  v.  Reming- 
ton Paper  Co.,  140  Fed.  401,  denial  of  motion  for  execution  against 
stockholder  on  judgment  against  corporation  in  which  defense  of 
prior  action  under  Kan.  Gen.  St.  1SS9,  §§  1200,  1204,  was  pleaded, 
does  not  estop  plaintiff  from  litigating  issues  in  action  between  same 
parties  under  §§  1200,  1204;  In  re  Drumgoole,  140  Fed.  209,  order  of 
referee  directing  trustee  to  return  to  purchaser  of  goods  sold  by  trus- 
tee part  of  purchase  money  on  account  of  shortage  in  quantity,  where 
no  defense  made,  does  not  bind  trustee  when  much  larger  claim  filed 
involving  other  packages;  United  States  Min.  Co.  v.  Lawson,  134 
Fed.  776,  67  C.  C.  A.  587,  issuance  of  patent  to  owner  of  one  of  two 
overlapping  claims  does  not  estop  owner  of  other  claim  froitn  asserting 
priority  in  controversy  respecting  extralateral  rights  not  involved  in 
patent  proceedings;  Oman  v.  Bedford  etc.  Stone  Co.,  134  Fed.  69,  67 
C.  C.  A.  190,  affirming  Bedford  etc.  Stone  Co.  v.  Oman,  134  Fed.  453, 
holding  decree  in  favor  of  right  of. individual  to  car  service  over  side- 
track operated  by  carrier  not  res  adjudicata  in  subsequent  suit  after 
sale  of  track  to  private  party  who  was  party  to  former  suit;  Rankin 
V.  City  of  Big  Rapids,  133  Fed.  673,  66  C.  C.  A.  568,  where  in  probate 
proceedings  by  receiver  of  hank  to  establish  claim  for  assessment  on 
decedent's  stock  it  was  decided  she  was  owner  thereof,  defendants 
in  subsequent  suit  by  receiver's  successor  against  decedent's  distribu- 
tees to  recover  subsequent  assessments  cannot  deny  decedent 's  ownership ; 
Georgia  etc.  Banking  Co.  v.  Wright,  132  Fed.  916,  917,  where  Georgia 
court  in  suit  between  state  and  corporation  decided  that  charter  ex- 
empted company  from  tax  in  excess  of  certain  percentage  of  earnings, 
etate  concluded  in  subsequent  suit  for  taxes  for  other  years  under 
different  statute;  Columbia  Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130 
Fed.  165,  mortgagee  is  not  bound  by  judgment  against  mortgagor  in 
suit  commenced  after  mortgage  given  and  to  which  he  was  not  party; 
Clark  V.  Knox,  32  Colo.  348,  76  Pac.  374,  where  in  suit  to  remove 
cloud  caused  by  attachment  against  husband  it  was  held  that  attach- 


Qi  U.  S.  371-382  Notes  on  U.  S.  Reports.  790 

ment  levy  antedated  delivery  of  deeds  from  husband  to  wife,  decree 
was  not  res  adjndicata  in  suit  to  remove  cloud  caused  by  later  levy 
on  other  lands  embraced  in  same  deeds;  Georgia  R.  E.  etc.  Co.  v.  Wright, 
124  Ga.  604,  605,  53  S.  E.  255,  256,  suit  to  enjoin  collection  of  tax  for 
one  year  is  no  bar  to  suit  to  enjoin  similar  taxes  for  another  year; 
Stone  V.  Salisbury,  209  111.  65,  70  N.  E.  608,  decree  partitioning  prop- 
erty of  decedent  naming  certain  person  as  his  child  and  heir  does 
not  conclude  heirs  of  widow  in  subsequent  suit  not  involving  such 
property  as  to  parentage  of  such  persoa;  Bennett  v.  First  Nat.  Bank, 
128  Iowa,  9,  102  N.  W.  131,  where,  in  suit  to  establish  priority  of 
liens,  default  foreclosure  decree,  reciting  that  H.  entitled  to  benefit 
of  security  because  of  assumption  of  note,  though  pleading  did  not 
allege  assumption,  did  not  bind  defendant  to  first  exhaust  H. 's  lia- 
bility before  proceeding  against  debtor's  property;  Stroup  v.  Pepper, 
69  Kan.  245,  247,  76  Pac.  826,  827,  where,  in  ejectment,  defendant 
claimed  rights  of  mortgagee  in  possession,  fact  that  in  prior  suit  de- 
fendant in  ejectment  sought  to  foreclose  mortgage,  but  reference  to 
it  stricken  from  pleadings,  decree  therein  did  not  affect  defendant's 
rights  as  mortgagee  in  possession;  Schmidt  v.  Louisville  etc.  By.  Co., 
119  Ky.  299,  84  S.  W.  317,  applying  rule  in  action  on  coupons  where 
judgment  rendered  in  other  suit  on  other  coupons  from  same  bond; 
Gentry  v.  Pacific  Livestock  Co.,  45  Or.  238,  77  Pac.  116,  construing 
effect  of  decree  on  appeal  in  suit  to  enjoin  trespass  where  defendant 
entered  land  under  contract;  Selbie  v.  Graham,  18  S.  D.  375,  100  N.  W. 
757,  judgment  dismissing  action  against  administrator  based  on  claim 
that  plaintiff  owned  property  in  name  of  decedent  does  not  estop 
plaintiff  in  action  by  administrator  for  use  of  property  from  setting 
up  defense  that  he  was  joint  owner;  Davis  v.  Schmidt,  12G  Wis.  4G3, 
110  Am.  St;  Eep.  938,  106  N.  W.  120,  in  action  on  note,  answer  ad- 
mitting recovery  of  judgment  for  interest  on  note  is  no  bar  to  rccuvciy 
on  note  whore  answer  denies  right  to  recover. 

Syl.  3   (IX,  107).     Judgment  on  county  bonds  as  estoppel. 

Distinguished  in  Rew  v.  Independent  School  Dist.,  125  Iowa,  33.  lOG 
Am.  St.  Kep,  282,  98  N.  W.  804,  federal  decree  based  on  conclusion  that 
school  district  is  estopped  by  recitals  in  bonds  from  setting  up  certain 
defenses  is  res  adjudieata  in  state  court. 

Syl.  5  (IX,  102).     Eeeitals  in  county  bonds  as  estoppel. 

Approved  in  Kittcl  v.  Trustees  etc.  Improvement  Fund,  139  Fed. 
955,  holding  trustees  of  Florida  improvement, fund  estopped  of  record 
from  denying  title  to  swamp  lands  by  certificate  reciting  congressional 
act  relating  to  lands  and  acceptance  of  grant  by  state  and  state 
statute  reciting  grant  to  railroad  and  their  promise  to  make  deeds 
under  such  grants  when  patents  obtained. 

94  U.  S.  371-382,  24  L.  271,  JOHNSON  v.  HAEMON. 

Syl.   1    (IX,   103).     Bill  of  exceptions   on  feigned  issue. 

Approved  in  In  re  Ncasinith,  147  Fed.  1G3,  applying  rule  in  baiik' 
ruptcy. 


791  Notes  on  U.  S.  Reports.  94  U.  S.  382-397 

Syl.  4  (IX,  103),     Deeds — Capacity  to  understand. 

Approved  in  Burnham  v.  Burnham,  119  Wis.  514,  100  Am.  St.  Rep. 
895,  97  N.  W.  178,  upholding  marriage  settlement  made  by  husband 
addicted  to  excessive  use  of  intoxicants  where  he  was  sober  at  time  of 
making  agreement.     See  107  Am.  St.  Rep.  544,  note, 

94  U.  S.  382-391,  24  L.  173,  BEALL  v.  WHITE, 

Syl.  1  (IX,  103),     Statutory  liens  without  possession. 

Approved  in  Becker  v.  Brown,  65  Neb.  269,  91  N.  W,  179,  upholding 

agister's  lien. 

Syl.  4  (IX,  104).     Mortgage  of  after-acquired  property. 

See  109  Am.  St.  Rep.  516,  note, 

Syl.  5  (IX,  104).     Landlord  and  tenant — Surrender,  how  made. 

Approved  in  Kastner  v.  Campbell,  6  Ariz.  149,  53  Pac.  587,  in  action 
for  rent,  lessee's  acts  toward  surrender  of  lease  before  rent  accrued 
without  connecting  them  with  acquiescence  of  lessor  inadmissible. 

94  U,  S.  391-397,  24  L.  248,  McCREADY  v.  VIRGINIA, 

Syl.  1  (IX,  105).     Title  to  tide  lands. 

Approved  in  Coniiiion wealth  v.  Boston  Terminal  Co.,  185  Mass.  283, 
70  N.  E.  125,  iinder  Acts  1896,  p.  520,  creating  terminal  company  to 
build  union  depot,  company  could  not  avoid  payment  for  lands  of 
state  below  low-water  mark,  condemned  by  it,  and  embraced  within 
street  extensions;  Taylor  v.  Commonwealth,  102  Va.  766,  770,  776,  102  Am. 
St.  Rep.  865,  47  S.  E.  878,  879,  882,  Acts  1899-1900,  p.  797,  leasing 
tract  lying  under  waters  of  York  river  below  low-water  mark,  in- 
cluding artesian  well  thereon,  does  not  interfere  with  rights  of  rijiarian 
owners;  dissenting  opinion  in  State  v.  Mallory,  73  Ark.  254,  83  S.  W. 
961,  67  L.  R.  A.  773,  majority  holding  void  Acts  1903,  p.  306,  protect- 
ing fish  and  game  and  prohibiting  nonresidents  from  hunting  or  fishing. 

Syl.  2  (IX,  106).     Right  of  fishery  as  property. 

Approved  in  State  v.  Mallory,  73  Ark.  247.  S3  S.  W.  959.  67  L.  R.  A. 
773,  holding  void  Acts  19U3,  p.  306,  prohibiting  nonresidents  from 
hunting  or  fishing;  State  v.  Price,  71  N.  J.  L.  254,  58  Atl.  1017,  up- 
holding P.  L.  1902,  p.  170,  regulating  taking  and  cultivating  of  oysters; 
People  V.  Bootman,  180  N.  Y.  9,  72  N.  E.  507,  upholding  Laws,  1900, 
p.  22,  making  it  unlawful  to  have  imported  game  in  possession  dur- 
ing close  season;  Louisiana  v.  Mississippi,  202  U,  S.  52,  50  L.  932,  26 
Sup.  Ct.  408,  arguendo. 

Syl.  3  (IX,  106).     Privileges  of  citizenship — Right  of  fishery. 

Approved  in  State  v.  Smith,  71  Ark.  479,  75  S.  W.  1081,  upholding 
statute  prohibiting  stock  from  running  at  large;  Daniels  v.  Homer,  139 
N.  C.  222,  51  S.  E.  993,  3  L.  R.  A.  (N.  S.)  997,  upholding  Gen.  Assem. 
Acts  1905,  c.  292,  §  9,  authorizing  seizure  and  sales  of  appliances  used 
in  illegal  fisliing;  State  v.  Young,  13S  X.  C.  572,  50  S.  E.  213,  licenso 
authorizing  licensee  to  lay  off  oyster-bed  in  waters  of  state  is  not  free- 


94  U.  S.  405-429  Notes  on  U.  S.  Eeports.  792 

hold  interest  in  land  so  as  to  qualify  license  for  jury  duty;  Brooks  v, 
Tripp,  135  N.  C.  161,  47  S.  E.  402,  upholding  Laws  1903,  p.  723,  pro- 
tecting shell-fish  during  close  season,  and  providing  for  commissioner 
whose  salary  shall  be  paid  by  the  tax  levied  on  shell-fish  taken  out 
of  county;  dissenting  opinion  in  State  v.  Mallory,  73  Ark.  258,  83 
S.  W.  963,  67  L.  E.  A.  773,  majority  holding  void  Acts  1903,  p.  306, 
prohibiting  nonresidents  from  hunting  or  fishing. 

94  U.  S.  405-414,  24  L.  232,  GOULD  v.  DAY. 

Syl.  1  (IX,  108).     Deeds — Presumption  as  to  delivery. 
Cited  in  Brumby  v.  Jones,  141  Fed.  323,  arguendo. 

94  U.  S.  423-429,  24  L.  204,  DAVIS  v.  BROWN. 

Syl.  2  (IX,  110).     Indorsement  and  contemporaneous  agreement. 

Approved  in  Crilly  v.  Gallice,  148  Fed.  835,  construing  together  con- 
tract of  indorsement  of  note  and  contemporaneous  written  agreement 
for  compromise  of  indebtedness;  Myrick  v.  Purcell,  95  Minn.  134,  103 
N.  W.  902,  applying  rule  where  interest  in  patent  sold  and  notes 
given  in  payment  under  written  agreement  that  vendor  should  not  sell 
notes,  but  that  they  should  be  paid  out  of  vendee's  share  of  profits. 

Syl.   3    (IX,   III).     Omission   of   indorser  to   plead   release. 

Approved  in  Kittel  v.  Trustees  etc.  Improvement  Fund,  139  Fed.  955, 
holding  trustees  of  Florida  improvement  fund  estopped  of  record  from 
denying  title  to  swamp  lands  by  certificate  reciting  congressional 
act  relating  to  lands,  and  acceptance  of  grant  by  state  statute  recit- 
ing grant  to  railroad  and  their  promise  to  make  deeds  under  grant 
when  patents  obtained. 

Syl.  4   (IX,   111).     Judgment  as  estoppel. 

Approved  in  Delaware  etc.  R.  Co.  v.  Kutter,  147  Fed.  58,  where  in 
action  for  money  due  on  contract  only  defense  pleaded  was  breach 
of  contract,  judgment  therein  does  not  bar  action  for  wrongful  ter- 
mination of  contract;  In  re  Drumgoole,  140  Fed.  209,  order  of  referee 
directing  trustee  to  return  to  purchaser  of  goods  sold  by  trustee  part 
of  purchase  money  on  account  of  shortage  in  quantity,  wh(*re  no  de- 
fense made,  does  not  bind  trustee  when  much  larger  claim  filed  in- 
volving other  packages;  In  re  Spalding,  139  Fed.  247,  where  state 
court  appointed  receiver  because  defendant  had  conveyed  property 
in  fraud  of  creditors,  appointment  was  not  act  of  bankruptcy  on  part 
of  defendant  as  one  made  under  laws  of  state  "because  of  insolvency" 
within  Comp.  St.  Supp.  1903,  p.  410;  Bedford  etc.  Stone  Co.  v.  Oman, 
134  Fed.  453,  decree  in  favor  of  right  of  individual  to  car  service 
over  sidetrack  operated  by  carrier  not  res  adjudicata  in  subsequent 
suit  after  sale  of  track  to  private  party  who  was  party  to  former  suit; 
Georgia  etc.  Banking  Co.  v.  Wright,  132  Fed.  97,  where  Georgia  court 
in  suit  between  state  and  corporation  decided  that  charter  exempted 
company  from  tax  in  excess  of  certain  percentage  of  earnings,  state 
concluded  in  subsequent  suit  for  taxes  for  other  years  uuder  different 


793  Notes  on  U.  S.  Reports.  94  U.  S.  444-455 

statute;  Stroup  v.  Pepper,  69  Kan.  246,  76  Pac.  827,  where  in  eject- 
ment defendant  claimed  rights  of  mortgagee  in  possession,  fact  that 
in  prior  suit  defendant  in  ejectment  sought  to  foreclose  mortgage,  but 
reference  to  it  stricken  from  pleadings,  decree  therein  did  not  affect  de- 
fendant's  right  as  mortgagee  in  possession;  Schmidt  v.  Louisville  etc. 
Ey.  Co.,  119  Ky.  299,  84  S.  W.  317,  applying  rule  in  action  on  coupons 
where  judgment  rendered  in  other  suit  on  other  coupons  from  same 
bond;  State  v.  McEldowney,  54  W.  Va.  700,  47  S.  E.  652,  dismissal 
of  bill  which  does  not  state  facts  not  calling  for  relief  is  no  bar  to 
second  bill  on  same  cause  of  action  stating  additional  facts  which  make 
second  bill  good. 

94  U.  S.  444-455,  24  L.  207,  MULLER  v.  DOWS. 

Syl.  1   (IX,  116).     Citizenship — Suit  by  or  against  corporation. 

Approved  in  Davis  v.  Chesapeake  etc.  Ry.  Co.,  116  Ky.  151,  75  S. 
W.  277,  compliance  by  foreign  corporation  with  statute  prohibiting 
such  corporations  from  exercising  right  of  eminent  domain  or  acquiring 
realty  until  they  become  corporations  under  state  laws  does  not  de- 
prive corporation  of  right  of  removal  of   actions. 

Syl.  2  (IX,  117).  Jurisdiction — Creation  of  corporation  should  ap- 
pear. 

Approved  in  Knight  v.  Lutcher  etc.  Lumber  Co.,  136  Fed.  406. 
69  C.  C.  A.  248,  allegation  that  corporation  is  citizen  of  certain  stati' 
is  insuflicicnt;  Kansas  City  etc.  Ry.  Co.  v.  Prunty,  133  Fed.  15,  GG 
C.  C.  A.  163,  arguendo. 

Syl.  3  (IX,  117).     Citizenship  of  consolidated  corporation. 

Approved  in  Walsey  v.  Chicago  etc.  Ry.  Co.,  147  Fed.  614,  whrre 
railroad  formed  hy  consolidation  of  two  companies,  one  from  Illinois 
and  other  from  Iowa,  consolidated  with  Iowa  companies,  it  was  cor- 
poration of  either  state  for  purposes  of  federal  jurisdiction;  Dodd  v. 
Louisville  Bridge  Co.,  130  Fed.  195,  where  corporation  incorporated 
in  several  states  was  formed  by  consolidation  of  corporations  of  said 
states  and  was  sued  on  contract  made  by  one  of  such  consolidating 
companies,  suit  by  citizen  of  one  of  other  states  was  not  removable. 

Syl.  5   (IX,  118).     Foreclosure  sale  of  railroad  in  other  state. 

Approved  in  Chesapeake  Beach  Ry.  Co.  v.  Washington  etc.  R.  R.  Co., 
199  U.  S.  251,  50  L.  178,  26  Sup.  Ct.  25,  deed  from  mortgage  trustee 
conveys  whatever  title  he  had  though  it  recites  decree  of  foreclosure; 
Riverdale  Cotton  Mills  v.  Alabama  etc.  Mfg.  Co.,  198  U.  S.  197,  49 
L.  1016,  25  Sup.  Ct.  629,  federal  court  decreeing  foreclosure  suit  in 
which  diverse  citizenship  admitted,  of  land  partly  in  state,  may  by 
ancillary  suit  restrain  attack  on  purchaser's  title  by  state  suit; 
Clark  v.  Seagraves,  186  Mass.  438,  71  N.  E.  816,  upholding  jurisdiction 
to  have  deed  absolute  declared  mortgage  and  to  redeem  therefrom 
though  land  is  in  another  state;  Dickson  v.  Loehr,  126  Wis.  645,  lOG 
N.  W.  794,  4  L.  R.  A.  (N.  S)  986,  wlicre  vendee  conveyed  land  in  an- 
other state  as  security  for  payment  of  part  of  purchase  price,  vendor  in 


94  U.  S.  457-463  Notes  on  U.  S.  Eeports.  794 

action  on  contract   could   have  judgment  requiring  purchaser  to   p^y 
debt  or  convey  land  pledged. 

Distinguished  in  Jones  v.  Byrne,  149  Fed.  469,  federal  court  cannot 
decree  foreclosure  of  lien  on,  and  sale  of,  land  in  another  stale. 

94  U.  S.  457-463,  24  L.  251,  CONNECTICUT  ETC.  LIFE  INS.  CO.  v. 
SCHAEFER. 

Syl.  5  (IX,  122).     What  creates  insurable  interest. 

Approved  in  Mechanics'  Nat.  Bank  v.  Comins,  72  N.  H.  15,  101  Am. 
St.  Rep.  650,  55  Atl.  193,  one  advancing  funds  to  conduct  business  of 
corporation  has  insurable  interest  in  life  of  manager  and  promoter; 
Brett  V.  Warnick,  44  Or.  521,  102  Am.  St.  Rep.  639,  75  Pac.  1064, 
cousin  of  member  of  beneficial  society  may  agree  with  him,  benefi- 
ciaries consenting,  for  assignment  of  policy  to  secure  loan. 

Syl.  6   (IX,  122).     Wager  policy  void. 

Approved  in  Gordon  v.  Ware  Nat.  Bank,  132  Fed.  446,  67  L.  R.  A. 
550,  65  C.  C.  A.  580,  where  decedent  insured  life  for  wife's  benefit 
and  later  they  pledged  policy  for  loan  to  husband,  and  lender  fore- 
closed pledge  and  collected  insurance,  administrator  cannot  claim 
proceeds;  Hinton  v.  Mutual  etc.  Life  Assn.,  135  N.  C.  323,  102  Am. 
St.  Rep.  545,  47  S.  E.  477,  65  L.  R.  A.  161,  where  life  policy  was 
secured  under  agreement  between  assured  and  stranger  that  latter 
would  pay  premiums  and  take  proceeds,  and  policy  was  assigned  to 
him  and  he  sued  as  administrator,  he  could  not  recover. 

Syl.  8  (IX,  122).     Insurance — Cessation  of  insurable  interest. 

Approved  in  Gordon  v.  Ware  Nat.  Bank,  132  Fed.  446,  447,  67  L.  R. 
A.  550,  65  C.  C.  A.  580,  where  decedent  insured  life  for  wife 's  benefit  and 
they  pledged  policy  for  loan  to  husband  and  lender  foreclosed  pledge  and 
collected  insurance,  administrator  cannot  claim  proceeds ;  White  v.  Brother- 
hood of  American  Yoeman,  124  Iowa,  295,  104  Am.  St.  Rep.  323,  99  N.  W. 
1072,  where  benefit  certificate  was  payable  to  certain  person,  by  name, 
she  being  wife  of  insured,  and  subsequently  they  were  divorced,  and 
insured  remarried,  but  did  not  change  beneficiary,  first  wife  entitled 
to  proceeds  oi  certificate;  King  v.  Cram,  185  Mass.  106,  69  N.  E.  1051, 
upholding  assignment  of  policy  to  sister  in  law,  to  whom  insured  owed 
money;  Blum  v.  New  York  Life  Ins.  Co.,  197  Mo.  525,  526,  95  S. 
W.  320,  Rev.  St.  1899,  §  7895,  providing  that  on  divorce  husband  may 
designate  other  beneficiary  in  life  policy  does  not  apply  to  policy  is- 
sued prior  to  statute;  Hinton  v.  Mutual  etc.  Life  Assn.,  135  N.  C.  324, 
102  Am.  St.  Rep.  545,  47  S.  E.  477,  65  L.  R.  A.  161,  where  life  policy 
payable  to  estate  of  insured  was  secured,  under  agreement  between 
assured  and  stranger  that  latter  would  pay  premiums  and  take  jiro- 
ceeds,  and  policy  was  assigned  to  him  and  he  sued  as  administrator,  he 
could  not  recover;  Mechanics'  Nat.  Bank  v.  Comins,  72  N.  H.  16,  20, 
101  Am.  St.  Rep.  650,  55  Atl.  193,  195,  one  advancing  funds  to  eon- 
duct  business  of  corporation  has  insurable  interest  in  life  of  manager 
and  promoter. 


795  Notes  on  U.  S.  -Reports.  94  U.  S.  467-47G 

DistingiiisliccI  in  Griffin  v.  Equitable  Assur.  Soc,  119  Ky.  861,  84 
S.  W.  nCG,  administrator  cannot  maintain  action  on  policy  procured 
by  fraudulent  representations  of  beneficiaries  and  insured  that  former 
were  creditors  of  latter. 

94  U.  S.  467-4G9,  24  L.  166,  HINCKLEY  v.  GILMAN,  CLINTON  ETC. 
R.  R.  CO. 

Syl.  1   (IX,  124).     Foreclosure — Appeal  by  receiver  not  party! 

Approved  in  Cassett  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  35,  where 
in  action  against  railroad  for  violation  of  interstate  commerce  act  plain- 
tiff obtained  order  against  railroad  ofllcers  requiring  production  of  books 
before  trial,  order  was  final,  decision  reviewable  on  error. 

Distinguished  in  Heinze  v.  Butte  etc.  Min.  Co.,  129  Fed.  339,  v54 
C.  C.  A.  15,  neither  circuit  court  order  approving  receiver's  monthly 
report  nor  order  requiring  him  to  pay  expenses  incurred  is  appealable. 

94  U.  S.  469-476,  24  L.  256,  MILWAUKEE  ETC.  RY.  v.  KELLOGG. 
Syl.  3  (IX,  125).  Experts — Matters  of  common  observation. 
Approved  in  Illinois  Central  R.  R.  Co.  v.  Smith,  208  111.  612,  70 
N.  E.  629,  in  action  for  injuries  to  railroad  employee  engaged  in 
dumping  ballast  cars,  evidence  of  attending  physicians  that  foot  in- 
jured by  coming  in  contact  with  uneven  surfaces  is  not  expert  evi- 
dence; Cook  V.  Stimson  Mill  Co.,  41  Wash.  319,  83  Pac.  421,  opinion 
of  witness  as  to  speed  of  train  at  time  it  was  wrecked  by  running  into 
cattle,  based  wholly  on  conditions  surrounding  wreck,  is  inadmissible. 

Syl.  4  (IX,  125).     Proximate  cause  is  for  jury. 

Approved  in  Shugart  v.  Atlanta  etc.  Ry.,  133  Fed.  509,  510,  66  C.  C. 
A.  379.  applying  rule  in  action  for  death  of  fireman  caused  by  de- 
railment of  train  due  to  defective  track;  Southern  Ry.  Co.  v.  Jones, 
143  Ala.  335,  39  So.  121,  applying  rule  where  ordinance  required 
conductor  to  'stop  car  before  reaching  railroad  tracks  and  walk  across 
track,  and  conductor  walked  only  to  middle  of  track;  Omaha  St.  R. 
Co.  V.  Larson,  70  Neb.  595,  97  N.  W.  825,  applying  rule  where  one  in- 
jured while   driving  across  street-car  track. 

Syl.   5    (IX,    125).     Proximate   cause — No   intermediate   cause. 

Ap^proved  in  American  Bridge  Co.  v.  Seeds,  144  Fed.  GIG,  determining 
proximate  cause  of  injury  to  bridge  workman  knocked  off  by  being 
struck  by  tackle  load  importunely  raised  on  foreman's  signal;  Demolli 
V.  United  States,  144  Fed.  366,  one  causing  obscene  matter  written 
by  him  to  be  printed  in  newspaper,  knowing  paper  would  be  mailed  to 
readers,  is  punishable  under  Rev.  St.,  §  3893;  Texas  &  P.  Ry.  Co.  v. 
Coutourie,  135  Fed.  473,  68  C.  C.  A.  177,  in  action  for  loss  of  goods  by 
fire  while  in  carrier's  possession,  through  its  negligence  in  protecting  it, 
failure  to  define  distinction  between  jaroximate  and  remote  cause  not 
error  where  court  instructed  that  defendant's  negligence  must  have 
been  direct  cause  of  loss;  Sliugart  v.  Atlanta  etc.  Ry.,  133  Fed.  511, 
66  C.  C.  A.  379,  killing  of  fireman  by  derailment  of  train  caused  by 


64  U.  S.  469-476  Notes  on  U.  S.  Eeports.  796 

defective  track,  does  not  excuse  company  though  train  running  at 
excessive  speed;  Davis  v.  Mercer  Lumber  Co.,  164  Ind.  424,  73  N.  E. 
903,  applying  rule  where  mill  employee  injured  by  improperly  guarded 
saw;  Claypool  v.  Wigmore,  34  Ind.  App.  41,  71  N.  E.  510,  holding  owner 
of  building  in  which  elevator  shaft  door  partially  open  not  liable 
for  injuries  caused  by  stepping  into  shaft  when  cage  not  there; 
Fishburn  v.  Burlington  etc.  Ey.  Co.,  127  Iowa,  499,  103  N.  W.  487, 
where  boy  injured  by  falling  of  snow  fence  defectively  constructed, 
fact  that  boy  had  earlier  in  the  day  found  panel  down  and  put  it  in 
place,  does  not  show  proximate  cause  of  injury  was  not  defective 
construction;  St.  Louis  etc.  E.  E.  Co.  v.  League,  71  Kan.  84,  80  Pac. 
47,  where  fire  started  in  night  by  railroad  spread  to  plaintiff's  prem- 
ises and  he  fought  it  till  he  thought  danger  past  and  it  later  broke  out 
again,  original  negligence  was  proximate  cause  of  final  burning; 
Bowden  v.  Derby,  99  Me.  212,  58  Atl.  994,  determining  proximate 
cause  of  injury  to  employee  injured  by  falling  of  derrick  boom; 
Haley  v.  St.  Louis  Transit  Co.,  179  Mo.  35,  77  S.  W.  732,  64  L.  E.  A. 
295,  act  of  street-car  company  in  carrying  passengers  beyond  destination 
is  not  proximate  cause  of  injury  sustained  by  falling  on  sidewalk  while 
returning  to  destination;  Mast  v.  Sapp,  140  N.  C.  542,  111  Am.  St.  Eep. 
871,  53  S.  E.  353,  5  L.  E.  A.  (N.  S.)  379,  where  city  reservoir  broke 
and  crushed  house  and  owner,  right  of  action  of  latter 's  executor  for 
destruction  of  house  depends  on  whether  injury  committed  before  or  after 
her  death;  Carey  v.  Preferred  Accident  Ins.  Co.,  127  "Wis.  72,  106  N.  W. 
1056,  where  insured  fell  and  sustained  abrasion  of  skin  and  on  eighth 
day  physician  called  and  found  him  suffering  from  blood  poisoning 
resulting  from  infection,  from  which  he  died,  accident  proximate  cause 
of  death;  Winehel  v.  Goodyear,  126  Wis.  277,  105  N.  W.  827,  applying 
rule  where  employee  of  sawmill  injured  by  saw  which  defendant  had 
left  unguarded. 

Syl.  6  (IX,  128).     Proximate  cause — Natural  consequence. 

Approved  in  United  States  etc.  Co.  v.  Des  Moines  Nat.  Bank,  145 
Fed.  280,  under  bond  indemnifying  bank  for  dishonesty  or  culpable 
negligence  of  employee,  surety  not  liable  for  loss  of  money,  though 
employer  did  not  count  cash  daily  as  instructed;  McGill  v.  Michigan 
etc.  Co.,  144  Fed.  792,  where  superintendent  of  owner  of  vessel  being 
changed  from  coal  to  oil  burner,  filled  oil  tank  during  progress  of 
work,  knowing  workmen  used  candles,  explosion  due  to  his  negligence; 
Quinette  v.  Bisso,  136  Fed.  840,  69  C.  C.  A.  825,  act  of  passenger  in 
taking  passage  in  skiff  across  river  in  fog  not  proximate  cause  of 
death  resulting  from  unlawful  speed  of  tug  which  ran  her  down; 
Empire  State  etc.  Co.  v.  American  etc.  Ry.  Co.,  135  Fed.  141,  where 
cattle  train  diverted  to  other  line  on  account  of  floods  and  cattle 
placed  in  pens,  but  to  prevent  cattle  from  drowning  during  other 
flood,  they  were  driven  into  overhead  viaduct  and  many  starved, 
proximate  cause  of  loss  was  flood;  Jarnagin  v.  Travelers'  Prot.  Assn., 
133  Fed.  894,  S95,  08  L.  E.  A.  499,  66  C.  C.  A.  622,  where  deceased  died 
from  shot  fired  by  third  persons,  while  he  was  in  custody  of  jiolice 


797  Notes  on  U.  S.  Reports.  94  U.  S.  477-498 

under  arrest,  proximate  cause  of  death  was  shot  and  not  negligence  of 
police  in  failing  to  protect  him;  Clark  v.  Kansas  City  etc.  K.  Co., 
129  Fed.  343,  64  C.  C.  A.  19,  where  plaintiff  owned  warehouse  near 
tracks  and  the  track  crew  living  near  warehouse  built  fires  on  right  of 
way  and  plaintiff  called  defendant's  attention  to  danger,  plaintiff  not 
contributorily  negligent  where  warehouse  ignited  in  night  by  sparks; 
St.  Louis  etc.  Ry.  Co.  v.  Harrison,  76  Ark.  434,  89  S.  W.  54,  in  action 
against  carrier  for  assault  by  conductor  during  altercation  as  to  pass, 
fact  that  defendant  negligently  wrote  wrong  date  on  pass  is  not 
proximate  cause  of  injury;  Green-Wheeler  Shoe  Co.  v.  Chicago  etc. 
Ry.  Co.,  130  Iowa,  129,  106  N.  W.  499,  carrier  liable  for  loss  of  goods 
by  act  of  God  where  carrier  negligently  delayed  shipment;  Fishburn  v. 
Burlington  etc.  Ry.  Co.,  127  Iowa,  492,  103  N.  \V.  485,  applying  rule 
where  boy  injured  by  falling  of  snow  fence  defectively  constructed 
had  earlier  in  the  day  found  panel  down  and  put  it  in  place;  Watters 
V.  Waterloo,  126  Iowa,  204,  206,  101  N.  W.  873,  874,  where  plaintiff 
fell  through  defective  sidewalk  and  suffered  from  dizziness,  such  fall 
and  dizziness  not  proximate  cause  of  injury  sustained  by  subsequent 
fall  on  another  street  due  to  failure  to  clear  away  ice;  Schwarzschild 
v.  Weeks,  72  Kan.  197,  83  Pac.  40'8,  4  L.  R.  A.  (N.  S.)  515,  applying 
rule  in  action  by  servant  for  injuries  caused  by  operation  of  beef -hoist 
in  packing  house;  Foley  v.  McMahon,  114  Mo.  App.  445,  90  S.  W.  113, 
where  driver  did  not  know  of  defect  in  harness  and  when  it  broke  he 
alighted  to  repair  it,  and  while  he  had  foot  in  front  of  wheel  team 
started  and  crushed  foot,  furnishing  defective  harness  not  proximate 
cause  of  injury;  Mayne  v.  Chicago  etc.  Ry.  Co.,  12  Okl.  16,  69  Pac. 
935,  applying  rule  in  holding  railroad  blocking  usual  crossing  to  depot 
with  freight  train  is  not  liable  for  injury  to  passenger  compelled  to 
clioose  other  route  to  reach  train. 

94  U.  S.  477-492,  24  L.  276,  STARK  v.  STARR. 

Syl.  1   (IX,  133).     Demand  cannot  be  split  up. 

Approved  in  Huntington  etc.  Pulverizer  Co.  v.  Virginia-Carolina 
Chem.  Co.,  130  Fed.  560,  bill  for  infringement  of  expired  and  unexpired 
patent  alleging  that  infringement  consists  of  use  of  machine  embody- 
ing devices  of  both  patents  so  joined  as  to  make  impossible  apportion- 
ment of  damages  from  use  of  each  element,  is  not  multifarious; 
Loekhart  v.  Leeds,  12  N.  M.  164,  76  Pac.  314,  judgment  for  defendant 
on  bill  to  declare  mining  location  void  for  fraud  and  violation  of 
agreement  to  locate  for  plaintiff  bars  suit  to  have  property  declared 
held  in  trust  for  plaintiff. 

Syl.  5  (IX,  134).     Defective  ratification  of  agent's  act. 
See  110  Am.  St.  Rep.  863,  note. 

94  U.  S.  494-498,  24  L.  146,  THE  MARGARET. 

Syl.  1   (IX,  134),     Collision — Care  required  of  tow. 

Approved  in  The  Violetta,  141  Fed.  693,  tow  without  motive  power 
not  liable  with  tug  for  collisioi^ 


94  U.  S.  498-513  Notes  on  U.  S.  Eeporta.  798 

Syl.  2  (IX,  135).     Collision — Care  required  of  tug. 

Approved  in  The  Britannia,  148  Fed.  497,  holding  tug  towing  scows 
liable  for  loss  where  it  had  but  one  hawser,  which  parted  twice  in 
calm  weather,  and  parted  again  in  storm;  The  Inca,  148  Fed.  365,  368, 
affirming  130  Fed.  41,  42,  holding  tug  liable  for  grounding  of  tow 
on  well-known  mound  of  rocks  in  channel,  and  afterward  hauling  her 
off,  instead  of  waiting  for  rising  tide,  thereby  injuring  bottom  so 
that  she  sank;  Gilchrist  Transp.  Co.  v.  Sicken,  147  Fed.  473,  holding 
steamer  towing  sailing  vessel  into  Duluth  harbor  on  long  line  during 
strong  wind  liable  for  collision  between  tow  and  end  of  outer  pier; 
The  W.  G.  Mason,  131  Fed.  636,  where  two  tugs  towed  steamer  from 
dock  through  channel  and  she  stranded  against  one  side  of  channel, 
presumption  is  that  stranding  due  to  fault  of  tugs;  The  Joseph  Peene, 
130  Fed.  490,  holding  tug  liable  for  injury  to  tow  by  floating  ice; 
Williams  v.  Alaska  Commercial  Co.,  2  Alaska,  64,  where  steamer  tow- 
ing schooner  during  storm  abandoned  tow  after  parting  of  hawser, 
she  is  liable  for  loss  of  life  occasioned  by  wreck  of  schooner. 

Syl.  3  (IX,  135).     Tug  must  know  channel. 

Approved  in  The  Potomac,  147  Fed.  294,  holding  tug  liable  for  injury 
to  tow  by  collision  with  jetty  at  mouth  of  creek  which  they  were 
entering,  for  failure  to  make  allowance  for  tide;  The  Naos,  144  Fed. 
296,  holding  tug  liable  for  starting  on  towage  through  narrow,  shallow 
channel  at  full  tide;  Monongahela  Eiver  etc.  Coke  Co.  v.  O'Neil,  144 
Fed.  79,  holding  tug  liable  for  capsizing  of  dredge  and  loss  of  machin- 
ery while  being  towed  up  river  in  rough  water  at  excessive  speed; 
Winslow  V.  Thompson,  134  Fed.  549,  67  C.  C.  A.  363,  applying  rule 
where  tug  attempted  to  tow  loaded  schooner  over  bar  and  she 
stranded;  Eebstock  v.  Gilchrist  Transp.  Co.,  132  Fed.  176,  holding 
steamer  in  tow  of  two  tugs  not  liable  for  collision  with  moored  ves- 
sel caused  by  failure  of  rear  tug  to  assist  steamer  in  turning. 

94  U.  S.  498-499,  24  L.  260,  SUPERVISOES  v.  KEXNICOTT. 

Syl.  1  (IX,  136).     Matters  reviewable  on  second  appeal. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  etc.  Mill  Co.,  147 
Fed.  904,  and  United  States  v.  Denver  etc.  E.  E.  Co.,  11  N.  M.  154, 
66  Pac.  552,  both  following  rule.     See  98  Am.  St.  Ecp.  905,  note. 

94  U.  S.  506-513,  24  L.  260,  ALLOEE  v.  JEWELL. 

Syl.  1   (IX,  137).     Setting  deed  aside — Weak-mindedness. 

Approved  in  Wilkie  v.  Sassen,  123  Iowa,  424,  99  N.  W.  125,  setting 
aside  contract  for  conveyance  made  by  ignorant,  illiterate  and  weak- 
minded  vendor  for  grossly  inadequate  consideration  where  only  earnest- 
money  paid;  Shevlin  v.  Shevlin,  96  Minn.  412,  414,  105  N.  W.  262,  283, 
setting  aside  transfer  of  stock  from  weak-minded  brother  addicted  to 
use  of  intoxicants. 

Distinguished  in  Curtis  v.  Kirkpatrick,  9  Idaho,  639,  75  Pac.  763, 
holding  evidence  did  not  show  grantor  in  deed  and  mortgiige  not  men- 
tally iuconipeteut  at  time  of  execution  thereof. 


799  Notes  on  U.  S.  Eoports.  94  U.  S.  523-544 

94  U.  S.  523-527,  24  L.  264,  ITYDE  v.  WOODS. 

Syl.  1  (IX,  141).  Sale  of  scat  in  stock  exchange. 
Approved  in  Zell  v.  Baltimore  Stock  Exchange,  102  Mel.  495,  62 
Atl.  810,  4  L.  R.  A.  (N.  S.)  435,  where  complainant  furnished  money 
to  purchase  seat  in  exchange  in  name  of  partner,  he  could  not  restrain 
sale  thereof  for  payment  of  partner's  debts  to  tther  members  in 
accordance   with    rules,    on   ground    that   partner   held   seat    in   trust. 

Syl.  2   (IX,  141).     Bankruptcy — Sale  of  stock  exchange  seat. 

Approved  in  O'Dell  v.  Boyden,  150  Fed.  736,  upholding  exclusive  jur- 
isdiction of  bankruptcy  court  over  proceeding  by  trustee  of  member 
of  stock  exchange,  and  prior  assignee  thereof  to  determine  right  to  it; 
In  re  Hurlbutt,  135  Fed.  507,  68  C.  C.  A.  216,  where,  on  bankruptcy 
of  partnership  seat  in  stock  exchange  contributed  by  one  partner  as 
share  of  capital,  title  to  seat  passed  to  firm's  trustee  in  bankruptcy. 

Syl.  4   (IX,  141).     Bequest  to  lapse  on  insolvency. 

Approved  in  Mason  v.  Rhode  Island  etc.  Trust  Co.,  78  Conn.  85,  61 
Atl.  5S,  devise  to  trustees  to  pay  portion  of  income  for  benefit  of 
plaintiff  during  minority  and  tiiorcaftcr  to  pay  him  all  or  part  income 
for  life,  he  to  have  power  to  will  fund,  creates  spendthrift  trust. 

94  U.  S.  535-544,  24  L.  148,  DOYLE  v.  CONTINENTAL  INS.  CO. 

Syl.  1  (IX,  143).     Statutes  requiring  agreement  not  to  remove. 

Approved  in  Victor  Talking  Mach.  Co.  v.  American  Graph.  Co.,  140 
Fed.  862,  prior  agreement  by  which  parties  to  infringement  suit  agree 
on  terms  of  settlement  on  condition  that  patent  is  sustained  does  not 
deprive  court  of  jurisdiction;  Cheshire  Prov.  lust.  v.  Anglo-American 
etc.  Co.,  132  Fed.  970,  66  C.  C.  A.  122,  arguendo. 

Syl.  2   (IX,  144).     Imposing  terms  on  foreign  corporations. 

Approved  in  Security  etc.  Ins.  Co.  v.  Prowitt,  202  U.  S.  251,  253, 
254,  255,  50  L.  1015,  1016,  1017,  26  Sup.  Ct.  619,  affirming  Prewitt 
V.  Security  etc.  Ins.  Co.,  119  Ky.  327,  330,  331,  S3  S.  W.  612,  613,  up- 
holding Ky.  St.  1903,  §  631,  providing  for  revocation  of  license  of 
foreign  insurance  company  removing  suit  to  federal  court ;  People  v. 
Chicago  etc.  Ry.  Co.,  223  111.  591,  79  N.  E.  147,  upholding  Kurd's  Ecv. 
St.  1905,  c.  114,  §  6,  requiring  railroads  to  make  annual  report  to  rail- 
road commission;  Wallace  v.  Mayor  etc.  of  Reno,  27  Nev.  86,  73  Pac. 
533,  63  L.  R.  A.  337,  upholding  provisions  of  acts  of  1903,  empowering 
Reno  city  boards  to  revoke  licenses;  Metropolitan  Life  Ins.  Co.  v. 
Board  of  Assessors,  115  La.  706,  39  So.  849,  arguendo. 

Distinguished  in  dissenting  opinion  in  Security  etc.  Ins.  Co.  v.  Pre- 
witt, 202  U.  S.  206,  267,  269,  50  L.  1022.  1023,  26  Sup.  Ct.  019,  majority 
upholding  Ky.  St.  1903,  §  631,  providing  for  revocation  of  license  of 
foreign  insurance  company  removing  suit  to  federal  court;  dissenting 
opinion  in  Prewitt  v.  Security  etc.  Ins.  Co.,  119  Ky.  343,  84  S.  W.  530, 
majority  upholding  Ky.  St.  1903,  §  631,  providing  for  revocation  of 
license  of  foreign  insurance  company  removing  suit  to  federal  court. 


94  U.  S.  545-561  Notes  on  U.  S.  Reports.  800 

Syl.   4    (IX,   145).     State   may   exclude   foreign   corporation. 

Approved  in  Black  v.  Vermont  Marble  Co.,  1  Cal.  App.  720,  82  Pac. 
1061,  upholding  Stat.  1871-72,  p.  826,  as  amended  by  Stat.  1899,  p.  Ill, 
providing  that  foreign  corporation  not  designating  person  on  whom 
process  may  be  served  within  sixty  days  after  commencing  business 
cannot  sue  or  defend  actions;  People  v.  Gardner,  143  Mich.  106,  106 
N.  W.  542,  motives  of  city  council  in  passing  garbage  ordinance  not 
inquired  into  to  determine  its  validity. 

Syl.  5  (IX,  146).     Corporations — Cancellation  of  license  on  removal. 

Distinguished  in  dissenting  opinion  in  Security  etc.  Ins.  Co.  v. 
Prcwitt,  202  U.  S.  260,  261,  50  L.  1019,  1020,  26  Sup.  Ct.  6J.9,  majority 
upholding  Ky.  St.  1903,  §  631,  providing  for  revocation  of  license 
of  foreign  insurance  company  removing  suit  to  federal  court. 

94  U.  S.  545-549,  24  L.  283,  DAVIS  v.  ALVORD. 

Syl.  7   (IX,  147).     Mechanics'  lien  laws  liberally  construed. 

Approved  in  Salt  Lake  Hardware  Co.  v.  Chainman  Min.  etc.  Co., 
137  Fed.  637,  holding  lien  not  void  though  statement  filed  claimed 
more  than  actually  due,  where  it  was  result  of  mistakes  and  without 
fraud  or  wrongful  intent;  Russell  v,  Hayner,  130  Fed.  92,  64  C.  C.  A. 
424,  construing  Civ.  Code  Alaska,  §§  262,  265,  266,  relating  to  me- 
chanics' liens. 

94  U.  S.  549-553.  24  L.  285,  SOUTHERN  EXPRESS  CO  v.  DICKSON. 

Syl.  1   (IX,  148).     Carriers — Delivery  to  consignee  as  agent. 

Approved  in  National  Newark  Banking  Co.  v.  Delaware  etc.,  70  N. 
J.  L.  779,  103  Am.  St.  Rep.  825,  58  Atl.  312,  66  L.  R.  A.  595,  carrier 
must  deliver  goods  to  true  owner  claiming  under  consignee  when  it 
has  notice  of  true  owner's  rights  and  bill  of  lading  has  been  sur- 
rendered; dissenting  opinion  in  Clegg  v.  Southern  Ry.  Co.,  135  N.  C. 
156,  47  S.  E.  670,  majority  holding  railroad  refusing  to  deliver  freight 
to  owner  because  he  would  not  pay  freight  demanded  where  it  was 
in  excess  of  amount  due,  and  fruit  frozen,  is  liable  though  bill  of 
lading   not   transferred   to   owner  by   consignee. 

94  U.  S.  553-561,  24  L.  130,  DUTCHER  v.  WRIGHT. 

Syl.   1    (IX,   148).      Bankruptcy — Insolvency — Reasonable   cause. 

Distinguished  in  Hussey  v.  Richardson  etc.  Co.,  148  Fed.  600,  where 
creditor  sold  goods  to  bankrupt  and  latter  told  him  he  was  solvent 
but  could  not  pay  bills  promptly  but  had  offer  for  property  for  sum 
in  excess  of  debts,  and  creditor  took  chattel  mortgage  for  claim,  fact 
that  debtor  was  insolvent  and  became  bankrupt  does  not  prove  prefer- 
ence intended. 

Syl.  2  (IX,  148).  Bankruptcy — Creditors'  reasonable  cause — In- 
Bolvency. 

Approved  in  Dokken  v.  Page,  147  Fed.  441,  holding  sale  void  as  to 
bankrupt's  creditors  where  stock  sold  at  less  than  half  of  actual  value 


801  Notes  on  U.  S.  Reports.  94  U.  S.  561-574 

after  short  negotiation  without  invoice  or  examination  of  goods  or 
books;  In  re  Moody,  134  Fed.  633,  where  bankrupt,  within  four  months 
of  bankruptcy,  sold  stock  to  firm,  which  paid  debt  to  bank  of  which 
partners  were  stockholders  and  officers,  and  also  transferred  farm, 
title  to  which  taken  in  wife's  name,  transfer  was  void  under  Bankr. 
Act,  §  67e;  Crandall  v.  Coats,  133  Fed.  969,  holding  preferred  creditors 
chargeable  with  notice  of  bankrupt's  insolvency  at  time  of  convey- 
ance; Capital  Nat.  Bank  v.  Wilkerson,  36  lud.  App.  474,  75  N.  E. 
839,  holding  creditor  had  reasonable  cause  to  believe  preference  in- 
tended at  time  payments  made;  Stevenson  v.  Milliken  etc.  Co.,  99 
Mo.  320,  59  Atl.  475,  holding  defendant  had  no  reasonable  cause  to 
believe  preference  intended  to  be  given  him. 

Syl.  3    (IX,  149).     Bankruptcy — Preferences — Computation   of  time. 

Approved  in  In  re  Warner,  144  Fed.  988,  under  Bankr.  Act,  §  31a, 
attachment  made  on  February  8th  was  dissolved  by  adjudication  in 
bankruptcy  on  petition  filed  June  8th;  In  re  Hill,  140  Fed.  984,  where 
mortgage  executed  on  March  22d,  and  petition  in  bankruptcy  filed 
July  22d,  mortgage  is  void  under  Bankr.  Act,  §  67e. 

94  U.  S.  561-567,  24  L.  287,  AETNA  LIFE  INS.  CO.  v.  FR.\NCE. 

Syl.   1    (IX,  149).     Assignment  of  life  policy  by  insured. 

Approved  in  Gordon  v.  Ware  Nat.  Bank,  132  Fed.  447,  67  L.  R.  A. 
550,  65  C.  C.  A.  580,  holding  where  deceased  insured  life  for  wife's 
benefit  and  both  joined  in  assignment  of  policy  to  secure  loan  to 
husband,  assignee  is  entitled  to  proceeds  as  against  administrator; 
Rylancler  v.  Allen,  125  Ga.  215,  53  S.  E.  1036,  upholding  assignment 
to  one  having  no  insurable  interest  in  life  and  who  paid  premiums; 
Mechanics'  Nat.  Bank  v.  Comins,  72  N.  H.  20,  101  Am.  St.  Rep.  650, 
55  Atl.  195,  upholding  assignment  of  policy  to  one  having  no  insur- 
able interest  to  secure  notes. 

Syl.  3  (IX,  149).     Insurance — Policy  for  sister's  benefit. 

Approved  in  Wilton  v.  New  York  Life  Ins.  Co.,  34  Tex.  Civ.  158, 
78  S.  W.  404,  niece  who  had  no  e.xpectation  of  pecuniary  benefit  from 
uncle  further  than  probability  of  occasional  gift  has  no  insurable 
interest. 

94  U.  S.  568-574,  24  L.  235,  MERRILL  v.  YEOMAXS. 

Sjd.  2  (IX,  151).     Patents — Specification  of  claim. 

Approved  in  Columbus  Chain  Co.  v.  Standard  Chain  Co.,  148  Fed. 
625,  holding  Carroll  patent  No.  620,826,  for  machine  for  regulating 
dimensions  of  chain  links  void  for  anticipation  by  Goerke  Swiss  patent 
No.  9592. 

Syl.  3  (IX,  151).     Patent  claims  liberally  construed. 

Approved  in  Cincinnati  Ry.   Supply  Co.   v.   American   Hoist  etc.   Co., 
143  Fed.  325,  holding  Crosby  patent  No.  388,840,  for  wire  rope  clamp, 
limited  in  view  of  prior  art. 
51 


04  U.  S.  574-GlO  Notes  on  U.  S.  Reports.  S02 

Syl.  4  (IX,  152).     Patents  for  product  and  process. 

Approved  in  American  Crayon  Co.  v.  Sexton,  139  Fed.  566,  holding 
Liedke  patent  No.  476,051,  for  crayon-making  machine,  valid  but 
not  infringed. 

94  U.  S.  574-579,  24  L.  291,  EELIEF  FIRE  INS.  CO.  v.  SHAW. 

Syl.  1  (IX,  152).     Parol  contract  of  insurance. 

Approved  in  King  v.  Phoenix  Ins.  Co.,  195  Mo.  303,  92  S.  W.  895. 
and  Summers  v.  Mutual  Life  Ins.  Co.,  12  Wyo.  382,  109  Am.  St.  Eep. 
998,  75  Pac.  939,  66  L.  E.  A.  812,  both  following  rule. 

94  U.  S.  589-593,  24  L.  294,  CLAPP  v.  MASON. 

Syl.  1  (IX,  156).    Legacy  taxes. 

Approved  in  Vanderbilt  v.  Eidman,  196  U.  S.  501,  49  L.  571.  25 
Sup.  Ct.  331,  interest  of  residuary  legatee  is  not  taxable  under  War 
Revenue  Act  of  1898,  §§  29,  30,  as  amended  in  1901;  Eidman  v. 
Tilghman,  136  Fed.  143,  69  C.  C.  A.  139,  under  War  Eevenue  Act  1898. 
§§  29,  30,  as  amended  in  1901,  taxing  legacies,  legacies  left  by  testator 
who  died  within  one  year  prior  to  time  of  taking  effect  of  act  of  1902, 
repealing  such  sections,  are  not  taxable  thereunder. 

94  U.  S.  593-599,  24  L.  294,  CONNECTICUT  MUT.  LIFE  INS.  CO.  v. 
SCHWENK. 

Syl.  1  (IX,  156).     Insurance — Correction  of  errors  in  proofs  of  loss. 

Approved  in  Denver  Life  Ins.  Co.  v.  Price,  18  Colo.  App.  34,  69 
Pac.  314,  act  of  beneficiary  in  answering  question  in  proof  of  loss 
as  to  cause  of  death  by  referring  to  physician's  statement  does  not 
estop  her  from  denying  physician  stated,  true  cause,  where  physician 
relied  solely  on  hearsay. 

Syl.  2  (IX,  157).     Entry  in  lodge  minute-book  as  evidence — Age. 

Approved  in  Bailey  v.  Fly,  35  Tex.  Civ.  414,  80  S.  W.  677,  on  issue 
as  to  age  of  voter,  deposition  of  custodian  of  baptismal  records  that 
records  prepared  by  his  predecessor  stated  voter  was  born  on  certain 
day  not   admissible. 

94  U.  S.  606-610,  24  L.  214,  RUSSELL  v.  PLACE. 

Syl.  1  (IX,  158).     Conclusiveness  of  judgment. 

Approved  in  Territory  v.  Hopkins,  9  Okl.  150,  59  Pac.  981,  applying 
rule  to  judgment  upholding  validity  of  county  refunding  bonds. 

Syl.  2  (IX,  159).     Judgment  as  bar — Precise  question. 

Approved  in  Delaware  etc.  R.  Co.  v.  Kuttes,  147  Fed.  58,  59,  judg- 
ment for  plaintiff  in  action  for  money  due  under  contract  in  which 
only  defense  was  breach  of  contract  by  plaintiff  is  not  bar  to  action 
for  wrongful  termination  of  contract  by  defendant;  United  States 
Fastener  Co.  v.  Bradley,  143  Fed.  530,  decree  of  dismissal  for  failure 
to  prosecute  is  not  res  adjudicata;  Georgia  etc.  Banking  Co.  v.  Wright, 
132  Fed.  917,  where  Georgia  court  in  suit  between  state  and  corpora- 


803  Notes  on  U.  S.  Reports.  9i  U.  S.  610-014 

tion  decided  that  charter  exempted  company  from  tax  in  excess  of 
certain  percentage  of  earnings,  state  concluded  in  subsequent  suit  for 
taxes  for  other  years  under  different  statute;  Hoffman  v.  Silverthorn, 
137  Mich.  65,  100  N.  W.  185,  decision  in  mandamus  to  compel  auditor 
to  cancel  tax  sale  and  to  issue  certificate  of  purchase  to  relator  is  not 
conclusive  where  denial  not  on  merits;  State  v.  McEldowney,  54  W. 
Va.  701,  47  S.  E.  652,  applying  rule  to  decree  in  suit  to  set  aside  tax 
deed;  Lindemann  v.  Eusk,  125  Wis.  237,  104  N.  W.  127,  where  personal 
representatives  of  stockhohlcr  in  corporation  which  had  expired  by 
limitation  of  charter  sued  to  enjoin  stockholder,  who  organized  now 
corporation  of  same  name,  sustaining  demurrer  is  no  bar  to  suit  to 
recover  for  wrongful  appropriation  of  goodwill  of  old  corporation. 

Syl.  3  (IX,  161).     Res  adjudicata— Extrinsic  evidence. 

Approved  in  Fayerweather  v.  Ritch,  195  U.  S.  306,  49  L.  213,  25 
Sup.  Ct.  58,  effect  is  res  adjudicata  of  decree  in  case  involving  validity 
of  releases  not  limited  by  oral  testimony  of  trial  judge  six  years  after 
decision;  Schwarz  v.  Kennedy,  142  Fed.  1029,  judgment  in  favor  of 
defendants  for  costs  in  replevin  against  two  defendants,  in  which  one 
of  defenses  was  that  plaintiff  only  owned  undivided  interest,  is  not 
bar  to  action  against  one  defendant  for  conversion  based  on  same 
trespass;  Harrison  v.  Remington  Paper  Co.,  140  Fed.  401,  denial  of 
motion  for  execution  and  dismissal  of  action  under  Kan.  Gen.  St.  1889, 
§  1192,  in  which  defense  of  prior  action  under  §§  1200,  1204,  was  raised, 
is  no  bar  to  action  under  §§  1200,  1204;  In  re  Spalding,  139  Fed.  247, 
recital  in  state  decree  that  receiver  appointed  on  ground  that  debtor 
fraudulently  conveyed  property  shows  appointment  not  act  of  bank- 
ruptcy by  defendant  as  one  made  under  state  laws  because  of  in- 
solvency within  Bankr.  Act,  §  3a,  subd.  4;  First  Nat.  Bank  v.  City  of 
Covington,  129  Fed.  798,  determining  effect  of  state  decree  that  ac- 
ceptance by  bank  of  statute  imposing  taxes  created  contract  with 
state  by  which  bank  exempted  from  local  taxation;  Fulton  v.  Gester- 
ding,  47  Fla.  160,  36  So.  59,  applying  rule  in  garnishment  where  prior 
judgment  for  garnishee  in  garnishment  proceedings  set  up;  Draper  v. 
Medlock,  122  Ga.  241,  50  S.  E.  115,  applying  rule  in  action  on  in- 
dorsement to  notes;  Honesdale  Co.  v.  Montgomery,  56  W.  Va.  401, 
49  S.  E.  436,  admitting  oral  evidence  to  show  object  of  suit. 

Syl.  5  (IX,  163).    Judgment  as  estoppel — Uncertainty. 

Approved  in  In  re  Drumgoole,  140  Fed.  210,  order  of  referee  on 
motion  directing  trustee  to  return  to  purchaser  of  goods  sold  by 
trustee  part  of  price  on  account  of  shortage  not  binding  on  trustee 
when  much  larger  claim  filed  involving  other  packages. 

94  U.  S.  610-614,  24  L.  268,  NEW  JERSEY  MUTUAL  LIFE  INS.  CO. 
V.  BAKER. 

Syl.  3  (IX,  164).     Insurance — Parol  to  vary  policy. 
Distinguished  in  Connecticut   Fire   Ins.   Co.   v.   Buchanan,   141   Fed. 
891,   in   action   on   policy,   oral   testimony   that   parties  intended   that 


94  U.  S.  614-650  Notes  on  U.  S.  Eeports.  804 

insurance  should  cover  building  when  not  occupied  for  purpose  stated 
in  contract.  » 

94  U.  S.  614-619,  24  L.  295,  UNITED  STATES  v.  JOSEPH. 

Syl.  4  (IX,  165).     Tenure  of  Taos  Indians. 

Approved  in  Territory  v.  Delinquent  Taxpayers,  12  N.  M.  144,  145, 
76  Pac.  308,  309,  lands  of  Pueblo  Indians  in  New  Mexico  are  taxable; 
Catron  v.  Laughlin,  11  N.  M.  626,  631,  72  Pac.  30,  32,  where  New 
Mexico  surveyor  general  declared  Mexican  grant  valid  and  recom- 
mended its  confirmation,  and  Congress  confirmed  grant  as  recom- 
mended, confirmation  goes  to  all  land  claimed. 

Distinguished  in  Labadie  v.  United  States,  6  Okl.  416,  51  Pac.  671, 
fact  that  government  issued  patent  to  Osage  Indians  for  lands  within 
reservation  does  not  take  reservation  out  of  25  Stat.  166,  punishing 
cutting  of  timber  thereon, 

94  U.  S.  619,  24  L.  298,  UNITED  STATES  v.  SANTISTEVAN. 

Syl.  1  (IX,  165).     Same  as  United  States  v.  Joseph. 

Distinguished  in  Labadie  v.  United  States,  6  Okl.  416,  51  Pac.  571, 
fact  that  government  issued  patent  to  Osage  Indians  for  lands  within 
reservation  does  not  take  reservation  out  of  25  Stat.  166,  punishing 
cutting  of  timber  thereon. 

94  U.  S.  621-631,  24  L.  298,  EAMES  v.  HOME  INS.  CO. 

(IX,  165.)  Miscellaneous.  Cited  in  In  re  Leeds  Woolen  Mills,  129 
Fed.  926,  where  possession  of  goods  obtained  from  bankruptcy  re- 
ceiver, Tv'ho  had  no  authority  to  surrender  same,  court  may,  in  pro- 
ceedings to  compel  him  to  restore  same,  determine  question  of  owner- 
Rhip  where  he  claims  title. 

94  IT.  S.  631-645,  24  L.  133,  COMMISSIONERS  OF  JOHNSON  CO.  v. 
THAYER. 

Syl.  5  (IX,  168).     Corporation  may  hold  own  shares. 

Approved  in  Wisconsin  Lumber  Co.  v.  Greene  etc.  Tel.  Co.,  127 
Iowa,  356,  109  Am.  St.  Rep.  387,  101  N.  W.  744,  69  L.  R.  A.  968, 
following  rule;  Burncs  v.  Burnes,  137  Fed.  789,  70  C.  C.  A.  357,  up- 
holding purchase  of  stock  under  contract  to  pay  in  annual  install- 
ments during  life  of  vendor. 

94  U.  S.  645-650,  24  L.  302,  BOYD  v.  ALABAMA. 

Syl.  1  (IX,  168).     Conclusiveness  of  decree  as  to  validity  of  statute. 

Approved  in  Knight  v.  Shelton,  134  Fed.  437,  determining  validity 
of  amendment  to  Arkansas  constitution. 

Syl.  3  (IX,  169).     Restraining  subsequent  legislatures  by  contract. 

Approved  in  Marrigault  v.  Springs,  199  U.  S.  481,  50  L.  279,  26  Sup. 
Ct.  127,  ol>ligation  of  agreement  to  remove  existing  dam  from  navi- 
gable river  not  impaired  by  subsequent  statute   to  subserve  drainaga 


805  Notes  on  U.  S.  Eeports.  94  U.  S.  650-681 

of  lowlarids,  authorizing  construction  of  dam  by  same  persons  making 
agreement;  Chicago  v.  Gunning  System,  214  111.  637,  70  Am.  St.  Rep. 
230,  73  N.  E.  1039,  upholding  ordinance  regulating  billboards. 

94  U.  S.  C50-652,  24  L.  21G,  LOWE  v.  WILLIAMS. 

Syi.  1  (IX,  170).     Removal  of  suit  in  appellate  court. 

Approved  in  Katz  v.  Herschel  Mfg.  Co.,  150  Fed.  685,  action  for 
unlawful  detainer  pending  in  justice  court  is  removable  where  requisite 
diversity  of  citizenship  and  amount  in  controversy  exist. 

94  U.  S.  652-660,  24  L.  216,  CRIM  v.  HANDLEY. 

Syl.  1  (IX,  170).     Enjoining  judgments  at  law. 

Approved  in  Miller  v.  Margerie,  149  Fed.  698,  refusing  to  set  aside 
Alaska  townsitc  trustee's  deed  for  fraud  where  facts  showing  that 
party  prevented  by  fraud  from  appearing  before  trustee  and  submit- 
ting evidence  to  establish  right  to  enter  property  not  alleged;  Brown 
V.  Pcgram,  149  Fed.  520,  upholding  right  of  judgment  debtor  to  enjoin 
its  collection  on  allegation  of  setoffs  against  beneficial  owners  who 
are  nonresidents  of  United  States  or  insolvent;  Bailey  v.  Willeford, 
136  Fed.  385,  69  C.  C.  A.  22G,  upholding  refusal  to  enjoin  enforcement 
of  state  judgment  on  ground  that  it  was  procured  by  fraud  and 
perjury  where  case  heard  on  merits  in  state  courts;  Nelson  v.  Meehan, 
2  Alaska,  493,  vacating  judgment  obtained  by  perjury  w'here  it  was 
affirmed  on  appeal  and  pending  final  disposition  of  case  in  district 
court  defendant  by  affidavit  disclosed  perjury  and  moved  to  vacate; 
Jarvis  v.  Martin,  77  Conn.  21,  58  Atl.  15,  refusing  to  set  aside  judg 
ment  striking  case  from  files  for  failure  of  plaintiff  to  appear  when 
his  counsel  made  no  motion  to  restore  case  because  he  confused  action 
with  another  between  same  parties;  McMahen  v.  Whelan,  44  Or.  400, 
75  Pac.  716,  judgment  for  plaintiff  in  justice's  court  in  forcible  entry 
nor  its  affirmance  on  appeal  does  not  bar  suit  for  specific  performance 
of  verbal  lease  and  injunction  against  judgment;  Farmers'  etc.  Ware- 
house Co.  V.  Pridemore,  55  W.  Va.  463,  47  S.  E.  263,  refusing  to 
enjoin  judgment  alleged  to  have  been  obtained  by  perjury  on  allega- 
tion that  complainant  is  now  able  to  prove  his  defense  but  does  not 
allege  cause  of  failure  of  proof. 

94  U.  S.  672-673,  24  L.  437,  GODDARD  v.  ORDWAY. 

Syl.  3  (IX,  172).    Supersedeas — Power  of  lower  court  over  funds. 

Approved  in  Chemung  Min.  Co.  v.  Hanley,  11  Idaho,  305,  81  Pac.  619, 
upholding  power  of  supreme  court  to  appoint  receiver  to  act  pending 
litigation. 

Syl.  4  (IX,  173).     Appeal — Supersedeas  not  by  virtue  of  process. 

Approved  in  McCourt  v.  Singers-Bigger,  150  Fed.  104,  following  rule. 
94  U.  S.  673-681,  24  L.  168,  CASEY  v.  GALLI. 

Syl.  1  (IX,  173).    National  banks — Liability  of  stockholders. 

Approved  in  Christopher  v.  Norvell,  201  U.  S.  222,  50  L.  735,  26 
Sup.  Ct.  502,  coverture  does  not  affect  stockholder's  liability. 


94  U.  S.  682-727  Notes  on  U.  S.  Keports.  806 

Syl.  4  (IX,  174).    Banks — Conclusiveness  of  comptroller's  certificate. 

Approved  in  Clement  v.  United  States,  149  Fed.  319,  certificate  of 
Comptroller  of  Currency  that  bank  has  complied  with  provisions  of 
statute  authorizing  extension  of  corporate  existence  of  banks  is  con- 
clusive in  prosecution  against  president  for  violation  of  national  bank 
act, 

Syl.  5  (IX,  174).  Stockholder's  liability — Estoppel  to  deny  cor- 
jjoration. 

Approved  in  Aldrich  v.  Bingham,  131  Fed.  366,  where  state  bank 
stockholder  accepted  dividends  after  its  reorganization  as  national 
bank,  he  is  estopped  to  deny  liability  for  assessments  levied  by  comp- 
troller because  he  had  not  assented  to  reorganization. 

94  U.  S.  682-695,  24  L.  219,  SCOTLAND  CO.  v.  THOMAS. 
Syl.  2   (IX,  176).     County  railroad  subscription — Consolidation. 

Approved  in  Jones  v.  Missouri-Edison  Electric  Co.,  135  Fed.  157, 
under  Eev.  St.  Mo.  1899,  §  1334,  consolidation  is  valid  though  one  of 
constituent  companies  itself  created  by  prior  consolidation. 

Distinguished  in  Jones  v.  Missouri-Edison  Electric  Co.,  144  Fed.  775, 
upholding  suit  by  nunority  stockholders  to  avoid  for  fraud  act  of  con- 
solidation and  to  restore  to  corporation  or  its  stockholders  powers  ami 
property  transferred. 

;  i  U.  S.  695-711,  24  L.  238,  CAWOOD  PATENT. 

Syl,  3  (IX,  177).     Patent  infringement. 

Approved  in  Gunn  v.  Bridgeport  Brass  Co.,  148  Fed.  242,  holding  Gunn 
patent  No.  583,227,  for  system  of  card  records,  valid  and  infringed. 

Syl.  4  (IX,  177).     Patents — Profits  as  damages  for  infringement. 

Approved  in  Doten  v.  City  of  Boston,  138  Fed.  408,  following  rule; 
Eastern  Paper  Bag  Co.  v.  Continental  Paper  Bag  Co.,  142  Fed.  519, 
savings  by  use  of  infringing  device  are  only  profits  recoveral)le  where 
infringing  device  made  and  used  by  defendant  but  product  of  machine 
not  improved. 

(IX,  177.)  Miscellaneous.  Cited  in  Chicago  Grain  Door  Co.  v.  Chicago 
etc.  R.  R.  Co.,  137  Fed.  105,  arguendo. 

94  U.  S.  718-727,  24  L.  310,  CHESAPEAKE  ETC.  R.  R.  v.  VIRGINIA. 

Syl.  2  (IX,  180).    Tax  exemption — Consolidation  of  corporations. 

Approved  in  People's  Gaslight  etc.  Co.  v.  Chicago,  194  U.  S.  16,  48 
L.  856,  24  Sup.  Ct.  520,  exemption  from  state  gas  price  regulation  con- 
tained in  charter  does  not  extend  to  other  companies  not  having  such 
rignt  wnen  merged  with  first  company  under  Illinois  act  of  1897. 


807  Notes  on  U.  S.  Ecports.  94  U.  S.  72S-7C2 

94  U.  S.  728-734,  24  L.  245,  BLAKE  v.  EOBERTSON. 

Syl.  1   (IX,  180).     Patent  infringement — Use  of  equivalents. 

Ajipriived  in  Crown  Cork  etc.  Co.  v.  Standard  Stopper  Co.,  136  Fed. 
207,  (J9  C.  C.  A.  5] 9,  Painter  patent  No.  468,258,  for  bottle-stopper,  in- 
fringed by  device  of  Patterson  patent  No.  682,995. 

94  U.  S.  734-740,  24  L.  136,  JEROME  v.  McCARTER. 

Syl.  1   (IX,  182).     Foreclosure — Prior  mortgagees  as  parties. 

Approved  in  Boatmen's  Bank  v.  Fritzlin,  135  Fed.  659,  68  C.  C.  A.  288, 
following  rule. 

Syl.  4   (IX,  182).     Bankruptcy  of  mortgagor  after  filing  foreclosure. 

Approved  in  In  re  Mertens,  144  Fed.  823,  where  pledgee  has  converted 
security  into  money  pursuant  to  contractual  rights,  he  may  prove  un- 
satisfied  balance  in   bankruptcy. 

94  U.  S.   741-745,  24  L.   190,  CORCORAN  v.  CHESAPEAKE  CANAL 
CO. 

Syl.  2    (IX,  184).     Making  unwilling  plaintiffs  parties  defendants. 

Approved  in  Georgia  etc.  R.  Co.  v.  Wright,  124  Ga.  603,  53  S.  E.  254, 
where  federal  judgment  rendered  for  plaintiff  and  one  codefendant  ob- 
tained severance  and  appealed  and  reversed  judgment,  other  defendant  is 
estopped  in  subsequent  state  suit  against  appealing  defendant  from 
setting  up  matter  which  might  have  been  pleaded  in  federal  suit;  Sioux 
City  V.  Chicago  etc.  Ry.  Co.,  129  Iowa,  702,  106  N.  W.  186,  arguendo. 

Syl.  3   (IX,  185).     Cestui  bound  by  decree  against  trustee. 

Approved  in  In  re  E,  T.  Kenney  Co.,  136  Fed.  455,  where  creditors 
assigned  claim  to  committee  to  buy  from  receiver  property  of  insolvent 
and  sell  it  in  their  interest,  beneficial  interest  of  creditors  in  net  proceeds 
of  claim  so  assigned  is  not  favorable  in  bankruptcy. 

94  U.  S.  746-753,  24  L.  222,  TATE  v.  NORTON. 

Syl.  4  (IX,  186).     Estates  allowed  claim  same  as  judgment. 

Approved  in  Brock  v.  Kirkpatrick,  72  S.  C.  501,  52  S.  E.  596,  where 
judgment  obtained  on  note  against  executor  was  allowed  as  claim 
against  estate  and  enrolled  in  probate  court  as  execution  issued,  it  is 
prima  facie  evidence  in  suit  by  creditor  to  subject  lands  of  devisees  to 
payment  of. debt. 

94  U.  S.  753-762,  24  L.  170,  COLLINS  v.  GILBERT. 

Syl.  1    (IX,  186).     Note— Bona  fide  holder  from  thief. 

Approved  in  In  re  Troy  &  Cohoes  Shirt  Co.,  136  Fed.  427,  where  one 
discounting  notes  knew  president  and  treasurer  of  corporation  who  maae 
notes  were  also  members  of  firm  for  whose  accommodation  notes  maae, 
discounter  not  charged  with  notice  of  their  true  character. 


94  U.  S.  762-772  Notes  on  U.  S.  Eeports.  808 

Syl.  2   (IX,  186).     Bona  fide  lioldor  of  note^ — Knowledge. 

Approved  in  First  Nat.  Bank  v.  Moore,  148  Fed.  957,  958,  purchaser 
of  note  for  value  before  maturity  is  not  deprived  of  character  of  bona 
fide  purchaser  by  proof  that  he  took  with  notice  of  circumstances  which 
would  put  ordinarily  prudent  man  on  inquiry  to  ascertain  facts;  Gamble 
V.  Rural  Ind.  School  Dist.,  132  Fed.  521,  one  obtaining  bond  from 
prior  holder  for  legal  services  rendered  to  full  value  of  bond  is  bona 
fide  holder,  where  bond  not  due  and  he  had  no  notice  of  defects. 

Syl.  3    (IX,   187).     Possession  of  note  payable  to  bearer. 

Approved  in  Jones  v.  Stoddard,  8  Idaho,  219,  67  Pac.  651,  assignment 
of  mortgage  does  not  make  purchaser  of  note  which  it  secures  an  as- 
signee; Hillard  v.  Taylor,  114  La.  893,  38  So.  598,  applying  rule  where 
ostensible  owner  fraudulently  mortgaged  property  and  negotiated  mort- 
gage paper  to  third  person. 

Distinguished  in  Cuyler  v.  Wallace,  183  N.  Y.  300,  76  N.  E.  3,  where 
policy  insuring  son  was  assigned  to  father,  and  after  death  of  latter  it 
is  found  in  son 's  possession  without  written  reassignment,  son  not  pre- 
sumed to  be  bona  fide  holder. 

94  U.   S.   762-767,  24  L.  313,   FORBES  v.  GRACEY. 

Syl.  1  (IX,  188).     Possessory  rights  of  miners — Rules. 

Approved  in  O 'Connell  v.  Pinnacle  Gold  Mines  Co.,  131  Fed.  109,  on 
death  of  locator  unpatented  mining  claims  passed  to  administrator  as 
part  of  estate  and  not  to  heirs  as  grantees  of  government;  Burns  v. 
Schoenfeld,   1  Cal.  App.   124,  81   Pac.   714,  arguendo. 

Syl.  4   (IX,  189).     Mining  claim  is  salable  property. 

Approved  in  Worthen  v.  Sidway,  72  Ark.  225,  79  S.  W.  781,  following 
rule;  Reed  v.  Munn,  148  Fed.  757,  title  of  locator  of  unpatented  mining 
claim  passes  to  purchaser  under  him  who  has  prior  equity  over  claim- 
ant of  prior  equitable  interest;  O 'Connell  v.  Pinnacle  Gold  Min.  Co.,  140 
Fed.  855,  possessory  right  of  mining  locator  who  has  not  applied  for 
patent  passes  by  descent  to  heirs  and  may  be  administered  by  personal 
representatives;  Cascaden  v.  Dunbar,  2  Alaska,  411,  oral  grubstake  con- 
tradt  is  not  within  statute  of  frauds;  Copper  River  Min.  Co.  v.  McClellan, 
2  Alaska  143,  applying  rule  in  action  to  establish  trust  in  mining  claims 
based  on  oral  contract  of  agency;  Tyee  Consol.  Min.  Co.  v.  Langstedt, 
1  Alaska,  449,  limitations  begin  to  run  in  favor  of  adverse  possessor  of 
part  of  mining  claim  from  time  of  location  and  not  from  date  of  patent. 

Distinguished  in  Topeka  etc.  Security  Co.  v.  McPherson,'7  Okl.  345, 
54  Pac.  493,  Okl.  St.  1893,  c.  70,  art.  1,  par.  15,  undeeded  townsite 
lots  in  government  townsites  pending  contest  in  Land  Department  are 
not  taxable,  but  improvements  thereon  are  taxable. 

94  U.  S.  767-772,  24  L.  315,  LIPPIXCOTT  v.  MITCHELL. 

Syl.  2    (IX,  190).     Rule  of  property  binding  federal  court. 

Approved  in  Yocum  v.  Parker,  134  Fed.  212,  67  C.  C.  A.  227,  federal 
court  follows  latest  of  conflicting  state  decisions  interpreting  local  stat- 


809  Notes  on  U.  S.  Keports.  94  U.  S.  773-802 

utes  relating  to  construction  of  wills  and  conveyances;  dissenting  opinion 
im  James  v.  Gray,  131  Fed.  413,  65  C.  C.  A.  385,  majority  holding  loan 
by  wife  to  husband  is  provable  against  his  bankrupt  estate,  irrespective 
of  its  enforceability  under  state  law. 

(IX,  188.)     Miscellaneous.     See  97  Arp.  St.  Eep.  42,  47,  note. 

94  U.  S.  773-780,  24  L.  317,  HOGAN  v.  KURTZ. 

Syl.  7    (IX,   191).     Limitations — Subsequent  disability. 

Approved  in  Scallon  v.  Manhattan  Ry.  Co.,  195  N.  Y.  364,  78  N.  E. 
285,  where  ancestor  had  cause  of  action  for  damages  caused  by  construc- 
tion of  railway  in  front  of  projierty,  limitations  not  interrupted  by  his 
death  and  supervening  disability  of  infant  heirs. 

94  U.  S.  780-792,  24  L.  139,  COCHRANE  v.  DEEXEB. 

Syl.   2    (IX,   192).     Patent   for  process. 

Approved  in  Universal  Brush  Co.  v.  Sonn,  146  Fed.  527,  528,  Morrison 
patent  No.  717,014,  for  method  of  making  brushes,  is  infringed  by 
method  of  Sonn  patent  No.  791,510;  American  Graphophone  Co.  v. 
Universal  etc.  Mfg.  Co.,  145  Fed.  638,  holding  void  for  anticipation 
Jones  patent  No.  688,739,  for  process  for  making  talking-machine 
records;  Columbia  "Wire  Co.  v.  Kokonia  Steel  etc.  Co.,  143  Fed.  123,  124, 
holding  Bates  patent  No.  365,723,  for  wire-barbing  machine,  infringed 
by  machine  of  Frederick  patent  No.  711,303;  Johnson  v.  Foos  Mfg.  Co., 
141  Fed.  84,  upholding  Johnson  patent  No.  500,268,  for  process  for 
separating  cotton-seeds  and  hulls  from  fiber;  Expanded  Metal  Co.  v. 
Bradford,  136  Fed.  872,  upholding  Golding  patent  No.  527,242,  for 
process  of  making  reticulated  metal  work;  Panzl  v.  Battle  Island  etc. 
Co.,  132  Fed.  614,  upholding  Panzl  patent  No.  644,367,  for  composition 
for  lining  pulp  digesters. 

Syl.  4  (IX,  192).     Patents— Process  defined. 

Approved  in  Universal  Brush  Co.  v.  Sonn,  146  Fed.  528,  Morrison 
patent  No.  717,014,  method  of  making  brushes,  is  infringed  by  method 
of  Sonn  patent  No.  791,510;  Manhattan  etc.  Const.  Co.  v.  Heilos-Upton 
Co.,  135  Fed.  788,  holding  void  Baker  patent  No.  684,340,  for  regulator 
for  arc  lamp  circuits. 

94  U.  S.  801-802,  24  L.  322,  EAST  LINCOLN  v,  DAVENPORT. 

Syl.  3  (IX,  196).  Municipal  railroad  subscription — Consolidation  of 
railroad. 

Approved  in  Jones  v.  Missouri-Edison  Electric  Co.,  135  Fed.  157,  con- 
solidation of  corporations  under  Rev.  St.  Mo.,  1899,  §  1334,  is  not  in- 
validated by  fact  that  one  of  constituent  corporations  was  itself 
created  by  prior  consolidation. 

Distinguished  in  Jones  v.  Missouri-Edison  Electric  Co.,  144  Fed.  775, 
minority  stockholders  may  sue  to  avoid  consolidation  of  corporations 
wrought  by  fraud. 


95  U.  S.  1-16  Notes  on  U.  S.  Eeports.  810 

94  U.  S.  S06-812,  24  L.  324,  SULLIVAN  v.  POETLAND  ETC.  R.  R. 

Syl.  4   (IX,  197).     Defense  of  state  claim — Pleading. 

Approved  in  National  Cash  Register  Co.  v.  Union  etc.  Mach.  Co.,  143 
Fed.  346,  unexplained  delay  of  twelve  years  in  suing  for  infringement 
of  patent  after  notice  of  infringement,  when  in  meantime  business  of 
infringer  had  been  transferred  to  another,  is  laches;.  Moore  v.  Nickey, 
133  Fed.  293,  66  C.  C.  A.  667,  dismissing  suit  to  recover  mining  stock 
after  eight  years'  delay  after  demand  made;  Shea  v.  Nilima,  133  Fed. 
214,  66  C.  C.  A.  263,  defense  of  laches  may  be  considered  by  appellate 
court,  though  not  assigned  as  error;  Patterson  v.  Hewitt,  11  N.  M.  21,  23, 
66  Pac.  557,  558,  55  L.  R.  A.  658,  denying  relief  to  claimant  for  mining 
location  transferred  in  settlement  of  conflicting  claim. 

Syl.  6   (IX,   199).     Equity — Laches  discountenanced. 

Approved  in  Hall  v.  Nash,  33  Colo.  507,  81  Pac.  251,  applying  rule  in 
action  by  stockholder  of  mining  company  to  enforce  rights  in  mining 
lease;  Sawyer  v.  Cook,  188  Mass.  168,  74  N.  E.  358,  holding  holder  of 
legal  title  barred  by  laches  from  requiring  trustee  to  account  for  profits 
of  land  deal. 


XCV  UNITED  STATES. 


95  U.  S.  1-3,  24  L.  347,  PACIFIC  R.  R.  CO.  v.  KETCHUM. 

Syl.  2   (IX,  202).     Receiver  pending  foreclosure  appeal. 

Approved  in  Chemung  Min.  Co.  v.  Hanley,  11  Idaho,  304,  81  Pac.  619, 
supreme  court  may  appoint  receiver  to  act  pending  litigation. 

95  U.  S.  3-10,  24  L.  591,  PHIPPS  v.  SEDGWICK. 

Syl.  5  (IX,  203).     Fraudulent  conveyance  to  wife — Personal  judgment. 

Approved  in  Sheldon  v.  Parker,  66  Neb.  626,  627,  92  N.  W.  929, 
I'ollowing  rule. 

Distinguished  in  Sheldon  v.  Parker,  66  Neb.  634,  95  N.  W.  1015,  where 
husband  transfers  property  in  fraud  of  creditors  and  she  sells  it  to  bona 
fide  purchaser,  personal  judgment  may  be  entered  against  wife  for  pro- 
ceeds of  sale. 

95  U.  S.  10-16,  24  L.  333,  SHAW  v.  BILL. 

Syl.  5   (IX,  203).     Mortgage  of  rolling  stock — Replacements. 

Approved  in  Hasbrouck  v.  Rich,  113  Mo.  App.  397,  88  S.  W.  133,  deed 
of  mining  company's  property  authorizing  it  to  dispose  of  machinery 
covered  thereby  which  cannot  be  used,  to  be  replaced  by  other  machinery 
of  equal  value,  is  not  void  within  Rev.  St.  1899,  §  3397.  See  99  Am. 
St.  Rep.  259,  note. 


811  Notes  ou  U.  S.  Reports.  95  U.  S.  16-42 

95  U.  S.  16-19,  24  L.  346,  NEW  ORLEANS  ETC.  BANKING   CO.  v. 
MONTGOMERY. 

Syl.  2    (IX,  204).     Trust  deed  passes  with  transfer  of  note. 

Approved  in  Kirkpatrick  v.  Eastern  M.  &  E.  Co.,  135  Fed.  149,  whero 
bank  loaned  money  to  corporation,  taking  its  note  secured  by  its  bonds 
together  with  assignment  of  underwriting  agreement,  by  which  sub- 
scribers agreed  to  take  bonds  and  have  stock  in  corporation,  to  seventy- 
five  per  cent  of  face  of  bonds,  stock  certificates  passed  to  bank. 

95  U.  S.  19-22,  24  L.  369,  ADAMS  v.  NASHVILLE. 

Syl.  2   (IX,  205).     State  tax  on  national  banks. 

Approved  in  Gray  v.  Logan  County,  7  Okl.  323,  54  Pac.  486,  national 
banks  realty  is  taxable,  and  penalties  for  nonpayment  accumulate  while 
property  is  in  hands  of  receiver. 

95  U.  S.  23-33,  24  L.  348,  REED  v.  MERCHANTS'  MUT.  INSURANCE 
CO. 

Syl.  1   (IX,  206).     Varying  writing — Surrounding  circumstances. 

Apjiroved  in  Guaranty  Trust  Co.  v.  Atlantic  Coast  etc.  R.  Co.,  138 
Fed.  521,  affirming  135  Fed.  71,  where  railway  mortgage  to  secure  bonds 
recited  form  of  bonds  and  declared  they  were  secured  by  mortgage  on  all 
property  owned  or  thereafter  acquired,  and  mortgage  limited  lien  on 
after-acquired  property  to  liens  acquired  by  lease  from  other  roads,  mort- 
gage lien  embraced  lease  by  other  road  organized  as  holding  company; 
L'Engle  v.  Scottish  Union  etc.  Ins.  Co.,  48  Fla.  95,  111  Am.  St.  Rep. 
76,  37  So.  467.  67  L.  R.  A.  581,  construing  clause  in  policy  providing  for 
concurrent  insurance ;  Darnell  v.  Laflferty,  113  Mo.  App.  303,  88  S.  W. 
791,  memorandum  evidencing  sale  of  personalty  is  insuflSeient  with  re- 
gard to  description  if  description  is  such  that,  together  with  surrounding 
circumstances  supplied  by  parol,  subject  matter  can  be  identified. 

95  U.  S.  37-42,  24  L.  335,  McMILLAN  v.  ANDERSON. 

Syl.  2   (IX,  207).     Notice  of  tax  assessment  unnecessary. 

Approved  in  Hodge  v.  Muscatine  County,  196  U.  S.  280,  49  L.  481, 
25  Sup.  Ct.  237,  due  process  of  law  does  not  require  that  as  to  one 
carrying  on  business  of  selling  cigarettes  notice  be  given  of  assessment 
of  tax  imposed  by  Iowa  Code,  §  5007;  American  Smelting  etc.  Co.  v. 
People,  34  Colo.  249,  82  Pac.  534,  upholding  Sess.  Laws,  1902,  p.  74,  c.  3, 
§  66,  providing  that  corporation  failing  to  pay  license  tax  shall  forfeit 
right  to  do  business  in  state  until  tax  is  paid;  Ne\vton  v.  McKay,  130 
Iowa.  599,  102  N.  W.  828,  Code,  §§  2433,  2447,  providing  for  imposition 
of  mulct  taxes  on  liquor  sales,  imposes  tax,  and  not  license,  and  it  is 
collectible  by  summary  proceedings;  People  v.  Ronner,  185  N.  Y.  293,  77 
N.  E.  1064,  upholding  Laws  1905,  p.  2059,  c.  729,  imposing  tax  on  real 
estate  mortgages;  Whitlock  v.  Hawkins,  105  Va.  266,  53  S.  E.  409, 
upholding  act  of  1906,  relating  to  assessment  of  land  and  confirming 
assessments  made  in  compliance  with  act  of  1903.  See  104  Am.  St. 
Kep.  314,  note. 


95  U.  S.  43-98  Notes  on  U.  S.  Eeports.  812 

Syl.  3   (IX,  208).     Taxation— Due  process. 

Approved  in  Yoiist  v.  Willis,  5  Okl.  416,  49  Pac.  1014,  upholding  act 
of  1895,  regulating  appeals  from  justices  and  probate  courts  and  provid- 
ing for  entry  of  judgment  against  sureties,  as  applied  to  bonds  executed 
prior  to  act. 

Syl.  5  (IX,  209).     Tax  assessment — Presence  of  owner  unnecessary. 

Approved  in  Hodge  v.  Muscatine  County,  121  Iowa,  490,  104  Am.  St. 
Rep.  304,  96  N.  W.  971,  67  L.  R.  A.  624,  upholding  Code,  §  5007,  tax- 
ing vendor  of  cigarettes  and  buildings  used  in  their  manufacture  or 
sale;  Taylor  v.  Crawford,  72  Ohio  St.  570,  74  N.  E.  1068,  69  L.  R.  A. 
805,  upholding  95  Ohio  Laws,  p.  155,  §  3,  providing  for  cleaning  and 
repairing  public  ditches  and  watercourses. 

Syl.  6   (IX,  209).     Recovery  of  illegal  taxes  paid — Duress. 
Approved  in  Beebe  v.  Magoun,  122  Iowa,  96,  101  Am.  St.  Rep.  259, 
97  N.  W.  987,  arguendo, 

95  U.  S.  43-48,  24  L.  336,  PRATT  v.  GRAND  TRUNK  RAILWAY  CO. 
Syl.   3    (IX,   210).     Delivery   to   carrier  at   agreed  place. 
See  97  Am.  St.  Rep.  98,  note, 

95  U.  S.  58-60,  24  L.  370,  McHENRY  v,  LA  SOCIETE  FRANCAISE. 

Syl.  3   (IX,  212).     Foreclosure  by  bankruptcy  assignee  in  state  court. 

Approved  in  Sellers  v.  Haynes,  163  Ind.  430,  72  N.  E.  122,  bank- 
ruptcy trustee  cannot  complain  if  fraudulent  character  of  mortgage  given 
by  purchaser  from  bankrupt  to  third  party. 

95  U.  S.  68-78,  24  L.  373,  EX  PARTE  EASTON. 

Syl.  5  (IX,  213).     Maritime  contracts  include  wharfage. 

Cited  in  The  Surprise,  129  Fed.  883,  64  C.  C.  A.  309,  arguendo; 
Contradt  v.  Miller,  2  Alaska,  439,  town  council  cannot  grant  franchise  to 
individuals  to  build  wharves  in  navigable  waters  abutting  on  public 
streets  and  collect  tolls  for  use  of  same. 

95  U.  S.  90-98,  24  L.  341,  GOOD  v.  MARTIN. 

Syl.  5  (IX,  218).     Indorsement  after  indorsement  by  payee. 

Cited  in  Jones  v.  Stoddart,  8  Idaho,  219,  67  Pac.  651,  arguendo. 

Syl.  8  (IX,  219).     Indorser  before  payee  is  joint  maker. 

Approved  in  Camp  v.  First  Nat.  Bank  of  Ocala,  44  Fla.  503,  103  Am. 
St.  Rep.  173,  33  South.  242,  following  rule;  Columbia  Finance  etc.  Co. 
V.  Purcell,  146  Fed.  88,  one  indorsing  note  in  blank  at  time  it  is  made 
cannot  be  made  liable  on  contract  written  above  his  indorsement  reciting 
agreement  by  indorser  to  pay  note  according  to  terms  of  another  agree- 
ment; Ex  parte  Moran,  144  Fed.  604,  illegal  selection  of  grand  jurors  in 
territorial  court  is  ground  for  discharge  of  prisoner  on  habeas  corpus  in 
federal  court. 


813  Notes  on  U.  S.  Reports.  95  U.  S.  104-143 

Syl.  17  (IX,  220).     Territorial  courts  not  United  States  courts. 

Approved  in  Cochran  v.  United  States,  147  Fed.  207,  on  trial  in  ter- 
ritorial court  of  indictment  charging  offense  against  laws  of  United 
States,  questions  relating  to  severance  and  peremptory  challenges  are 
governed  by  territorial  laws;  Ex  parte  Moran,  144  Fed.  598,  circuit  court 
of  appeals  may  issue  habeas  corpus  to  inquire  into  power  of  Oklahoma 
territorial  court  to  imprison  one  convicted  of  capital  crime;  Wallace  v. 
Adams,  143  Fed.  725,  upholding  32  Stat.  641,  creating  citizenship  court 
empowered  to  review  final  judgments  of  United  States  courts  under  29 
Stat.  339,  which  had  been  affirmed  by  supreme  court,  as  against  success- 
ful litigants  who  had  not  procured  allotments  prior  to  its  passage ; 
Fuller  V.  Johnson,  8  Okl.  606,  58  Pac.  747,  applying  rule  under  Stat. 
1890,  p.  930,  §  2,  prescribing  limitations  in  actions  on  judgments. 

Syl.  18    (IX,  220).     Exclusion  of  witnesses  in  territorial  courts. 

Approved  in  Welty  v.  United  States,  14  Okl.  16,  76  Pac.  123,  in  crim- 
inal prosecution  in  territorial  court  sitting  with  powers  of  federal  court, 
list  of  jury  and  witnesses  need  not  be  served  on  defendant  before  trial. 

95  U.  S.  104-117,  24  L.  352,  NEW  JERSEY  v.  YARD. 

Syl.  5   (IX,  224).     Revocation  of  act  fixing  corporation  tax. 

Approved  in  dissenting  opinion  in  Rochester  v.  Rochester  Ry.  Co.,  182 
N.  Y,  127,  74  N.  E.  962,  70  L.  R.  A.  773,  majority  holding  immunity 
from  contribution  to  expense  of  new  pavements  conferred  by  Laws  of 
1869,  p.  54,  c.  34,  on  street  railway,  was  revocable  at  wiU  of  legislature. 
See  105  Am.  St.  Rep.  704,  note. 

Distinguished  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  IT.  S. 
43,  50  L.  78,  25  Sup.  Ct.  715,  special  franchise  tax  imposed  by  N.  Y. 
Laws,  1S99,  c.  712,  does  not  impair  obligation  of  contracts  by  which 
state  granted  right  to  maintain  street  railway  in  "payment  of  annual  per- 
centage of  earnings;  Rochester  v.  Rochester  Ry.  Co.,  182  N.  Y.  116,  74 
N.  E.  958,  70  L.  R.  A.  773,  holding  immunity  from  contribution  to  ex- 
pense of  new  pavements  conferred  by  Laws  of  1869,  p.  54,  c.  34,  on 
street  railway  was  revocable  at  will  of  legislature. 

95  U.  S.  117-143,  24  L.  395,  AETNA  INSURANCE  CO.  v.  BOON. 

Syl.  3  (IX,  225).     Bill  of  exceptions— Trial  by  court. 

Approved  in  Webb  v.  National  Bank  of  Republic,  146  Fed.  719, 
following  rule. 

Syl.  5   (IX,  225).     Findings  by  court — Amendment. 

Approved  in  Hays  v.  Philadelphia  etc.  R.  R.  Co.,  99  Md.  420,  58  Atl 
441,  verbal  order  by  judge  made  in  private  office  after  discharge  of  jur'- 
for  term  in  absence  of  clerk  or  docket,  in  handing  papers  to  attorney  au- 
thorizing him  to  direct  clerk  to  enter  on  docket  "motion  for  new  tria'- 
overruled,  judgment  for  defendant,  and  appeal  by  plaintiff,"  is  void. 

Syl.  11  (IX,  226).     Filing  findings  nunc  pro  tunc. 

Approved  in  Carbon  Co.  School  District  v.  Western  Tube  Co.,  13  Wyo. 
322,   324,   80  Pac.   157,   158,  where   findings   were   duly   made   and   file<i 


95  U.  S.  141-157  Notes  on  U.  S.  Eeports.  814: 

but  by  mistake  of  clerk  were  not  entered  in  journal,  order  after  judg- 
ment entering  findings  nunc  pro  tunc,  is  proper. 

Syl.  15  (IX,  226).     Proximate  cause  defined. 

Approved  in  McGill  v.  Michigan  S.  S.  Co.,  144  Fed.  792,  where  super- 
intendent, on  vessel  being  changed  to  oil-burner,  ordered  tank  partially 
filled  while  men  working  with  candles  and  explosion  occurred,  master 
liable;  American  Bridge  Co.  v.  Seeds,  144  Fed.  610,  holding  where  bridge 
workman  knocked  off  platform  by  reason  of  being  struck  by  tackle, 
operated  on  signal  of  foreman,  master  not  liable;  Demolli  v.  United 
States,  144  Fed.  366,  one  cavxsing  obscene  matter  to  be  printed  in  news- 
paper, knowing  paper  will  be  mailed  to  readers,  causes  such  matter  to 
be  deposited  in  mail  within  Kev.  St.  §  3893;  Texas  &  P.  Ey.  Co.  v. 
Coutourie,  135  Fed.  473,  68  C.  C.  A.  177,  applying  rule  in  action  for 
damages  for  loss  of  property  by  fire  while  in  carrier's  possession  through 
failure  to  protect  it;  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed. 
126,  66  C.  C.  A.  190,  on  trial  to  circuit  court  when  there  were  no  special 
findings,  rulings  requiring  weighing  of  evidence  is  not  reviewable  on 
appeal;  Conner  v.  Manchester  Assur.  Co.,  130  Fed.  746,  70  L.  R.  A.  106, 
65  C.  C.  A.  127,  where  fire  ordered  by  supervisors  to  destroy  insects, 
insurers  of  grain  destroyed  thereby  are  relieved  imder  exemption  from 
loss  occasioned  by  order  of  civil  authority,  though  fire  started  on  other 
property;  Indianapolis  St.  Ry.  Co.  v.  Schmidt,  163  Ind.  364,  71  N.  E.  202, 
complaint  alleging  defendant  negligently  ran  car  at  dangerous  speed  into 
switch,  off  track  and  into  pole,  throwing  plaintiff  to  floor  and  against 
stove,  sufficiently  alleges  defendant's  negligence  was  proximate  cause  of 
injury;  Bowden  v.  Derby,  99  Me.  213,  58  Atl.  994,  where  workman  in- 
jured by  fall  of  derrick  boom,  proximate  cause  is  for  jury;  Foley  v. 
McMahon,  114  Mo.  App.  444,  90  S.  W.  113,  where  mule  driver  did  not 
know  tug  defective  and  when  it  broke  alighted  to  repair  it  and  put  foot 
in  front  of  wheel  and  mules  started,  crushing  foot,  master 's  negligence 
in  providing  defective  harness  not  proximate  cause  of  injury;  Snyder  v. 
Philadelphia  Co.,  54  W.  Va.  158,  102  Am.  St.  Eep.  941,  46  S.  E.  369, 
63  L.  R.  A.  896,  holding  well  owner  liable  where  he  blew  it  off,  frighten- 
ing horses  in  highway,  and  in  pulling  them  up  weak  line  broke,  throwing 
plaintiff   from   wagon. 

95  U.  S.  144-149,  24  L.  420,  MOVIUS  v.  ARTHUR. 

Syl.  1  (IX,  228).     Customs  duties — Specific  provisions. 

Approved  in  United  States  v.  Boden,  133  Fed.  840,  canned  pineapples 
containing  only  sufficient  sugar  to  flavor,  are  dutiable  under  lower  rate 
presented  by  Act  1897,  c.  11,  §  1,  sched.  G,  par,  263;  Brennan  v.  United 
States,  129  Fed.  838,  limes  in  brine  are  dutiable  under  Act  of  1897,  c. 
11,  §  1,  sched.  G,  par.  266,  and  not  under  par.  559,  or  241. 

95  U.  S.  149-157,  24  L.  442,  KNOTE  v.  UNITED  STATES. 

Syl.  1    (IX,  229).     Amnesty  and  pardon  distinguished. 

Approved  in  In  re  Briggs,  135  N.  C.  124,  47  S.  E.  405,  upholding 
Code,  §  1215,  granting  pardon  to  one  testifying  in  gambling  prosecution. 


815  Notes  on  U.  S.  Keports.  95  U.  S.  157-170 

95  U.  S.  157-161,  24  L.  422,  BROWN  v,  COUNTY  OF  BUENA  VISTA. 
Syl.  4  (IX,  230).  Laches  independent  of  limitations.' 
Approved  in  Cole  v.  Birmingham  Union  Ry.  Co.,  143  Ala.  435,  39  So. 
405,  suit  by  stockholder  to  set  aside  sale  of  corporation's  property  to  an- 
other on  ground  of  ultra  vires,  is  barred  by  laches  ten  years  after  transfer 
and  two  years  after  knowledge;  Ryason  v.  Dunten,  164  Ind.  96,  73  N.  E. 
77,  where  mother  in  possession  as  cotenant  with  son  purchased  at  mort- 
gage sale  and  received  sheriff's  deed,  and  son  for  several  years  after 
attaining  majority  failed  to  assert  rights  in  land,  he  cannot  assert  rights 
as  against  mother's  remote  grantee;  Patterson  v.  Hewitt,  11  N.  M. 
18,  33,  66  Pac.  556,  561,  55  L.  R.  A.  658,  holding  eight  years'  delay 
in  suing  to  enforce  rights  under  verbal  agreement  relating  to  mining 
claims  is  laches. 

95  U.  S.  161-168,  24  L.  403,  CONTINENTAL  IMPROVEMENT  CO.  v. 
STEAD. 

Syl.  4  (IX,  234).     Care  required  on  crossing  railroad. 

Approved  in  Wabash  R.  Co.  v.  De  Tar,  141  Fed.  934,  and  Nichols 
V.  Baltimore  etc.  R.  R.  Co.,  33  Ind.  App.  239,  71  N.  E.  172,  both  follow- 
ing rule;  Baker  v.  Philadelphia  etc.  Ry.  Co.,  149  Fed.  887,  in  action 
for  death  of  locomotive  engineer  killed  in  collision,  burden  is  on  de- 
fendant to  show  negligence  of  deceased;  Chicago  etc.  Ry.  Co.  v.  Smitli. 
141  Fed.  931,  applying  rule  where  one  injured  while  walking  across 
tracks  in  railroad  yards;  Pittsburgh  etc.  Ry.  Co.  v.  Reed,  36  Ind.  App. 
72,  75  N.  E.  51,  in  action  for  injuries  at  railroad  crossing  burden  of 
l)roving  that  plaintiff  did  not  stop,  look  or  listen  is  on  defendant; 
Oklahoma  Gas  etc.  Co.  v.  Lukert,  16  Okl.  420,  84  Pae.  1084,  upholding 
icfusal  to  direct  verdict  for  defendant  in  action  for  death  by  electrocu- 
tion where  light  wires  fell  onto  telephone  wires  and  broke  them. 

Syl.  5  (IX,  234).     Care  required  at  railroad  crossings. 

Approved  in  Cooper  v.  North  Carolina  R.  Co.,  140  N.  C.  212,  52  S.  K. 
933,  following  rule;  West  v.  Northern  Pac.  Ry.  Co.,  13  N.  D.  22S, 
100  N.  W.  255,  holding  one  approaching  railroad  crossing  in  wagon 
knowing  train  was  approaching  and  that  view  was  obstructed  is  negli- 
gent for  attempjting  to  cross  in  front  of  train  and  not  stopping  wagon 
to  listen. 

95  U.  S.  16S-170,  24  L.  423,  CAIRO  ETC.  R.  R.  CO.  v.  HECHT. 
Syl.  2  (IX,  235).  Statutes— "  Shall "  means  "may." 
Approved  in  Thompson  v.  Board  Trustees,  144  Cal.  283,  77  Pac.  952, 
ordinance  providing  that  on  petition  of  ten  per  cent  of  voters,  trustees 
"shall"  submit  proposition  to  voters,  is  not  mandatory;  State  ex  rel. 
Dangberg  v.  Board  of  County  Commrs.,  27  Nev.  474,  77  Pac.  987,  ap- 
plying rule  in  construing  Comp.  Laws,  §  479,  relating  to  petition  to 
vacate  public  roads;  dissenting  opinion  in  United  States  v.  Cornell 
Steamboat  Co.,  137  Fed.  461,  69  C.  C.  A.  603,  majority  holding  where 
imports    while   in   customs '    custody   on    board   vessel   were   saved   from 


95  U.  S.  183-204  Notes  on  U.  S.  Reports.  816 

destruction   salvors   were   entitled,   under   Rev.    St.,    §    2984,   to   salvage 
from  government  who  was  saved  from  refunding  duties. 

95  U.  S.  183-186,  24  L.  427,  PHOENIX  INSURANCE  CO.  v.  PECHNER. 

Syl.  2  (IX,  238).    Removal  petition  must  show  grounds. 

Approved  in  Shane  v.  Butte  Elec.  Ry.  Co.,  150  Fed.  812.  where  Te- 
moval  i^etition,  in  connection  with  record  as  presented  to  state  court, 
fails  to  disclose  grounds  for  removal,  federal  court,  after  removal,  can- 
not permit  amendment  of  petition  to  state  grounds  inconsistent  witJi 
original  petition;  Helena  Power  etc.  Co.  v.  Spratt,  146  Fed.  313,  where 
record  in  state  proceedings  to  condemn  land  shows  equitable  title  is  in 
defendant,  who  is  citizen  of  state,  while  legal  title  is  in  another  de- 
fendant, who  is  citizen  of  another  state,  cause  is  not  removable ;  State 
ex  rel.  Corp.  Com.  v.  Southern  Ry.  Co.,  135  N.  C.  81,  47  S.  E.  232,  where 
complaint  by  railroad  commission  to  compel  railroad  to  deliver  cars  of 
coal  on  private  siding  no  valuation  alleged,  removal  petition  alleging 
matter  in  controversy,  involving  right  of  defendant  to  manage  its  inter- 
state commerce  without  interference,  exceeds  $2,000,  is  insufficient. 

95  U.  S.  186-187,  24  L.  428,  AMORY  v.  AMORY. 

Syl.  3  (TX,  240).    Removal — State  jurisdiction  till  petition. 

Approv.ed  in  Illinois  Central  Ry.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W. 
485,  following  rule. 

95  U.  S.  188-190,  24  L.  493,  KERR  v.  CLAMPITT. 

Syl.  1   (IX,  241).     Ruling  on  new  trial  not  reviewable. 

Approved  in  Copper  King  v.  Johnson,  195  U.  S.  627,  49  L.  351,  25 
Sup.  Ct.  793,  following  rule;  Newport  etc.  Ry.  Co.  v.  Yount,  136  Fed. 
590,  69  C.  C.  A.  363,  refusing  to  review  refusal  to  set  aside  verdict  or 
grant  new  trial. 

95   U.  S.  191-199,  24  L.  468,  FABBRI  v.  MURPHY. 

(IX  24.)  Miscellaneous.  Cited  in  American  Cigar  Co.  v.  United 
States,  146  Fed.  488,  importation  is  not  complete  while  goods  remain 
in  custody  of  customs  of6.cers. 

95   U.   S.   200-204,  24  L.  494,  PRESTON  v.  PRESTON. 

Syl.  1   (IX,  242).     Specific  performance — Uncertain  contract. 

Approved  in  Marks  v.  Gates,  2  Alaska,  527,  refusing  specific  per- 
formance of  contract  whereby  party  agrees  to  convey  to  another 
fifth  interest  in  all  property  which  he  may  acquire  by  location, 
purchase  or  otherwise  in  Alaska;  Kirkpatrick  v.  Pettis,  127  Iowa, 
612,  103  N.  "\V.  957,  refusing  specific  performance  of  oral  contract 
to  convey  land  where  neither  receipt  for  earnest-money  nor  evidence 
showed  description  of  property;  Ferguson  v.  Blackwell,  8  Okl.  495, 
58  Pac.  649,  refusing  sjiccific  performance  of  contract  for  division 
of  profits  of  cattle  business. 


817  Notes  on  U.  S.  Eeports.  93  U.  S.  20i-214 

95  U.  S.  204-210,  24  L.  471,  BATES  v.  CLAEK. 

Syl.  3   (IX,  242).     Indian  country. 

Approved  in  Brown  v.  United  States,  146  Fed.  977,  larceny  on 
reservation  in  Oklalioma  by  white  is  crime  against  United  States 
cognizable  by  territorial  district  court  sitting  with  federal  jurisdic- 
tion; Hollister  v.  United  States,  145  Fed.  777,  holding  South  Dakota 
assented  to  Conip.  St.  Supj).  1905,  p.  719,  conferring  jurisdiction  on 
federal  courts  to  try  offenses  committed  on  Indian  reservation  in  such 
state;  Ex  parte  Moran,  144  Fed.  602,  territorial  court  has  juris- 
diction to  try  prosecution  for  murder  on  Indian  reservation  when 
Indian  title  thereto  had  been  extinguished;  Herd  v.  United  States, 
13  Okl.  516,  75  Pac.  292,  upholding  jurisdiction  of  territorial  court 
exercising  federal  jurisdiction  over  prosecution  of  white  for  offense 
on  Indian  reservation;  Goodson  v.  United  States,  7  Okl.  123,  131, 
54  Pac.  425,  427,  upholding  jurisdiction  of  territorial  court  sitting 
with  powers  of  federal  court  over  prosecution  for  adultery  committed 
on   Indian  reservation  by  one  not  an  Indian. 

Distinguished  in  Buster  v.  Wright,  135  Fed.  952,  68  C.  C.  A.  505, 
neither  Creek  agreement  of  1901,  nor  establishment  of  townsites, 
nor  sale  of  lots  to  noncitizens  of  Creek  nation  prohibits  Interior 
Department  from  closing  unlawful  business  of  noncitizens  who  refuse 
to  pay  permit  tax. 

Syl.  4  (IX,  243).     Liability  of  officers  for  acts. 

Approved  in  Indian  Land  &  Trust  Co.  v.  Shoenfelt,  135  Fed.  486, 
68  C.  C.  A.  196,  federal  court  in  Indian  territory  cannot  enjoin 
Indian  agent  from  threatening  to  evict  lessee;  O'Reilly  De  Camara 
V.  Brooke,  135  Fed.  387,  holding  military  governor  of  Cuba  liable 
in  dainigps  to  Spanish  subject  who  was  granted  perpetual  slaughter 
franchise  in  Havana,  and  which  governor  abolished;  Elgin  Nat.  Watch 
Co.  v.  Loveland,  132  Fed.  46,  corporation  is  not  indispensable  party 
to  suit  for  unfair  competition  against  individuals,  though  defendants 
are  charged  with  having  fraudulently  assumed  corporate  name. 

95  U.  S.  210-214,  24  L.  409.  EADICH  v.  HUTCHINS. 

Syl.  2  (IX,  244).     Contracts — Duress  defined. 

Approved  in  Newhall  v.  Jordan,  149  Fed.  589,  importer  entering 
goods  and  purchasing  internal  revenue  stamps  without  protest  cannot 
recover  tax,  though  goods  not  lawfully  taxable;  Burnes  v.  Burnes, 
132  Fed.  493,  upholding  family  settlement  made  under  threat  by 
surviving  partner  to  administer  estate  as  survivor  unless  corporation 
formed  and  stock  divided;  Lippincott  v.  Supreme  Council  A.  L.  H., 
130  Fed.  484,  where  beneficial  society  illegally  reduced  payments 
on  certificates  and  levied  assessments  on  reduced  amount,  and  member 
tendered  assessment  at  former  rate,  but  on  its  refusal  paid  under  new 
rate  under  protest,  he  could  rescind  contract  and  recover  payment 
52 


95  U.  S.  214-242  Notes  on  U.  S.  Eeports.  8155 

made  prior  to  change;  Foote  v.  De  Poy,  126  Iowa,  372,  106  Am.  St. 
Rep.  365,  102  N.  W.  114,  68  L.  R.  A.  302,  where  divorced  wife,  having 
custody  of  children,  obtained  appointment  of  guardian  for  him,  claim- 
ing he  was  incompetent,  and  by  agreement  thereafter  proceedings 
dismissed  and  he  conveyed  most  of  his  property  for  benefit  of  chil- 
dren, transaction  avoidable  by  his  heirs  after  death;  First  Nat.  Bank 
T.  Sargent,  65  Neb.  607,  91  N.  W.  599,  59  L.  R.  A.  296,  where  one  con- 
veyed land  by  deed  absolute  as  security  for  loan  by  bank  and  when 
he  was  financially  embarrassed  bank  denied  his  interest  and  he  found 
advantageous  purchaser  but  bank  refused  to  release  unless  large 
bonus  paid,  payment  of  bonus  was  under  duress;  Kilpatrick  v.  Ger- 
mania  Life  Ins.  Co.,  183  N.  Y.  170,  111  Am.  St.  Rep.  727,  75  N.  E. 
1126,  2  L.  R.  A.  (N.  S.)  574,  where,  on  default  in  payment  of  inter- 
est on  mortgage,  mortgagee  sued  to  foreclose  and  mortgagor  tendered 
principal  and  interest  and  was  informed  that  foreclosure  dismissed 
and  mortgagee  demanded  bonus  which  mortgage  provided  in  case  pay- 
ment made  before  maturity,  payment  of  bonus  is  involuntary. 

95  U.  S.  214-221,  24  L.  384,  ROEMER  v.  SIMON. 

Syl.  5   (IX,  245).     Patents — Evidence  of  prior  use — Notice. 

Approved  in  Drewson  v.  Hartje  Paper  etc.  Co.,  131  Fed.  739,  65 
C.  C.  A.  548,  in  absence  of  objection,  date  of  invention  is  presumed 
to  be  date  of  application  for  patent. 

95  U.  S.  221-227,  25  L.  355,  EX  PARTE  SOUTH  AND  NORTH  ALA- 
BAMA RAILROAD. 

Syl.  2  (IX,  246).     Cross-bill  is  auxiliary. 

Approved  in  Blythe  Co.  v.  Bankers'  Inv.  Co.,  147  Cal.  92,  93,  81 
Pac.  285,  decree  pro  confesso  on  cross-bill  may  be  vacated  on  mo- 
tion after  adjournment  of  term. 

Syl.  4  (IX,  246).     Assignor  pendente  lite  may  continue  suit. 

Approved  in  Sykes  v.  Beck,  12  N.  D.  252,  96  N.  W.  846,  permit- 
ting appeal  by  original  party  though  he  has  sold  subject  matter  of 
action  pendente  lite. 

Syl.  5  (IX,  246).     Mandamus  to  compel  allowance  of  appeal. 
See  98  Am.  St.  Rep.  893,  note. 

95  U.  S.  232-242,  24  L.  443,  CHARTER  OAK  INSURANCE  CO.  v. 
RODEL. 

Syl.  1  (IX,  246).  Insurance — Objection  to  sufficiency  of  proofs  of 
loss. 

Approved  in  Aetna  Life  Ins.  Co.  v.  Milward,  118  Ky.  732,  82  S.  W. 
368  following  rule;  Noyes  v.  Commercial  Travelers'  etc.  Ace.  Assn., 
190  Mass.  182  76  N.  E.  666,  decision  of  directors  of  accident  in- 
surance policy  that  proofs  of  injury  are  not  satisfactory  is  not  con- 
clusive. 


819  Notes  on  U.  S.  Keports.  95  U.  S.  242-274 

Syl.  3  (IX,  247).     Insurance — Sufficiency  of  proofs  of  loss. 

Approved  in  Lyon  v.  United  Moderns,  148  Cal.  473,  83  Pac.  806, 
applying  rule  in  action  on  mutual  benefit  certificate. 

95  U.  S.  242-251,  24  L.  473,  LYCOMING  ETC.  INSURANCE  CO.  v. 
HAVEN. 

Syl.    7    (IX,    249).     Insurance — Unconditional    ownership. 

Approved  in  Medley  v.  German  Alliance  Ins.  Co.,  55  W.  Va.  3G4, 
47  S.  E.  110,  clause  in  policy  providing  for  unconditional  and  sole 
ownership  not  violate  because  insured  had  only  life  estate  encum- 
bered by  deed  of  trust. 

95  U.  S.  252-259,  24  L.  444,  MILNER  v.  MEEK. 

Syl.  1   (IX,  249).     Bankruptcy  assignee's  petition  to  adjust  liens. 

Distinguished  in  In  re  Scherber,  131  Fed.  124,  where  petition  of 
bankruptcy  trustee  to  recover  preference  by  summary  proceedings 
contained  no  allegation  that  respondent's  claim  was  merely  color- 
able and  respondent  objected  to  form  of  proceeding,  bankruptcy 
court  could  only  proceed  by  plenary  suit. 

95   U.   S.   259-266,   24   L.   495,   CENTRAL   COLORADO   IMP.   CO.    v. 
COMMISSIONERS  OP  PUEBLO  CO. 

Syl.  1  (IX,  250).  Confirmation  of  grant — Payment  of  costs — 
Taxation. 

Approved  in  Delinquent  Tax  List  v.  Territory  of  Arizona,  4  Ariz; 
IBS,  37  Pac.  370,  39  Pac.  328,  tax  on  unconfirmed  Mexican  grant  is 
valid;  Catron  v.  Laughlin,  11  N.  M.  632,  72  Pac.  32,  where  New 
Mexico  Surveyor  General  recommended  confirmation  of  Mexican 
grant  without  limitation  as  to  quantity,  and  Congress  confirmed  it  as 
recommended,  title  is  valid  as  to  all  land  claimed. 

Distinguished  in  Territory  v.  Delinquent  Taxpayers.  12  N.  M.  70, 
73  Pac.  624,  Mexican  grant  taxable  though  grant  submitted  for  con- 
firmation and  patent  not  yet  issued. 

95  U.  S.  269-274,  24  L.  410,  INSURANCE  CO.  v.  DUTCHER. 

Syl.  2   (IX,  250).     Insurance — Receipt  of  note  for  premium. 

Cited  in  Union  etc.  Life  Ins.  Co.  v.  Loughmiller,  33  Ind.  App.  313, 
69  N.  E.  265,  arguendo. 

Syl.  4   (IX,  251).     Interpretation  of  agreement  by  parties. 

Approved  in  Seymour  v.  Warren,  179  N.  Y.  6,  71  N.  E.  261,  con- 
struing agreement  between  land  owner  and  real  estate  broker  by 
which  latter  agreed  to  take  charge  of  property. 


95  U.  S.  274-296  Notes  on  U,  S.  Reports.  820 

95  U.  S.  274-279,  24  L.  344,  KEYSTONE  BRIDGE  CO.  v.  PHOENIX 
IRON  CO. 

Syl.  2  (IX,  2.51).     Patentee  bound  by  claim. 

Approved  in  Cortis  v.  American  Street  Lamp  etc.  Co.,  145  Fed. 
517,  Cortis  patent  No.  613,648,  for  electric  lamp,  not  infringed  by 
device  of  Momand  patent  No.  781,613;  Cincinnati  Ry.  Supply  Co. 
V.  American  Hoist  etc.  Co.,  143  Fed.  325,  holding  Crosby  patent  No. 
388,840,  for  wire  rope  clamp,  limited  in  view  of  prior  act;  Pelton 
etc.  Wheel  Co.  v.  Abner  Doble  Co.,  141  Fed.  664,  construing  Krase 
patent  No.  633,962,  for  water-wheel  casing;  Avery  v.  J.  I.  Case 
Plow  "Works,  139  Fed.  886,  construing  Avery  patent  No.  650,771, 
for  double  mold  board  plow;  Jones  v.  Davis,  138  Fed.  62,  63,  70  C. 
C.  A.  558,  construing  Lattimore  patent  No.  415,720,  for  lantern  holder 
for  miners'  caps;  Lanyon  Zinc  Co.  v.  Brown,  129  Fed.  915,  64  C. 
C.  A.  344,  holding  Brown  patent  No.  471,264,  for  ore-roasting  furnace, 
not  infringed  by  device  of  Cappeau  patent  No.  691,112. 

Distinguished  in  Benbow-Brammer  Mfg.  Co.  v.  Simpson  Mfg.  Co., 
132  Fed.  615,  holding  Schroeder  patent  No.  535,465,  for  washing-ma- 
chine, infringed. 

95  U.  S.  279-285,  24  L.  431,  UNION  PACIFIC  R.  R.  CO..  v.  STEW- 
ART. 

Syl.  3   (IX,  253).     Appellant  must  see  to  proper  record. 

Approved  in  In  re  A.  L.  Robertshaw  Mfg.  Co.,  135  Fed.  223,  whore 
parties  to  bankruptcy  appeal  do  not  agree  as  to  contents  of  ap- 
peal record,  it  is  duty  of  appellant  to  file  praecipe  pointing  out  speci- 
fically what  records  should  be  certified. 

95  U.  S.  289-294,  24  L.  496,  BECKWITH  v.  TALBOT. 

Syl.   1   (IX,  254).     Statute  of  frauds — Sufficiency  of  memorandum. 

Approved  in  Halsell  v.  Renfrew,  14  Okl.  686,  78  Pac.  121,  constru- 
ing correspondence  and  telegrams  as  not  constituting  sufficient  mom- 
oraiiilum  of  agreement  to   sell  land  as  satisfies  statutes  of  frauds. 

95  U.  S.  294-296,  24  L.  436,  PEARSON  v.  YEWDALL. 

Syl.  3  (IX,  256).     Seventh  amendment  relates  to  federal  courts. 

Approved  in  Tilley  v.  Cox,  119  Ga.  870,  47  S.  E.  221,  upholding 
Civ.  Code,  1895,  §  5331,  authorizing  direction  of  verdict  where  there 
is  no  conflict  in  evidence. 

Syl.   4    (IX,   256).     Due   process — Condemnation   proceedings. 

Approved  in  Youst  v.  Willis,  5  Okl.  416,  49  Pac.  1014,  upholding 
act  of  1895,  relating  to  appeals  from  justices'  courts,  and  providing 
for  entry  of  judgment  against  sureties  on  appeal  bond  on  motion, 
as  to  bond  given  prior  to  enactment  of  statute. 


821  •  Notes  on  U.  S.  Reports.  95  U.  S.  297-316 

95  U.   S.  297-303,   24  L.  477,  EASTERN   TRANSPORTATION  LINE 
V.  HOPE. 

Syl.  2   (IX,  256).     Matters  of  expert  evidence. 

Approved  in  Allen  v.  Field,  130  Fed.  658,  65  C.  C.  A.  19,  admitting 
expert  evidence  as  to  value  of  release  from  risk  attending  full  ex- 
ecution of  contract  broken. 

Distinguished  in  Hamann  v.  Milwaukee  Bridge  Co.,  127  Wis.  565, 
106  N.  W.  1086,  opinion  evidence  as  to  whether  particular  manner 
of  moving  heavy  machine  from  car  was  proper,  13  inadmissible. 

Syl.  3   (IX,  257).     Care   required  of  towboat. 

Approved  in  The  Britannia,  148  Fed.  497,  holding  tug  liable  where 
it  had  but  one  hawser,  which  parted  twice  in  calm  weather  and  later 
parted  again  in  storm  and  tows  lost;  Rebstoek  v.  Gilchrist  Transp. 
Co.,  132  Fed.  176,  where  moored  vessel  was  struck  by  steamer  in 
tow  of  two  tugs  by  reason  of  failure  of  rear  tug  to  properly  assist 
in  turning  in  channel,  tug  was  liable;  The  W.  G.  Mason,  131  Fed. 
635,  holding  where  steamer  in  tow  of  two  tugs  stranded  on  side  of 
channel,  leading  tug  at  fault  for  failure  to  signal;  The  Inca,  130  Fed. 
41,  holdirig  tug  liable  for  stranding  of  tow  over  obstruction  in  chan- 
nel, not  known  to  master  of  tug  but  well  known  to  others, 

Syl.  6  (IX,  257).     Judge's  opinion  as  to  amount  of  damages. 

Approved  in  Pittsburgh  Ry.  Co.  v.  Bloomer,  146  Fed.  722,  up- 
holding instruction  in  action  against  street  railway  for  injury  to 
passenger  by  being  thrown  by  sudden  starting  of  car  while  alight- 
ing. 

95  U.  S.  303-316.  24  L.  450,  OULD  v.  WASHINGTON  HOSPITAL  FOR 
FOUNDLINGS. 

Syl.  6  (IX,  259).     Trust  to  convey  to  charity — Perpetuity. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed. 
522,  52L,  67  C.  C.  A.  393,  where  will  directed  income  of  residue  to 
be  used  to  pay  specific  legacies  and  balance  of  twenty-five  year  ac- 
cumulation added  to  principal,  and  charitable  corporation  formed  to 
which  estate  to  be  transferred,  gift  vested  on  testator's  death;  Cod- 
man  v.  Brigham,  187  Mass.  313,  72  N.  E.  1009,  where  will  created 
charitable  trust,  provision  for  accumulations  valid  though  requir- 
ing fund  to  be  held  for  period  beyond  time  prescribed  by  rule  against 
perpetuities. 

Syl.  9   (IX,  260).     Charitable  uses  liberally   construed. 

Approved  in  Tincher  v.  Arnold,  147  Fed.  673,  where  residuary 
estate  devised  in  trust,  accumulations  to  certain  amount  to  be  used 
for  building  to  be  used  for  educating  boys,  income  from  remainder 
of  fund  to  be  used  to  pay  teachers,  latter  part  need  not  be  used  ex- 
clusively for  teachers. 


95  U.  S.  316-326  Notes  on  U.  S.  Keports.  822 

95  IJ.  S.  316-319,  24  L.  479,  HAET  v.  UNITED  STATES. 

Syl.  1   (IX,  260).     United  States— Wrongful  acts  of  officers. 

Approved  in  United  States  v.  Guest,  143  Fed.  458,  surety  on  dis- 
tiller's bond  not  relieved  from  liability  for  tax  on  spirits  lost  in 
distillery  warehouse  because  warehouse  was  in  charge  of  collector 
and  loss  occurred  through  negligence  of  custodian;  United  States 
V.  Ennis,  132  Fed.  135,  failure  of  Treasury  Department  to  withhold 
part  of  payment  due  government  contractor  on  account  of  claim 
of  United  States  against  him  for  prior  breach  of  contract  does  not 
release  sureties  from  liability  for  such  claim;  Christie-Street  Com. 
Co.  V.  United  States,  129  Fed.  509,  statements  by  departmental  of- 
ficers to  claimant  pending  appeal  before  internal  revenue  commis- 
sioner that  claim  would  be  allowed  or  had  been  favorably  certified, 
do  not   estop  government  so  as  to  avoid  statute  of  limitations. 

95  U.  S.  319-326,  24  L.  357,  SHIELDS  v.  OHIO. 

Syl.  2  (IX,  260).     Effect  of  consolidation  of  corporations. 

Approved  in  Anderson  v.  War  Eagle  etc.  Min.  Co.,  8  Idaho,  803, 
72  Pac.  674,  following  rule;  San  Antonio  Traction  Co.  v.  Altgelt, 
200  U.  S.  309,  50  L.  494,  26  Sup.  Ct.  261,  contract  exemption  from 
legislative  regulation  of  rates  possessed  by  street  railway  c-hartered 
prior  to  Texas  Const.  1876,  Bill  of  Eights,  §  17,  is  lost  by  foreclosure 
sale  and  acquisition  of  franchises  by  new  corporation;  Walsey  v. 
Chicago  etc.  Ey.  Co.,  147  Fed.  614,  where  railroad  formed  by  con- 
solidation of  corporations  from  Iowa  and  Illinois,  it  could  not  re- 
move suit  brought  in  court  of  either  state;  Gladding  v.  St.  Matthews 
Church,  25  E.  I.  634,  105  Am.  St.  Eep.  904,  57  Atl.  863,  65  L.  E.  A. 
225,  where  testatrix  bequeathed  property  to  church  for  mutes,  but 
before  her  death  church  corporation  consolidated  with  another,  though 
department  of  consolidated  corporation  carried  on  same  work  as  old 
church,  consolidated  corporation  does  not  take  bequest. 

Distinguished  in  Lee  v.  Atlantic  etc.  E.  Co.,  150  Fed.  790,  constru- 
ing contract  between  corporations  as  merger  and  not  consolidation. 

Sj\.    3    (IX,    262).     Consolidation    of    corporations — Exemptions. 

Approved  in  Eochester  v.  Eochester  Ey.  Co.,  182  N.  Y.  118,  74  N. 
E.  959,  70  L.  E.  A.  773,  where  street  railway  was  by  statute  ex- 
empt from  expense  of  repairing  between  tracks,  exemption  did  not 
pass  to  lessee. 

Syl.   5    (IX,   202).     Eeserved   right   to    amend   corpornte   charter. 

Approved  in  Chicago  v.  Cicero,  210  111.  298,  71  N.  E.  359,  uphold- 
ing Hurd's  Eev.  St.  1901,  p.  347,  §  26,  providing  for  furnishing  of 
water  by  city  owning  its  own  waterworks  to  adjacent  city  not  own- 
ing own  system. 

Distinguished  in  Omaha  Water  Co.  v.  City  of  Omaha.  147  Fed. 
68,    municipal    contract    to    suspend    for    twenty-five    years    povier    of 


823  Notes  on  U.  S.  Reports.  95  17.  S.  326-333 

city    to    regulate    water   rates    in    consideration    of    construction    and 
maintenance  of  waterworks  is  not  unreasonable. 

95  U.  S.  32G-333,  24  L.  387,  GLOBE  MUTUAL  INSURANCE  CO.  v. 
WOLFE. 

Syl.  5  (IX,  204).  Retention  of  premiums — Ratification  of  agent's 
acts. 

Approved  in  Morgan  v.  Northwestern  Nat.  Life  Ins.  Co.,  42  Wash. 
14,  84  Pac.  413,  following  rule. 

Syl.  7  (IX,  2G4).  Insurance — Knowledge  of  agent  accepting  pre- 
miums. 

Approved  in  German-American  Ins.  Co.  v.  Yeaglcy,  163  Ind.  666, 
71  N.  E.  903,  in  action  on  fire  policy  defended  on  ground  that  policy 
was  void  because  property  was  encumbered,  reply  that  agent  who 
wrote  policy  knew  of  encumbrance  was  sufficient;  Farmers'  etc.  Ins. 
Co.  V,  Jackman,  35  Ind.  App.  15,  73  N.  E.  735,  where  insured  owned 
property  in  fee  simple  at  time  of  insurance  and  ratified  insurer  of 
transfer  to  son,  in  which  insured  retained  life  estate,  and  after- 
ward insurance  readjusted  and  insurer  notified  of  condition  of  title 
and  insured  paid  premiums  under  policy  declaring  that  policy  on 
property  not  owned  in  fee  simple  was  void,  condition  waived;  Aetna 
Life  Ins.  Co.  v.  Fallow,  110  Tenn.  733,  735,  77  S.  W.  940,  where  ac- 
cident policy  provided  that  there  should  be  no  insurance  unless  pre- 
miums paid  prior  to  accident,  but  by  agreement  between  insured  and 
general  agent  former  held  premiums  until  collector  called,  insurer 
estopped  to  deny  liability. 

Syl.  8   (IX,  265).     Insurance — Doctrine  of  waiver. 

Approved  in  Williams  v.  Neely,  134  Fed.  10,  69  L.  E.  A.  232,  67 
C.  C.  A.  171,  purchaser  for  value  from  creditor  of  obligation  of 
debtor,  who  obtains  latter 's  note  payable  to  himself  as  evidence  of 
obligation,  debtor  does  not  waive  right  to  plead  defenses  available 
against  original  obligation;  Supreme  Lodge  K.  of  H.  v.  Jones,  35 
Ind.  App.  129,  69  N.  E.  721,  applying  rule  in  action  as  benefit  certifi- 
cate where  financial  recorder  of  local  lodge  accepted  payment  of  as- 
sessments past  due;  Parsons  v.  Lane,  97  Minn.  105,  106  N.  W.  488, 
applying  rule  to  condition  in  policy  as  to  title;  Collins  v.  Metropolitan 
Life  Ins.  Co.,  32  Mont.  343,  345,  108  Am.  St.  Eep.  578,  80  Pac.  612, 
613,  whore  policy  provided  that  forfeitures  for  nonpayment  of  pre- 
mium were  waivable  only  in  writing  by  officer  of  company,  agree- 
ment of  insured  with  agent  to  extend  time  for  payment  is  not  bind- 
ing on  insurer,  though  other  payments  had  been  waived  by  latter; 
Thumpson  v.  Travelers'  Ins.  Co.,  13  N.  D.  451,  101  N.  W.  902,  ac- 
ceptance of  first  premium  by  insurer  without  knowledge  of  insured's 
health  does  not  estop  it  from  setting  up  breach  of  condition;  Dem- 
ing  Inv.  Co.  v.  Shawnee  Ins.  Co.,  16  Okl.  11,  S3  Pac.  921,  though  agent 
wrote    application    knowing    it    misstated    facts,    insurer    not    bound 


95  U.  S.  342-354  Notes  on  U.  S.  Ecporta.  824 

thereby  where  it  never  knew  facts  and  agent  not  authorized  to  waive 
conditions;  Aetna  Life  Ins.  Co.  v.  Fallow,  110  Tenn.  730,  77  S.  W. 
939,  where  accident  policy  provided  that  there  should  be  no  insur- 
ance unless  premiums  paid  prior  to  accident,  but  by  agreement  be- 
tween insured  and  general  agent  former  held  premiums  until  col- 
lector called,  insurer  estopped  to  deny  liability. 

Syl.  9  (IX,  265).     When  waiver  claimable  by  insured. 

Approved  in  Gish  v.  Insurance  Co.  of  North  America,  16  Okl.  73, 
74,  87  Pac.  873,  874,  considering  question  of  waiver  of  iron-safe  clause 
in  fire  policy;  Aetna  Life  Ins.  Co.  v.  Fallow,  110  Tenn.  739,  77  S. 
W.  942,  applying  rule  where  subagent  of  general  agent  of  accident 
company  collected  policy  after  maturity. 

Syl.   10    (IX,   266).     Insurance — Restrictions — Acts   of   agent. 

Distinguished  in  Medley  v.  German  etc.  Ins.  Co.,  55  W.  Va.  351, 
47  S.  E.  105,  restrictions  in  policy  as  to  authority  of  agent  as  to 
waiver  do  not  apply  to  conditions  relating  to  inception  of  policy. 

95  U.  S.  342-346,  24  L.  412,  MERCHANTS'  NAT.  BANK  v.  COOK. 

Syl.  1  (IX,  267).  Bankruptcy — Reasonable  cause  to  believe  in- 
solvent. 

Approved  in  Capital  Nat.  Bank  v.  Wilkerson,  36  Ind.  App.  474, 
483,  75  N.  E.  839,  842,  and  Stevenson  v.  Milliken  etc.  Co.,  99  Me. 
327,  59  Atl.  475,  both  following  rule;  In  re  Moody,  134  Fed.  633, 
where  retailer  within  four  months  of  bankruptcy  transferred  goods 
to  firm,  which  paid  his  debt  to  bank  of  which  partners  were  stock- 
holders, and  who  transferred  to  him  farm,  title  to  which  taken  in 
wife's  name,  transfer  was  void;  Crandall  v.  Coats,  133  Fed.  969, 
holding  preferred  creditor  charged  with  notice  of  bankrupt's  in- 
solvency at  time  of  conveyance;  In  re  Goodhile,  130  Fed.  473,  fact 
that  indebtedness  of  retailer  to  wholesaler  is  past  due  when  pay- 
ment made  does  not  give  creditor  cause  to  believe  debtor  insolvent 
and  that  it  was  intended  as  preference. 

95  U.  S.  347-354,  24  L.  596,  SESSIONS  v.  JOHNSON. 

Syl.  1   (IX,  267).     Judgment  against  one  joint  debtor  as  bar. 

Approved  in  Blythe  v.  Cordingly,  20  Colo.  App.  514,  80  Pac.  497, 
judgment  on  firm  debt  where  service  is  had  on  less  than  all  of  part- 
ners bars  subsequent  action  against  partners  not  served. 

Syl.   3    (IX,   267).     Joinder   of  wrongdoers. 

Approved  in  Shane  v.  Butte  Elec.  Ry.  Co.,  150  Fed.  809,  where 
complaint  in  state  action  states  joint  cause  against  nonresident  cor- 
poration and  resident  servant,  denial  of  joint  negligence  in  cor- 
poration's removal  petition  is  insufficient;  Knuth  v.  Butte  Elec. 
Ry.  Co.,  148  Fed.  74,  refusing  removal  of  action  against  railway  com- 
pany and  servant  for  joint  negligence  causing  injury,  where  fraudu- 
lent joinder  not  alleged  and  proven. 


825  Notes  on  U.  S.  Eeports.  95  U.  S.  360-390 

95  U.  S.  360-372,  24  L.  416,  CASS  COUNTY  v.  JOHNSTON, 
Syl.  1  (IX,  268).  Eequirement  of  majority  of  legal  voters. 
Approved  in  Sharp  v.  George,  5  Ariz.  68,  46  Pac.  213,  applying 
rule  in  construing  Laws  18th  Assem.  Act  No.  32,  relating  to  estab- 
lishment of  union  high  school;  dissenting  opinion  in  Eice  v.  Pal- 
mer,, 78  Ark.  453,  96  S.  W.  403,  majority  holding  under  Kirby 's 
Dig.,  §  718,  majority  of  electors  voting  at  election  necessary  to  pass 
constitutional  amendment. 

Distinguished  in  Knight  v.  Shelton,  134  Fed.  427,  433,  under 
Const.  Ark.,  art.  19,  §  22,  approval  of  constitutional  amendment 
by  majority  of  electors  voting  on  such  proposition  is  not  sufficient 
unless  they  constitute   majority   of  those   voting  at   election. 

Syl.  2  (IX,  269).     Electors  not  voting  presumed  to  assent. 

Approved  in  Law  v.  San  Francisco,  144  Cal.  395,  77  Pac.  1019, 
under  San  Francisco  Charter  Act  12,  §  4,  relating  to  elections  for 
public  improvement  bonds,  favorable  two-thirds  vote  of  all  votes 
cast  at  election  i»  required;  Murdock  v.  Strange,  99  Md.  110,  57 
Atl.  630,  where  on  election  of  city  officer  by  council  there  was  one 
blank  ballot,  such  Tjallot  cannot  be  counted  in  summing  up  total, 
majority  of  which  must  be  received  to  be  elected;  dissenting  opin- 
ion in  Eice  v.  Palmer,  78  Ark.  450,  96  S.  W.  401,  majority  holding; 
under  Kirby 's  Dig.,  §  718,  majority  of  electors  voting  at  election 
necessary  to  pass  constitutional  amendment. 

Syl.  5   (IX,  270).     Mandamus — Tax  levy  to  pay  bonds. 

Approved  in  Kueera  v.  "West  Chicago  Park  Commrs.,  221  III.  49.'], 
77  N.  E.  914,  where  bonds  issued  by  town  to  park  commissioners  and 
money  went  into  park  treasury,  indebtedness  was  that  of  park  board 
and  not  of  town,  and  park  board  could  issue  further  bonds  under 
Laws  1905,  p.  340. 

Distinguished  in  Folsom  v.  Greenwood  Co.,  130  Fed.  734,  county 
in  South  Carolina  is  not  liable  on  bonds  issued  by  township  before 
county  created,  where  township  was  formerly  part  of  another  county 
which  was  dissolved. 

95    U.    S.    380-390,    24    L.    499,    MUTUAL   BEN.    LIFE    INS.    CO.    v. 
HIGGINBOTHAM. 

Syl.    1    (IX,    271).     Life — Eepresentations   as    to    health — Date. 

Distinguished  in  Kerr  v.  Union  Marine  Ins.  Co.,  130  Fed.  418,  64 
C.  C.  A.  617,  where  in  November  insured  told  insurer  bark  had  not 
sailed,  and  on  December  12th  insured  instructed  broker  to  procure 
insurance  but  did  not  say  she  had  sailed  on  December  4th,  and  policy 
issued,  policy  was  void. 


95  U.  S.  391-433  Notes  on  U.  S.  Beporta.  828 

Sy!.  3   (IX,  272).     Insurance — Proofs  of  death  as  admissions. 

Approved  in  Aetna  Life  Ins.  Co.  v.  Milward,  118  Ky.  729,  82  S. 
W.  367,  in  action  on  accident  policy  verdict  of  coroner's  jury  is  not 
admissible  on  issue  of  cause  of  death. 

95    U.    S.    391-401,    24    L.    481,    THOMPSON    v.    MAXWELL    LAND 
GRANT  &  R.  CO. 

Syl.  4   (IX,  273).     Conclusiveness  of  consent  decree. 

Approved  in  Harding  v.  Harding,  198  U.  S.  335,  49  L.  1074,  25 
Sup.  Ct.  679,  consent  decree  for  separate  maintenance  in  Illinois 
suit  is  res  adjudicata  on  question  of  desertion  and  that  wife  was 
living  apart  from  husband  without  her  fault. 

05  U.  S.  407-418,  24  L.  503,  UNITED  STATES  v.  GILLIS. 

Syl.  2   (IX,  274).     Assignment  of  claims  against  government. 

Approved  in  Nutt  v.  Knut,  200  IJ.  S.  20,  50  L.  352,  26  Sup.  Ct. 
216,  illegality  of  clause  in  contract  for  prosecution  of  claim  against 
United  States  making  payment  of  compensation  for  services  there- 
under a  lien  on  claim  or  evidence  of  indebtedness  issued  therefor, 
floes  not  invalidate  provision  for  payment  for  seryices  of  percentage 
of  amount  allowed;  Heuningsen  v.  United  States  Fidelity  etc.  Co., 
143  Fed.  813,  assignment  by  public  contractor  of  claim  against 
United  States  for  money  accruing  on  building  contract  is  void. 

S)5  U.  S.  418-425,  24  L.  437,  TURNBULL  v.  PAYSON. 

Syl.  6  (IX,  276).     Stockholder  on  books  presumed  owner. 

Approved  in  Louisville  etc.  R.  R.  Co.  v.  Hart  Co.,  116  Ky.  193,  75 
S.  W.  290,  determining  time  of  accrual  of  interest  on  stock  subscrip- 
tion; Farmers'  etc.  Nat.  Bank  v.  Mosher,  68  Neb.  729,  100  N.  W. 
135,  determining  ownership  of  stock  pledged  where  it  had  been  gar- 
nisheed  for  debt  of  pledgor. 

Distinguished  in  Chesapeake  etc.  Ry.  Co.  v.  Deepwater  Ry.  Co., 
57  W.  Va.  679,  680,  50  S.  E.  906,  books  of  private  corporation  are 
inadmissible  in  its  favor  in  action  by  stranger  respecting  title  to 
property  to  prove  that  acts  therein  recited  were  performed  at  time 
and  in  manner  therein  stated. 

95  U.  S.  425-433,  24  L.  453,  NEW  YORK  LIFE  INS.  CO.  v.  DAVIS. 

Syl.  1   (IX,  277).     Insurance — Place  of  payment  of  premiums. 

Approved  in  Monahan  v.  Mutual  Ins.  Co.,  103  Md.  159,  63  Atl. 
213,  5  L.  R.  A.  (N.  S.)  759,  where  life  policy  provided  that  it  should 
be  void  in  case  insurer  had  other  policy  on  same  life  and  it  received 
premiums -for  same  years,  it  could  not  deny  validity  of  second  policy 
because  of  other  policy  not  discovered  on  account  of  insurer's  sys- 
tem of  bookkeeping. 


S27  Notes  on  U.  S.  Eeports.  95  U.  S.  439-443 

95  U.  S.  439-443,  24  L.  506,  BALTIMORE  &  POTOMAC  E.  E.  CO.  v. 
JONES. 

Sy].  1   (IX,  279).     Negligence  defined. 

Approved  in  Morris  v.  Florida  Central  etc.  E.  E.  Co.,  43  Fla.  25, 
29  So.  545,  construing  Laws  1891,  c.  4071,  relating  to  care  required 
of  railroads;  Fuller  v.  Atlantic  Coast  Line  E.  Co.,  140  N.  C.  484, 
53  S.  E.  298,  in  action  for  injury  to  horse  which  caught  cold  while 
kept  in  car  at  night,  instruction  that  if  carrier  had  stables  and 
knew  it  could  not  forward  horse  and  kept  it  in  car,  it  was  negli- 
gence, is  erroneous;  Turrentine  v.  Wellington,  136  N.  C.  312,  48  S. 
E.  740,  api)lying  rule  where  servant  engaged  in  blasting  injured  by 
rock  rolling  down  hill;  Klenk  v.  Oregon  etc.  E.  E.  Co.,  27  Utah,  431, 
76  Pac.  215,  applying  rule  where  brakeman  pushed  trespasser  off 
train  while  it  was  going  at  over  twelve  miles  per  hour;  Mason  v. 
Post,  105  Va._  501,  54  S.  E.  313,  holding  motorman  negligent  where 
he  had  right  of  way  and  saw  oncoming  car  leave  only  turnout  but 
he  persisted  in  going  ahead;  Lopes  v.  Sahuque,  114  La.  1011,  38  So. 
813,   arguendo. 

Syl.  4  (IX,  282).     Negligence — Laborer  riding  on  locomotive. 

Approved  in  Williams  v.  Choctaw  etc.  E.  Co.,  149  Fed.  107,  fore- 
man of  switching  crew  working  with  engine  in  yard  and  injured  by 
slipping  off  of  defective  footboard  of  engine,  is  contributory  negli- 
gence; Tower  Lumber  Co.  v.  Brandvold,  141  Fed.  1)22,  holding  em- 
jjloyee  of  lumber  company  riding  on  logging  car  instead  of  on  flat 
car  with  other  men  guilty  of  contributory  negligence  though  fore- 
man permitted  him  to  ride  there;  Chicago  Great  Western  Ey.  Co. 
v.  Crotty,  141  Fed.  916,  applying  rule  where  brakeman  participated 
in  staking  of  car;  Demko  v.  Carbon  Hill  Coal  Co.,  136  Fed.  163,  69 
C.  C.  A.  74,  brakeman  on  logging  road  riding  on  floor  of  rear  of 
engine  instead  of  in  cab  is  guilty  of  contributory  negligence;  Eadley 
V.  Columbia  Ey.  Co.,  44  Or.  345,  75  Pac.  217,  passenger  riding  on 
engine  of  freight  train  at  direction  of  engineer  instead  of  in  caboose 
is  guilty  of  contributory  negligence;  Benson  v.  New  York  etc.  Ey. 
Co.,  26  E.  I.  407,  59  Atl.  80,  holding  brakeman  running  along  edge 
of  roof  of  car  instead  of  using  running  board  is  negligent  if  he  falls 
into  opening  cut  in  roof  for  ladder;  Kansas  City  etc.  E.  Co.  v.  Willi- 
ford,  115  Tenn.  116,  88  S.  W.  180,  one  riding  on  footboard  at  rear 
of  switch  engine  with  knowledge  of  foreman  is  contributorily  negli- 
gent where  he  was  killed  by  collision  though  engine  running  at  un- 
lawful speed;  dissenting  opinion  in  Milbourne  v.  Arnold  Power  etc. 
Co.,  140  Mich.  325,  327,  330,  103  N.  W.  825,  S27,  70  L.  E.  A.  600, 
majority  holding  employee  not  negligent  where  he  sits  outside  of 
house-car  to  watch  tools  and  on  being  warned  by  boss  so  stated  and 
latter   replied,   "All   right." 

Distinguished  in  Kane  v.  Erie  E.  Co.,  142  Fed.  689,  fireman  killed 
by   collision   with   another    engine    not    guilty    of    contributory    negli- 


95  U.  S.  444-465  Notes  on  U.  S.  Eeports.  823 

gence  because  he  was  on  running-board  cleaning  headlight  while  en- 
gine was  slowly  backing;  Ft.  Wayne  Traction  Co.  v.  Hardendorf, 
164  Ind.  407,  72  N.  E.  594,  passenger  on  crowded  street^car  stand- 
ing on  running-board  is  not  contributory  negligent  where  conduc- 
tor authorizes  him  to  stand  there;  Milbourne  v.  Arnold  Power  etc. 
Co.,  140  Mich.  322,  103  N.  W.  824,  70  L.  E.  A.  600,  where  employee 
of  electric  railway  took  seat  outside  of  house-ear  to  watch  tools, 
and  on  being  cautioned  by  boss,  so  stated  and  latter  said,  "All 
right,"  employee  not  negligent;  Dunphy  v.  St.  Joseph  Stockyards 
Co.,  118  Mo.  App.  519,  95  S.  W.  305,  servant  injured  by  derailment 
of  switch-engine  while  riding  on  front,  seated  on  drawbar  with  one 
foot  on  footboard,  instead  of  standing  on  footboard,  is  not  negli- 
gent. 

Syl.  5   (IX,  283).     Contributory  negligence  bars  recovery. 
Approved  in  Crookston  Lumber  Co.  v.  Boutin,  149  Fad.  685,  hold- 
ing  sawmill   employee   guilty   of   contributory   negligence. 

95  U.  S.  444-458,  24  L.  360,  WILLIAMS  v.  MOERIS. 

Syl.  2   (IX,  284).     Tenant  estopped  to  deny  landlord's  title. 

Approved  in  First  Congregational  Church  v.  Terry,  130  Iowa,  518, 
107  N.  W.  307,  wife  of  life  tenant  occupying  premises  with  husband 
as  homestead  cannot  obtain  valid  tax  title  as  against  remainder- 
man. 

Syl.  3  (IX,  2S4).     Statute  of  frauds — SuflSciency  of  memorandum. 

Approved  in  Kane  v.  Luckman,  131  Fed.  618,  refusing  specific  per- 
formance of  oral  contract  for  purchase  of  cows  in  exchange  for 
farm;  Eosenwald  v.  Middlebrook,  188  Mo.  94,  86  S.  W.  211,  apply- 
ing rule  to  parol  contract  to  will  to  plaintiff  all  decedent's  prop- 
erty in  consideration  of  services  to  be  rendered;  Hall  v.  Misen- 
heimer,  137  K  C.  188,  107  Am.  St.  Eep.  474,  49  S.  E.  106,  memoran- 
dum of  contract  for  sale  of  land  not  good  as  against  vendee  unless 
it  shows  price  to  be  paid. 

95  U.  S.  459-465,  24  L.  525,  POUND  v.  TUECK. 

Svl.   1   (IX,  285).     Commerce — State   regulation. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  392.  up- 
holding 30  Stat.  1153,  requiring  alteration  of  bridges  over  naviga- 
ble waters  on  determination  of  Secretary  of  War  that  they  obstruct 
navigation;  Kansas  City  etc.  E.  E.  Co.  v.  Wiygul,  82  Miss.  231,  33 
So.  067,  61  L.  E.  A.  578,  upholding  state's  right  to  authorize  bridge 
over  navigable  stream. 

Syl.  2  (IX,  287).     Commerce — State  authorization  of  boom  on  river. 

Approved  in  Chicago  etc.  Ey.  Co.  v.  Illinois,  200  U.  S.  592,  50  L. 
609,  26  Sup.  Ct.  341,  upholding  imposition  on  railroad  of  entire  cost 
of  removing  and   rebuilding  bridge   made   necessary  by   improvement 


829  Notes  on  U.  S.  Eeports.  93  U.  S.  4G5-474 

of  channel  by  drainage  commissioners  acting  under  Illinois  drain- 
age act  of  1885;  Marrigault  v.  Springs,  199  U.  S.  478,  50  L.  278,  26 
Sup.  Ct.  127,  statute  may  authorize  construction  of  dam  across 
navigable  river  to   drain  lowlands. 

95  U.  S.  465-474,  24  L.  527,  HANNIBAL  ETC.  E.  R.  CO.  v.  HUSEN. 

Syl.  1  (IX,  287).  Interstate  commerce — Exclusive  congressional  reg- 
ulation. 

Approved  in  Iladloy  Dean  Plate  Glass  Co.  v.  Highland  Glass  Co., 
143  Fed.  244,  Missouri  anti-trust  act  does  not  apply  to  contract  for 
sale  of  goods  to  be  manufactured  by  vendor  in  another  state  and 
delivered  to  vendee  in  Missouri;  Kipp  v.  Gates,  126  Wis.  572,  105 
N.  W.  919,  arguendo. 

Syl.  4   (IX,  289).     Scope   of  police   power. 

Approvrd  in  Chicago  etc.  Ry.  Co.  v.  Illinois,  200  U.  S.  5S4,  592, 
50  L.  GOG,  G09,  26  Sup.  Ct.  341,  upholding  imposition  on  railroad  of 
entire  cost  of  removing  and  rebuilding  bridge  made  necessary  by 
improvement  of  channel  by  drainage  commissioners  acting  under 
Illinois  drainage  act  of  1885;  California  Reduction  Co.  v.  Sanitary 
Reduction  Works,  199  U.  S.  319,  50  L.  210,  26  Sup.  Ct.  100,  uphold- 
ing city  ordinance  requiring  all  garbage  to  be  delivered  at  specified 
crematory  to  be  there  cremated  at  expense  of  remover;  Jacobson  v. 
Massachusetts,  197  U.  S.  25,  26,  28,  49  L.  649,  650,  25  Sup.  Ct.  358, 
upholding  Massachusetts  compulsory  vaccination  act;  State  v.  Durein, 
70  Kan.  22,  80  Pac.  990,  upholding  anti-liquor  law;  State  v.  Brown, 
37  Wash.  100,  107  Am.  St.  Rep.  798,  79  Pac.  636,  68  L.  R.  A.  889, 
holding  void  Laws  1891,  p.  314,  requiring  examination  by  and  license 
for  dental  board  before  one  may  run,  own  or  manage  dental  office, 
as  distinguished  from  actual  practice  of  dentistry.  See  103  Am.  St. 
Rep.  868,  869,  871,  notes. 

Syl.  7  (IX,  292).     Commerce — Prohibiting  importation  of  cattle. 

Approved  in  Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S.  38,  49  L. 
934,  25  Sup.  Ct.  552,  upholding  Missouri  statute  imposing  inspection 
fee  on  malt  liquor  shipped  from  other  states  and  held  there  for  sale 
and  consumption.  See,  notes,  97  Am.  St.  Rep.  243,  246,  98  Am.  St. 
Rep.  606. 

Syl.  8   (IX,  293).     Commerce — Police  power. 

Approved  in  Pabst  Brewing  Co.  v.  Crenshaw,  198  TJ.  S.  39,  49  L. 
934,  25  Sup.  Ct.  552,  upholding  Missouri  statute  imposing  inspection 
fee  on  malt  liquor  shipped  from  other  states  and  held  there  for 
sale  and  consumption;  McDonald  v.  Southern  Exp.  Co.,  134  Fed. 
288,  holding  void  S.  C.  act  of  1904,  prohibiting  transportation  of 
shad  outside  of  state. 

Distinguished  in  Ex  parte  Boyce,  27  Nev.  349,  75  Pac.  10,  65  L. 
R.  A.  47,  upholding  act  of  1903,  providing  for  eight-hour  work  day 
in  mines,  smelters  and  ore-mills. 


95  U.  S.  474-517  Kotcs  ou  U.  S.  Ecportc.  830 

SjL  6   (IX,  291).     Statutes — Effect  cletcrmines  purport. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
336,  48  L.  700,  24  Sup.  Ct.  436,  combination  of  stockholders  in  com- 
peting interstate  railroads  to  form  stockholding  corporation  which 
should  acquire,  in  exchange  for  own  stock,  controlling  interest  in 
stock  of  each  railroad,  violates  anti-trust  act  of  1890. 

(IX,  287.)  Miscellaneous.  Cited  in  Christensen  v.  Metropolitan  St. 
Ky-.  Co.,  137  Ted.  712,  70  C.  C.  A.  657,  miscited. 

95  U.  S.  474-485,  24  L.  508,  BEOWN  v.  SPOFFOED. 

Union  Nat.  Bank  v.  Neill,  149  Fed.  714,  where  note  presented  for 
discount  was  signed  on  face  by  three  persons,  fact  that  name  of 
partnership  subsequently  adjudged  bankrupt  appeared  as  second 
signer  was  not  notice  to  discounter  that  firm  signed  only  as  surety 
for  first  signer. 

Syl.  2   (IX,  294).     Varying  notes  by  parol. 

Approved  in  Farnham  Co.  v.  Southeastern  Const.  Co.,  144  Fed.  990, 
in  action  on  written  contract,  contemporaneous  verbal  agreement  add- 
ing term  to  contract  and  alleging  its  breach  by  plaintiff  is  no  de- 
fense; Payne  v.  Mutual  Life  Ins.  Co.,  141  Fed.  345,  contemporaneous 
parol  agreement  that  note  need  not  be  paid  does  not  affect  binding 
effect  of  note;  Earle  v.  Enos,  130  Fed.  470,  parol  agreement  by  bank 
made  at  time  of  delivery  of  accommodation  note  and  its  discount 
by  bank  that  it  would  not  look  to  maker  but  solely  to  one  for  whose 
accommodation  made,  and  that  it  would  apply  thereon  collateral  se- 
curity, is  no  defense. 

Syl.  8   (IX,  295).     One  appeal  from  two  judgments. 

Approved  in  Griswold  v.  Bender,  27  Nev.  377,  75  Pac.  162,  ap- 
peal from  order  rejecting  claim  against  estate,  from  order  dismissing 
suit  of  appellant  against  estate  as  represented  by  attorneys  ad  litem 
and  sole  heir,  and  from  order  dismissing  suit  against  administrator, 
with  only  one  $300  undertaking,  dismissed  for  misjoinder. 

95  U.  S.  485-517,  24  L.  547,  HALL  v.  DE  CUIE. 

Syl.  2   (IX,  295).     Commerce — Equal  privileges  to  passengers. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  882,  883, 
holding  void  Wis.  Laws  1905,  p.  37,  c.  19,  as  amended,  providing  for 
grading  and  weighing  of  grain  at  Superior  in  accordance  with  grades 
so  established;  Kavanaugh  v.  Southern  Ey.  Co.,  120  Ga.  63,  47  S. 
E.  527,  upholding  Civ.  Code,  1895,  §  2298,  making  connecting  roads 
responsible  only  until  delivery  to  next  road,  and  that  last  company 
receiving  goods  in  good  order  shall  be  liable  to  consignee  for  dam- 
age; Hart  V.  State,  100  Md.  606,  608,  609,  610,  611,  612,  613,  614, 
60  Atl.  460,  461,  462,  463,  Acts  1904,  p.  186,  c.  109,  requiring  sepa- 
rate  coaches   for   whites   and   blacks   and   making   it   penal   to   refuse 


831  Notes  on  U.  S.  Ecports.  95  U.  S.  517-559 

to  occupy  car  assigned  by  conductor  is  void  as  to  interstate  passen- 
gers but  valid  as  to  local. 

Distinguislied  in  United  States  Express  Co.  v.  State,  lC-1  Ind. 
20G,  73  N.  E.  105,  upholding  Burns'  Ann.  St.  1901,  §  3312a,  requir- 
ing express  companies  to  deliver  packages  to  persons  to  whom  same 
are  directed  witliin  limit  of  cities  having  specified  population. 

Syl.  3  (IX,  298).     Interstate  commerce  untrammelcd. 

Approved  in  Southern  Ky.  Co.  v.  Greensboro  etc.  Coal  Co.,  134 
Ted.  91,  order  of  state  cori)oration  commission  directing  railroad  to 
place  cars  loaded  with  coal  shipped  from  another  state  on  certain 
tracks  for  unloading  is  void. 

Syl.  4   (IX,  298).     Equality  of  rights  to   negro  passengers. 

Approved  in  Board  of  Education  of  Kingfisher  v.  County  Commrs., 
14  Okl.  332,  78  Pac.  458,  upholding  Act  1901,  p.  205,  requiring  crea- 
tion of  school  fund  for  erection  of  schools  for  blacks. 

95  U.  S.  517-527,  24  L.  440,  BEECHER  v.  WETHERBY. 

Syl.  2   (IX,  299).     Grants  to  states — Indians'  possession. 

Approved  in  Morris  v.  Bean,  146  Fed.  432,  determining  riparian 
rights  of  persons  acquiring  land  in  Crow  Indian  Reservation;  United 
States  V.  Tully,  140  Fed.  904,  holding  lands  occupied  but  not  legally 
reserved  for  military  post  not  within  exclusive  federal  jurisdiction 
under  Montana  constitution;  State  v.  Jennings,  47  Fla.  325,  35  So. 
995,  cjongressional  acts  of  1850  and  1857,  relating  to  swamp  lands, 
do  not  apply  to  sixteenth  sections  granted  to  Florida  by  act  of 
1845. 

95  U.  S.  551-557,  24  L.  45G,  MORROW  v.  WHITNEY. 

Syl.  1   (IX,  301).     Confirmation  passes  government's  title. 

Approved  in  Gavigan  v.  Crary,  2  Alaska,  382,  where  public  land 
set  apart  for  military  purposes  by  War  Department,  and  it  is  fitted 
up  for  such  purposes,  and  military  remains  in  possession  until  formal 
abandonment  by  notice,  it  was  military  reservation. 

Syl.  4  (IX,  302).     Military  occupation  prior  to  confirmation. 

Approved  in  Gavigan  v.  Crary,  2  Alaska,  381,  where  public  land 
set  apart  by  War  Department  for  military  purposes,  and  it  is  fitted 
up  for  such  purposes  and  military  remains  in  possession  until  formal 
abandonment  by  notice,  it  was  military  reservation. 

95  U.  S.  557-559,  24  L.  490,  WEST  ST.  LOUIS  SAV.  BANK  v. 
SHAWNEE  COUNTY  BANK. 

Syl.  2   (IX,  302).     Banks — Accommodation  indorsement  by  cashier. 

Approved  in  First  Nat  Bank  v.  Anderson,  141  Fed.  928,  where 
national  bank  cashier  acting  as  plaintiff's  agent  made  loan  to  third 
party,  taking  note  therefor  payable  to  bank  which  indorsed  it  to  plain- 


95  U.  S.  57G-G1S  Notes  on  U.  S.  Reports.  832 

(iff  without  consideration,  latter  could  not  recover  from  bank; 
German  Sav.  Bank  v.  Des  Moines  Nat.  Bank,  122  Iowa,  741,  98  N. 
W,  607,  resolution  of  bank  directors  authorizing  manager  to  make 
loans  to  members  of  board  on  their  indorsements  does  not  make  legal 
particular  loan  to  officer;  Hier  v.  Miller,  68  Kan.  264,  75  Pac.  78, 
63  L.  K.  A,  952,  where  bank  cashier  pays  debts  by  entering  amount 
thereof  as  credit  on  passbook  of  creditor,  and  permits  him  to  check 
out,  bank  may  recover  of  creditor;  Northwestern  etc.  Ins.  Co.  v. 
Lough,  13  N.  D.  603,  102  N.  W.  160,  deed-  executed  by  cashier  of 
state  bank  to  himself  individually  is  void  in  absence  of  affirmative 
evidence  of  authority;  In  re  Troy  &  Cohoes  Shirt  Co.,  136  Fed.  427, 
arguendo. 

95  U.  S.  576-579,  24  L.  391,  UNION  PACIFIC  E.  E.  CO.  v.  DUEANT. 

Syl.  3   (IX,  305).     Conveyance  to  one  as  "trustee" — Notice. 

Approved  in  Sternfels  v.  Watson,  139  Fed.  507,  following  rule; 
Johnson  v.  Amberson,  140  Ala.  348,  37  So.  275,  applying  rule  where 
stock  certificate  issued  to  one  as  trustee. 

Syl.  4  (IX,  305).     Trustee  estopped  to  deny  beneficiary's  title. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  42,  66  Pac.  565,  55 
L.  E.  A.  658,  statute  of  limitations  does  not  govern  question  of  laches 
in  seeking  to  enforce  trust. 

95  U.  S.  591-599,  24  L.  458,  GIVEN  v.  HILTON. 

Syl.   1    (IX,   306).     Wills — Construction   to   prevent   intestacy. 

Approved  in  Durboraw  v.  Durboraw,  67  Kan.  143,  72  Pac.  567, 
will  devising  all  property  to  grandson  and  then  giving  particular  de- 
scription  passes   after-acquired   property. 

Distinguished  in  Gallagher  v.  McKeague,  125  Wis.  119,  110  Am. 
St.  Eep.  821,  103  N.  W.  234,  where  will  disposed  of  all  realty  and 
made  different  bequests  of  personalty  and  then  bequeathed  all  house- 
hold furniture  and  effects,  words  "and  effects"  did  not  pass  per- 
sonalty not  specifically  bequeathed. 

Syl.  3   (IX,  306).     Wills— Particular  directions. 

Approved  in  Logan  v.  Cassidy,  71  S.  C.  205,  50  S.  E.  804,  applying 
rule  in  construing  residuary  clause  and  specific  bequests. 

Syl.   7   (IX,  307).     Wills— Specific   enumeration. 

Approved  in  Lindeke  v.  Associates  Eealty  Co.,  146  Fed.  638,  con- 
struing lease  of  realty  as  not  limiting  lessor's  right  of  forfeiture 
to  default  in  payment  of  rent,  but  extended  to  default  in  covenant  to 
build. 

95  U.  S.  600-618,  24  L.  461,  THE  WANATA. 

Syl.  2   (IX,  307).     Collision— Liability  of  stipulators. 

Approved  in  The  Southwark,  129  Fed.  171,  172,  173,  where  claim- 
ant  of  ship   contests  suit  in  rem   to   recover   damages  for   breach   of 


833  Notes  on  U.  S.  Reports,  95  U.  S.  62S-G37 

contract,  decree  must  be  entered  against  stipulators  to  extent  of  con- 
tract liability  and  against  claimant  for  balance  of  interest  and  costs. 

Syl.   10   (IX,  309).     Admiralty  appeal  carries  whole  fund. 

Approved  in  Perriam  v.  I'acific  Coast  Co.,  133  Fed.  144,  66  C.  C. 
A.  206,  sureties  on  stipulation  in  admiralty  for  release  of  libeled 
vessel  need  not  be  .joined  in  appeal  by  claimant  though  decree  is 
joint  in  form  against  claimant  and  sureties. 

95  U.  S.  G28-G37,  24  L.  365,  TERRY  v.  ANDERSON. 

Syl.  1   (IX,  310).     Banks— Stockholder's  liability. 

Approved  in  Chilberg  v.  Siebenbaum,  41  Wash.  666,  667,  670,  84 
Pac.  599,  600,  601,  applying  rule  and  holding  insolvent  corporation's 
creditor  need  not  first  obtain  judgment  against  corporation  before 
suing  to  enforce  unpaid  stock  subscriptions;  Bennett  v.  Thorne,  36 
Wash.  265,  270,  78  Pac.  940,  941,  68  L.  R.  A.  113,  action  against 
stockholders  for  additional  liability  accrues  on  insolvency  of  bank 
and  is  enforceable  within  six  years. 

Syl.  3   (IX,  310).     Change  in  limitation  statutes. 

Approved  in  Soper  v.  Lawrence  Bros.  Co.,  201  U.  S.  369,  370,  50 
L.  791,  26  Sup.  Ct.  473,  upholding  Me.  Pub.  Laws  1895,  c.  162,  barring 
action  by  former  owner  to  recover  wild  land  adversely  held  unless 
commenced  within  twenty  years  or  before  January  1,  1900;  Arbuckle 
v.  Kelley,  144  Fed.  278,  upholding  Ark.  Acts  1899,  p.  117,  providing 
that  uninclosed  lands  deemed  in  possession  of  one  paying  taxes  for 
seven  successive  years,  not  less  than  three  payments  to  be  subse- 
quent to  passage  of  act;  Schauble  v.  Sehulz,  137  Fed.  392,  393,  69 
C.  C.  A.  581,  upholding  Rev.  Codes  N.  D.  1899,  §  3491a,  providing 
for  creation  of  title  by  adverse  possession  of  ten  years  as  against 
one  who  at  time  of  act  had  failed  for  nine  years  to  assert  title; 
Lamb  v.  Powder  River  etc.  Stock  Co.,  132  Fed.  438,  439,  67  L.  R.  A. 
558,  65  C.  C.  A.  570,  holding  void  Colo,  Sess.  Laws  1895,  §  239,  as 
amended  in  1S99,  prescribing  limitations  on  action  on  foreign  judg- 
ments; Fitzgerald  v.  Scovil  Mfg.  Co.,  77  Conn.  529,  60  Atl.  133,  uphold- 
ing Gen.  St.  1902,  §  1119,  prescribing  one  year  limitation  for  persona) 
injury  actions  against  corporations  as  applied  to  existing  rights  of 
action;  Wooster  v.  Bateman,  126  Iowa,  554,  102  N.  W.  522,  upholding 
Acts  29th  Gen.  Assem.,  p.  103,  c.  137,  prescribing  limitations  on  actions 
on  judgments;  Semer  v.  Auditor  General,  133  Mich.  576,  95  N.  W. 
734.  Acts  1899,  No.  107,  §  131,  prescribing  six  months'  limitation  on 
actions  against  homestead  by  persons  claiming  under  government 
title,  bars  action  previously  accrued  not  brought  within  six  months 
after  act  took  effect;  State  Land  Commr.  v.  Auditor  General,  131 
Mich.  153,  91  N.  W.  155,  upholding  Pub.  Acts  .1899,  No.  107,  providing 
that  suits  to  set  aside  title  of  homesteader  of  state  tax  lands  must 
be  commenced  within  six  months  of  passage  of  act;  Allen  v.  Peterson, 
53 


^5  U.  S.  64-1-U55  Notes  on  U.  S.  Keports.  834 

38  Wash.  603,  80  Pac.  851,  act  of  1899,  amending  Laws  1897,  p. 
136,  so  as  to  permit  tax  foreclosure  proceedings  after  three  years 
from  delinquency,  is  valid  as  applied  to  taxes  delinquent  at  date  of  its 
passage;  Hoffmann  v.  Milwaukee  etc.  Light  Co.,  127  Wis.  83,  106  N.  W. 
810,  upholding  Laws  1897,  p.  678,  providing  that  no  action  for  per- 
sonal injury  is  maintainable  unless  notice  served  on  person  liable 
within  one  year  after  injury. 

Syl.  4  (IX,  311).     Change  of  remedy  or  forms  of  action. 

Approved  in  People  v.  Johnson,  185  N.  Y.  229,  77  N.  E.  1167, 
upholding  Code  Civ.  Proc,  §  392,  authorizing  admission  of  statement 
of  child  under  twelve,  where  court  was  of  opinion  that  child  did  not 
understand  nature  of  oath,  but  was  intelligent  enough  to  justify 
reception  of  statement. 

Syl.  5   (IX,  312).     Change  in  limitation  statutes — Eeasonable  time. 

Approved  in  Lamb  v.  Powder  Eiver  etc.  Stock  Co.,  132  Fed.  441, 
67  L.  E.  A.  558,  65  C.  C.  A.  570,  holding  void  Colo.  Sess.  Laws  1895, 
p.  239,  as  amended  in  1899,  prescribing  limitations  on  actions  on  for- 
eign judgments;  Eoss  v.  Eoyal,  77  Ark.  325,  91  S.  W.  178,  Sand.  &  H. 
Dig.,  §  4819,  requiring  actions  for  recovery  of  lands  sold  for  taxes  to 
be  brought  within  two  years,  applies  to  tax  deed  based  on  void  tax 
sale.     See  111  Am.  St.  Eep.  459,  note. 

95  U.   S.   644-655,  24  L.  521,  NEW   OELEANS  v.   CLAEK. 

Syl.  3  (IX,  314).     Authorizing  payment  of  claim  against  city. 

Approved  in  Merchants'  Nat.  Bank  v.  East  Grand  Forks,  94  Minn. 
250,  102  N.  W.  704,  upholding  Laws  1903,  p.  695,  c.  382,  §  9,  validating 
municipal  improvement  warrants;  State  v.  Gunn,  92  Minn.  442,  100 
N.  W.  99,  upholding  Laws  1901,  p.  253,  c.  181,  legalizing  county  orders 
issued  under  Laws  1895,  c.  302,  which  had  been  declared  void,  and 
authorizing  county  commissioners  to  provide  for  their  payment;  City 
of  Guthrie  v.  Territory,  1  Okl.  197,  31  Pac.  193,  11  L.  E.  A.  418, 
upholding  legislative  power  to  provide  for  payment  by  village  cor- 
poration which  succeeds  provisional  municipal  organization  of  debts 
contracted  by  latter. 

Syl.  4    (IX,  315).     Liabilities  on  annexation   of  municipalities. 

Approved  in  Board  Co.  Commrs.  Greer  Co.  v.  Clarke,  12  Okl.  212, 
70  Pac.  211,  where  municipal  corporation  dissolved  and  new  corpora- 
tion created  embracing  same  territory,  and  holding  taxable  property 
of  former,  it  is  liable  for  valid  debts  of  former. 

Syl.  5   (IX,  315).     Extent  of  state  taxation. 

Approved  in  Horton  .v.  City  of  Newport,  27  E.  I.  288,  61  Atl.  761, 
upholding  Laws  1900-01,  p.  110,  c.  804,  §  9,  requiring  payment  of  sal- 
aries of  Newport  police  commissioners  from  city  funds. 


835  Notes  on  U.  S.  Reports.  95  U.  S.  G55-6G9 

Syl.  6  (TX,  315).     Legislature  may  change  city's  powers. 

Approved  in  Worcester  v.  Worcester  etc.  St.  Ey.  Co.,  196  U.  S.  549, 
49  L.  595,  25  Sup.  Ct.  327,  city  cannot  set  up  obligation  clause  against 
abrogation,  by  statute,  with  consent  of  street  railway,  of  contract  be- 
tween company  and  city  with  reference  to  paving  streets;  City  of 
Guthrie  v.  New  Vienna  Bank,  4  Okl.  197,  38  Pac.  5,  and  City  of 
Guthrie  v.  Territory,  1  Okl.  193,  31  Pac.  192,  11  L.  R.  A.  418,  both 
upholding  legislative  power  to  provide  for  payment  by  village  cor- 
poration which  succeeds  provisional  municipal  organization  of  debts 
contracted  by  latter. 

Syl.  8  (IX,  316).  Retroactive — Requiring  payment  of  equitable 
claim. 

Approved  in  School  Dist.  No.  1  v.  Scliool  Dist.  No.  7,  33  Colo.  47, 
78  Pac.  691,  upholding  Sess.  Laws  1901,  pp.  133,  138,  as  amended 
in  1903,  relating  to  apportionment  of  property  of  certain  school  dis- 
trict; State  v.  Aberdeen,  34  Wash.  68,  74  Pac.  1024,  upholding  Sess. 
Laws  1903,  p.  26,  c.  24,  §  1,  declaring  that  state  not  barred  by  lim- 
itations even  under  existing  statutes,  as  applied  to  action  by  state  to 
recover   proportion    of  liquOr   licenses   received   by   town. 

95   U.   S.   G55  6G0,   24   L.   535,   GRAND   TRUNK   RAILWAY   v.   STE- 
VENS. 

Syl.  4  (IX,  316).  Carriers — Stipulation  for  exemption  from  negli- 
gence. 

Approved  in  Nickles  v.  Seaboard  etc.  Ry.,  74  S.  C.  133,  135,  U6. 
54  S.  E.  265,  2GG,  267,  applying  rule  where  husband  agreed  to  go  to 
certain  point  to  testify  for  railroad  if  pass  given  for  himself  and  wife, 
and  wife  injured;  McNeill  v.  Durham  etc.  R.  Co.,  135  N.  C.  704,  47 
S.  E.  773,  67  L.  R.  A.  227,  passenger  injured  while  riding  on  pass 
with  conditions  printed  on  back,  which  violated  statute,  may  recover 
therefor;  Sprigg  v.  Rutland  R.  E.  Co.,  77  Vt.  357,  60  Atl.  146, 
carrier  cannot  relieve  itself  by  stipulation  in  contract  from  negli- 
gence resulting  in  injuires  to  caretaker  of  cattle  riding  on  drover's 
pass. 

95  U.  S.  665-669,  24  L.  523,  CIIUBB  v.  UPTON. 

Syl.  1   (IX,  318).     Estoppel  to  deny  validity  of  incorporation. 

Approved  in  Reid  v.  Detroit  Ideal  Paint  Co.,  132  Mich.  530,  94 
N.  W.  4,  upholding  agreement  whereby  creditor  of  corporation  agrees 
to  take  new  stock  for  claim,  on  condition  stock  shall  be  increased  in 
certain  amount,  of  which  increase  specified  third  party  is  to  take 
balance. 

Syl.  4    (IX,  319).     Liability  for  unpaid   stock  balance. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776,  where 
manufacturing  corporation  contracted  with  board  of  trade  to  sell  it 
shares  at  less  than  par  and  to  get  free  site  for  buildings,  and  fully 


95  U.  S.  670-679  Notes  on  U.  S.  Eeports.  836 

paid-up  certificates  issued,  neither  board  nor  its  purchasers  liable  to 
further  assessments. 

95  U.  S.  670-673,  24  L.  538,  UNITED  STATES  v.  FOX. 

Syl.  3  (IX,  320).     Bankruptcy — Punishment  of  violations. 

Approved  in  Curley  v.  United  States,  130  Fed.  11,  64  C.  C.  A.  369, 
construing  term  "defraud"  in  Eev.  St.,  §  5440,  punishing  conspiracy 
to  defraud  United  States. 

95  U.  S.  673-679,  24  L.  563,  FIRST  NATIONAL  BANK  v.  HAETFORD 
FTRE  INS.  CO. 

Syl.  2  (IX,  320).  Insurance — Unintentional  overvaluation  in  ap- 
plication. 

Approved  in  Logan  v.  Provident  Sav.  Life  Assur.  Soc,  57  W.  Va. 
389,  50  S.  E.  531,  applying  rule  to  answers  to  questions  relating  to 
health  of  assured. 

Syl.  3   (IX,  321).     Insurance  policy  construed  against  insurer. 

Approved  in  Mutual  etc.  Ins.  Co.  v.  Doblin,  137  Fed.  554,  70  C.  C. 
A.  134,  where  application  for  life  policy  requested  answer  as  to  other 
life  insurance  which  was  given,  further  question  as  to  other  insurance 
which  was  answered  in  negative  did  not  call  for  disclosure  of  acci- 
dent policy;  Taylor  v.  Provident  etc.  Assur.  Soc,  134  Fed.  934, 
affirmed  in  Provident  etc.  Assur.  Soc.  v.  Taylor,  142  Fed.  713,  holding 
where  policy  gave  insured  thirty  days'  grace  in  payment  of  premium, 
notice  of  maturity  of  premium  reciting  that  unless  premium  paid 
before  due  date  policy  would  be  forfeited  did  not  deprive  insured 
of  grace;  American  Bonding  Co.  v.  Spokane  Building  etc.  Co.,  130 
Fed.  742,  65  C.  C.  A.  121,  construing  statement  that  employee  had 
not,  to  knowledge  of  employer,  been  defaulter,  as  not  warranty  so  as 
to  avoid  fidelity  bond;  O'Connor  v.  Grand  Lodge  A.  O.  U.  W.,  146 
Cal.  491,  SO  Pac.  690,  and  Logsden  v.  Supreme  Lodge,  34  Wash.  673, 
76  Pac.  294,  both  applying  rule  to  benefit  insurance;  German- American 
Ins.  Co.  V.  Yeagley,  163  Ind.  659,  71  N.  E.  900,  where  insurer  issued 
policy  and  retained  premium  with  knowledge  through  agent  that  prop- 
erty encumbered,  it  waived  conditions  avoiding  policy  if  property 
encumbered  and  requiring  indorsement  of  waiver  on  policy;  Champion 
Ice  Mfg.  Co.  V.  American  Bonding  etc.  Co.,  115  Ky.  872,  103  Am.  St. 
Rep.  356,  75  S.  W.  199,  fidelity  bond  against  dishonesty  of  bookkeeper 
covers  loss  sustained  by  raising  checks;  Rayburn  v.  Pennsylvania  Cas- 
ualty Co.,  138  N.  C.  382,  107  Am.  St.  Rep.  548,  50  S.  E.  763,  accident 
policy  insuring  for  one  year  commencing  October  23,  1901,  and  ending 
October  23,  1902,  begins  and  ends  on  such  days,  though  not  delivered; 
Woodmen  of  the  World  v.  Gilliland,  11  Okl.  404,  67  Pac.  491,  con- 
struing benefit  society's  constitution  providing  for  forfeiture  of  cer- 
tificate if  member  become  intemperate  or  use  drugs  so  as  to  impair 
health  or  die  from  disease  resulting  from  intemperate  or  immoral 
habits;  Stinchcombe  v.  New  York  Life  Ins.  Co.,  46  Or.  322,  80  Pac. 


837  Notes  on  U.  S.  Eeports.  95  U.  S.  G79-703 

215,  where  policy  became  effective  July  24,  1894,  and  two  years' 
premium  paid,  and  insured  died  July  3,  1896,  without  having  paid 
premium  which  by  policy  was  payable  May  5,  1896,  the  time  of  ap- 
plication, forfeiture  not  effected  as  to  term  for  which  premium  paid 
until  July  25,  1896;  Tucker  v.  Colonial  Fire  Ins.  Co.,  58  W.  Va.  36, 
51  S.  E.  88,  where  policy  running  for  one  year  requires  insured  to 
take  inventory  at  least  once  a  year,  assured  has  one  year  from  date 
of  policy  to  make  inventory;  dissenting  opinion  in  Atlas  Red.  Co.  v. 
New  Zealand  Ins.  Co.,  138  Fed.  511,  majority  construing  "loss  pay 
able"  indorsement  on  policy;  Pacific  Mutual  Life  Ins.  Co.  v.  Gal- 
braith,  115  Tenn.  483,  91  S.  W.  207,  arguendo.  See  98  Am.  St.  Eep. 
845,  note. 

95  U.  S.  679-694,  24  L.  558,  FARRINGTON  v.  TENNESSEE. 

Syl.  5  (IX,  325).     Taxation — Capital  stock  and  shares. 

Approved  in  Powers  v.  Detroit  etc.  Ry.  Co.,  201  U.  S.  560,  50  L. 
866,  26  Sup.  Ct.  556,  Mich.  Laws  1855,  p.  305,  §  9,  providing  that  street 
railway  shall  pay  annual  tax  on  its  capital  stock  in  lieu  of  other  taxes, 
created  contract  between  state  and  railway;  Wilkens  Co.  v.  Baltimore, 
103  Md.  313,  63  Atl.  565,  upholding  assessment  of  corporation's  per- 
sonalty permanently  located  in  state,  though  shares  of  stock  held  by 
residents  also  taxed. 

Syl.  6   (IX,  326).     Capital  stock  is  trust  fund. 

Approved  in  Scottish  Union  etc.  Ins.  Co.  v.  Bowland,  196  U.  S. 
626,  49  L.  626,  25  Sup.  Ct.  345,  bonds  in  which  foreign  insurance  com- 
pany is  required  to  invest  capital  stock  to  be  deposited  with  insurance 
superintendent  as  condition  of  doing  business  are  personal  property 
within  Ohio  Rev.  St.,  §§  2744,  2730. 

Syl.  9  (IX,  326).     Charter  fixing  tax  in  lieu  of  others. 

Approved  in  People's  Sav.  Bank  v.  Layman,  134  Fed.  638,  in  assess- 
ing property  of  savings  banks  under  Code  Iowa,  §  1322,  providing  that 
assessment  be  made  on  stock  shares,  fact  that  part  of  bank's  assets 
consist  of  government  bonds  does  not  entitle  bank  to  deduction  of 
such  amount;  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
42,  50  L.  77,  25  Sup.  Ct.  715,  arguendo.  See  105  Am.  St.  Rep.  703, 
note. 

95  U.  S.  697-703,  24  L.  542,  CHICAGO,  R.  I.  &  P.  R.  R.  CO.  v.  HOUS- 
TON. 

Syl.   1    (IX,  328).     Railroad  crossing — Signals — Duty  to  listen. 

Approved  in  Carlson  v.  Chicago  etc.  Ry.  Co.,  96  Minn.  508,  105 
N.  W.  557,  Severy  v.  Chicago  etc.  Ry.  Co.,  6  Okl.  161,  50  Pac.  165, 
and  Woolf  v.  Washington  etc.  Nav.  Co.,  37  Wash.  499,  79  Pac.  998, 
all  following  rule;  Rich  v.  Chicago  etc.  Ry.  Co.,  149  Fed.  84,  holding 
decedent  crossing  railroad  yards  on  dark  night  contributorily  negli- 
gent where  he  knew  engines  were  constantly  moving,  though  engine 


95  U.  S.  G97-703  Notes  on  U.  S.  Eeports.  838 

which,  while  backing,  struck  him,  had  no  light  on  tender;  Chicago  etc. 
Ey.  Co.  V.  Smith,  141  Fed.  931,  applying  rule  where  engine  was  lun- 
ning  at  prohibited  speed;  Tower  Lumber  Co.  v.  Brandvold,  141  Fed. 
922,  holding  employee  riding  on  logging  car  instead  of  on  flat  car 
provided  for  men  guilty  of  negligence,  though  foreman  permitted  him 
to  ride  there;  Gipson  v.  Southern  Ry.  Co.,  140  Fed.  412,  applying  rule 
where  one  killed  in  daytime  at  crossing  where  train  could  be  seen  for 
quarter  of  mile,  though  train  running  at  unlawful  speed;  Western 
Union  Telegraph  Co.  v.  Baker,  140  Fed.  319,  where  telegram  inform- 
ing plaintiif  of  father's  death  delayed,  but  she  learned  facts  prior 
thereto  and  had  time  to  catch  train,  but  did  not  do  so,  company  not 
liable  for  failure  to  attend  funeral;  Southern  Ry.  Co.  v.  Carroll,  138 
Fed.  642,  applying  rule  where  traveler  approached  crossing  at  night 
in  carriage  with  drawn  side  curtains;  Dishon  v.  Cincinnati  etc.  Ry. 
Co.,  133  Fed.  478,  66  C.  C.  A.  345,  applying  rule  where  section-hand 
crushed  between  two  cars  on  siding  while  attempting  to  pass  between 
them;  St.  Louis  etc.  Ry.  Co.  v.  Johnson,  74  Ark.  376,  86  S.  W.  284, 
wl^ether  one  crossing  sidetrack  at  dusk,  and  who  was  struck  by 
backing  unlighted  train,  looked  and  listened  sufficiently  and  should 
have  seen  train,  was  for  jury;  West  v.  Northern  Pac.  Ry.  Co.,  13 
N.  D.  228,  229,  100  N.  W.  255,  256,  applying  rule  where  plaintiff's 
servant  knowing  train  was  approaching  at  high  speed  trotted  horses 
across  track  at  place  where  view  of  train  obstructed;  Benson  v.  New 
York  etc.  E.  E.  Co.,  26  E.  L  407,  59  Atl.  80,  where  space  in  top  of 
rnd  of  car  cut  out  to  allow  brakeman  to  use  ladder,  brakeman  running 
along  edge  of  top  of  car,  instead  of  using  running-board,  and  falling, 
owing  to  opening,  is  negligent. 

Syl.  2    (JX,  330).     Eailroad  crossing — Failure  to  look  or  listen. 

Approved  in  Cliicago  etc.  Ey.  Co.  v.  Andrews,  130  Fed.  72,  74,  64 
C.  C.  A.  399,  following  rule;  Northern  Pac.  Ey.  Co.  v.  Jones,  144  Fed. 
50,  applying  rule  where  plaintiff  injured  while  walking  along  railroad 
track;  Storrs  v.  Grand  Trunk  etc.  Ey.  Co.,  142  Mich.  381,  105  N.  W. 
766,  where  plaintiff,  on  approaching  crossing,  saw  steam  from  engine 
and  heard  whistle,  though  he  could  not  see  train,  whipped  up  horses 
to  cross,  he  was  negligent. 

Syl.  3   (IX,  332).     Negligence— Direction   of  verdict. 

Approved  in  Oklahoma  Gas  etc.  Co.  v.  Lukert,  16  Okl.  421,  84  Pac. 
1084,  applying  rule  where  light  wires  broke  and  charged  telephone 
wires,  and  decedent  killed  by  contact  with  latter. 

S}-!.  4  (IX,  333).     Instructions  on  assumed  facts. 

Approved  in  Louisville  etc.  E.  E.  Co.  v.  Satterwhite,  112  Tenn. 
207,  79  S.  W.  112,  following  rule;  Sparks  v.  Oklahoma  Territory,  146 
Fed.  373,  in  prosecution  for  larceny  where  evidence  showed  defendant 
paid  E.  for  cattle  with  draft  on  commission  house  payable  to  E. 's 
order,  and  latter  sent  draft  to  company  with  directions  to  place  pro- 


839  Notes  on  U.  S.  Reports.  95  U.  S.  704-748 

ceeds  in   bank  to   his   credit,   admission   of  evidence   that   draft   could 
not  be  paid  without  indorsement  is  reversible   error, 

95  U.  S.  704-709,  24  L.  58G,  XEAL  v.  CLAEK. 

Syl.  ?)   (IX,  334).     Bankrujitcy  discharge — Fiduciary  debts. 

Approved  in  Bullis  v.  O'Bcirne,  195  U.  S.  620,  49  L.  346,  25  Sup. 
Ct.  ]18,  state  judgment  based  on  actual  fraud  of  bankrupt  is  not 
discharged  by  bankruptcy,  whatever  may  be  form  of  action;  Crawford 
V.  Burke,  195  U.  S.  189,  49  L.  152,  25  Sup.  Ct.  9,  under  Bankr.  Act 
1898,  §  17.  subd.  4,  only  debts  created  by  fraud  of  bankrupt  while  he 
was  acting  as  officer  or  in  fiduciary  capacity  are  excepted  from  dis- 
charge in  bankruptcy;  Crosby  v.  Miller,  25  R.  I.  176,  55  Atl.  329, 
discharge   in  bankruptcy   releases  judgment   in   trover. 

95  U.  S.  710-714,  24  L.  544,  KELLY  v.  CALHOUN. 

Syl.  2   (IX,  336).     Acknowledgments — Personal  acquaintance. 
See  108  Am.  St.  Rep.  566,  note. 

Syl.  4    (IX,  336).     Acknowledgment  by   corporation. 
See  108  Am.  St.  Rep.  574,  note. 

95  U.  S.  714-748,  24  L.  565,  PENXOYER  v.  NEFF, 

Syl.  2  (IX,  337).     Defects  in  affidavit  of  publication — Appeal. 

Cited  in  McFarlane  v.  Cornelius,  43  Or.  519,  73  Pac.  327,  arguendo. 

Syl.  6  (IX,  337).     Regulation  of  conveyances — Land  in  other  state. 

A}>proved  in  Western  Union  Telegraph  Co.  v.  Pittsburg  etc.  Ry.  Co., 
137  Feci.  437,  in  federal  suit  for  specific  performance  of  right  of  way 
contracts,  it  is  immaterial  that  part  of  property  is  without  territorial 
jurisdiction. 

Syl.  8  (IX,  338).     Jurisdiction — Nonresident  having  no  property. 

Approved  in  Coughran  v.  Germain,  17  S.  D.  532,  97  N.  W.  744,  where 
defendants  are  jointly  and  severally  liable  on  note  on  which  judgment 
rendered  against  them  in  state  other  than  that  of  domicile  on  service 
by  publication,  finding  that  defendants  or  one  of  them  had  property 
within  jurisdiction  sustains  validity  of  judgment ;  dissenting  opinion  in 
Jordan  v.  Chicago  &  Northwestern  etc.,  125  Wis.  591,  110  Am.  St.  Rep. 
865,  104  N.  W.  806,  1  L.  R.  A.  (N.  S.)  885,  majority  holding  under 
Rev.  St.  1898,  §  3819,  determination  of  county  court  that  decedent  left 
property  in  state  is  not  collaterally  attackable.  See  110  Am.  St.  Rep. 
869,  note. 

Syl.  9  (IX,  339).     Service  by  publication — Nonresidents. 

Kerns  v.  McAulay,  8  Idaho,  565,  69  Pac.  540,  following  rule;  Haddock 
V.  Haddock,  201  U.  S.  567,  568,  50  L.  869,  26  Sup.  Ct.  525,  mere 
domicile  in  state  of  one  spouse  does  not  give  jurisdiction  to  render 
divorce  decree  enforceable  in  other  states  against  nonresident  defendant 
only   copstructively   served;    New   Mexico   v.  Baker,   196   U.   S.   444,   49 


95  U.  S.  714-748  Notes  on  U.  S.  Keports.  840 

L.  545,  25  Sup.  Ct.  375,  ownership  of  lands  in  jS'ew  Mexico  by  railroad, 
none  of  whose  offices  are  in  territory,  does  not  warrant  service,  in  per- 
sonal action,  on  president  while  passing  through  on  train;  Cella  Com. 
Co.  V.  Bohlinger,  147  Fed.  422,  holding  void  Kirby's  Ark.  Dig.,  §  835, 
authorizing  personal  judgment  against  foreign  corporation  on  service  on 
state  auditor;  Metropolitan  Rubber  Co.  v.  Place,  147  Fed.  95,  decree  in 
statutory  suit  for  dissolution  of  corporation  barring  all  claims  not 
presented  according  to  order  of  court,  does  not  bar  right  of  nonresident 
creditor  not  personally  served  to  sue  on  claim;  Kirk  v.  United  States, 
137  Fed.  755,  70  C.  C.  A.  187,  affirming  130  Fed.  337,  holding  where 
surety  on  bail  filed  in  federal  court  in  Georgia  resided  in  another  state 
during  pendency  of  proceedings  on  bond,  two  returns  nihil  are  not 
equivalent  to  personal  service;  Murray  v.  Strong,  2  Alaska,  519,  judg- 
ment in  Canada  court  against  resident  of  Alaska  on  process  served  on 
him  in  Alaska  is  void;  First  National  Bank  v.  Eastman,  144  Cal.  490, 
103  Am.  St.  Eep.  95,  77  Pac.  1045,  judgment  on  personal  service  on  non- 
resident out  of  state  is  void  except  as  to  disposition  of  property  seized 
thereunder;  Proctor  v.  Proctor,  215  111.  277,  106  Am.  St.  Eep.  168,  74 
N.  E.  146,  69  L.  E.  A.  673,  where  defendant  in  divorce  is  not  served 
in  state  and  has  no  property  therein,  court  cannot  render  decree  against 
him  for  alimony  or  land  in  another  state;  Baker  v.  Jewell,  114  La.  736, 
38  So.  535,  court  of  domicile  of  marriage  may  render  divorce  decree 
against  nonresident  husband  on  constructive  service  but  render  decree 
for  costs  or  alimony;  Hildreth  v.  Thibodeau,  186  Mass.  84,  104  Am. 
St.  Eep.  560,  71  N.  E.  Ill,  where  owners  of  patent  were  nonresidents 
and  only  service  was  by  delivery  of  bill  and  order  of  notice  in  state  of 
residence,  and  they  appeared  specially  to  contest  jurisdiction,  court  could 
not  proceed  in  personam;  Silver  Camp  Mining  Co.  v.  Dickert,  31  Mont. 
496,  497,  78  Pac.  969,  970,  service  of  summons  by  publication  on  non- 
resident defendant  under  Code  Civ.  Proc,  §§  637,  638,  does  not  warrant 
judgment  in  personam  against  defendant  appearing  specially  to  challenge 
jurisdiction;  Smith  v.  Colloty,  69  N.  J.  L.  371,  55  Atl.  807,  construing 
Mechanics'  Lien  Law,  §  24,  with  reference  to  judgment  in  personam 
against  builder  where  legal  service  made;  Watkiuson  v,  Watkinson,  67 
N.  J.  Eq.  156,  58  Atl.  390,  defendant  in  divorce  suit  may  have  divorce 
decree  set  aside  where  neither  party  domiciled  in  state  and  defendant 
served  out  of  state  made  no  appearance;  Hill  v.  Henry,  66  N.  J.  Eq. 
154,  157,  57  Atl.  555,  556,  construing  P.  L.,  p.  514,  providing  for 
publication  against  unascertained  heirs  and  devisees  and  decree  against 
them  by  class  designation  only;  Goodwin  v.  Claytor,  137  N.  C.  230, 
107  Am.  St.  Eep.  479,  49  S.  E.  175,  67  L.  E.  A.  209,  where  in  garnish- 
ment proceedings  under  Code,  §  364,  service  on  nonresident  had  by 
publication  and  debt  due  defendant  garnished  lien  on  debt  not  lost  by 
judgment  against  defendant  and  garnishee;  Martin  v,  Martin,  214  Pa. 
393,  63  Atl.  1027,  where  nonresident  testator  devised  estate  in  trust  and 
trustee  removed  to  Pennsylvania  and  died  there,  decree  in  Delaware 
against  representatives  of  trustee  served  only  by  publication,  is  void; 
Wallace  v.  United  Electric  Co.,  211  Pa.  478,  479,  60  Atl.  1048,  holding 
void   P.  L.   387,   authorizing   service   of   process   on   nonresident   outside 


841  Notes  on  U.  S.  Reports.  95  U.  S.  714-748 

of  jurlsdiftion  in  equity  suit  concerning  property  in  state,  as  to  service 
on  bill  of  discovery  against  domestic  and  foreign  corporations  served 
on  latter  in  state  of  domicile;  Little  v.  Christie,  69  S.  C.  59,  62,  48 
S.  E.  90,  proceedings  for  puVjlication  of  summons  to  nonresident  before 
attachment  of  his  property  are  void;  Greenway  v.  De  Young,  34  Tex.  Civ. 
585,  79  S.  W.  605,  in  action  en  notes  and  to  foreclose  mortgage,  where 
service  on  nonresidents  had  by  publication  only,  personal  judgment  for 
deficiency  is  void;  American  etc.  Colony  Co.  v.  Schuler,  34  Tex.  Civ.  566, 
79  S.  W.  374,  court  cannot  forfeit  charter  of  foreign  corporation  or 
secure  dominion  over  its  property  outside  of  state;  People's  Nat.  Bank 
V.  Hall,  76  Vt.  283,  56  Atl.  1012,  where  only  one  partner  was  resident 
and  firm  had  no  property  in  state,  service  on  resident  member  and  attach- 
ment of  his  property  and  substituted  service  on  nonresident  without  state 
gives  no  jurisdiction  over  latter  or  over  firm;  Disconto  Gesellschaft  v. 
Umbreit,  127  Wis.  670,  671,  106  N.  W.  826,  827,  default  judgment  on 
substituted  service  is  not  proof  of  indebtedness  to  plaintiff  unless  affi- 
davit for  publication  described  property  of  defendant  within  state; 
Maxcy  v.  McCord,  120  Wis.  572,  98  N.  W.  530,  upholding  judgment  in 
action  on  tax  deed  to  bar  former  owners  that  plaintiff  have  his  costs, 
though  defendant  served  outside  of  state;  dissenting  opinion  in  Little 
V.  Christie,  69  S.  C.  64,  48  S.  E.  91,  majority  holding  proceedings  for 
publication  of  summons  to  nonresident  before  attachment  of  his  property 
are  void ;  Schuler  v.  Ford,  10  Idaho,  747,  109  Am.  St.  Eep.  233,  SO  Tac. 
221,  arguendo.     See  109  Am.  St.  Rep.  256,  note. 

Distinguished  in  dissenting  opinion  in  Haddock  v.  Haddock,  201  U.  S. 
609,  610,  50  L.  886,  26  Sup.  Ct.  525,  majority  holding  mere  domicile  in 
state  of  one  spouse  does  not  give  jurisdiction  to  render  divorce  decree 
enforceable  in  other  state  against  nonresident  defendant  only  construc- 
tively served. 

Syl.  10  (IX,  343).  Service  by  publication  and  attachment — Non- 
resident. 

Approved  in  Brand  v.  Brand,  116  Ky.  791,  76  S.  W.  870,  63  L.  R.  A. 
206,  following  rule;  Haddock  v.  Haddock,  201  U.  S.  569,  50  L.  869,  26 
Sup.  Ct.  525,  mere  domicile  in  state  of  one  spouse  does  not  give  juris- 
diction to  render  divorce  decree  enforceable  in  other  state  against  non- 
resident defendant  only  constructively  served;  Wells  v.  Clark,  136  Fed. 
465,  where  in  state  action  against  nonresident  whose  property  attached 
is  removed  to  federal  court,  latter  court  may  render  personal  judgment; 
Mason  v.  Connors,  129  Fed.  833,  under  Vermont  laws  personal  service 
on  defendant  in  state  gives  jurisdiction  to  render  personal  judgment 
though  he  is  nonresident;  National  Fire  Ins.  Co.  v.  Ming,  7  Ariz.  9,  60 
Pac.  721,  in  action  on  insurance  policy  defense  that  plaintiff  had  been 
sued  in  California  by  his  creditors  and  funds  in  hands  of  defendant 
garnished  and  were  paid  to  creditors  under  garnishment  proceedings,  is 
good  defense;  West  v.  Lehmer,  115  La.  225,  38  So.  973,  mere  fact  that 
in  action  against  two  defendants  domiciled  out  of  jurisdiction,  juris- 
diction is  acquired  as  to  one,  does  not  authorize  bringing  other  into  court 
by  citation  of  curator,  though  appearance  of  latter  necessary  for  parties 


95  U.  S.  714-748  Notes  on  U.  S.  Eeports.  842 

in  court  to  obtain  judgment;  Silver  Camp  Mining  Co.  v.  Diekert,  31 
Mont.  498,  499,  501,  78  Pac.  970,  971,  service  of  summons  by  publication 
on  nonresident  under  Code  Civ.  Proc,  §§  637,  638,  does  not  warrant 
judgment  in  personam  against  defendant  appearing  specially  to  challenge 
jurisdiction;  May  v.  Getty,  140  N,  C.  318,  53  S.  E.  78,  general  judgment 
rendered  under  jurisdiction  obtained  by  attachment  not  collaterally  at- 
tackable as  to  property  attached;  Genest  v.  Las  Vegas  Masonic  Bldg. 
Assn.,  11  N.  M.  265,  67  Pac.  746,  in  adjudication  of  lien  under  Comp. 
Laws  1897,  §§  2216-2232,  service  by  publication  against  nonresident 
defendant  is  sufficient;  Kidd  v.  New  Hampshire  Traction  Co.,  72  N.  H. 
283,  56  Atl.  468,  66  L.  E.  A.  574,  where  notice  is  given  outside  of  state 
to  foreign  corporation  as  provided  by  statute,  court  has  jurisdiction 
to  control  disposition  of  its  property  in  state;  Hotel  Registry  Corpora- 
tion V.  Stafford,  70  N.  J.  L.  534,  57  Atl.  148,  portion  of  attachment  act 
of  1901,  authorizing  attachment  of  profjerty  of  absconders  and  nonresi- 
dents, not  repealed  by  P.  L.  1903,  p.  560,  §  84;  Wells  v.  Scanlan,  124 
Wis.  233,  102  N.  W.  573,  action  to  foreclose  mortgage  on  land  in  state 
is  not  subject  to  ten  year  limitation  on  actions  accruing  out  of  state, 
though  both  plaintiff  and  defendant  reside  out  of  state.  See  109  Am. 
St.  Rep.  258,  note. 

Distinguished  in  Fisher  v.  Traders'  Mut.  Life  Ins.  Co.,  136  N.  C.  221, 
222,  48  S.  E.  669,  upholding  Pub.  Laws  1901,  p.  66,  c.  5,  requiring  foreign 
corporation  to  apjioint  process  agent  and  that  if  no  agent  appointed 
proross  may  be  served  on  corporation  commission  's  secretary. 

Syl.  12   (IX,  346).     Credit  to  state  judgment  in  federal  court. 

Approved  in  National  Exchange  Bank  v.  Wiley,  195  U.  S.  270,  49  L. 
190,  25  Sup.  Ct.  70,  judgment  imder  warrant  of  attorney  annexed  to 
note  authorizing  confession  of  judgment  in  favor  of  holder  in  collaterally 
attackable  in  suit  thereon  in  another  state  on  ground  that  party  in  whose 
favor  it  was  rendered  was  not  holder;  Lathrop  etc.  Co.  v.  Interior  Const, 
etc.  Co.,  150  Fed.  670,  where  foreign  corporation  designated  process  agent 
in  accordance  with  New  York  law  and  later  ceased  to  do  business  in 
state  and  revoked  appointment  of  agency,  maintenance  of  action  com- 
menced prior  to  withdrawal  does  not  authorize  suit  by  service  on  Secre- 
tary of  State  unde'r  Laws  N.  Y.  1892,  p.  1806,  §  16;  Phoenix  Bridge 
Co.  V.  Castleberry,  131  Fed.  177,  65  C.  C.  A.  481,  permitting  collateral 
attack  on  grant  of  administration  on  estate  of  decedent  by  South  Carolina 
court. 

Syl,  13  (IX,  346).    Judgments — Collateral  attack  on  jurisdiction. 

Approved  in  Cohen  v.  Portland  Lodge  of  Elks,  144  Fed.  270,  274, 
upholiling  sufficiency  of  affidavit  for  publication  of  summons  in  fore- 
closure suit  under  Or.  B.  &  C.  Comp.,  §  56,  where  court  had  adjudged  it 
sufficient;  Cooper  v.  Brazelton,  135  Fed.  479,  68  C.  C.  A.  188,  jurisdiction 
of  state  court  to  render  judgment  offered  in  evidence  in  federal  court 
in  same  state  is  attackable;  Cuykendall  v.  Doe,  129  Iowa,  457,  105  N. 
W.  700,  enforcing  judgment  of  sister  state  confessed  under  warrant 
of  attorney  though  judgments  so  confessed  not  permitted  by  Iowa  law. 


SI3  Notes  on  U.  S.  Eeports.  95  U.  S.  714-743 

Syl.  14  (TX,  347).     Due  process  of  law  implies  what. 

Alijirovcfl  in  Martin  v.  White,  146  Fed.  467,  Code  Alaska,  §  896,  re- 
lulin^r  to  ajijiointiiiciit  of  guarilian  for  lunatic  requires  personal  service 
of  notice  on  lunatic;  Sylvester  v.  Willson,  2  Alaska,  335,  order  removing 
administrator  who  has  become  nonresident  must  show  comjjliance  with 
statute;  Miller  v.  Hoffman,  135  Mich.  321,  97  N.  W.  759,  Comp.  Laws 
1897,  §  10,698,  declaring  that  if  owner  of  impounded  beasts  be  dissatis- 
fied Avith  claims  of  impounder  he  may  have  amount  of  liability  determined 
by  jiersons  appointed  by  justice,  requires  opportunity  to  impounder  to  be 
heard;  Groel  v.  United  Elec.  Co.,  69  N.  J.  Eq.  416,  417,  60  Atl.  829, 
upholding  P.  L.  1896,  p.  307,  requiring  foreign  corporation  to  appoint 
process  agent;  Wilson  v.  American  Palace  Car  Co.,  65  N.  J.  Eq.  734, 
55  Atl.  998,  where  bill  seeks  to  affect  claims  of  nonresident  defendant 
to  proi>('rty  out  of  state,  court  acquires  jurisdiction  only  by  service  of 
j)rocess  within  state  or  voluntary  appearance;  Youst  v.  Willis,  5  Okl.  416, 
49  Pac.  1014,  upholding  act  of  1895,  providing  that  on  appeal  from 
justice  court  judgment  may  be  entered  against  surety  on  appeal  bond 
after  notice  of  motion  therefor;  Selden  v.  Kennedy,  104  Va.  830,  4  L. 
R.  A.  (N.  S.)  944,  52  S.  E.  637,  holding  one  absenting  himself  for  time 
prescril'.pd  by  statute  as  raising  j)resumption  of  death  cannot  be  de- 
prived of  property  by  administration  proceedings  of  which  he  had  no 
notice. 

Syl.  15    (IX,  347).     Proceeding  in  rem  defined. 

Approved  in  Jones  v.  Byrne,  140  Fed.  469,  federal  court  has  no  jur- 
isdiction to  foreclose  lien  on  and  order  sale  of  land  situated  in  another 
state;  Patterson  v.  Farmington  Str.  Ry.  Co.,  76  Conn.  636,  57  Atl. 
856,  suit  to  adjust  equitable  interests  in  stock  of  domestic  corporation 
and  to  compel  registry  on  books  of  legal  title  in  owner  is  proceeding  in 
rem,   so   tliat  tlecree  binds   nonresidents   constructively   served. 

Syl.  16   (IX,  348).     Proceedings  to  determine  statutes — Notice. 

Approved  in  Clark  v.  Clark,  191  Mass.  132,  77  N.  E.  703,  wife  who 
lias  separated  from  husband  because  of  his  adultery  may  acquire  domicile 
in  another  county  for,  and  there  sue  for  divorce;  St.  Louis  v.  Gait,  179 
Mo.  17,  77  S.  W.  879,  63  L.  R.  A.  778,  conviction  for  violation  of  anti- 
weed  ordinance  in  ordinary  courts,  with  right  of  appeal,  is  due  process. 

Syl.  17  (IX,  348).     Appeals — Notice  required. 

Approved  in  White  v.  White,  65  N.  J.  Eq.  747,  55  Atl.  741,  upholding 
service  out  of  state  of  notice  of  motion  to  increase  allowance  for  support 
of  children  of  divorced  parents. 

Syl.  18  (IX,  248).     Requiring  resident  process  agent. 

Approved  in  Guenther  v.  American  Steel  Hoop  Co.,  116  Ky.  585,  586, 
76  S.  W.  420,  upholding  Civ.  Code,  §  51,  subd.  6,  authorizing  substituted 
service  on  resident  manager  or  agent  of  nonresident  doing  business  in 
state. 


95  U.  S.  754-768  Notes  on  U.  S.  Eeports.  844 

95  U.  S.  754-759,  24  L.  580,  MOBILE  LIFE  INS.  CO.  v.  BEAME. 

Syl.  1    (IX,  350).     Action  for  wrongful  death. 

Approved  in  Kennedy  v.  Delaware  Cotton  Co.,  4  Penne.  (Del.)  481,  58 
Atl.  826,  father  cannot  recover  for  death  of  minor  child.  See  99  Am. 
St.  Kep.  504,  note. 

(IX,  350.)  Miscellaneous.  Cited  in  Eowan  v.  Western  Union  Tel. 
Co.,  149  Fed.  552,  denying  damages  for  mental  anguish  unaccompanied 
by  physical  injury,  against  telegraph  company  for  failure  to  deliver 
death  message  to  plaintiff,  by  reason  of  which  he  was  prevented  from 
attending  funeral. 

95  U.  S.  760-704,  24  L.  588,  UNITED  STATES  v.  MOORE. 

Syl.  3  (IX,  351).     Executive  construction  of  statutes. 

Approved  in  United  States  v.  Burkett,  150  Fed.  212,  under  20  Stat. 
113,  c.  191,  §  2,  where  timber  culture  entry  not  forfeited  by  Land  De- 
partment for  entryman's  failure  to  make  final  proof  within  five  years 
after  expiration  of  eight  years  after  entry,  it  was  sufficient  to  sustain 
prosecution  for  conspiracy  to  obtain  title  by  fraud;  Avery  v.  Pima  Co., 
7  Ariz.  32,  60  Pac.  703,  supervisors  of  county  are  persons  with  whom 
department  of  justice  should  contract  for  care  of  federal  prisoners  im- 
prisoned in  county  jail;  Halsey  v.  Belle  Plaine,  128  Iowa,  471,  104  N. 
W.  496,  construing  Const.,  art.  11,  §  3,  prohibiting  rBunicipalities  from 
becoming  indebted  to  amount  exceeding  five  per  cent  of  value  of  ita 
taxable  property;  Henry  v.  State,  87  Miss.  59,  39  So.  872,  Eev.  Code, 
1892,  §  3201,  providing  for  working  of  convicts  on  leased  farm,  does  not 
violate  constitutional  provision  prohibiting  leasing  of  convicts;  Pitts 
V.  Logan  County,  3  Okl.  740,  41  Pac.  591,  holding  void  act  attempting 
to  regulate  accounting  of  fees  of  clerks  of  territorial  district  courts; 
Mann  v.  Mercer  Co.  Court,  58  W.  Va.  660,  52  S.  E.  779,  construing 
Code  1899,  c.  114,  §  2,  authorizing  courts  to  adjourn  from  day  to  day; 
dissenting  opinion  in  McDaid  v.  Territory,  1  Okl.  112,  30  Pac.  444, 
majority  holding  under  26  Stat.  109,  after  issue  of  patent  to  townsite 
trustees  no  appeal  lies  to  Land  Department  from  decision  of  trustees 
awarding  land  to  contestant. 

95  U.  S.  764-768,  24  L.  589,  YEATMAN  v.  SAVINGS  INSTITUTION. 

Syl.  1  (IX,  353).     Bankruptcy  assignee  takes  subject  to  liens. 

Approved  in  York  Mfg.  Co.  v.  Cassell,  201  U.  S.  352,  50  L.  785,  26 
Sup.  Ct.  481,  adjudication  in  bankruptcy  does  not  operate  as  lien  in 
favor  of  trustee  as  against  conditional  vendor  of  property  sold  to  bank- 
rupt because  of  noncompliance  with  state  statute  as  to  filing;  Thomp- 
son V.  Fairbanks,  196  U.  S.  526,  49  L.  586,  25  Sup.  Ct.  306,  enforce- 
ment of  inchoate  lien  of  chattel  mortgage  covering  after-acquired 
property  by  taking  possession  with  mortgagor's  consent  after  condition 
broken  as  authorized  by  mortgage  is  not  preference;  Hewit  v.  Berlin 
Machine  Works,  194  U.  S.  303,  48  L.  988,  24  Sup.  Ct.  090,  bankruptcy 
trustee  is  not  subsequent  bona  fide  purchaser  within  N.  Y.  Laws,  1897,  c. 
418,  §  112,  avoiding  conditional  sales  unaccompanied  by  change  of  pos- 


845  Notes  on  U.  S.  Kcports.  96  U.  S.  24 

session;  Lindeke  v.  Associates  Kealty  Co.,  146  Fed.  639,  where  notice  to 
quit  was  served  on  tenant,  his  subsequent  adjudication  as  bankrupt  did 
not  require  reservice  on  trustee;  In  re  Cramond,  145  Fed.  976,  persons 
performing  labor  for  city  contractor  who  afterward  became  bankrupt, 
having  filed  no  notice  of  lien  as  required  by  N.  Y.  Laws  1897,  p.  517, 
have  no  lien  on  amount  due  from  city  though  they  are  entitled  to 
priority  over  general  creditors;  Bush  v.  Export  Storage  Co.,  136  Fed. 
923,  title  passing  to  bankrupt's  trustee  under  Bankr.  Act,  1898,  §  70a, 
subd.  4,  to  property  transferred  in'  fraud  of  creditors,  excludes  prop- 
erty which  passed  to  bona  fide  purchaser  prior  to  adjudication.  See 
104  Am.  St.  L'-,'p.  913,  note. 

95  U.  S.  769-774,  24  L.  54;3,  UNITED  STATES  v.  CLARK  COUNTY. 

Syl.  2  (IX,  354).     Mandamus  to  compel  tax  levy. 

Approved  in  Milster  v.  Spartanburg,  68  S.  C.  33,  46  S.  E.  541,  city 
cannot  be  compelled  by  mandamus  to  levy  taxes  prior  to  constitution  of 
1895,  in  absence  of  statute  authorizing  tax  for  past  years. 

95  U.   S.  774-781,  24  L.  583,  ALEXANDRIA  v.  FAIRFAX. 

Syl.  2   (IX,  355).     Service  of  process  on  inuuicipal  officer. 

Approved  in  King  v.  Davis,  137  Fed.  206,  under  Code  Va.  1887,  § 
3207,  relating  to  substituted  service,  return  showing  service  by  leaving 
copy  with  defendant 's  wife,  but  not  showing  she  was  member  of  his 
family,  is  insufficient. 

Syl.   3    (IX,   355).     Confiscation — Notice   as   prescribed   by   statute. 

Approved  in  King  v.  Davis,  137  Fed.  208,  under  Code  A^a.  1SS7,  § 
3207,  authorizing  substituted  service  by  posting  on  "front  door,"  re- 
turn showing  posting  on  ' '  door ' '  is  insufficient. 


XCVI  UNITED  STATES. 


96  U.  S.  24,  24  L.  708,  PENSACOLA  ETC.  TEL.  CO.  v.  WESTERN 
ETC.  TEL.  CO. 

Syl.  2  (IX,  356).  Commerce — Telegraph — State  regulation. 
Approved  in  Ames  v.  Kirby,  71  N.  J.  L.  445,  59  Atl.  559,  statute 
prohibiting  poolroom  is  violated  by  keeping  room  where  wagers  are  made 
by  telegraph  with  persons  out  of  state;  Postal  Tel.  Cable  Co.  v.  Um- 
stadter,  103  Va.  743,  50  S.  E.  260,  Code  1887,  §  1291,  imposing  penalty 
on  telegrajah  company  for  failure  to  transmit  message  does  not  violate 
commerce  clause  of  federal  constitution;  dissenting  opinion  in  Northern 
Securities  Co.  v.  United  States,  193  U.  S.  393,  48  L.  723,  24  Sup.  Ct. 
436,  majority  holding  combination  by  stockholders  of  two  competing 
interstate  railroads  to  form  stockholding  company  to  acquire,  in  exchange 
for  its  capital  stock,  control  of  each  road,  violates  anti-trust  act  of 


9C  U.  S.  24-63  Notes  on  U.  S.  Eeports.  846 

1890;  Metropolitan  Life  Ins.  Co.  v.  Board  of  Assessors,  115  La.  706,  39 
So.  849,  arguendo. 

Syl.  4   (IX,  359).     Telegraph  aid  act— State  control. 

Approved  in  Western  Union  Tel.  Co.  v.  Pennsylvania  R.  R.  Co.,  195  U. 
S.  560,  564,  565,  49  L.  31S,  320,  321,  323,  25  Sup.  Ct.  133,  telegraph 
company  cannot  occupy  railroad  right  of  vcay  without  consent  of  railroad. 

Distinguished  in  dissenting  opinion  in  Western  Union  Tel.  Co.  v. 
Pennsylvania  R.  R.  Co.,  195  U.  S.  585,  591,  594,  49  L.  329,  331,  332,  25 
Sup.  Ct.  133,  majority  holding  telegraph  company  cannot  supply  rail- 
road right  of  way  without  railroad's  consent. 

Syl.  6  (IX,  360).     Telegraph  Act — Taking  private  property. 

Approved  in  Western  Union  Tel.  Co.  v.  Pennsylvania  R.  R.  Co..  195 
U.  S.  567,  569,  572,  573,  49  L.  321,  322,  324,  25  Sup.  Ct.  133,  telegraph 
company  cannot  occupy  railroad  right  of  way  without  railroad's  consent. 

(IX,  356.)  Miscellaneous.  Cited  in  City  of  Nichita  v.  Old  Colony 
Trust  Co.,  132  l^ed.  649,  66  C.  C.  A.  19,  as  showing  that  telegraph  com- 
panies accepted  provisions  of  act  of  July  24,  1866. 

96  U.  S.  24-30,  24  L.  644,  JONES  v.  UNITED  STATES. 

Syl.  2  (IX,  361).     Sales — Recovery — Noncompliance. 

Approved  in  Webb  Granite  etc.  Co.  v.  Worcester,  187  Mass.  391,  73  N. 
E.  641,  failure  of  city  contractor  to  finish  contract  within  time  limit  is 
not  default  where  he  is  enjoined  from  proceeding  with  work;  Powers  v. 
Rude,  14  Okl.  395,  79  Pac.  94,  determine  validity  of  subscription  con- 
tract; Eeid  V.  Alaska  Packing  Co.,  43  Or.  435,  73  Pac.  339,  where  agent 
of  seller  exceeded  authority  in  warranting  goods,  declarations  of  seller's 
officers,  on  receiving  memorandum  that  they  would  not  ratify  it  because 
they  did  not  have  goods  specified  are  admissible  in  action  by  buyer  for 
breach. 

96  U.  S.  37-50,  24  L.  696,  UNITED  STATES  v.  CLARK. 

Syl.  1  (IX,  364).     Conclusiveness  of  findings  of  court  of  claims. 

Approved  in  Conners  v.  United  States,  141  Fed.  17,  19,  applying  rule 
in  action  against  government  on  building  contract. 

96  U.  S.  51-63,  24  L.  681,  CROMWELL  v.  COUNTY  OF  SAC. 

Syl.  1   (IX,  365).     Municipal  bonds — Bona  fide  holder. 

Approved  in  Gamble  v.  Rural  etc.  School  Dist.,  146  Fed.  116,  where, 
at  time  of  enactment  of  Iowa  Code,  1897,  §  3070,  limiting  recovery  on 
negotiable  paper  procured  by  fraud,  innocent  purchaser  held  negotiable 
school  bond  fraudvilently  issued,  and  sold  it  after  maturity  for  less  than 
face  value,  transferee  could  recover  full  amo -nt  of  bond  though  he 
knew  of  fraud. 

Svl.  5  (TX,  367).     Vendee  of  bona  fide  purchaser  of  municipal  bonds. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  where  rail- 
road acquired  aid  bonds  before  state  decision  construing  constitutional 


847  Notes  on  U.  S.  Ecports,  9G  U.  S.  G3-86 

provision  alleged  to  be  violated  by  bond  statute,  railroad  's  assignees  of 
bonds  pun-hasing  after  state  decision  entitled  to  have  federal  construc- 
tion of  constitution. 

Syl.  6  (IX,  368).     Amount  recoverable  by  bona  fide  purchaser. 

Approved  in  Mersick  v.  Alderman,  77  Conn.  638,  60  Atl.  Ill,  one  suing 
on  note  held  as  collateral  may  set  up  facts  disclosing  right  to  prima 
facie  recover  amount  of  note,  leaving  defendant  to  allege  facts  limiting 
right  of  recovery  to  amount  of  debt  secured. 

Distinguished  in  Gamble  v.  Rural  Ind.  School  Dist.,  132  Fed.  523,  pur- 
chaser of  overdue  fraudulently  issued  municipal  bond  of  face  value 
of  $2,200  for  $50  can  recover  only  amount  paid  where  he  knew  of  fraud, 
though  seller  was  bona  fide  purchaser. 

Syl.  11    (IX,  370).     Law  governing  interest — Usury. 

Approved  in  Davis  v.  Tandy,  107  Mo.  App.  448,  81  S.  W.  4r^0.  deter- 
mining law  governing  usury  where  note  given  in  one  state  is  payable  in 
another. 

96  U.  S.  63-G9,  24  L.   651,  ST.  CLAIR  COUNTY   TURNPIKE  CO.   v. 
ILLINOIS. 

Syl.  2  (IX,  371).     Franchises  strictly  construed. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  33,  50  L. 
359,  26  Sup.  Ct.  224,  municipal  grant  of  waterworks  franchise  dues  not 
devest  municipality  of  power  to  construct  its  own  waterworks. 

96  U.  S.  69-75,  24  L.  610,  TENNESSEE  v.  SNEED. 

Syl.  1   (IX,  371).     Contract  obligations — Change  in  remedy. 

Approved  in  Miners'  etc.  Bank  v.  Snyder,  100  Md.  65,  108  Am.  St. 
Rep.  390,  59  Atl.  708,  68  L.  R.  A.  312,  contractual  rights  of  creditors 
of  trust  company  under  act  imposing  double  liability  on  stockholders  not 
impaired  as  to  one  who  sued  stockholder  but  had  not  obtained  judgment 
by  statute  substituting  equity  suit  for  benefit  of  all  creditors  against 
all    stockholders. 

96  U.  S.  76-83,  24  L.  826,  MEISTER  v.  MOORE. 

Syl.    3    (IX,    373).     Statutes   prescribing    marriage    form    directory. 

Approved  in  Reaves  v.  Reaves,  15  Okl.  254,  82  Pac.  495,  upholding 
validity  of  common-law  marriage. 

96  U.  S.  84-S6,  24  L.  653,  SOUTHERN  LIFE  INS.  CO.  v.  McCAIN. 

Syl.  2  (IX,  374).     Authority  of  agent — Secret  limit-ations. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Abl^ey,  76  Ark.  332.  88  S.  W. 
951,  though  soliciting  agent  of  insurer  requiring  payment  of  premiums 
in  cash  cannot  accept  notes  in  lieu  thereof,  insurer  is  bound  where 
general  agent  authorizes  solicitor  to  accept  notes. 


9G  U.  S.  S7-103    .  Notes  on  U.  S.  Keports.  848 

96  U.  S.  87-90,  24  L.  615,  McALLISTER  v.  KUIIN. 

Syl,  3  (IX,  376).     Complaint  for  conversion. 

Distinguished  in  Crosby  v.  Stratton,  17  Colo.  App.  217,  218,  68  Pac. 
132,  complaint  in  action  by  one  stockholder  against  another,  alleging 
that  each  stockholder  was  entitled  to  purchase  certain  proportion  of 
stock  and  that  defendant  caused  to  be  issued  to  himself  shares  in  excess 
of  his  proportion  is  insufficient. 

96  U.  S.  97-108,  24  L.  616,  DAVIDSON  v.  NEW  ORLEANS. 

Syl.  5  (IX,  378).     Fifth  amendment  applies  to  government  only. 

Approved  in  St.  Louis  etc.  Ry.  Co.  v.  Davis,  132  Fed.  632,  allegation 
in  suit  to  enjoin  state  officers  that  their  act?,  will  violate  fifth  amendment 
does  not  give  federal  court  jurisdiction. 

Syl.  1   (IX,  378).     Due  process  of  law. 

Approved  in  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  TJ.  S. 
203,  50  L.  153,  26  Sup.  Ct.  36,  holding  void  tax  assessed  on  rolling 
stock  of  domestic  corporation  used  and  permanently  located  in  other 
states;  Fayerweather  v.  Ritch,  195  U.  S.  297,  49  L.  209,  25  Sup.  Ct. 
58,  upholding  direct  appeal  from  circuit  court  judgment  giving  effect 
as  res  adjudicata  to  state  judgment  which  deprived  parties  of  property 
without  finding  of  vital  facts;  King  v.  Hatfield,  130  Fed.  582,  construing 
provisions  of  West  Virginia  constitution  relative  to  forfeiture  of  lands 
for  noncharging  of  taxes  thereon. 

Syl.  7  (IX,  378).     Due  process  of  law — Assessments. 

Approved  in  Ex  parte  Moebus,  137  Fed.  156,  petition  for  habeas 
corpus,  showing  that  petitioner  since  extradition  has  been  imprisoned  for 
five  years  on  governor's  warrant  only  presents  federal  question;  Mc- 
Millan v.  Butte,  30  Mont.  227,  76  Pac.  205,  upholding  Sess.  Laws  1897, 
p.  219,  §  30,  providing  for  payment  of  street  improvements  according 
to  area;  Hodge  v._  Muscatine  Co.,  121  Iowa,  490,  104  Am.  St.  Rep.  304, 
96  N.  W.  971,  67  L.  R.  A.  624,  upholding  Code,  §  5007,  taxing  vendor 
of  cigarettes  and  buildings  used  in  their  manufacture  or  sale;  Hoertz, 
V.  Jefferson  etc.  Draining  Co.,  119  Ky.  883,  84  S.  W.  1143,  upholding 
Acts  1857-58,  p.  124,  c.  518,  incorporating  drainage  company  for  rec- 
lamation of  swamp  lands  to  be  paid  for  by  special  assessment  on  prop- 
erty benefited  on  notice  by  posting  and  publication;  Taylor  v.  Crawford, 
72  Ohio  St.  570,  74  N.  E.  1068,  69  L.  R.  A.  805,  upholding  95  Ohic 
Laws,  p.  155,  §  3,  providing  for  cleaning  and  repairing  drains  and  water- 
courses; Gray  v.  Stiles,  6  Okl.  546,  49  Pac.  1104,  construing  Stat.  1893, 
par.  5624,  §  1,  relating  to  equalization  of  assessments;  Youst  v.  Willis, 
5  Okl.  416,  49  Pac.  1014,  upholding  act  of  1895,  relating  to  justice 
court  appeals  and  •  providing  for  entry  of  judgment  on  motion  in  ap- 
pellate court  against  sureties  on  appeal;  State  v.  Seattle,  42  Wash.  375, 
85  Pac.  13,  assessment  for  street  improvements  is  void  as  to  such  prop- 
erty as  is  not  given  notice  required  by  law  between  filing  of  assessment- 
roU  and  its  confirmation. 


849  Notes  on  IT.  S.  Eeporta.  96  U.  S,  97-lOS 

Syl.  10  (IX,  381).     "Due  process  of  law"  undefined. 

Approved  in  St.  Louis  etc.  Ey.  Co.  v.  Davis,  132  Fed.  G33,  upholding 
assessment  of  railroad  property  by  Arkansas  railroad  assessors  pursuant 
to  statutes  ■which  provide  time  and  place  of  assessment  and  for  public 
hearing;  State  v.  Cantwell,  179  Mo.  270,  78  S.  W.  576,  upholding  Laws 
1901,  p.  211,  fixing  eight  hours  as  day's  work  in  mines;  Ex  parte  Boyce, 
27  Nev.  339,  75  Pac.  6,  65  L.  E.  A.  47,  upholding  act  of  1903,  providing 
eight-hour  day  for  work  in  mines  and  smelters. 

Syl.  11   (IX,  383).     Due  process — Judicial  inquiry  on  notice. 

Approved  in  Leigh  v.  Green,  193  U.  S.  88,  89,  48  L.  627,  24  Sup. 
Ct.  390,  due  process  not  denied  holder  of  lien  on  realty  by  lack  of  pro- 
vision for  personal  service  of  pendency  of  proceedings  to  enforce  lien 
of  tax  sale  purchaser  where  notice  given  by  publication;  Jones  v.  Nash- 
ville etc.  Ey.  Co.,  141  Ala.  394,  37  So.  679,  where  foreign  railroad  charter 
provided  that  in  absence  of  contract,  presumed  that  right  of  way 
granted  by  owner  unless  owner  should  apply  for  assessment  of  value 
within  five  years  of  completion  of  road  did  not  apply  to  local  land 
owner  whose  land  appropriated  without  condemnation  proceedings; 
Kite  V.  People,  32  Colo.  9,  74  Pac.  888,  in  proceeding  under  Mills  Ann. 
St.,  §  1343,  providing  for  destruction  of  gambling  devices  whenever  judge 
decides  they  are  used  for  gambling  purposes,  jury  not  required;  Buck 
V.  Beach,  164  Ind.  50,  108  Am.  St.  Eep.  272,  71  N.  E.  968,  determining 
power  of  state  to  tax  personalty  situated  therein  where  another  state 
has  taxed  it;  Voris  v.  Pittsburg  Plate  Glass  Co.,  163  Ind.  607,  70  N.  E. 
252,  holding  Burns'  Eev.  St.  1894,  §§  4290,  4293,  4294,  relating  to  assess- 
ments on  abutting  property,  is  valid  as  to  owner  of  back-lying  land; 
Eoss  V.  Board  of  Supervisors,  128  Iowa,  441,  104  N.  W.  511,  Code,  tit. 
10,  c.  2,  relative  to  construction  of  drainage  ditches,  is  not  void  as  fail- 
ing to  provide  notice  of  proceedings  for  appointment  of  commissioners 
to  classify  lands  and  fix  boundaries  of  district;  Succession  of  Levy, 
115  La.  382,  39  So.  38,  upholding  tax  on  all  successions  not  finally 
closed  and  on  all  successions  opened  in  future;  Yazoo  etc.  E.  E.  Co.  v. 
Harrington,  85  Miss.  375,  37  So.  1017,  upholding  Eev.  Code,  1892,  § 
3561,  recpuring  railroads  to  maintain  cattle-guards  where  tracks  pass 
inclosed  lands;  Kettle  v.  Dallas,  35  Tex.  Civ.  638,  80  S.  W.  878,  uphohl- 
ing  act  amending  Dallas  charter  and  providing  for  creation  of  im- 
provement districts  by  council  and  providing  for  assessment  of  realty 
therein  for  improvements;  Whitlock  v.  Hawkins,  105  Va.  266,  63  S.  E. 
409,  upholding  act  of  March  17,  1906,  amending  Code,  §  444,  providing 
that  persons  aggrieved  by  assessment  may  apply  to  courts  for  relief 
prior  to  February  1st  of  year  succeeding  assessment;  dissenting  opinion 
in  Lochner  v.  New  York,  198  U.  S.  66,  49  L.  945,  25  Sup.  Ct.  539,  ma- 
jority holding  void  New  York  act  of  1897,  limiting  hours  of  employment 
in  bakeries.     See  101  Am.  St.  Eep.  606,  note. 

54: 


96  U.  S.  108-135  Notes  on  U.  S.  Ecporta.  850 

Syl.  13   (IX,  385).     Due  process — Fair  trial  in  court. 

Approved  in  McKinster  v.  Sager,  163  Iml.  677,  106  Am.  St.  Rep.  268, 
72  N.  E.  856,  68  L.  R.  A.  273,  holding  void  statute  invalidating  sales 
in   '  ^Ik  while  merchant  indebted. 

Syl.  14  (IX,  385).     Due  process — Levy  of  drainage  assessment. 

Approved  in  Louisville  etc.  R.  R.  Co.  v.  Barber  Asphalt  Pav.  Co.,  197 
J.  S.  434,  49  L.  822,  25  Sup.  Ct.  466,  fact  that  only  use  made  of  lot 
abutting  on  street  improvement  is  for  railway  right  of  way  does  not  in- 
validate assessment  for  grading  and  paving  under  area  rule. 

^6  U.  S.  108-112,  24  L.  764,  ARTHUR  v.  MORRISON. 

Syl.  1  (IX,  388).     Tariff— Commercial  designation. 

Approved  in  Darlington  v.  United  States,  136  Fed.  718,  dress  shields 
are  dutiable  as  wearing  apparel. 

Syl.  2   (IX,  389).     Statutes — Legislative  change  in  construction. 

Approved  in  dissenting  opinion  in  Irwin  v.  Irwin,  2  Okl.  219,  37 
Pae.  560,  majority  holding  by  Act  of  Congress  ratifying  Okl.  St.,  art. 
31,  c.  70,  §  7,  probate  courts  vested  with  jurisdiction  in  divorce  cases. 

96  U.  S.  112-118,  24  L.  766,  ARTHUR  v.  LAHEY. 

Syl.  2   (IX,  389).     Tariff— Specific  designation. 

Approved  in  United  States  v.  Schwarz,  140  Fed.  304,  celluloid  toys 
are  dutiable  under  par.  418,  sched.  N,  Act  of  1897,  and  not  under 
par.  17,  sched.  A;  Carter,  Webster  &  Co.  v.  United  States,  137  Fed. 
980,  embroidered  hose  are  subject  to  par.  339,  sched.  J,  where  rate 
therein  exceeds  rate  provided  for  by  par.  318;  United  States  v.  Boden, 
133  Fed.  840,  canned  pineapples  containing  only  sufficient  sugar  to 
flavor  them  are  dutiable  under  lower  rate  provided  for  by  par.  263, 
sched.  G,  Act  of  1807. 

96   U.   S.   125-128,  24  L.   771,   ARTHUR  v.   STEPHANI. 

Syl.   1    (IX,  391).     Customs  duties. 

Approved  in  United  States  v.  Boden,  133  Fed.  840,  pineapples  con- 
taining only  sufficient  sugar  to  flavor  are  dutiable  under  lower  rate 
provided  for  by  par.  263,  sched.  G,  Act  of  1897;  Brennan  v.  United 
States,  129  Fed.  838,  pickled  limes  are  dutiable  under  par.  266,  sched. 
G,  Act  of  1897. 

96  U.  S.  131-135,  24  L.  773,  MURPHY  v.  ARNSON. 

Syl.  1  (IX,  392).     Customs  duties — Similitude. 

Approved  in  dissenting  opinion  in  Benedict  v.  Davidson  County, 
110  Tenn.  193,  67  S.  W.  809,  majority  holding  logs  grown  in  state 
prior  to  being  sawed  are  within  Const.,  art.  2,  §  30,  exempting  from 
taxation  articles  manufactured  from  produce  of  state. 


851  Notes  on  U.  S.  Reports.  96  U.  S.  137  174 

96  U.  S.  137-141,  24  L.  811,  ARTHUR  v.  HOMER. 

Syl.  1   (IX,  393).     Customs  duties — Embroidered  linen. 

Approved  in  Carter  Webster  &  Co.  v.  United  States,  137  Fed.  980, 
embroidered  hose  are  subject  to  par.  339,  sched.  J,  when  rate  tUeiciu 
exceeds  rate  provided  for  by  par.  318. 

96  U.  S.  145-117,  24  L.  814,  ARTHUR  v.  EHEIMS. 

Syl.   1    (IX,   394).     Tariff — Invoice   value — Cash   discount. 

Approved  in  United  States  v.  Lahey,  132  Fed.  183,  collector  caTinot, 
after  appraiser  has  appraised  and  marked  item  of  commission  as  uon- 
dutiable,  include  item  in  invoice  value. 

96  U.  S.  148-153,  24  L.  758,  DAVIES  v.  ARTHUR. 

Syl.   1    (IX,   394).     Tariff— Importer's  protest. 

Approved  in  Kahn  v.  Herold,  147  Fed.  580,  where,  at  time  executors 
paid  internal  revenue  inheritance  tax  on  life  estate  under  protest, 
they  did  not  know  life  tenant  had  died,  payment  was  not  voluntary; 
Rosenberg  v.  United  States,  146  Fed.  84,  protest  stating  merely  that 
merchandise  was  dutiable  at  appropriate  rate  and  under  proper  para- 
graph according  to  component  material  of  chief  value  is  insufficient. 

96  U.  S.  153-161,  24  L.  844,  KOHLSAAT  v.  MURPHY. 
Syl.  3  (IX,  395).  Statutory  intent — Pari  materia. 
Approved  in  In  re  McKenzie,  132  Fed.  988,  widow  of  bankrupt  who 
died  after  adjudication  and  after  trustee  took  possession  is  not  enti- 
tled to  dower  in  personalty;  Brown  v.  Woods,  2  Okl.  604,  39  Pac. 
47-1,  attorney  suspended  from  practice  in  district  court  of  county  in 
which  he  is  elected  county  attorney  cannot  perform  duties  of  office 
pending  suspension. 

96  JJ.  S.   165-108,  24  L.   621,  NATOMA  WATER  &  MIXING   CO.   v. 
BUGBY. 

Syl.  1   (IX,  390).     School  lands— Settler 's  failure   to  claim. 

Approved  in  Gonzales  v.  French,  4  Ariz.  82,  33  Pac.  504,  where 
settler  on  school  section  failed  to  assert  claim  to  pre-emption  after 
survey,  but  sold  possessions  and  improvements,  purchaser  acquired 
no  interest  in  lands. 

96  U.  S.  168-174,  24  L.  622,  BRAWLEY  v.  UNITED  STATES. 

Syl.   1    (IX,   396).     Sales — Warrant}- — Estimated   quantity. 
'   Approved  in  Inman  Bros.  v.  Dudley  etc.  Lumber  Co.,  146  Fed.  451, 
where  defendant  contracted  to  sell  all  lumber  on  hand  estimated  at 
certain   quantity,   and   also    entire   cut   for   certain   year   estimated   at 
certain  quantity,  contract  was  not  for  sale  of  definite  quantity. 


96  U.  S.  193-204  Notes  on  U.  S.  Eeports.  852 

Syl.  2   (IX,  397).     Sales — What  variation  in  quantity  permitted. 

Approved  in  Moore  v.  United  States,  196  U.  S.  168,  49  L.  43-4,  25 
Sup.  Ct.  202,  delivery  of  4,634  tons  of  coal  under  contract  for  delivery 
of  about  5,000  tons  does  not  complete  contract  so  as  to  warrant  re- 
fusal of  tender  of  remainder;  Hadley  Dean  Plate  Glass  Co.  v.  High- 
land Glass  Co.,  143  Fed.  243,  applying  rule  to  contract  to  supply  cer- 
tain quantity  of  glass. 

Syl.  3   (IX,  397).     Sales — Quantity — More  or  less  as  necessary. 

Distinguished  in  Eeady  v.  J.  L.  Fulton  Co.,  179  N.  Y.  404,  405,  72 
N.  E.  319,  where  contract  provided  that  vendor  should  furnish  not 
less  than  5,000  yards  nor  more  than  8,000  yards  of  stone,  and  if  more 
than  5,000  required,  three  weeks'  notice  given  of  extra  amount,  and 
vendor  sued  for  breach  prior  to  delivery  of  5,000  yards,  he  could 
recover  damages  only  for  difference  between  amount  furnished  and 
5,000  yards. 

Syl.  5    (IX,  397).     Writing  merges  prior  negotiations — Parol. 

Approved  in  Simpson  v.  United  States,  199  U.  S.  398,  50  L.  245, 
26  Sup.  Ct.  54,  written  contract  of  government  to  take  fresh  beef 
needed  for  army  in  interior  of  Cuba  not  extended  to  cover  entire 
island  whenever  refrigerated  beef  insufficient,  because  of  prior  con- 
versation between  contractor  and  commissary  general,  in  which  latter 
said  such  was  intent  of  department;  Connecticut  Fire  Ins.  Co.  v. 
Buchanan,  141  Fed.  889,  where  policy  covered  building  while  occupied 
as  school,  parol  evidence  that  it  was  intended  to  cover  building  while 
vacant  is  inadmissible. 

90  U.  S.  193-198,  24  L.  654,  DEWING  v.  PERDICARIES. 

Syl.  4   (IX,  401).     Stockholder's  suit  to  vacate  sale — -Parties. 

Approved  in  Von  Arnim  v.  American  Tube  Works,  188  Mass.  519, 
74  N.  E.  681,  right  of  corporation  to  recover  from  one  of  its  officers 
property  converted  by  him,  or  its  value,  survives  against  his  estate. 

(IX,  400.)  Miscellaneous.  Cited  in  Day  v.  Smith,  87  Miss.  407, 
39  So.  528,  taking  judicial  notice  of  statutes  of  Mississippi  in  1861. 

96  U.  S.  199-204,  24  L.  656,  GOLD  WASHING  ETC.  CO.  v.  KEYES. 

Syl.  1  (IX,  401).     Petition  must  show  removable  cause. 

Approved  in  Thompson  v.  Stalmann,  131  Fed.  811,  where  removal 
petition  avers  that  controversy  was  between  citizens  of  different  states 
and  that  amount  involved  exceeded  $2,000,  federal  court  could  permit 
amendment  to  show  citizenship  of  parties. 

Sji.  2   (IX,  402).     Eemoval  petition  should  state  facts. 

Approved  in  Illinois  etc,  Ry.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W. 
485,  tollowing  rule;  Joy  v.  St.  Louis,  201  .U.  S.  340,  50  L.  780,  26 
Sup.  Ct.  478,  petition  in  ejectment  showing  dispute  over  construction 
of  patent  does  not  show  federal  question  where  it  appears  that  real 


853  Notes  on  U.  S.  Reports.  96  U.  S.  211-245 

controversy  is  over  claim  of  plaintiff  to  accretion;  Offner  v.  Chicago 
etc.  R.  Co.,  148  Fed.  203,  petition  for  removal,  in  action  against  local 
and  nonresident  corporation,  filed  by  nonresident  alone,  alleging  co- 
defendant  fraudulently  joined  to  prevent  removal,  is  insufficient; 
Southern  Cash  Register  Co.  v.  National  Cash  Register  Co.,  143  Fed. 
661,  where  each  count  in  complaint  alleged  damages  in  sum  of  $1,900, 
and  also  prayed  for  injunction,  allegation  in  removal  petition  tliat 
amount  in  controversy  exceed,  $2,000  deemed  true. 

Syl.  3   (IX,  403).     Removability  of  cause — Federal  question. 

Approved  in  Myrtle  v.  Nevada  etc.  Ry.  Co.,  137  Fed.  196,  state 
action  to  recover  for  personal  injuries  caused  by  failure  of  railroad 
to  use  safety  appliances  not  removable,  though  complaint  alleged  de- 
fendant engaged  in  interstate  commerce;  Terry  v.  Bird,  129  Fed.  594, 
64  C.  C.  A.  160,  circuit  court  suit  by  Indian  to  determine  rights  under 
patent  conveying  land  in  severalty  under  Indian  treaty  is  not  re- 
vievpable  by  circuit  court  of  appeals,  but  is  appealable  directly  to 
supreme  court. 

96    U.    S.    211-218,    24    L.    628,    UNITED    STATES    v.    COUNTY    OF 
CLARK. 

Syl.  1  (IX,  406).     Railroq^d  aid  bonds  county  debt. 

Approved  in  Eaton  v.  Mimnaugh,  43  Or.  476,  73  Pac.  757,  holding 
void  Gen.  Laws  1903,  p.  104,  providing  for  relocation  of  county  seat 
and  providing  in  case  new  county  seat  selected,  construction  of  new 
courthouse  to  be  paid  for  by  county  warrants  payable  out  of  tax 
to  be  levied  for  five  years. 

(IX,  406).  Miscellaneous.  Cited  in  Rose  v.  McKie,  145  Fed.  590, 
it  is  no  defense  to  mandamus  to  compel  town  officers  to  perform  duties 
imposed  on  them  by  statute  toward  providing  for  payment  of  judg- 
ment against  town  that  duties  do  not  include  all  acts  requisite  tO' 
full  satisfaction;  l^ewman  v.  Kay,  57  W.  Va.  112,  49  S.  E.  931,  as  to 
what  is  dicta. 

96  U.  S.  218-231,  24  L.   613,  WERNER  v.  KING. 

Syl.  2   (IX,  407).     Patent  infringement. 

Approved  in  Scott  v.  Fisher  Knitting  Machine  Co.,  139  Fed.  145, 
Bellis  patent  No.  561,559,  for  improvement  in  knitting  machines,  not 
infringed  by  machine  of  Fisher  patent  No.  656,535. 

96  U.  S.  234-245,  24  L.  689,  KNICKERBOCKER  LIFE   INS.   CO.   v. 
NORTON. 

Syl.  1   (IX,  407).     Insurer  may  waive  conditions. 

Approved  in  Talbott  v.  Metropolitan  L.  Ins.  Co.,  142  Fed.  696,  where 
general  agent  had  authority  to  accept  premiums  within  thirty  days 
after  due  acceptance  of  premium  and  delivery  of  receipt  within  such 
time   renewed   policy   from   that   date;   Pennsylvania   Casualty   Co.   v. 


96  U.  S.  234-245  Notes  on  U.  S.  Ecports.  854 

Bacon,  133  Fed.  909,  67  C.  C.  A.  497,  where  accident  policy  provided 
that  waivers  must  be  indorsed  and  signed  by  officer  of  company,  and 
latter  did  not  charge  premiums  to  agent  till  actually  received,  agent 
could  not  accept  note  in  lieu  of  first  premium,  and  thus  waive  con- 
ditions; Farmers'  etc.  Ins.  Co.  v.  Caine,  224  111.  608,  79  N.  E.  959, 
where  benefit  certificate  required  payment  of  assessments  when  due 
as  (Condition  to  continuance  of  insurance,  and  provided  that  waivers 
must  be  written  and  approved  by  officers,  verbal  agreement  by  society 
to  extend  time  of  payment  waives  right  to  have  same  in  writing; 
Massillon  Engine  etc.  Co.  v.  Shirmer,  122  Iowa,  702,  98  N.  W.  505, 
applying  rule  to  waiver  of  provision  in  contract  of  sale  containing 
warranty  that  six  days'  use  shall  be  conclusive  evidence  of  fulfillment 
of  warranty;  Frost  v.  North  British  etc.  Ins.  Co.,  77  Vt.  415,  60  Atl. 
805,  holding  requirement  as  to  furnishing  proof  of  loss  within  sixty 
days  waived. 

Syl.   2    (IX,   409).     Insurance — Parol   waiver   of   conditions — Agent. 

Approved  in  Collins  v.  Metropolitan  Life  Ins.  Co.,  32  Mont.  343, 
108  Am.  St.  Eep.  578,  80  Pac.  612,  fact  that  one  payment  made 
after  due  was  reported  to  insurer  as  made  when  due  did  not  show 
insurer  knew  of  agreement  that  insured  pay  after  due;  Aetna  Life 
Ins.  Co.  V.  Fallow,  110  Tenn.  736,  77  S.  W.  941,  where  policy  provided 
that  there  should  be  no  insurance  unless  premium  paid  at  time  of 
accident,  but  general  agent  told  insured  to  wait  for  collector,  and 
premium  due  prior  to  accident  was  so  collected  afterward,  insurer 
liable.     See  107  Am.  St.  Eep.  106,  145,  note. 

Syl.  3  (IX,  490).    Insurance — Prohibition  against  waivers  by  agents. 

Approved  in  Aetna  Life  Ins.  Co.  v.  Fallow,  110  Tenn.  730,  739,  77 
S.  W.  939,  942,  where  policy  provided  that  there  should  be  no  insur- 
ance unless  premium  paid  at  time  of  accident,  but  general  agent 
told  insured  to  wait  for  collector,  and  premium  due  prior  to  accident 
was   so    collected   afterward,    insurer   liable. 

Distinguished  in  Deming  Inv.  Co.  v.  Shawnee  Ins.  Co.,  16  Okl.  11, 
83  Pac.  921,  where  agent  knowing  facts  as  to  title  wrote  application 
which  misstated  facts,  insurer  not  liable. 

Syl.  4  (IX,  410).     Insurance — Waiver — Nonpayment  of  premiums. 

Approved  in  Dargan  v.  Equitable  Life  etc.  Soc,  71  S.  C.  359,  51 
S.  E.  126,  holding  condition  in  application  that  insurance  should  not 
take   effect   till  first   premium   paid   during   good   health    waived. 

Distinguished  in  Medley  v.  German  etc.  Ins.  Co.,  55  W.  Va.  351, 
47  S.  E.  105,  clause  in  policy  limiting  authority  of  agent  is  not 
notice  to  insured  of  agent's  want  of  power  to  bind  principal  with  re- 
spect to  transactions  prior  to  delivery  of  policy. 

Syl.  5    (IX,  412).     Insurance — Forfeiture   not  favored. 
Approved   in    Lynchburg   etc.    Mill    Co.    v.    Travelers'    Ins.    Co.,    149 
Fed.  958/ where  employer's  liability  policy  provided  for  bar  of  action 


855  Kotes  on  U.  S.  Reports.  96  U.  S.  245-233 

tlicreon  after  thirty  days  from  accrual  of  right,  but  insurer  partici- 
pated in  compromise  negotiations  for  over  ninety  days  after  time 
limit,  limitation  was  absolutely  waived;  Battin  v.  ISJorthwestern  Mut. 
L.  Ins.  Co.,  130  Fed.  876,  65  C.  C.  A.  358,  declaration  alleging  payment 
and  acceptance  of  lesser  sum  on  account  and  credit  for  balance  of 
])remium  sufficiently  alleges  waiver  of  condition  that  if  premium  not 
])aid  when  due  policy  shall  cease;  Washburn  v.  Union  etc.  Ins.  Co. 
143  Ala.  489,  38  So.  1012,  where  insurer  accepted  note  for  annual 
premium,  and  after  its  maturity  retained  it  and  insisted  on  its  iJay- 
ment,  it  waived  forfeiture  for  nonpayment  of  premium;  Denver  Life 
Ins.  Co.  V.  Crane,  19  Colo.  App.  201,  73  Pac.  879,  where  benefit  policy 
provided  for  reinstatement  after  forfeiture  and  furnishing  assurance 
of  good  health,  and  medical  examiner  called  to  examine  him,  but  did 
not  find  him,  and  later  notice  of  maturity  of  premium  sent  him,  med- 
ical examination  waived;  Farmers'  etc.  Ins.  Co.  v.  Jackman,  35  Ind. 
App.  17,  73  N.  E.  735,  holding  condition  in  policy  as  to  change  in 
condition  of  title  waived;  National  Masonic  etc.  Assn.  v.  McBride, 
162  Ind.  381,  70  N.  E.  484,  holding  condition  in  accident  policy  requir- 
ing proof  of  injury  in  ninety  days  waived;  Graham  v.  Security  Mut. 
Life  Ins.  Co.,  72  jNT.  J.  L.  304,  309,  62  Atl.  683,  685,  holding  condition 
for  forfeiture  for  failure  to  premium  waived;  Gish  v.  Insurance  Co. 
of  North  America,  16  Okl.  74,  87  Pac.  873,  determining  waiver  of 
iron-safe  clause.  ' 

a6  U.  S.  245-258,  24  L.  828,  McLEAN  v.  FLEMING. 

Syl.  1    (IX,  413).     Equity — Trademark  infringement. 

Approved  in  Buzby  v.  Davis,  150  Fed.  278,  enjoining  use  of  word 
"Keystone"  from  use  in  unfair  competition;  Baker  v.  Puritan  Pure 
Food  Co.,  139  Fed.  681,  protecting  trademark  consisting  of  picture 
of  woman  dressed  as  waitress  copied  from  painting;  Nesne  v.  Sundet, 
'Jo  Minn.  300,  101  N.  W.  491,  enjoining  corporation  from  using  trade 
name  adopted  prior  thereto  by  partnership  engaged  in  like  business 
in  same  place. 

Syl.  2   (IX,  414).     Trademark  infringement — Exact  similitude. 

Approved  in  Howe  Scale  Co.  v.  Wyckoflf,  198  U.  S.  140,  49  L.  986, 
25  Sup.  Ct.  609,  manufacturer  of  "Remington"  typewriter  not  enti- 
tled to  protection  against  use  of  name  "  Remington-Sholes"  by  per- 
sons named  "Remington"  and  "Sholes";  Kronthal  Waters  v.  Becker, 
137  Fed.  654,  where  mineral  water  from  certain  springs  put  up  in 
certain  size  and  shape  bottles  with  blue  label,  use  of  similar  bottles 
and  labels  with  different  words  for  different  water  enjoined;  Devlin 
V.  McLeod,  135  Fed.  166,  enjoining  use  of  words  "Toothache  Gum" 
on  packages  similar  to  complainant's;  People  v.  Rose,  219  111.  58,  76  N. 
E.  45.  refusing  mandamus  to  compel  Secretary  of  State  to  issue  certifi- 
cate of  incorporation  under  name,  use  of  which  may  be  enjoined  by 
existing  company;  Cusimano  v.  Olive  Oil  Imp.  Co.,  114  La.  315,  38  So. 
201,  protecting  trademark  for  "Chicken  Cock"  olive  oil;  W.  E.  Lynn 


96  U.  S.  258-268  Notes  on  U.  S.  Reports.  856 

Shoe  Co.  V.  Auburn-Lynn  Shoo  Co.,  100  Me.  474,  62  Atl.  504,  holding 
trademark  "Auburn-Lynn  Shoe  Co."  infringed  by  trademark  of 
company  organized  by  Lynn  in  Auburn;  Eegis  v.  Janes,  185  Mass. 
460,  70  N.  E.  481,  word  "Rexcll"  infringes  registered  trademark 
"Eex";  Woodcock  v.  Guj',  33  Wash.  239,  240,  74  Pac.  359,  where  in 
suit  to  restrain  infringement  of  nonregistered  trademark,  complaint 
asking  that  plaintiff  be  protected  in  use  of  trade  word,  without  charg- 
ing that  defendant  had  simulated  labels  so  as  to  deceive,  or  that  use 
of  word  was  fraudulent,  is  insufficient. 

Syl.  3   (IX,  416).     Trademark  infringement — Laches. 

Approved  in  Hygeia  etc.  Water  Co.  v.  Consolidated  Ice  Co.,  144 
Fed.  142,  length  of  time  of  innocent  use  of  another's  trademark  un- 
known to   owner  does  not  defeat  injunction  against  infringei". 

Syl.  6   (IX,  418).     Trademark  infringement — Intent. 

Approved  in  W.  R.  Lynn  Shoe  Co.  v.  Auburn-Lynn  Shoe  Co.,  100 
Me.  475,  476,  62  Atl.  505,  holding  trademark  "Auburn-Lynn  Shoe 
Co."  infringed  by  trademark  of  company  organized  by  Lynn  in 
Auburn. 

Syl.  7   (IX,  418).     Trademark  infringement — Proof — Intent. 

Approved  in  Bickmore.  Gall  Cure  Co.  v.  Karns,  134  Fed.  835,  67 
C.  C.  A.  439,  holdihg  labels  used  on  horse-gall  cure  so  similar  as  to 
show  design  to  deceive. 

Syl.  9   (IX,  420).     Trademark  infringement — Part  profits. 

Approved  in  W.  E.  Lynn  Shoe  Co.  v.  Auburn-Lynn  Shoe  Co.,  100 
Me.  479,  62  Atl.  507,  granting  account  of  all  profits  growing  out  of 
sale  of  goods  on  which  infringed  trademark  used  to  date  of  decree; 
Gaines  v.  Whyte  Grocery  Co.,  107  Mo.  App.  515,  516,  81  S.  W.  650, 
651,  in  suit  to  enjoin  infringement  of  trademark,  statute  of  limita- 
tions does  not  apply;  International  Silver  Co.  v.  Rogers  Corporation, 
66  N.  J.  Eq.  141,  57  Atl.  725,  holding  right  to  accounting  in  suit  for 
infringement  of  trademark  barred  by  laches. 

Distinguished  in  Eegis  v.  Jaynes,  191  Mass.  247,  249,  77  N.  E. 
775,  776,  in  suit  to  restrain  infringement  of  trademark,  defendant, 
who  persisted  in  infringement  during  litigation,  cannot  defend  ac- 
counting on  ground  of  accidental  use. 

96  U.  S.  258-268,  24  L.  693,  OHIO  &  M.  E.  R.  CO.  v.  McCAETHY. 

Syl.  3   (IX,  421).     Carriers  of  cattle — Connecting  carrier's  delay. 

See  106  Am.  St.  Eep.  609,  note. 

Syl.  4  (IX,  421).     Contract  for  shipment  over  other  lines. 

Approved  in  Northern  Pac.  Ry.  Co.  v.  American  Trading  Co.,  195 
U.  S.  459,  49  L.  278,  25  Sup.  Ct.  84,  agent  of  receiver  may  make 
special  agreement  to  forward  through  shipment  by  steamer  of  con- 
necting carrier  sailing  on  designated  day. 


857  Notes  on  U.  S.  Reports.  96  U.  S.  258-268 

Syl.  5  (IX,  422).     Corporation's  contract  presumed  valid. 

Approved  in  In  re  Castle  Braid  Co.,  145  Fed.  234,  upholding  con- 
tract between  corporation  and  its  directors  for  purchase  by  former 
of  stock  held  by  latter. 

Syl.   6    (IX,   422).     Corporations — Ultra   vires    not   favored. 

Approved  in  United  States  S.  &  L.  Co.  v.  Convent  of  St.  Rose,  13.3 
Fed.  358,  where  contract  between  loan  association  and  borrowing 
stockholder  which  is  corporation  is  fully  executed  by  former,  latter, 
after  using  money,  cannot  defeat  enforcement  of  contract  on  ground 
that  it  could  not  be  stockholder;  Hinds  County  v.  Natchez  etc.  R.  R. 
Co.,  85  Miss.  629,  107  Am.  St.  Rep.  310,  38  So.  191,  neither  corporation 
nor  its  stockholders  can  complain  of  sale  of  its  franchise  as  ultra 
vires;  First  Nat.  Bank  v.  Guardian  Trust  Co.,  187  Mo.  526,  86  S.  W. 
117,  70  L.  R.  A.  79,  where  corporation  executed  note  to  enable  co- 
maker to  obtain  loan  and  payee  parted  with  money,  in  action  on 
note  defense  of  ultra  vires  not  available.  See  111  Am.  St.  Rep.  323, 
note. 

Denied  in  Drainage  Com.  v.  National  Contracting  Co.,  136  Fed. 
785,  786,  in  action  by  drainage  commission  to  recover  profits  wrong- 
fully made  by  contractor  for  public  improvement  by  substituting 
cheaper  materials  for  those  specified,  defense  of  ultra  vires  not  avail- 
able. 

Syl.  8   (IX,  424).     Estoppel — Inconsistent  positions  in  actions. 

Approved  in  Moore  v.  Beiseker,  147  Fed.  375,  where  contract  for 
sale  of  lands  required  one-third  cash  in  thirty  days,  balance  to  be 
secured  by  mortgage,  and  vendor  to  convey  in  thirty  days,  and  de- 
liver complete  abstracts,  and  plaintiff  paid  earnest,  but  defendant 
failed  to  deliver  abstracts  in  thirty  days,  but  delivered  them  in  next-- 
nine  months,  failure  to  tender  one-third  price  in  thirty  days  did  not 
terminate  contract;  Kansas  Union  etc.  Ins.  Co.  v.  Burman,  141  Fed. 
842,  where  insurance  agent  under  salary  contract  and  commissions 
resigns,  specifying  grounds  therefor,  he  cannot,  in  subsequent  suit 
against  company  for  breach  of  contract,  allege  other  grounds  for 
resignation;  Illinois  etc.  R.  R.  Co.  v.  Seitz,  214  111.  356,  105  Am.  St. 
Rep.  108,  73  N.  E.  587,  in  trover  against  carrier  for  goods  sold  to 
pay  freight,  carrier  cannot  defend  on  ground  that  plaintiff  is  not 
consignee  or  assignee  of  bill  of  lading  where  refusal  to  deliver  based 
on  ground  that  additional  freight  not  paid;  Gibson  v.  Brown,  214 
111.  341,  73  N.  E.  582,  one  placing  refusal  to  perform  contract  for 
exchange  of  realty  on  specific  ground  is  estopped  in  subsequent  litiga- 
tion to  set  up  other  grounds  for  refusal;  Farmers'  Milling  Co.  v.  Mill 
Owners'  etc.  Ins.  Co.,  127  Iowa,  318,  103  N.  W.  208,  where,  after 
loss,  insurer  denied  liability  because  of  insurer's  failure  to  pay  assess- 
ment, he  cannot,  after  suit,  defend  on  ground  that  policy  had  been 
canceled  by  discretion  of  directors;   Stanton  v.  Barnes,  72  Kan.  544, 


96  U.  S.  271-324  Notes  on  U.  S.  Eeports.  858 

84  Pac.  117,  where  vendor  refuses  to  complete  sale  made  by  agent 
on  ground  that  property  belonged  to  another,  and  employment  of  agent 
denied,  inability  of  purchaser  to  pay  cash  cannot  be  urged  at  trial; 
Sandefur  v.  Hines,  69  Kan.  171,  76  Pac.  446,  applying  principle  where 
vendor  refused  to  complete  sale;  Eedinger  v.  Jones,  68  Kan.  637,  75 
Pac.  1001,  debtor  who,  before  sale,  demands  of  sheriff  return  of  prop- 
erty as  exempt,  and  objects  to  sale  on  same  grounds,  and  who  sues 
sheriff  and  purchaser  for  return  of  property  as  exempt,  cannot  on 
trial  show  sale  is  void  on  other  grounds;  Keiger  v.  Paber,  116  Mo. 
App.  129,  92  S.  W.  184,  where  after  sale  under  trust  deed  grantor 
filed  statutory  bond,  and  sued  to  enjoin  beneficiary  from  taking  pos- 
session, and  latter  denied  validity  of  bond,  he  could  not  thereafter 
sue  on  bond  as  valid;  Morrison  v.  Atkinson,  16  Okl.  575,  85  Pac. 
473,  where  one  assujnes  position  in  district  court,  he  is  estopped  from 
denying  legality  of  that  position  on  appeal;  dissenting  opinion  in 
Western  Union  Telegraph  Co.  v.  Thompson,  144  Fed.  584,  majority 
holding  amendment  of  complaint  for  malicious  prosecution  by  sub- 
stituting for  allegation  that  plaintiff  was  arrested  on  warrant,  allega- 
tion that  she  was  arrested  and  held  without  warrant,  rendered  errone- 
ous instruction  based  on  theory  that  action  was  for  malicious  prosecu- 
tion; dissenting  opinion  in  Jones  v.  Stoddart,  8  Idaho,  227,  67  Pac. 
654,  majority  holding  one  claiming  to  be  purchaser  of  negotiable  note 
need  not  show  formal  resolution  of  directors  directing  president  to 
indorse  note. 

96    U.    S.    271-278,    24    L.    815,    TOWNSHIP    OF    ROCK    CREEK    v. 
STRONG. 

Syl.  2   (IX,  426).     Municipal  bond  statute — Directory  provisions. 

Approved  in  dissenting  opinion  in  ^Wright  v.  East  Riverside  Irr. 
Dist.,  138  Fed.  325,  majority  holding  void  California  irrigation  bonds 
delivered  after  date  which  they  bore. 

96  U.  S.  312-316,  24  L.  816,  SAN  ANTONIO  v.  MEHAFFY. 

Syl.  6  (IX,  430).     Statutes— Title. 

Approved  in  Riley  v.  Charleston  Union  Station  Co.,  71  S.  C.  488, 
110  Am.  St.  Rep.  585,  51  S.  E.  496,  upholding  act  of  1902,  incor- 
porating union  depot  company. 

96  U.  S.  316-324,  24  L.  630,  McGARRAHAN  v.  l^HNING  CO. 

Syl.  2  (IX,  431).  Statute  requiring  countersigning  of  patent  man- 
datory. 

Approved  in  Wright  v.  East  Riverside  Irr.  Dist.,  138  Fed.  321, 
holding  void  California  irrigation  bonds  delivered  after  date  which 
they  bore;  McLcod  v.  Lloyd,  43  Or.  270,  71  Pac.  798,  where  abstract 
of  title  shows  patent,  though  it  does  not  show  it  countersigned  by 
recorder,  it  is  presumed  that  it  was  so  countersigned. 


859  Notes  on  U.  S.  Reports.  9G  U.  a.  328-339 

96  U.  S.  328-331,  24  L.  818,  PULLMAN  v.  UPTON. 

Syl.  2   (IX,  433).     Increase  of  capital  stock — Who  questions. 

Approved  in  First  Nat.  Bank  v.  Wyoming  Val.  Ice  Co.,  136  Fed. 
469,  failure  of  Pennsylvania  corporation  to  pay  tax  on  increased 
issue  of  stock  was  waived  by  subsequent  acceptance  of  tax. 

Syl.  4  (IX,  433).     Pledgee  of  corporate  stock— Calls. 
Cited  in  Merchants'  Nat.  Bank  v.  Wehrmann,  202  U.  S.  301,  50  L. 
1040,  26  Sup.  Ct.  613,  arguendo. 

Syl.  5   (IX,  434).     Corporations — Capital  fund  for  debts. 

Approved  in  Reid  v.  Detroit  Ideal  Paint  Co.,  132  Mich.  530,  94 
N.  W.  4,  agreement  whereby  creditor  of  corporation  agrees  to  take 
certain  amount  of  new  stock  and  apply  it  on  his  claim  on  condition 
that  stock  be  increased  certain  amount  is  binding.  . 

Distinguislied  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776, 
where  New  Jersey  corporation  contracted  with  board  of  trade  to  sell 
it  stock  at  less  thfin  par,  and  latter  was  to  furnish  former  free  site 
for  buildings,  and  stock  issued  as  fully  paid  up,  stock  was  not  assess- 
able in  favor  of  creditors. 

96  U.  S.  332-339,  24  L.  775,  PEUGH  v.  DAVIS. 

Syl.  1  (IX,  435).     Declaring  deed  mortgage. 

Approved  in  Weiseham  v.  Hoeker,  7  Okl.  253,  54  Pac.  465,  fol- 
lowing rule;  Harrington  v.  Atlantic  etc.  Telegraph  Co.,  143  Fed. 
336,  where  owner  of  patents  transferred  patents  to  controlling  stock- 
holder of  corporation  acting  in  its  behalf,  accompanied  by  directions 
that  patents  should  not  be  transferred  to  corporation  until  it  deliv- 
ered stock  to  owner,  but  stockholder  convej-ed  patents  in  violation 
of  agreement,  corporation  took  no  title  and  was  liable  for  infringe- 
ment for  use  of  patented  devices;  Wells  v.  Geyer,  12  N.,  D.  322,  96 
N.  W.  291,  absolute  deed  and  contemporaneous  agreement  to  sell 
and  reconvey  lands  between  same  parties  for  equal  considerations, 
repayment  to  be  made  in  future  payments  with  interest,  is  mortgage; 
Berner  v.  German  State  Bank,  125  Iowa,  440,  101  N.  W.  157,  arguendo. 

Syl.  2  (IX,  436).     Parol  to  show  deed  mortgage. 

Approved  in  Weiseham  v.  Hoeker,  7  Okl.  254.  255,  54  Pac.  465, 
following  rule;  Stitt  v.  Eat  etc.  Lumber  Co.,  96  Minn.  32,  104  N.  W. 
563,  applying  rule  where  mortgagor  did  not  at  time  have  title  to 
land,  and  title  vras  put  in  name  of  third  party. 

Syl.  3   (IX,  436).     Mortgage  waiving  equity  of  redemption. 

Approved  in  Bunn  v.  Beaswell,  139  N.  C.  142,  51  S.  E.  930,  con- 
sent judgment  declaring  defendant  shall  stand  absolutely  debarred 
of  all  equity  in  land  does  not  deprive  defendant  of  right  to  redeem; 
Wells  v.  Geyer,  12  N.  D.  323,  96  N.  W.  291,  subsequent  agreement 
by    mortgagor    in    possession    to    yurrender    possession    and    relinquish 


96  U.  S.  340-353  Notes  on  U.  S.  Eeports.  860 

right  to  redeem,  made  by  mutual  mistake  and  without  consideration, 
is  unenforceable;  Keller  v.  Kirby,  34  Tex.  Civ.  405,  78  S.  W.  83, 
where  deed  absolute  in  form  is  executed  as  mortgage  it  cannot  pass 
title  to  mortgagee  by  parties  subsequently  canceling  evidence  of  in- 
debtedness and  making  parol  agreement  that  deed  shall  convey  title. 

96  U.  S.  340,  341,  24  L.  644,  DIAL  v.  EEYNOLDS. 

Syl.  1   (IX,  438).     Enjoining  state  court. 

Approved  in  Security  Trust  Co.  v.  Union  Trust  Co.,  134  Fed.  302, 
where  state  court  had  jurisdiction  over  foreclosure  of  mortgage  and 
appointed  receiver  and  decreed  sale,  federal  court  could  not  restrain 
sale  at  instance  of  parties   claiming  lien  on  part  of  property. 

Syl.  2   (IX,  439).     Foreclosure — Eights  of  adverse  claimants. 

Approved  in  Tinsley  v.  Atlantic  Mines  Co.,  20  Colo.  App.  65,  77 
Pac.  13,  where,  in  simple  foreclosure,  party  made  defendant  under 
allegation  that  he  held  interest  subject  to  mortgage,  disclaimed  alleg- 
ing he  claimed  under  paramount  title  by  tax  Ijen,*  he  could  not  be 
compelled  to  litigate  title  in  such  action;  Brown  v.  Atlantic  etc. 
Bldg.  &  Loan  Assn.,  46  Fla.  495,  35  So.  404,  holder  of  tax  deed  to 
mortgaged  premises  claiming  title  adverse  and  paramount  to  both 
mortgagor  and  mortgagee  is  not  party  defendant  to  foreclosure. 

96  U.  S.  341-353,  24  L.  659,  HITCHCOCK  v.  GALVESTOK 
Syl.  1  (IX,  440).  Municipal  contracts — Authority  to  mayor. 
Approved  in  Earl  v.  Bowen,  146  Cal.  764,  81  Pac.  137,  upholding 
order  of  council  directing  clerk  to  sign  contract  for  city;  Hett  v. 
Portsmouth,  73  N.  H.  $36,  61  Atl.  597,  formal  vote  for  mayor  and 
alderman  adopting  street  improvement  contract  made  by  special  com- 
mittee makes  contract  valid  though  appointment  of  special  commit- 
tee was  ille'gal;  Jones  v.  Holzapfel,  11  Okl.  414,  68  Pac.  514,  un- 
der statute  authorizing  city  to  provide  for  construction  of  sewers 
and  apportion  cost  of  labor  and  material,  council  may  contract  there- 
for. 

Distinguished  in  Bluffton  v.  Miller,  33  Ind.  App.  530,  70  N.  E.  993, 
under  Burns'  Ann.  St.  1901,  §  3508,  contract  for  street  improvements 
which  left  character  of  improvement  and  nature  of  some  of  materials 
to  engineer  was  invalid. 

Syl.  2   (IX,  440).     Municipal  debt  limit. 

Approved  in  Coles  Co.  v.  Goehring,  209  111.  156,  70  X.  E.  613,  con- 
stitutional provision  prohibiting  county  authorities  from  assessing 
taxes  exceeding  seventy-five  cents  on  one  hundred  dollars  valuation 
unless  authorized  by  vote  of  people  does  not  limit  power  of  county 
to  incur  indebtedness. 


861  Notes  on  U.  S.  Reports.  96  U.  S.  360-366 

Syl.   3    (TX,  441).     Municipal  contract — Enjoyment  of  benefits. 

Approved  in  Mankato  v.  Barber  Asphalt  Pav.  Co.,  142  Fed.  335, 
348,  action  against  city  for  amount  of  contract  price  of  street  im- 
provements because  of  its  repeal  to  levy  special  assessment  on  abut- 
ting property  is  not  founded  on  debt  within  statute  fixing  limit  of 
indebtedness;  Oilman  v.  Fernald,  141  Fed.  944,  where  municipality 
having  power  to  borrow  money  but  not  to  issue  negotiable  bonds  bor- 
rowed sum  which  it  used  for  authorizing  purpose  and  issued  negotia- 
ble bonds  therefor,  lender  could  recover  money  lent;  Chelsea  Sav. 
Bank  v.  City  of  Ironwood,  130  Fed.  412,  66  C.  C.  A.  230,  where  city 
sold  bonds  which  were  within  its  power  and  received  part  of  pur- 
chase price,  but  they  were  subsequently  declared  invalid  for  irregu- 
larity, city  liable  for  amount  received;  Coles  Co.  v.  Goehring,  209 
in.  169,  170,  70  N.  E.  613,  county  is  liable  for  contract  price  of  court- 
house though  anticipation  warrants  issued  on  work  are  void  where  it 
had  accepted  building;  Marion  Water  Co.  v.  City  of  Marion,  121 
Iowa,  322,  96  N.  W.  888,  applying  rule  to  hydrant  rental  contract 
made  with  water  company  which  was  by  ordinance  authorized  to 
construct  works;  Fidelity  Ins.  Co.  v.  German  Sav.  Bank,  127  Iowa, 
596,  103  N.  W.  960,  where  insurance  company  received  bank  stock, 
certificates  of  deposit  and  cash  in  payment  of  deposit  in  insolvent 
bank,  it  cannot  repudiate  transaction  after  its  execution  on  ground 
of  ultra  vires;  Citizens'  Bank  v.  Spencer,  126  Iowa,  106,  101  N.  W. 
645,  act  of  city  council  in  making  contract  without  authority  does 
not  estop  city;  First  Nat.  Bank  v.  Guardian  Trust  Co.,  187  Mo.  528, 
86  S.  W.  lis,  70  L.  R.  A.  79,  where  corporation  executed  note  to 
enable  comaker  to  obtain  loan,  and  payee  parted  with  money,  in  ac- 
tion on  note,  defense  of  ultra  vires  not  available;  Pine  Tree  Lum- 
ber Co.  V.  Fargo,  12  N.  D.  372,  377,  96  N.  W,  361,  363,  city  may  ren- 
der itself  generally  liable  on  contract  for  special  improvements; 
State  V.  Knoxville,  115  Tenn.  184,  90  S.  W.  292,  where  emunerators 
made  false  reports  as  to  scholastic  population,  whereby  city  received 
moneys  in  excess  of  its  legal  allotment,  state  could  recover  moneys 
so  received  and  expended  by  city. 

96  U.  S.  360-366,  24  L.  819,  UNITED  STATES  v.  SIMMONS. 

Syl.  2  (IX,  445).     Indictment  for  statutory  crime. 

Approved  in  Burton  v.  United  States,  202  U.  S.  373,  50  L.  1067, 
26  Sup.  Ct.  688,  upholding  indictment  under  Rev.  St.,  §  1782,  punish- 
ing receipt  of  compensation  by  senator  for  services  before  any  de- 
partment in  matter  in  which  United  States  is  interested;  Miller  v. 
United  States,  136  Fed.  581,  582,  69  C.  C.  A.  355,  indictment  under 
Rev.  St.,  §  4746,  charging  defendant  with  causing  presentation  of 
false  writing  to  pension  commissioner,  is  bad  where  it  does  not  al- 
lege manner  of  presentation  or  name  of  person  who  presented  it; 
Wong  Din  v.  United  States,  135  Fed.  704,  68  C.  C,  A.  340,  upholding 
indictment  for  conspiracy  to   aid  in  landing  Chinamen. 


96  U.  S.  369-378  Notes  on  U.  S.  Reports.  862 

Syl.  3  (IX,  446).     Indictment — Names  unknown. 

Approved  in  United  States  v.  Green,  136  Fed.  644,  holding  insuf- 
ficient indictment  under  Eev.  St.,  §  5451,  for  bribing  federal  officer 
by  tendering  him  a  check. 

Syl.  8  (IX,  447).     Indictment — Defrauding  government — Means. 

Approved  in  Sprinkle  v.  United  States,  141  Fed.  814,  815,  where 
defendants  were  jointly  indicted  with  others  for  engaging  in  rectify- 
ing business  in  names  of  companies  organized  to  defraud  government 
of  tax,  statements  by  defendants  not  on  trial  are  admissible  to  show 
intent  though  conspiracy  not  charged;  United  States  v.  Manufactur- 
ing Apparatus  etc.  New  Jersey  Churning  Co.,  141  Fed.  476,  uphold- 
ing information  for  forfeiture  of  oleomargarine  plant  under  Comp. 
St.  1901,  p.  2234,  for  defrauding  government  of  tax  on  oleomargarine 
produced. 

96  U.  S.  369-378,  24  L.  853,  EX  PAETE  SCHOLLENBERGER. 

Syl.  1   (IX,  448).     Foreign  corporation — Process  agent. 

Approved  in  Kibbler  v.  St.  Louis  etc.  R.  Co.,  147  Fed.  881,  882, 
foreign  corporation  which  under  state  laws  can  be  sued  in  state 
courts  only  in  counties  in  which  it  does  business  is  not  suable  in 
federal  court  in  state  unless  it  does  business  in  one  of  counties  with- 
in district. 

Syl.  6   (IX,  453).     Corporations — Business  in  other  state — Process. 

Approved  in  Old  Wayne  etc.  Assn.  v.  McDonough,  164  Ind.  327, 
328,  73  N.  E.  705,  706,  upholding  Stat,  of  1883,  requiring  foreign  in- 
surance companies  to  file  stipulation  with  insurance  commissioner 
that  process  served  on  commissioner  or  agent  specified  by  company 
shall  be  equivalent  to  personal  service  on  company;  Groel  v.  United 
Elec.  Co.,  69  N.  J.  Eq.  412,  419,  60  Atl.  828,  830,  upholding  P.  L. 
1896,  p.  307,  requiring  foreign  corporations  to  designate  process 
agent  and  holding  it  applied  to  cause  of  action  arising  in  state 
while  corporation  was  doing  business  under  license,  though  corpora- 
tion not  doing  business  in  state  at  time  of  service. 

Syl.  7   (IX,  454).     Jurisdiction— Defendant 's  residence — Waiver. 

Approved  in  Iowa  etc.  Min.  Co.  v.  Bliss,  144  Fed.  449,  450,  451, 
where  alien  sued  nonresident  in  state  court,  defendant  could  remove 
suit  without  plaintiff's  consent;  Morris  v.  Clark  Const.  Co.,  140  Fed. 
757,  state  action  by  alien  against  citizen  of  another  state  is  remova- 
ble to  federal  court  by  defendant;  Wolff  v.  Choctaw  etc.  R.  Co.,  133 
Fed.  602,  suit  against  corporation  created  in  another  state  cannot 
be  maintained  in  federal  district  where  it  does  business  where  plain- 
tiff is  not  citizen  or  resident  of  such  district. 


863  Notes  on  U.  S.  Eeporta.  96  U.  S.  379-432 

90  U.  S.  379-388,  24  L.  608,  WISCONSIN  v.  DULUTH. 

Syl.  1  (IX,  456).     Harbor  improvements — Injunction. 

Approved  in  Missouri  v.  Illinois,  200  U.  S.  520,  50  L.  581,  26  Sup. 
Ct.  268,  refusing  to  enjoin  discharge  of  Chicago  sewage  through  artifi- 
cial canal  from  Lake  Michigan  into  Mississippi  river  at  instance  of 
Missouri. 

96  U.   S.   395-404,  24   L.   637,  DOBBIN'S   DISTILLERY  v.   UNITED 
STATES. 

Syl.  1  (IX,  458).     Forfeiture  for  violating  revenue  laws. 

Approved  in  The  Frolic,  148  Fed.  923,  chronometer  on  vessel  seized 
for  violation  of  Chinese  Exclusion  Act  is  forfeitable  though  leased 
to  owner  of  vessel;  United  States  v.  One  Black  Ilorse,  147  Fed.  771, 
under  Rev.  St.,  §§  3061-3003,  team  used  in  transportation  of  smug- 
gled goods  forfeitable  though  owner  did  not  know  of  purpose  of  use; 
Scow  No.  36,  144  Fed.  934,  under  Comp.  St.  1901,  pp.  3542,  3544. 
vessel  used  in  depositing  refuse  in  navigable  waters  forfeitable  though 
so  used  without  knowledge  of  owner. 

Distinguished  in  Moody  v.  McKinney,  73  S.  C.  442,  53  S.  E.  545, 
where  owner  did  not  know  or  consent  to  use  of  team  to  transport 
liquor  in  night-time,  it  is  not  seizable  under  Cr.  Code,  §  594. 

96  U.  S.  404-421,  24  L.  746,  McPIIERSON  v.  COX. 

Syl.  2   (IX,  459).     State  of  frauds — Lawyer's  contingent  contract. 

Approved  in  American  Fine  Art  Co.  v.  Simon,  140  Fed.  536,  oral 
contract  modifying  writing  which  conferred  on  defendant  privilege 
of  dividing  deliveries  into  two  annual  installments,  W'Ork  required 
thereafter  to  be  distributed  for  next  two  years    is  not  within  statute. 

96  U.  S.  430-432,  24  L.  703,  BAIRD  v.  UNITED  STATES. 

Syl.  2   (IX,  461),     Suit  for  part  of  demand  as  bar. 

Approved  in  Nixon  v.  Fidelity  &  Deposit  Co.,  150  Fed.  576,  where 
petition  against  bankrupt  whose  property  is  seized  is  dismissed  and 
he  makes  no  claim  for  damages,  he  cannot  thereafter  make  further 
claim  therefor  against  petitioners  and  sureties  under  Bankr.  Act, 
§  69a;  Russell  v.  Russell,  134  Fed.  841,  67  C.  C.  A.  436,  question  ex- 
pressly determined  by  court  whose  decree  is  affirmed  on  appeal  is 
res  adjudicata  though  question  not  considered  on  appeal;  Mallory  v. 
Dawson  Cotton  Oil  Co.,  32  Tex.  Civ.  298,  74  S.  W.  955,  where  con- 
tract provided  for  payment  of  sum  for  construction  of  building  ac- 
cording to  plans  and  that  cost  of  alterations  be  added  or  deducted 
from  price,  contractor  could  maintain  separate  suits  by  filing  me- 
chanic's lien  for  contract  price    and  omitting  extras. 


96  U.  S.  432-491  Notes  on  U.  S.  Keports.  864 

96  U.  S.  432-449,  24  L.  760,  MUREAY  v.  CHAELESTON. 

Syl.  2  (IX,  462).     Taxation— Debt  due  nonresident. 

Distinguished  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  IT. 
S.  42,  105  Am.  St.  Eep.  703,  50  L.  77,  25  Sup.  Ct.  715,  reduction,  on 
account  of  annual  payments  in  nature  of  tax  covered  by  existing 
agreement,  made  by  N.  Y.  Laws  1899,  c.  712,  from  special  franchise 
tax  provided  for  by  such  statute  does  not  render  statute  invalid. 

Syl.  4  (IX,  462).     Taxation — City's  stock  indebtedness. 

Approved  in  State  ex  rel.  Louisiana  Imp.  Co.  v.  Board  of  Assessors, 
111  La.  986,  993,  994,  997,  999,  36  So.  92,  95,  97,  certificates  of  in- 
debtedness of  municipality  are  not  taxable  by  it. 

Syl.  6  (IX,  463).     Contracts  by  states — Impairment. 
See  101  Am.  St.  Eep.  162,  note. 

96  U.  S.  450-461,  24  L.  752,  EAILEOAD  CO.  v.  VANCE. 

Syl.  2   (IX,  465).     Domesticating  foreign  corporation. 

Approved  in  Eussell  v.  St.  Louis  etc.  Ey.  Co.,  71  Ark.  454,  457,  75 
S.  W.  727,  728,  railroad  organized  in  sister  state  on  complying  with 
Acts  1889,  p.  43,  could  exercise  eminent  domain. 

96  U.  S.  467-491,  24  L.  779,  CASEY  v.  CAVAEOE. 
Syl.  2  (IX,  466).  Possession  necessary  to  pledge. 
Approved  in  Third  Nat.  Bank  v.  Buffalo  German  Ins.  Co.,  193  U. 
S.  588,  48  L.  803,  24  Sup.  Ct.  254,  applying  rule  to  pledge  of  bank 
stock;  Security  Warehousing  Co.  v.  Hand,  143  Fed.  41,  where  bank- 
rupt leased  space  in  building  to  warehouse  company,  which  space 
was  inclosed  by  open  paling  and  bankrupt's  servants  were  ware- 
house custodians,  pledge  of  warehouse  receipts  by  bankrupt  did  not 
pass  title  to  goods;  Eyttenberg  v.  Sehefer,  131  Fed.  322,  where  par- 
ties attempted  by  agreement  to  give  one  factor's  lien  on  goods  of 
other,  but  by  possession  remained  in  debtor,  equitable  lien  does  not 
arise;  Harding  v.  Eldridge,  186  Mass.  43,  71  N.  E.  116,  117,  where 
owner  of  piano  gave  note  combined  with  statement  of  pledge  of 
piano  as  security  with  power  of  sale  on  default,  but  no  delivery  of 
]>iano  made,  no  pledge  resulted;  Jackson  v.  Kincaid,  4  Okl.  570,  46 
Pac.  593,  where  pledgees  took  merchandise  pledged  and  opened  it  for 
sale  in  building  rented  by  debtors  and  in  same  name  in  which  debtors 
ran  business  at  another  place,  and  debtors  brought  new  goods  and 
placed  them  in  stock,  and  all  sold  in  course  of  trade  and  proceeds 
used  for  rents,  fixtures,  etc.,.  and  balance  deposited  to  credit  of  debtors, 
pledge  was  fraudulent  as  to  attaching  creditors. 

Syl.  3  (IX,  467).  Pledge — Eedelivery  to  pledgor — Temporary  pur- 
pose. 

Approved  in  Bush  v.  Export  Storage  Co.,  136  Fed.  932.  where  manu- 
facturing corporation  leased  part  of  building  to  warehouse  company 


865  Notes  on  U.  S.  Eeports.  96  U.  S.  499-520 

and   stored   materials   therein,   receiving   receipts   therefor,   pledge   of 
receipts  carried  good  title. 

Syl.  6  (IX,  468).     Equities  against  assignee  for  creditors. 
Approved  in  English  v.  Eoss,  140  Fed.  635,  arguendo, 

96  U.  S.  499-513,  24  L.  836,  MAINE  CENT.  E.  E.  CO.  v.  MAINE. 

Syl.  1  (IX,  469).     Tax   exemption — Consolidation  of  corporations. 

Approved  in  San  Antonio  Traction  Co.  v.  Altgelt,  200  U.  S.  309, 
50  L.  494,  26  Sup.  Ct.  261,  contract  exemption  from  rate  regulation 
possessed  by  street  railroad  chartered  prior  to  Texas  Const.  1876, 
§  17,  Bill  of  Eights  subjecting  all  privileges  to  legislative  control  was 
lost  by  foreclosure  sale  to  another  corporation,  under  city  ordinance 
granting  purchaser  all  privileges  granted  to  old  company. 

Distinguished  in  Lee  v.  Atlantic  Coast  Line  E.  Co.,  150  Fed.  790, 
construing  agreement  between  railroads  as  merged  and  not  a  consolida- 
tion. 

Syl.  3  (IX,  470).     Eeserved  power  to  alter  corporate  rights. 

Approved  in  Eochester  v.  Eochester  Ey.  Co.,  182  N.  Y.  118,  74 
N.  E.  959,  70  L.  E.  A.  773,  where  street  railway  had  statutory  ex- 
emp'tion  for  expense  of  repaving  between  tracks,  exemption  did  not 
pass  to  its  lessee;  Gladding  v.  Saint  Matthew  Church,  25  E.  I.  634, 
105  Am.  St.  Eep.  904,  57  Atl.  863,  65  L.  E.  A.  225,  where  bequest 
made  to  church  for  mutes,  but  before  testatrix's  death  church  con- 
solidated with  another,  which  carried  on  identical  work  through  a 
department,  new  church  not  entitled  to  bequest. 

96  U.  S.  513-520,  24  L.  732,  ATHEETON  v.  FOWLEE. 

Syl.  2   (IX,  472).     Public  lands — Breaking  into  inclosure. 

Approved  in  Commager  v.  Dicks,  1  Okl.  88,  28  Pac.  866,  where  de- 
fendant entered  on  land  and  made  application  for  entry  which  was 
refused  as  conflicting  with  prior  entry,  and  later  plaintiff  made  home- 
stead entry  and  received  receipt,  latter  could  not  maintain  unlaw- 
ful detainer;  Keservation  State  Bank  v.  Hoist,  17  S.  D.  244,  95  N. 
W.  932,  70  L.  E.  A.  799,  where  applicant  for  land  subject  to  home- 
stead entry  is  permitted  to  enter  same,  there  can  be  no  rightful  oc- 
cupation of  part  of  land  by  another  as  against  him. 

Syl.  5   (IX,  473).     Pre-emption — Forcible  intrusion. 

Approved  in  McMichael  v.  Murphy,  12  Okl.  165,  70  Pac.  193,  fol- 
lowing rule;  Clipper  Min.  Co.  v.  Eli  Min.  etc.  Co.,  194  U.  S.  230,  48 
L.  951,  24  Sup.  Ct.  632,  entry  on  prior  valid  placer  location  for  pros- 
pecting for  unknown  lodes  initiates  no  title  to  lode  claims  thus  lo- 
cated within  exterior  boundaries  of  placer  claim;  Willitt  v.  Baker, 
133  Fed.  947,' where  locators  of  mining  claim  were  at  work  thereon  on 
December  31st,  and  left  tools  thereon  in.  order  to  resume  work  in 
55 


CG  U.  S.  521-529  Notes  on  U.  S.  Reports.  SC6 

morning,  one  making  relocation  in  night  is  trespasser;  Bulette  v. 
Dodge,  2  Alaska,  431,  applying  rule  to  placer  claim;  Walsh  v.  Ford, 
1  Alaska,  153,  applying  rule  to  possession  of  town  lots;  Tidwell  v. 
Chiricahua  Cattle  Co.,  5  Ariz.  365,  53  Pac.  196,  where  intruder,  with- 
out consent  of  owner,  entered  and  took  possession  of  premises  during 
temporary  absence  of  owner,  fact  that  entry  was  peaceful  and  with- 
out force  is  immaterial;  Weed  v.  Snook,  144  Cal.  443,  77  Pac.  1025, 
prior  locators  of  oil  lands  in  possession  and  actively  erecting  works 
for  drilling  are  protected  against  subsequent  entry  prior  to  actual  • 
discovery  of  oil;  Downman  v.  Saunders,  3  Okl.  234,  41  Pac.  107,  one 
who  by  force  enters  into  possession  of  another  on  townsite  and  ejects 
him  and  prevents  him  from  making  further  improvements  cannot 
defect  him  from  acquiring  title  on  account  of  meagerness  of  improve- 
ments; dissenting  opinion  in  Sproat  v.  Durland,  2  Okl.  58,  35  Pac. 
890,  majority  upholding  jurisdiction  on  cross-complaint  on  applica- 
tion by  homesteader  to  enjoin  adverse  claimant  for  interfering  witli 
possession,  to  enjoin  homesteader  from  interfering  with  defendant's 
possession;  Balsz  v.  Liebenow,  4  Ariz.  231,  36  Pac.  210,  Woodruff 
V.  Wallace,  3  Okl.  366,  41  Pac.  361,  and  Adams  v.  Couch,  1  Okl.  37, 
38,  26  Pac.  1016,  all  arguendo. 

Distinguished  in  Crawford  v.  Burr,  2  Alaska,  38,  where  at  time 
military  reservation  abandoned  plaintiff  was  in  possession  of  stable 
thereon  without  any  fixed  boundaries,  *he  was  limited  to  land  actually 
occupied  by  stable  as  against  subsequent  townsite  claimants;  dis- 
senting opinion  in  Dwinnell  v.  Dyer,  145  Cal.  30,  78  Pac.  250,  ma- 
jority holding  where  defendant  claimed  under  location  made  while 
state  statute  in  force,  but  which  was  perfected  under  Eevised  Stat- 
utes after  repeal  of  state  statute,  he  had  good  title  as  against  subse- 
quent locator. 

96  U.  S.  521-529,  24  L.   734,  RICHMOND  ETC.  E.  E.  CO.  v.  EICH- 

MOND. 

Syl.  1  (IX,  474).     City's  reservation  of  comtrol  over  railroad. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  457,  50  L.  825,  26  Sup.  Ct. 
427,  construing  authority  of  Chicago  under  111.  Acts  of  Feb.  14,  1859, 
relative  to  term  of  street  railway  franchises. 

Syl.  3  (IX,  475).     Power  to  govern  implies  police  regulations. 

Approved  in  Norfolk  etc.  E.  E.  Co.  v.  Commonwealth,  103  Va.  293, 
49  S.  E.  40,  where  transportation  company  placed  cars  on  indi- 
vidual track  scales  on  spur  tracks,  corporation  commission  could  reg- 
ulate rates  for  placing  cars  on  scales;  Newport  News  etc.  Ry.  Co. 
V.  Hampton  Eoads  Ey.  etc.  Co.,  102  Va.  802,  47  S.  E.  842,  where 
street-car  company  had  right  to  put  double  track  on  street  which 
was  subsequently  included  in  city  limits,  but  used  only  single  track, 
city  could  grant  another  company  right  to  double  track  same  street; 
Petersburg  v.  Petersburg  Aqueduct   Co.,   102   Va.   659,   47   S.   E.   849, 


8G7  Notes  on  U.  S.  Eeports.  96  U.  S.  530-539 

city  may  prohibit  water  company  chartered  when  city  was  sparsely 
settled  from  digging  up  and  obstructing  streets  in  extending  its  lim- 
its. 

Syl.  5  (IX,  475).     Taking — Eogulation  of  use  of  property. 

See  109  Am.  St.  Eep.  G40,  note, 

Syl.  6   (IX,  476).     Laws  should  operate  generally. 

Approved  in  Toncy  v.  Macon,  119  Ga.  87,  46  S.  E.  82,  upholding 
act  extending  city  limits  though  penalty  for  not  making  sewer  con- 
nections in  new  territory  was  by  fine  and  imprisonment,  while  by 
old  ordinance  in  old  limits  punishment  was  by  fine  only. 

96  U.  S.  530-539,  24  L.  848,  MOORE  v.  EOBBINS. 

Syl.  2  (IX,  476).     Land  Department  decides  contested  rights. 

Approved  in  Kalyton  v.  Kalyton,  45  Or.  130,  78  Pac.  333,  on  death 
of  Indian  allottee  after  issuance  of  first  patent,  state  courts  have 
jurisdiction  of  action  to  determine  heirs  of  allottee. 

Syl.  3   (IX,  477).     Land  Department's  issuance  of  patent  final. 

Approved  in  Johnson  v.  Pacific  Coast  S.  S.  Co.,  2  Alaska,  237,  and 
Adams  v.  Couch,  1  Okl.  40,  26  Pac.  1016,  both  following  rule;  Pey- 
ton V,  Desmond,  129  Fed.  8,  63  C,  C.  A.  651,  issuance  of  homestead 
patent  gives  patentee  right  to  recover  value  of  timber  wrongfully 
cut  and  removed  from  land  after  initiation  of  claim  and  prior  to 
patent;  Sage  v.  Eudniek,  91  Minn.  334,  100  N.  W.,  108,  after  filing 
map  of  definite  location.  Interior  Department  has  no  jurisdiction  to 
hear  adverse  claim  to  land  grant,  and  pendency  of  controversy  there- 
in does  not  suspend  limitations;  McDaid  v.  Territory,  1  Okl.  102,  30 
Pac.  441,  after  issuance  of  patent  by  townsite  trustees  under  26  Stat. 
109,  no  appeal  lies  to  general  land  oflEiee  from  decision  of  trustees 
awarding  land  to  one  of  several  contestants. 

Syl.  7   (IX,  479),     Land  Department's  decision  conclusive. 

Approved  in  Jones  v.  Hoover,  144  Fed.  220,  221,  223,  equity  will 
interpose  to  maintain  possession  where  possession  is  essential  to  com- 
plete purchase  under  congressional  acts  relating  to  sale  of  public 
lands,  and  will  review  acts  of  Land  Department;  Wilbourne  v.  Bald- 
win, 5  Okl.  280,  47  Pac.  1050,  refusing  to  restrain  Indian  agent  from 
removing  homestead  applicant  to  whom  no  patent  has  issued;  King 
V.  Thompson,  3  OkL  647,  39  Pac.  467,  applying  rule  to  decision  of 
townsite  trustees;  Myers  v.  Berry,  3  Okl.  619,  41  Pac.  583,  applying 
rule  to  findings  of  fact  by  townsite  trustees. 

Syl.  8  (IX,  479).  Conclusiveness  of  Land  Department's  decision  on 
courts. 

Approved  in  Adams  v.  Couch,  1  Okl.  40,  26  Pac.  1017,  following 
rule;  Tegarden  v.  Le  Marchel,  129  Fed.  488,  in  ejectment  in  federal 
court  defendant  cannot  set  up  equitable  title  to  defeat  legal  title  bj 


96  U.  S.  544-549  Notes  on  U.  S.  Reports.  808 

impeaching  government  patent;  Cummings  v.  McDermid,  4  Old.  2S0, 
44  Pac.  278,  holding  insufficient  allegations  of  fraud  in  petition  to 
set  aside  award  of  towusite  board. 

Syl.  9  (IX,  481).     Mistake — Review  of  land  decision. 

Approved  in  Parker  v.  Lynch,  7  Okl.  649,  56  Pac.  1088,  following 
rule;  Southern  Pac.  R.  R.  Co.  v.  United  States,  200  U.  S.  351,  50  L. 
511,  26  Sup.  Ct.  296,  upholding  equitable  jurisdiction  over  bill  by 
government  to  cancel  patents  erroneously  issued  and  discovery  of 
sales  to  bona  fide  purchasers  of  grantee  and  confirmation  of  titles; 
Le  Marchel  v.  Tegarden,  133  Fed.  827,  one  attacking  patent  for 
mistake  of  fact  must  plead  and  prove  evidence  before  department  from 
which  mistake  resulted,  particular  mistake  made,  and  way  in  which 
it  occurred;  Thompson  v.  Ferry,  6  Ariz.  306,  56  Pac.  743,  where  mort- 
gage of  mining  claims  executed  by  cotenant  was  foreclosed  and  prem- 
ises purchased  by  mortgagee,  who  conveyed  to  one  who  relocated 
claims  and  obtained  patents,  cotenants  are  estopped  after  ten  years' 
delay  from  asserting  trust;  dissenting  opinion  in  Paine  v.  Foster, 
9  Okl.  261,  60  Pac.  25,  majority  refusing  to  consider  evidence  before 
Secretary  of  Interior  on  appeal  from  decision  of  local  land  office. 

Distinguished  in  Paine  v.  Foster,  9  Okl.  226,  53  Pac.  1112,  refusing 
to  review  evidence  before  Secretary  of  Interior  on  appeal  from  local 
land  office. 

90  U.  S.  544-549,  24  L.  674,  UNION  MUT.  INS.  CO.  v.  MOWRY. 

Syl.  ,2  (IX,  484).  Insurance — Previous  negotiations  merged  in  pol- 
icy. 

Approved  in  Lefler  v.  New  York  Life  Ins.  Co.,  143  Fed.  817,  in  ac- 
tion on  life  policy  evidence  of  negotiations  preceding  its  execution 
are  inadmissible  to  contradict  it;  Connecticut  Fire  Ins.  Co.  v. 
Buchanan,  141  Fed.  889,  890,  where  insurance  policy  covered  building 
only  while  used  and  occupied  as  normal  school,  oral  evidence  that  par- 
ties intended  policy  to  cover  building  when  not  so  used  is  inadmissi- 
ble; Weidemann  v.  Springfield  Breweries  Co.,  78  Conn.  664,  63  Atl. 
164,  where  mortgagor  assigned  to  mortgagee  claim  for  unpaid  insur- 
ance, which  was  to  be  applied  to  mortgage,  but  later  agreement  pro- 
vided for  its  application  to  general  indebtedness  of  mortgagor  to 
mortgagee,  latter  not  estopped  as  to  second  mortgagee  from  so  ap- 
plying money;  Calmenson  v.  Equitable  etc.  Ins.  Co.,  92  Minn.  391, 
100  N.  W.  88,  applying  rule  where  policy  avoided  insurance  in  case 
of  subsequent  insurance  and  insurer  claimed  agent  told  him  he  could 
take  insurance  in  other  company;  Liverpool  etc.  Ins.  Co.  v.  Richard- 
son Lumber  Co.,  11  Okl.  582,  600,  69  Pac.  937,  942,  where  policy  in- 
suring lumber  provided  for  clear  space  between  lumber  and  mills, 
and  agents  who  examined  property  knew  of  its  condition,  clause  not 
waived;  Young  v.  St.  Paul  etc.  Ins.  Co.,  68  S.  C.  390,  47  S.  E.  682, 
provision  in  policy  against  other  insurance  not  affected  by  failure  of 
agent  to  mention  other  insurance  in  preliminary   negotiations;   Law- 


869  Notes  on    U.  S.  Keports.  96  U.  S.  549-580 

ranee  v.  Ward,  28  Utah,  132,  77  Pac.  230,  where  note  secured  by  mort- 
gage provided  for  payment  of  interest  quarterly  at  certain  bank  and 
on  default  principal  to  become  due  at  holder's  option,  and  he  told 
obligor  not  pay  at  bank  but  he  would  call  for  interest,  failure  to 
call  waived  forfeiture. 

Distinguished  in  Allesina  v.  London  Ins.  Co.,  45  Or.  443,  78  Pac. 
392,  where  policy  issued  on  oral  application  and  no  information  re- 
quested or  given  as  to  chattel  mortgage,  and  insured  did  not  know 
policy  to  be  issued  contained  clause  avoiding  insurance  of  mortgage 
existed,  insurer  waived  mortgage  clause. 

96  U.  S.  549-556,  24  L.  676,  SCHUMACHER  v.  CORNELL. 

Syl.  1  (IX,  486).     Patent  for  combination — Abandonment  of  part. 

Approved  in  Brookfield  v.  Elmer  Glass  Wks.,  132  Fed.  312,  holding 
Kribs  patent  No.  542,565,  for  improvements  in  presses  for  making 
screw  insulators,  not  so  clearly  infringed  as  to  warrant  preliminary 
injunction. 

96  U.  S.  567-572,  24  L.  792,  UNITED  STATES  v.  KAUFMAN. 

Syl.  2  (IX,  487).  Conclusiveness  of  allowance  for  revenue  stamps. 
Approved  in  Christie-Street  Com.  Co.  v.  United  States,  136  Fed. 
329,  330,  69  C.  C.  A.  464,  claim  to  recover  back  internal  revenue  taxes 
exacted  under  misconstruction  of  revenue  act  of  1898,  may  be  en- 
forced by  action  against  United  States  under  24  Stat.  505,  after  its 
presentation  to  internal  revenue  commissioner. 

Distinguislied  in  United  States  v.  Hyams,  146  Fed.  19,  under  Comp. 
St.  Supp.  1905,  p.  445,  relating  to  rebates  on  tobacco  tax,  provision 
in  revenue  regulations  making  it  prerequisite  to  recovery  of  rebate 
that  proofs  offered  to  executive  officers  should  be  satisfactory  to  them 
is  void. 

96  U.  S.  572-580,  24  L.  841,  NEW  YORK  LIFE  INS.  CO.  v.  EGGLE- 
STON. 

Syl.  1  (IX,  488).     Estoppel  to  claim  forfeiture  of  policy. 

Approved  in  Battin  v.  Northwestern  Mut.  L.  Ins.  Co.,  130  Fed. 
876,  877,  65  C.  C.  A.  358,  declaration  on  life  policy  alleging  that  on 
maturity  of  certain  premium  insured  paid  sum  of  account-  and  re- 
ceived credit  for  balance,  shows  waiver  of  provision  that  policy  shall 
cease  if  premium  not  paid  when  due;  Washburn  v.  Union  etc.  Ins. 
Co.,  143  Ala.  489,  38  So.  1012,  where  insurer  accepted  note  for  pre- 
mium and  after  default  in  paying  same  retained  it  and  insisted  on  its 
payment,  it  waived  forfeiture  of  policy;  Travelers'  Ins.  Co.  v.  Brown, 
138  Ala.  529,  35  So.  464,  where  former  premiums  paid  to  agent  by 
check,  insurer  cannot  forfeit  policy  for  nonreceipt  of  check  sent  to 
agent;  Rutherford  v.  Prudential  Ins.  Co.,  34  Ind.  App.  539,  73  N.  E. 
205,  provision  of  policy  that  if  premium  not  called  for  when  due 
holder  must  send  it  to  home  office  is  waived  if  not  insisted  on  dur- 


96  U.  S.  580-611  Notes  on  U.  S.  Keports.  870 

ing  life  of  insured;  Foresters  of  America  v.  Hollis,  70  Kan.  75,  78 
Pac.  161,  applying  rule  where  beneficiarj''  association  assessments  not 
paid  when  due;  Graham  v.  Security  Mut.  Life  Ins.  Co.,  72  N.  J.  L.  304, 
62  Atl.  683,  holding  forfeiture  of  policy  for  nonpayment  of  premium 
when  due  waived;  Gish  v.  Insurance  Co.  of  North  America,  16  Okl. 
74,  87  Pac.  873,  determining  question  of  waiver  of  iron-safe  clause; 
Aetna  Life  Ins.  Co.  v.  Fallow,  110  Tenn.  729,  77  S.  W.  939,  where 
accident  policy  provided  there  should  be  no  insurance  thereunder 
unless  premium  paid  prior  to  accident,  but  general  agent  told  in- 
sured to  hold  premiums  till  collector  called,  insurer  estopped  to  deny 
liability;  Foreman  v.  German  Ins.  Assn.,  104  Va.  698,  52  S.  E.  338, 
2  L.  R.  A.  (N.  S.)  444,  where  one  was  agent  of  insurer  and  also  of 
insured,  knowledge  of  vacancy  of  property  acquired  by  agent  while 
acting  for  insured  only  is  not  notice  to  insurer  sufficient  to  consti- 
tute waiver  of  forfeiture. 

96  U.  S.  580-587,  24  L.  678,  BISSELL  v.  HEYWARD. 

Syl.  1   (IX,  490).     Testator's  contract  to  sell  devised  property. 

Approved  in  Brooke  v.  Eastman,  17  S.  D.  347,  96  N.  W.  701,  pur- 
chaser of  school  lands  who  had  made  first  payment  and  received  con- 
tract of  sale  from  commissioners  had  interest  in  lands  subject  to  ex- 
ecution. 

96  U.  S.  588-593,  24  L.  737,  MUTUAL  LIFE  INS.  CO.  v.  BRUNE. 

Syl.  2   (IX,  491).     Abatement — Action  in  other  jurisdiction. 

Approved  in  Schmidt  v.  Posner,  130  Iowa,  348,  106  N.  W.  761,  fol- 
lowing rule;  Slaughter  v.  Mallet  Land  etc.  Co.,  141  Fed.  290,  pend- 
ency in  state  court  of  action  of  trespass  to  try  title  and  to  remove 
cloud  is  not  ground  for  abatement  of  subsequent  federal  suit  to  quiet 
title;  Franklin  v.  Conrad-Stanford  Co.,  137  Fed.  741,  744,  70  C.  C. 
A.  171,  foreclosure  of  mortgage  securing  note  in  which  property  was 
sold  and  proceeds  applied  on  amount  due  on  note,  but  in  which  no 
deficiency  judgment  rendered,  is  no  bar  to  action  on  note  in  another 
jurisdiction  to  recover  deficiency;  German  Savings  &  Loan  Soc.  v. 
Tull,  136  Fed.  12,  69  C.  C.  A.  1,  pendency  of  suit  in  state  court  can- 
not be  pleaded  in  bar  of  suit  in  federal  court;  National  Tube  Co.  v. 
Smith,  57  W.  Va.  216,  110  Am.  St.  Rep.  776,  50  S.  E.  719,  1  L.  R.  A. 
(N.  S.)  195,  refusing  to  restrain  prosecution  of  garnishment  before 
justice,  though  in  another  state  injunction  restraining  garnishee  from 
paying  money  under  judgment  of  justice. 

96  U.  S.  595-611,  24  L.  793,  EDWARDS  v.  KEARZEY. 

Syl,  2   (IX,  492).     Remedy  as  part  of  contract  obligation. 

Approved  in  Gamble  v.  Rural  etc.  School  Dist.,  146  Fed.  118,  Iowa 
statute  limiting  recovery  on  negotiable  paper  procured  by  fraud  to 
amount  paid  by  holder  does  not  apply  where  bona  fide  holder  of 
fraudulent  outstanding  school  bond  sold  same  after  maturity  for  less 


871  Notes  on  U.  S.  lieports.  96  U.  S.  G11-G19 

than  par;  Harrison  v.  Remington  Paper  Co.,  140  Fed.  392,  holding 
IjHvvs  Kan.  1898,  c.  10,  p.  27,  repealing  prior  acts  granting  corpora- 
tion creditors  individual  action  against  stockholder,  and  substituting 
action  by  receiver  to  be  appointed,  void  as  against  contracts  made 
jirior  to  its  passage;  Myers  v.  Knickerbocker  Trust  Co.,  139  Fed. 
I IG,  liolding  Maryland  act  of  1904,  repealing  prior  act  giving  credi- 
tor separate  action  to  enforce  stockholder's  liability,  and  substitut- 
ing therefor  bill  in  equity  on  behalf  of  all  creditors  against  all  stock- 
holders, void  as  applied  to  creditors  who  sued  prior  to  passage  of 
act;  Lamb  v.  Powder  Eiv.  etc.  Stock  Co.,  132  I^ed.  439,  440,  441,  67 
L.  R.  A.  558,  65  C.  C.  A.  570,  Colo.  Sess.  Laws  1895,  p.  239,  c.  106. 
as  amended  in  1899,  relating  to  limitations  on  actions  on  foreign 
judgments,  is  void  as  to  judgment  prior  to  passage  of  act;  Welsh  v. 
Cross,  146  Cal.  624,  627,  333,  106  Am.  St.  Rep.  63,  81  Pac.  230,  231, 
233,  where  time  for  redemption  of  realty  from  execution  sale  was 
changed  after  judgment  but  before  levy  and  sale,  it  does  not  apply 
to  redemption  from  such  sale;  State  ex  rel.  Louisiana  Imp.  Co.  v. 
Board  of  Assessors,  111  La.  1001,  36  So.  98,  municipal  certificates  of 
indebtedness  are  not  taxable  by  city;  State  v.  District  Court,  90 
Minn.  464,  97  N.  W.  135,  upholding  Duluth  Charter,  §  80,  providing 
for  appeal  to  district  court  from  action  of  council  allowing  or  dis- 
allowing claim  against  city;  Smith  v.  Jennings,  67  S.  C.  337,  45  S.  E. 
826,  joint  resolution  requiring  state  treasurer  to  write  off  books  as 
obligations  of  state  certain  past  due  bonds,  not  law  impairing  con- 
tract obligations;  Lewis  v.  Goldthwaite  Nat.  Bank,  36  Tex.  Civ.  440, 
81  S.  W.  799,  Laws  1897,  p.  131,  exempting  from  garnishment  for  six 
months  after  sale  proceeds  of  voluntary  sale  of  homestead,  applies  to 
debts  existing  prior  to  passage  of  act. 

96    U.    S.    611-619,    24    L.    855,    HAYWARD    v.    ELIOT    NATIONAL 
BANK. 

Syl.   1    (IX,  49G).     Equity — Lapse   of  time — Limitations. 

Approved  in  Patterson  v.  Hewitt,  195  U.  S.  319,  49  L.  218,  25  Sup. 
Ct.  35,  affirming  11  N.  M.  20,  21,  27,  33,  66  Pac.  557,  559,  561,  55 
L.  R.  A.  G58,  and  holding  eight  years'  delay  after  right  to  deed  of 
interest  in  mining  claim  acquired  by  contribution  to  expense  neces- 
sary to  obtain  patent,  bars  right  where  complainant  contributed  noth- 
ing to  development;  Bryan  v.  Dupoyster,  130  Fed.  87,  64  C.  C.  A. 
417,  holding  instrument  in  nature  of  mortgage  executed  by  trustee 
created  no  lien  on  land  enforceable  after  death  of  cestui  que  trust 
who  had  only  life  estate;  Cole  v.  Birmingham  Union  Ry.  Co.,  143  Ala. 
434,  39  So.  405,  suit  by  stockholder  of  street  railway  to  set  aside 
for  ultra  vires  sale  of  its  property  to  another  company  for  shares  of 
its  stock  is  bari-ed  ten  years  after  transfer  and  two  years  after 
knowledge  thereof;  Lockhart  v.  Leeds,  195  U.  S.  437,  49  L.  269,  25 
Sup.  Ct.  76,  arguendo. 


96  U.  S.  619-645  Notes  on  U.  S.  Reports.  872 

96  U.  S.  619-626,  24  L.  740,  GREGOEY  v.  MORRIS. 

Syl.  1  (IX,  497).     Vendor's  purchase  money  lien — Delivery. 

Approved  in  Cincinnati  Tobacco  etc.  Co.  v.  Leslie,  117  Ky.  485, 
78  S.  W.  415,  64  L.  E.  A.  219,  where  corporation  advanced  money  to 
bankrupt  to  buy  tobacco  to  be  shipped  to  it  for  sale  under  agree- 
ment that  it  was  to  have  lien  on  tobacco,  its  lien  passed  to  its  suc- 
cessors. 

96  U.  S.  627-640,  24  J..  858,  BRINE  v.  HARTFORD  FIRE  INS.  CO. 

Syl.  2  (IX,  498).     Law  governing  land  transfers. 

Approved  in  Bradley  v.  Lighteap,  195  U.  S.  20,  49  L.  73,  24  Sup. 
Ct.  748,  holding  111.  Act  March  22,  1872,  §  30,  providing  that  master's 
deed  be  taken  out  by  f'oreclosure  purchaser  within  certain  time  after 
expiration  of  redemption  period,  is  void  as  to  one  bidding  in  prop- 
erty prior  to  act. 

Syl.  3  (IX,  500).     State  law  controls  federal  procedure. 
Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry.  Co.,  144  Fed. 
179,  determining  title  to  Oakland  waterfront. 

Syl.  4   (IX,  500).     Impairment   of  contract  obligations. 

Approved  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  391,  392, 
holding  Laws  Kan.  1898,  c.  10,  p.  27,  repealing  prior  acts  granting 
corporation  creditors  individual  action  against  stockholder  and  sub- 
stituting action  by  receiver  to  be  appointed,  void  as  against  con- 
tracts made  prior  to  its  passage;  Welsh  v.  Cross,  146  Cal.  624,  106 
Am.  St.  Rep.  63,  81  Pac.  230,  where  time  for  redemption  of  realty 
from  execution  sale  was  changed  after  judgment  but  before  levy 
and  sale,  it  does  not  apply  to  redemption  from  such  sale:  Howard  v. 
Ross,  38  Wash.  631,  80  Pac.  820,  Bal.  Code,  §§  5148-5150,  relating  to 
continuance  of  judgment  liens,  cannot  apply  to  judgment  recovered 
after  its  passage  on  note  executed  prior  thereto. 

Syl.  5   (IX,  501).     Equity — Preservation  of  statutory  rights. 

Approved  in  County  of  Logan  v.  McKinley  etc.  Trust  Co.,  70  Neb. 
413,  101  N.  W.  993,  right  to  redeem  from  tax  sale  may  be  raised  by 
objection  to  motion  to  confirm  sale. 

Distinguished  in  County  of  Logan  v.  McKinley  etc.  Trust  Co.,  70 
Neb.  403,  97  N.  W.  643,  foreclosure  decree  cannot  be  assailed  for  ir- 
regularity on  motion  to  set  aside  sale. 

96  U.  S.  640-645,  24  L.  648,  UNION  GOLD  MINING  CO.  v.  ROCKY 
MT.  NATIONAL  BANK. 

Syl.  1  (IX,  501).     Bank — Ultra  vires  loan — Recovery. 

Approved  in  Maryland  Trust  Co.  v.  National  Mech.  Bank,  102  Md. 

613,  63  Atl.  72,  following  rule;  Waterbury  v.  McKinnon,  146  Fed.  739, 

fact   that  lender,  who  was   resident   of   Montana,   procured   note  and 

mortgage  securing  same  to  be  executed  in  name  of  plaintiff,  who  was 


873  Notes  on  U.  S.  Keports.  96  U.  S.  659-698 

Canadian,  to  avoid  mortgage  tax,  is  no  defense  to  foreclosure  by 
plaintiff  J  Schoonover  v.  Petcina,  126  Iowa,  268,  100  N.  W.  493,  where 
national  bank  president  loaned  money  secured  by  mortgage  on  own 
account  and  indorsed  notes  to  bank,  president  could  not  be  assessed 
for  such  notes  as  moneys  and  credits. 

96  U.  S.  659-675,  24  L.  868,  KETCHUM  v.  DUNCAN. 

Syl.  2   (IX,  505).     Sales — Implied  assent. 

Approved  in  Erie  City  Iron  Works  v.  Thomas,  139  Fed.  996,  com- 
plaint in  action  for  price  of  bonds  of  corporation  which  alleges  plain- 
tiff was  induced  to  sell  machinery  to  corporation  and  accept  bonds  in 
part  payment  on  promise  of  defendants,  who  were  officers  of  corpora- 
tion, to  purchase  bonds  at  par  in  six  months,  sets  up  valid  con- 
tract. 

Syl.  5   (IX,  506).     Payment  of  interest  coupon  by  stranger. 

Approved  in  Washington  Loan  etc.  Co.  v.  Eitz,  37  Wash.  649,  80 
Pac.  175,  where  agent  of  mortgagee,  before  interest  coupon  due,  for- 
warded same,  together  with  amount  thereof,  to  mortgagee,  who  in- 
dorsed order  to  pay  to  agent,  there  was  an  assignment  to  agent. 

Syl.  6  (IX,  507).  Purchase  and  payment  of  interest  coupons  distin- 
guished. 

Distinguished  in  Morton  Trust  Co.  v.  Home  Telephone  Co.,  60  X.  J. 
Eq.  110,  111,  57  Atl.  1022.  where  holder  of  interest  coupons  turned  them 
over  to  president  of  issuing  corporation  for  payment  and  cancellation, 
and  was  not  informed  by  him  that  he  was  purchasing  them,  there  was 
no  sale. 

Syl.  8   (IX,  508).     Mortgage  to  secure  interest  and  principal. 

Approved  in  Real  Estate  Trust  Co.  v.  Union  Trust  Co.,  102  Md.  63,  Gl 
Atl.  233,  where  certificates  are  issued  entitling  holders  to  bonds  to  be 
issued  and  secured  by  mortgage,  interest  accruing  on  certificates  not 
entitled  to  priority  over  principal  on  foreclosure  of  mortgage. 

96  U.  S.  689-698,  24  L.  607,  HAWKINS  v.  UNITED  STATES. 

Syl.  5  (IX,  510).     Acts  of  agent  binding  government. 

Approved  in  Hudson  v.  MUls,  185  Miss.  585,  71  N.  E.  65,  in  action 
by  town  on  tax  collector's  bond,  evidence  that  it  was  reported  to  select- 
men by  one  of  them  that  surety  company  told  him  it  did  not  care  to  go 
on  bond  because  collector's  reputation  bad   is  inadmissible. 

Syl.  7  (IX,  510).     Express  bars  implied  promise. 

Approved  in  American  Bonding  Co.  v.  Pueblo  Inv.  Co.,  150  Fed.  24, 
where  tenant  agreed  to  make  improvements  in  building  and  to  give  bond 
to  fulfill  contract  and  pay  for  work  and  materials,  so  as  to  save  liens, 
and  he  gave  bond  conditioned  to  perform  contract,  but  bond  contained 
no  condition  to  pay  for  work  and  material,  surety  liable  to  lessor  for 
amount  paid  to  relieve  from  lien;  Amalgamated  Gum  Co.  v.  Casein  Co.  of 


96   U.  S.  699-737  Notes  on  U.  S.  Eeports.  874 

America,  146  Fed.  911,  conGtruiiig  contract  by  manufacturer  of  patented 
paper  to  sell  to  defendant  as  sole  customer  on  condition  latter  accept 
specified  quantities,  but  if  he  did  accept  such  quantities  maker  could 
sell  to  others. 

96  U.  S.  699-704,  24  L.  875,  FELTON  v.  UNITED  STATES. 
Syl.  2  (IX,  511).  Criminal  law — "Knowingly  and  willfully." 
Approved  in  United  States  v.  Praeger,  149  Fed.  478,  civilian  who,  on 
advice  of  counsel,  refuses  to  answer  questions  before  court-martial  on 
ground  that  they  might  subject  him  to  prosecution  for  libel,  does  not 
violate  Comp.  St.  1901,  p.  965;  State  v.  Nussenholtz,  76  Conn.  97,  55 
Atl.  591,  under  Pub.  Acts  1901,  c.  154,  punishing  willful  sale  of  veal  less 
than  four  weeks  old  when  killed,  instruction  that  ' '  willfully  selling ' ' 
meant  deliberately  selling  irrespective  of  motive,  is  erroneous. 

96  U.  S.  704-712,  24  L.  805,  PRATT  v.  PEATT. 

Syl.  2   (IX,  511).     Possession  adverse  to  judgment  lien. 

Approved  in  Flanary  v.  Kane,  102  Va.  557,  46  S.  E.  315,  Code  1887, 
§  2915,  limiting  time  to  sue  for  recovery  of  land,  does  not  apply  to 
suit  of  judgment  creditor  to  enforce  lien  against  land. 

96  U.  S.  712-716,  24  L.  641,  SAGE  v.  CENTRAL  E.  E.  CO. 

Syl.  3  (IX,  512).     Appeal — Acceptance  of  security  and  citation. 

Approved  in  Simpson  v.  First  Nat.  Bank,  129  Fed.  259,  63  C.  C.  A. 
371,  allowance  of  appeal  on  condition  that  petitioner  give  bond  in  fixed 
amount  does  not  become  allowance  of  appeal  till  bond  given  and  ac- 
cejitcd. 

Syl.  4  (IX,  513).     Appeal — Accepting  security  in  court. 

Approved  in  Lockman  v.  Lang,  132  Fed.  4,  where  appeal  allowed  by 
taking  security  within  statutory  time  and  transcript  filed  and  case 
docketed  at  proper  term,  failure  to  file  citation  within  time  for  appeal 
•  is  not  ground  for  dismissal  of  appeal. 

96  U.  S.  716-723,  24  L.  743,  MORGAN  v.  CHICAGO  &  ALTON  E.  E. 
CO. 

Syl.  1  (IX,  514).     Estoppel  by  silence  or  misrepresentation. 

Approved  in  Marine  Iron  Wks.  v.  Wiess,  148  Fed.  155,  holding  where 
defendant  contracted  to  build  boat  of  minimum  draft  and  plaintiff  knew 
during  progress  of  work  that  boat  would  exceed  such  draft,  but  remained 
silent,  plaintiff  waived  excessive  draft;  Globe  Nav.  Co.  v.  Maryland 
Casualty  Co.,  39  Wash.  309,  81  Pac.  830,  determining  liability  on  in- 
demnity bond  where  appeal  in  action  for  damages  dismissed,  through 
ignorance  on  part  of  indemnitor,  who  authorized  dismissal. 

96  U.  S.  727-737,  24  L.  877,  EX  PAETE  JACKSON. 

Syl.  1   (IX,  516).     Congressional  regulation  of  postal  system. 

Approved  in  Burton  v.  United  States,  202  U.  S.  371,  50  L.  1067,  26 
Sup.  Ct.  688,  fraud  order  inquiry  pending  before  Postoffice  Department 
ifi  proceeding  in  which  United  States  is  interested  within  Eev.  St.,  §  1782. 


875  Notes  on  U.  S.  Keports.  97  U.  S.  3-24 

Syl.  6  (IX,  517).     Postofficc— Fraud  order. 

Api^roved  in  Public  Clearing-IIouse  v.  Coyne,  19-4  TJ.  S.  50G,  48  L. 
1097,  24  Sup.  Ct.  789,  fraud  order  directing  return  of  all  mail  matter 
directed  to  fraudulent  concerns  is  valid;  Harris  v.  Eosenberger,  145  Fed. 
453,  upholding  power  to  issue  fraud  orders. 

96  U.  S.  737,  738,  24  L.  881,  NATIONAL  BANK  v.  OMAHA. 

Syl.  1  (IXj  518).     Appeal  citation — Acceptance  of  security  in  court. 

Approved  in  Locknian  v.  Lang,  132  Fed.  4,  where  appeal  allowed  by 
taking  security  within  statutory  time  and  transcript  filed  and  case 
docketed  at  proper  time,  failure  to  file  action  within  time  for  appeal 
is  not  ground  for  dismissal  of  appeal;  Simpson  v.  First  Nat.  Bank,  129 
Fed.  259,  63  C.  C.  A.  371,  allowance  of  appeal  on  condition  that  peti- 
tioner give  bond  in  fixed  amount  does  not  become  allowance  till  bond 
given  and  accepted. 


XCVII  UNITED  STATES. 


97  U.  S.  3-7,  24  L.  985,  MILLIGAN  ETC.  GLUE  CO.  v.  UPTON. 

Syl.  1  (IX,  519).     Patents— Want  of  novelty. 

Approved  in  Baker  v.  Duncombe  Mfg.  Co.,  146  Fed.  748.  granulated 
coffee  not  patentable  merely  because  process  used  may  produce  granules 
more  uniform  than  otherwise  produced ;  Sanitas  Nut  Food  Co.  v.  Voight, 
139  Fed.  553,  holding  void  Kellogg  patent  No.  558,393,  for  cooked  wheat 
product. 

Distinguished  in  Kumford  Chem.  Wks.  v.  New  York  Baking  Powder 
Co.,  134  Fed.  386,  67  C.  C.  A.  367,  upholding  Catlin  patent  No.  474,811, 
for    granular    baking-powder. 

97  U.  S.  13-24,  24  L.  917,  OMAHA  HOTEL  CO.  v.  "WADE. 

Syl.  3    (IX,  520).     Jurisdiction — Eefusal  to  join  as  complainant. 

Approved  in  Wood  v.  Deskins,  141  Fed.  507,  where  there  was  no  con- 
troversy between  one  joint  vendor  and  purchaser  but  there  was  between 
others  and  purchaser,  first  vendor  refusing  to  join  in  specific  performance 
cannot  be  aligned  as  complainant  to  defeat  federal  jurisdiction. 

Syl.  4  (IX,  521).     Corporation's  mortgage  to  directors. 

Approved  in  Kessler  v.  Ensley  Co.,  129  Fed.  402,  transaction  by  which 
officers  have  obtained  property  of  corporation  by  actual  fraud  may  be 
ratified  by  directors  and  disinterested  majority  of  stockholders  acting 
fairly  with  knowledge  of  facts;  Home  Fire  Ins.  Co.  v.  Barber,  67  Neb. 
667,  108  Am,  St.  Eep.  735,  93  N.  W.  1032,  arguendo. 


97  U.  S.  25-34  Notes  on  U.  S.  Reports.  876 

97  U.  S.  25-34,  24  L.  989,  BOSTON  BEER  CO.  v.  MASSACHUSETTS. 

Syl.  3  (IX,  522).     Authorization  to  make  liquor — Restricting  sale. 

Approved  in  In  re  Sarlo,  76  Ark.  338,  88  S.  W.  954,  county  court  author- 
ized to  issue  liquor  licenses  may  adopt  condition  to  granting  of  license 
that  license  on  violation  of  law  regulating  liquor  traffic  may  be  revoked; 
State  V.  Hyman,  98  Md.  616,  617,  57  Atl.  9,  10,  64  L.  R.  A.  637,  upholding 
act  of  1902,  regulating  sweating  system. 

Syl.  4  (IX,  523).     Police  power  not  contractable  away. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  481,  50  L.  279,  26  Sup. 
Ct.  127,  obligation  of  agreement  to  remove  dam  from  navigable  river 
and  allow  stream  to  remain  unobstructed  not  impaired  by  subsequent 
statute  authorizing  dam  to  drain  lowlands;  Fort  Smith  v.  Hunt,  72  Ark. 
564,  102  Am.  St.  Rep.  51,  82  S.  W.  166,  66  L.  R.  A.  238,  contract  between 
city  and  electric  company  prescribing  terms  for  erection  of  poles  in 
streets  does  not  prevent  subsequent  ordinance  prescribing  license  for 
poles;  Bland  v.  People,  32  Colo.  329,  76  Pac.  362,  upholding  act  of  1S99, 
prohibiting  use  of  undoeked  horses;  Chicago  v.  Gunning  System,  214  111. 
637,  70  Am.  St.  Rep.  230,  73  N.  E.  1039,  holding  city  billboard  ordinance 
void  for  unreasonableness;  State  v.  Robb,  100  Me.  185,  60  Atl.  876,  up- 
holding ordinance  granting  exclusive  garbage  collection  privilege  to  per- 
son specially  appointed,  and  prohibiting  all  others  from  engaging  in  that 
business;  Wallace  v.  Mayor  etc,,  27  Nev.  81,  73  Pac.  530,  63  L.  R.  A. 
337,  upholding  provisions  of  Reno  act  of  incorporation  empowering  city 
board  to  revoke  business  licenses,  and  holding  board  may,  thereunder,  re- 
voke liquor  license  without  notice;  Norfolk  etc.  R.  R.  Co.  v.  Common- 
wealth, 103  Va.  293,  49  S.  E.  40,  holding  corporation  commission  could 
regulate  rates  charged  by  transportation  company  which  conducted  spur 
tracks  for  putting  cars  on  scales;  Petersburg  v.  Petersburg  Aqueduct 
Co.,  102  Va.  659,  47  S.  E.  849,  where  water  company  organized  when  city 
was  sparcely  settled  never  attempted  to  extend  system  beyond  limits 
then  established,  city  could  prohibit  it  from  tearing  up  streets  in  ex- 
tending limits. 

Syl.  5   (IX,  524).     Scope  of  police  power. 

Approved  in  New  York  v.  Van  De  Carr,  199  U.  S.  558,  50  L.  309,  26 
Sup.  Ct.  144,  upholding  ordinance  conferring  discretionary  power  on 
health  board  to  grant  or  withhold  permits  to  sell  milk  in  city;  Jacobson 
V.  Massachusetts,  197  U.  S.  25,  49  L.  649,  25  Sup.  Ct.  358,  upholding 
Massachusetts  compulsory  vaccination  act.  See  103  Am.  St.  Rep.  868, 
note. 

Syl.  6  (IX,  526).     Prohibiting  sale  of  liquor. 

Approved  in  Meyer  v.  Mobile,  147  Fed.  845,  upholding  city  ordinance 
imposing  license  on  dealers  in  beer  as  applied  to  bottled  beer  brought 
from  other  states;  Jordan  v.  Evansville,  163  Ind.  517,  72  N.  E.  546,  67 
L.  R.  A.  613,  upholding  act  giving  city  power  to  require  license  to  sell 
liquor  within  four  miles  of  city  limits;  State  v.  Durein,  70  Kan.  30,  80 
Pac.  992,  upholding  anti-liquor  law  of  1881;  State  v.  Frederickson,  101 


677  Notes  on  U.  S.  Reports.  97  U.  S.  34-83 

Me.  46,  63  Atl.  639,  upholding  Eev.  St.,  c.  29,  §  40,  declaring  certain 
liquors,  including  cider,  when  kept  for  sale  to  be  intoxicating;  In  re 
O'Brien,  29  Mont.  545,  75  Pac.  200,  upholding  local  option  law;  Harrell 
V.  Sy>eed,  313  Tenn.  230,  lOG  Am.  St.  Rep.  814,  81  S.  W.  841,  under  Acta 
Tenn.  1903,  p.  615,  §  4,  one  running  bar  on  vessel  plying  between  Arkan- 
sas and  Tennessee  is  liable  to  tax  for  running  bar  while  vessel  is  at  land- 
ing in  Tennessee;  Webster  v.  State,  110  Tenn.  505,  82  S.  W.  182,  up- 
holding act  prohibiting  sale  of  liquor  within  four  miles  of  institution  of 
learning. 

97  U.  S.  34-39,  24  L.  909,  NOYIOS  v.  HALL. 
Syl.  1  (TX,  527).     Adverse  possession. 
See  104  Am.  St.  Rep.  345,  note. 

97  U.  S.  fiS-79,  24  L.  967,  SHILLABER  v.  ROBINSON". 

Syl.  1  (IX,  528).     Mortgage — Conveyance  to  secure  debt. 

Approved  in  Hunt  v.  Springfield  etc.  Ins.  Co.,  196  U.  S.  49,  49  L.  382, 
25  Sup.  Ct.  179,  condition  in  fire  policy  for  unconditional  ownership 
broken  where  trust  deed  of  property  executed  to  secure  payment  of 
money. 

Syl.  2   (IX,  528).     Sales  under  power — Strict  compliance. 

Approved  in  Chace  v.  Morse,  189  Mass.  561,  76  N.  E.  144,  fact  that 
notice  of  sale  under  power  in  mortgage  and  sale  itself  included  land 
not  included  in  mortgage  does  not  make  sale  void;  Moore  v.  Dick,  187 
Mass.  211,  72  N.  E.  968,  where  power  of  sale  in  mortgage  authorized 
notir-e  in  "Reporter,"  wliich  was  daily  paper  at  time  mortgage  executeil, 
notice  in  "Lynn  Bee,"  a  weekly  successor  of  "Reporter,"  was  in- 
sufficient. 

97  U.  S.  80-83,  24  L.  971,  GRANT  v.  NATIONAL  BANK. 

Syl.   1    (IX,  529).     Bankruptcy — Security  as  preference — Knowledge. 

Approved  in  Stevenson  v.  Milliken  etc.  Co.,  99  Me.  326,  59  Atl.  475, 
following  rule;  Hardy  v.  Gray,  144  Fed.  925,  926,  holding  creditor  who 
indirectly  repurchased  goods  from  insolvent  debtor  and  sold  same  again 
at  loss  had  reasonable  cause  to  believe  preference  intended;  Butler  Paper 
Co.  V.  Goembel,  143  Fed.  298,  holding  chattel  mortgage  not  preference 
where  mortgagee  believed  bankrupt's  failure  to  pay  debts  due  to  litiga- 
tion with  wife  and  that  his  property  exceeded  indebtedness;  In  re  Mc- 
Murtrcy,  142  Fed.  856,  transfer  by  insolvent  firm  of  all  property  to 
certain  creditors  on  demand  and  threat  to  sue,  in  full  settlement  of 
claims  in  excess  of  value,  is  preference;  Off  v.  Hakes,  142  Fed.  365, 
where  at  time  of  alleged  preference  defendant 's  agent  informed  that 
in  case  of  sale  of  goods  at  estimated  value  bankrupt's  ability  to  pay 
creditors  in  full  depended  on  ability  to  collect  outstanding  accounts, 
defendant  not  charged  with  knowledge  of  intention  to  prefer;  In  re 
Moody,  134  Fed.  633,  where  insolvent  merchant  transferred  stock  to 
firm  in  exchange  for  farm,  title  to  which  taken  in  wife 's  name,  and 
purchasers  paid  his  debt  to  bank,  of  which  they  were  stockholders  and 


97  U.  S.  83-92  Notes  on  U.  S.  Keports.  878 

officers,  transfer  was  void  under  Bankr.  Act,  §  67e;  Turner  v.  Fisher,  133 
Fed.  595,  holding  creditor  to  whom  debtor,  while  insolvent,  and  within 
four  months  of  bankruptcy,  assigned  note  and  mortgage,  had  no  reason- 
able cause  to  believe  debtor  insolvent;  In  re  Geodhile,  130  Fed.  475, 
under  Bankr.  Act,  §  1,  cl.  15,  fact  that  debt  of  retailer  to  wholesaler 
is  past  due  when  payment  made  does  not  render  payment  preference; 
Capital  Nat.  Bank  v.  Wilkerson,  36  Ind.  App,  473,  75  N.  E.  839,  where, 
at  time  preferential  payment  made,  debts  amounted  to  ten  times  more 
than  assets,  bankrupt  was  insolvent;  Bardes  v.  Bank  of  Hawarden,  122 
Iowa,  448,  98  N.  W,  285,  holding  grantee  had  sufficient  knowledge  to 
put  him  on  inquiry  so  as  to  cause  belief  preference  intended;  Harmon  v. 
Walker,  131  Mich.  542,  543,  91  N.  W.  1026,  whether  attorney  of  bank- 
rupt bank,  in  receiving  payment  for  services  on  day  prior  to  bank's 
suspension,  and  after  it  had  failed  to  meet  checks,  to  his  knowledge, 
had  reasonable  cause  to  believe  debtor  insolvent,  is  for  jury;  Edwards 
V.  Carondelet  Milling  Co.,  108  Mo.  App.  290,  291,  83  S.  W.  769,  holding 
neither  defendant  nor  his  agent  had  reasonable  cause  to  believe  debtor 
insolvent  when  payment  made  within  four  months  of  bankruptcy;  Em- 
pire State  Trust  Co.  v.  Fisher  Co.,  67  N.  J.  Eq.  99,  57  Atl.  507,  where 
company  indebted  in  less  than  third  of  its  capital,  capable  of  earning 
fair  interest,  gave  debtor  mortgage  to  secure  him,  and  within  one 
month  was  adjudged  bankrupt  and  trustees  could  not  realize  amount 
of  debts,  company  not  insolvent  at  time  of  mortgage;  Wright  v.  Cotton, 
140  N.  C.  6,  52  S.  E.  142,  where  bankrupt  acted  as  agent  for  his  father 
and  paid  debt  to  father,  latter  charged  with  knowledge  that  son  in- 
solvent at  time  payment  made;  Johnston  v.  Witt  Shoe  Co.,  103  Va.  622, 
50  S.  E.  157,  determining  insufiiciency  of  notice  to  creditor  of  debtor's 
insolvency  and  intent  to  prefer  under  Bankr.  Act,  §  60,  par.  a  and  b; 
Suffel  V.  McCartney  Nat.  Bank,  127  Wis.  213,  106  N.  W.  839,  prefer- 
ential payment  by  one  subsequently  becoming  bankrupt  cannot  be 
recovered  by  trustee  merely  because  creditor  knew  facts  which  would  cause 
reasonable  men  to  doubt  debtor's  solvency;  In  re  Pettiugill,  137  Fed. 
843,  844,  70  C.  C,  A.  338,  arguendo. 

Distinguished  in  In  re  Pettingill,  135  Fed.  220,  where  year  prior  to 
bankruptcy  debtor  paid  part  of  debt  and  obtained  extension  on  re- 
mainder, and  at  time  agreed  only  part  of  balance  paid  and  creditor 
received  favorable  report  from  commercial  agency,  creditor  had  no 
reasonable  cause  to  believe  debtor  insolvent. 

97  U.  S.  83-92,  24  L.  933,  COUNTY  OF  BATES  v.  WINTERS. 

(IX,  529.)  Miscellaneous.  Cited  in  Eed  River  Furnace  Co.  v. 
Tennessee  etc.  R.  R.  Co.,  113  Tenn.  716,  87  S.  W.  1020,  where  railroad 
asked  city  to  subscribe  for  stock  subscription  on  condition  that  road 
be  completed  within  two  years  of  subscription,  and  after  favorable  vote 
council  directed  mayor  to  subscribe,  subscription  not  complete  till  ac- 
tually made. 


879  Notes  on  U.  S.  Reports.  97  U.  S.  96-126 

97  U.  S.  96-110,  24  L.  977,  COUNTY  OF  WARREN  v.  MARCY. 

Syl.  2   (IX,  531).     Rule  of  lis  pendens. 

Approved  in  Powell  v.  National  Bank  of  Commerce,  19  Colo.  App. 
C5,  68,  74  Pac.  538,  539,  540,  where  one  had  actual  notice  of  pendency 
of  action  for  appointment  of  receiver,  he  could  not  take  mortgage  of  all 
assets  of  corporation  to  secure  past  due  debt. 

97    U.    S.    110-12Q,    24   L.    973,   LAFLIN    &    RAND    POWDER   CO.    v. 
BURKIIARDT. 

Syl.  1   (IX,  532).     Bailment  and  sale  distinguished. 

Approved  in  In  re  Columbus  B\iggy  Co.,  143  Fed.  861,  contract  be- 
tween furnisher  of  goods  and  receiver  that  latter  may  sell  same  at  any 
price  and  pay  for  them  at  agreed  price  and  hold  unsold  goods  to  order 
of  furnisher,  is  bailment;  John  Deere  Plow  Co.  v.  M 'David,  137  Fed. 
811,  70  C.  C.  A.  422,  contract  to  consign  goods  to  one  who  agreed  to 
pay  freight,  licenses  and  rents,  and  keep  goods  insured  and  to  sell  goods 
for  enough  to  cover  schedule  price  and  expenses  and  commissions,  is  one 
of  agency;  Chisholm  v.  Eagle  Ore  etc.  Co.,  144  Fed.  671,  construing 
contract  for  reduction  of  ore  as  sale  and  not  bailment. 

Syl.  2   (IX,  533).     Sales— "  To  advance"  defined. 

Approved  in  Arbaugh  v.  Shockney,  34  Ind.  App.  275,  72  N.  E.  CG9, 
where  contract  to  employ  insurance  solicitor  j^rovided  for  weekly  ad- 
vances to  be  deducted  from  agent's  commissions,  employer  could  not,  on 
failure  of  venture,  recover  advances  from  agent. 

Syl.  3   (IX,  533).     Sale — Articles  to  be  manufactured. 

Approved  in  Bush  v.  Export  Storage  Co.,  136  Fed.  939,  where  con- 
tract for  building  cars  gave  purcliaser  option  to  furnish  certain  parts, 
which  builder  was  to  accept  and  pay  for  at  certain  prices,  and  builder 
deducted  such  prices  from  contract  price  of  cars,  parts  were  sold;  Scott 
V.  Shultz,  67  Kan.  607,  73  Pac.  904,  where  mining  property  leased  for 
terra  under  agreement  that  personalty  should  be  returned  in  kind  or 
value  according  to  invoice,  at  lessor's  option,  there  was  sale  of  person- 
alty. 

97  U.  S.  120-126,  24  L.  935,  UNION  PAPER  BAG  MACHINE  CO.  v. 
MURPHY. 

Syl.  1  (IX,  533).     Patents — Devices  doing  same  work. 

Approved  in  Avery  v.  Case  Plow  Wks.,  148  Fed.  220,  holding  Avery 
patent  No.  650,771,  for  double  mold-board  plow,  infringed;  Edison  etc. 
Elec.  Co.  V.  Crouse  etc.  Elec.  Co.,  146  Fed.  547,  holding  Metzger  patent 
No.  489,682,  for  electric  lamp  socket,  valid  and  infringed  as  to  claims 
5  and  7,  and  void  as  to  claim  6;  Universal  Brush  Co.  v.  Sonn,  146  Fed. 
532,  533,  Morrison  patent  No.  717,014,  for  method  of  making  brushes, 
infringed  by  method  of  Sonn  patent  No.  791,510;  Los  Angeles  Art 
Organ  Co.  v.  Aeolian  Co.,  143  Fed.  887,  Tremaine  &  Pain  patent  No. 
552,796,  for  improvements  in  mechanical  musical  instrument,  infringed 
by  device  of  Fleming  patent  No.  659,442;  Columbia  Wire  Co.  v.  Kokomo 


97  U.  S.  126-144  Notes  on  U.  S.  Reports.  880 

etc.  Wire  Co.,  143  Fed.  122,  Bates  patent  No.  305,723,  for  wire-barbmg 
machine,  infringed  by  device  of  Fredrich  patent  No.  711,303;  Western 
Elec.  Co.  V.  Rochester  Tel.  Co.,  142  Fed.  772,  holding  Scribner  patent 
No.  330,061,  for  multiple  telephone  switch-board,  valid  and  infringed; 
International  Time  Rec.  Co.  v.  Dey,  142  Fed.  745,  holding  Cooper  patent 
No.  528,223,  for  workma,n's  time  recorder,  infringed;  Ferry-Hallock  Co. 
V.  Hallock,  142  Fed.  176,  holding  Ferry  patent  No.  523,833,  for  machine 
for  making  pasteboard  strips  for  hat-packing  rings, .infringed;  Brown 
Bag  Filling  Mach.  Co.  v.  Drohen,  140  Fed.  100,  holding  Cummings 
patent  No.  573,171,  for  paper-bag  filling  machine,  valid  as  for  primary 
invention ;  Regina  Co.  v.  New  Century  etc.  Co.,  138  Fed.  908,  holding 
Brachhausen  &  Reissner  patent  No.  500,371,  for  music-box,  void  in  view 
of  prior  act;  International  Mfg.  Co.  v.  Brammer  Mfg.  Co.,  138  Fed. 
400,  Flagman  patent  No.  608,220,  for  mechanical  movement  for  use  in 
washing-machines,  infringed  by  device  of  Martin  patent  No.  736,285 ; 
National  Auto.  Mach.  Co.  v.  Daab,  136  Fed.  893,  holding  Fairbanks 
patent  No.  387,285,  for  improvement  in  indicators  for  weighing  ap- 
paratus, infringed  by  device  of  Magee  patent  No.  733,059 ;  Eck  v.  Kutz, 
132  Fed.  766,  holding  Eck  patent  No.  592,134,  for  knitting-machine, 
infringed;  Benbow  etc.  Mfg.  Co.  v.  Simpson  Mfg.  Co.,  132  Fed.  616, 
617,  holding  Schroeder  patent  No.  535,465,  for  means  for  operating 
washing-machines,  infringed;  Calculagraph  Co.  v.  Wilson,  132  Fed.  29, 
holding  Hamilton  patent  No.  424,291,  for  apparatus  for  recording 
measurements  of  time,  space  or  quantity,  and  Abbott  patent  No.  583,320, 
for  calculagraph,  infringed;  Letson  v.  Alaska  Packers'  Assn.,  130  Fed. 
143,  64  C.  C.  A.  463,  Jensen  patent  No.  376,804,  for  can-capping 
machine,  infringed  by  machine  of  Letson  and  Burpee  patent ;  Lourie  Imp. 
Co.  V.  Leuhart,  130  Fed.  129,  64  C.  C.  A.  456,  holding  Lcnhart  patent 
No.  415,542,  for  attachment  for  breaking  plows,  infringed. 

97  U.  S.  126-144,  24  L.  1000,  ELIZABETH  v.  AAIERICAN  NICHOL- 
SON PAVEMENT  CO. 

Syl.  1   (IX,  534).     Foreign  patent  as  defense. 

Approved  in  Queen  v.  Friedlander,  149  Fed.  775,  holding  valid  Sayer 
patent  No.  594,036,  for  improvement  in  vacuum  tubes. 

Syl.  5   (IX,  535).     Patents — Experimental  use. 

Approved  in  American  Caramel  Co.  v.  Thomas  Mills  &  Bro.,  149  Fed. 
747,  fact  that  candy-cutting  machine  used  experimentally  for  over  two 
years  and  its  product  sold,  is  not  public  use;  Victor  Talking  Mach.  Co. 
V.  American  Graph.  Co.,  140  Fed.  864,  865,  exhibition  of  talking-machine 
by  inventor  to  audience  accompanied  by  explanation  of  invention  is  not 
public  use;  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140  Fed.  171,  172, 
holding  Schrader  patent  No.  592,920,  for  engraving  machine  for  etching 
glass,  not  invalid  for  prior  public  use;  Eastman  v.  Mayor  etc.  of  N. 
Y.,  134  Fed.  857,  69  C.  C.  A.  628,  holding  Knibbs  patent  No.  42,920, 
for  improvement  in  fire-engine  pumps,  void  for  prior  public  use  where 
inventor  put  device  on  engine  of  which  he  was  engineer,  and  on  ex- 
plaining use  to  makers  of  engine  they  put  it  on  engine  which  they  sold. 


SSI  Notes  on  U.  S.  Reports.  97  U.  S.  14G-183 

Distinguished  in  Jenner  v.  Bowen,  139  Fed.  561,  562,  where  inventor 
of  bottle-wrapping  machine  set  up  one  for  customer,  who  used  it  and 
Sold  its  product  as  intended,  use  for  over  two  years  deprived  inventor 
of  right  to  patent. 

Syl.  10  (IX,  537).     Patents— Profits  as  damages. 

Approved  in  Corbin  v.  Taussig,  137  Fed.  153,  where  one  has  ex- 
clusive agency  for  sale  of  certain  goods  in  certain  territory,  one  in- 
vading such  territory  is  liable  in  equity  only  for  benefits  derived  from 
Bales  made  therein;  Glucose  Sugar  etc.  Co.  v.  St.  Louis  Syrup  etc.  Co., 
135  Fed.  541,  president  of  corporation  not  properly  joined  with  cor- 
poration in  suit  for  injunction  and  accounting  for  infringement  of 
patent  by  corporation. 

Syl.  11   (IX,  537).     Patents — Mere  change  in  form. 

Approved  in  Edison  etc.  Elec.  Co.  v.  Crouse  etc.  Elcc.  Co.,  146  Fed. 
547,  Metzger  patent  No.  489,682,  for  electric  lamp  socket,  claims  5  and 
7,  valid  and  infringed  and  claim  6  void;  Columbia  Wire  Co.  v.  Kokomo 
Steel  etc.  Co.,  143  Fed.  122,  Bates  patent  No.  365,723,  for  wire-barbing 
machine,  infringed  by  device  of  Fredrich  patent  No.   711,303. 

97  U.  S.  146-163,  24  L.  895,  WALLACE  v.  LOOMIS. 

Syl.  1   (IX,  538).     Changing  name  of  corporation — Special  statutc3. 

Approved  in  Longview  v.  Crawfordsville,  164  Ind.  120,  73  N.  E.  79, 
68  L.  E.  A.  622,  upholding  Acts  1903,  p.  201,  providing  for  extension 
of  boundaries  of  cities  not  having  special  charter  and  for  annexation 
of  territory  by  such  cities. 

Syl.  6  (IX,  539).     Equity — Ecceiver's  certificates. 

Approved  in  In  re  Erie  Lumber  Co.,  150  Fed.  S27,  under  Bankr.  Act, 
§  2  (5),  bankruptcy  court  may  authorize  issuance  of  receiver's  certificates 
to  provide  funds  for  operating  expenses;  Cunningham  v.  Zinc  etc.  Min. 
Co.,  103  Mo.  App,  400,  76  S.  W.  488,  under  Eev.  St.  1899,  §  3167, 
laborers  performing  work  for  corporation  within  six  months  prior  to 
trusteeship  have  preferred  claim  over  all  other  claims  except  mortgages; 
dissenting  opinion  in  Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  192, 
193,  49  L.  721,  25  Sup.  Ct.  415,  majority  holding  claim  for  ties  neces- 
sary to  preservation  of  railroad  furnished  within  six  months  of  ap- 
pointment of  receiver  is  not  entitled  to  preference  over  prior  mortgage. 

97  U.  S.  181-188,  24  L.  926,  LAMBOEN  v.  COUNTY  COMMISSION- 
ERS. 

Syl.  2  (IX,  542).     Eecovery  of  taxes  paid  on  mistake. 

Approved  in  Utermehle  v.  Norment,  197  U.  S.  56,  49  L.  662,  25  Sup. 
Ct.  291,  ignorance  of  law  that  party  taking  benefit  of  provision  of  will 
in  his  favor  is  estopped  to  assert  invalidity  of  will,  though  coupled  with 
ignorance  of  evidence  upon  which  to  base  contract,  does  not  prevent 
application   of   rule;    Knudsen   etc.   Fruit   Co.   v.   Chicago   etc.   Ry.   Co., 

56 


97  U.  S.  237-317  Notes  on  U.  S.  Eeports.  882 

149  Fed.  974,  where  consignee  after  shipment  deliverecl  and  with  full 
knowledge  of  facts  paid  carrier's  charges,  including  charge  for  icing 
in  transit,  he  cannot  recover  amount  of  icing  charge  on  ground  of  its 
illegality;  Kahn  v.  Herold,  147  Fed.  579,  where  at  time  executors  paid 
revenue  inheritance  tax  on  life  estate  under  protest  they  did  not  know 
of  life  tenant's  death,  payment  could  be  recovered;  Morris  v.  New 
Haven,  78  Conn.  675,  63  Atl.  124,  where  at  time  taxes  paid  collector 
not  authorized  to  collect  plaintiff 's  taxes  on  tax  list  in  question  and 
appeal  from  assessment  stayed  proceedings,  payment  'under  protest  was 
voluntary;  Phoebus  v.  Manhattan  Club,  105  Va.  148,  52  S.  E.  840, 
mere  declaration  of  taxpayer  indorsed  on  stub  of  official  tax  book  that 
payment  was  under  protest  does  not  show  payment  involuntary,  in  ab- 
sence of  proof  of  pressure  on  taxpayer. 

97  U.  S.  237-272,  24  L.  901,  LILIENTHAL'S  TOBACCO  v.  UNITED 
STATES. 

Syl.  5  (IX,  545).     Prima  facie  evidence  defined. 

Approved  in  Tift  v.  Southern  Ry.  Co.,  138  Fed.  759,  act  to  regulate 
commerce  creates  presumption  in  favor  of  commissioner 's  report  which 
on  its  introduction  changes  burden  of  proof. 

97  U.  S.  284-293,  24  L.  937,  UNITED  STATES  v.  MEMPHIS. 

Syl.  2   (IX,  547).     Annexation  to  city — Liability  for  debts. 

Approved  in  Toney  v.  Macon,  119  Ga.  87,  46.  S.  E.  82,  Act  of  1903, 
extending  limits  of  Macon,  not  void  because  penalty  for  not  making 
Bevver  connections  in  new  territory  different  from  that  under  existiug 
ordinances  in  old  limits. 

97  U.  S.  304-309,  24  L.  594,  TRUST  CO.  v.  SEDGWICK. 

Syl.  2  (IX,  549).  Fraudulent  conveyance  to  wife — Decree  in  per- 
sonam. 

Approved  in  Sheldon  v.  Parker,  66  Neb.  627,  92  N.  W.  929,  where 
property  conveyed  to  wife  in  fraud  of  husband's  creditors,  pursuit  of 
property  cannot  be  abandoned  and  judgment  in  personam  for  its  value 
taken  against  wife. 

Distinguished  in  Sheldon  v.  Parker,  66  Neb.  635,  95  N.  W.  1015, 
where  husband  and  wife  confederate  to  defraud  creditors  by  transferring 
husband's  property  to  wife  and  property  is  sold  to  bona  fide  purchaser, 
personal  judgment  against  wife  for  proceeds  of  sale  may  be  entered. 

97  U.  S.  309-317,  24  L.  890,  THE  VIRGINIA  EHRMAN  v.  THE 
AGNESB. 

Syl.  1   (IX,  549).     Collision — Duty  of  vessel  in  motion. 

Approved  in  The  Degama,  150  Fed.  324,  following  rule;  Ross  v. 
Cornell  Steamboat  Co.,  143  Fed.  169,  holding  tug  coming  down  river  with 
heavy  tow  at  night  in  fault  for  collision  with  dredge  anchored  at  side 
of  channel  where  she  had  been  at  work,  tug  knowing  of  its  position. 


883  Notes  on  U.  S.  Reports.  97  U.  S.  319-365 

Syl.  2  (IX,  549).     Collision— Fault  of  tug  and  tow. 

Approved  in  In  re  Walsh,  136  Fed.  559,  69  C.  C.  A.  267,  tug  employed 
to  furnish  motive  power  to  vessel  to  whose  side  she  is  lashed,  and  which 
is  subject  to  orders  of  pilot  on  tow,  is  not  liable  for  collision  occurring 
without  her  fault. 

97  U.  S.  319-32.3,  24  L.  958,  HERBERT  v.  BUTLER. 

Syl.  2   (IX,  550).     Direction  of  verdict. 

Approved  in  Parks  v.  Southern  Ry.  Co.,  143  Fed.  277,  upholding 
direction  of  verdict  for  defemlant  sent  to  flag  train  was  killed  by  it 
and  evidence  showed  he  had  laid  down  beside  track;  Busby  v.  Anderson 
etc.  Power  Co.,  136  Fed.  158,  69  C.  C.  A.  154,  upholding  direction  of 
verdict  for  defendant  in  action  for  injuries  by  servant  caused  by  failure 
to  furnish  appliances  where  evidence  showed  servant  employed  by  inde- 
pendent contractor;  Chicago  etc.  Ry.  Co.  v,  Andrews,  130  Fed.  74,  64 
C  C.  A.  399,  holding  plaintiff  injured  at  railroad  crossing  guilty  of 
negligence;  Chaddick  v.  Lindsay,  5  Okl.  627,  49  Pac.  944,  holding  rail- 
road not  liable  for  injury  to  employee  caused  by  engine  striking  trunk 
along  right  of  way;  Gunn  v.  Union  R.  R.  Co.,  27  R.  I.  326,  327,  62  Atl. 
120,  121,  upholding  Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supreme 
court  to  direct  judgment  without  further  trial  by  jury. 

97  U.  S.  331-339,  24  L.  959,  MUTUAL  LIFE  INS.  CO.  v.  HARRIS. 

Syl.  2  (IX,  552).     Conclusiveness  of  sister  state  judgment. 

Approved  in  Boatmeir's  Bank  v.  Fritzlen,  135  Fed.  667,  68  C.  C.  A. 
288,  where  suits  pending  between  same  parties  on  same  issues,  in  two 
courts  of  concurrent  jurisdiction,  final  judgment,  though  rendered  in 
second  suit,  is  res  ad  judicata  in  other  court;  Barber  Asphalt  Pav.  Co. 
v.  Morris,  132  Fed.  951,  67  L.  R.  A.  761,  66  C.  C.  A.  55,  where  appeal 
from  allowance  of  claims  by  Duluth  council  taken  by  city  to  state  court 
as  provided  by  charter,  and  claimant  sued  on  .claim  in  federal  court, 
which  stayed  proceedings  pending  state  appeals,  mandamus  granted  to 
vacate  stay. 

Distinguished  in  Robinson  v,  American  Car  etc.  Co.,  142  Fed.  172, 
decree  of  dismissal  without  prejudice  works  no  estoppel, 

97  U.  S.  345-348,  24  L.  940,  MARTIN  v.  MARKS. 

Syl.  2  (IX,  553).     Land  Department — Swamp  land  selections. 

Approved  in  Kerns  v.  Lee,  142  Fed.  992,  under  swamp  land  act  of 
1850,  state  did  not  take  interest  in  particular  tract  thereunder  until  same 
identified  by  list  approved  by  Secretary  of  Interior. 

97  U.  S.  361-365,  24  L.  1044,  STEWART  v.  SALAMON. 

Syl.  1   (IX,  554).     Appeal  from  decree  according  to  mandate. 

Approved  in  Menager  v.  Farrell,  6  Ariz.  319,  57  Pac.  608;  Snyder  v. 
Pima  Co.,  6  Ariz.  46,  53  Pac.  7,  Taylor  v.  Colorado  Iron  Works,  33 
Colo.  185,  80  Pac.  130,  and  McClung  v.  Harris,  11  Okl.  65,  65  Pac.  942, 
all   following  rule;   American  etc.   Co.  v.   Sample,   136  Fed.   858,  where 


97  U.  S.  374-397  Notes  on  U.  S.  Reports.  884 

appellate  court  has  adjudged  patent  invalid  and  directed  entry  of 
decree  in  conformity  with  opinion,  circuit  court  cannot  grant  rehearing 
on  ground  that  complainant  has  filed  disclaimer  which  avoids  grounds 
of  invalidity  found  by  appellate  court. 

Syl.  2  (IX,  355).  Correcting  error  in  effecting  appellate  man- 
date. 

Approved  in  McCourt  v.  Singers-Bigger,  150  Fed.  104,  following 
rule. 

97  U.  S.  374-378,  24  L.  1060,  COMMRS.  v.  BANK  OF  COMMERCE. 

Syl.  1  (IX,    556).     Time  to  object  to  description  of  defendants. 

Approved  in  Union  Pac.  etc.  R.  R.  Co.  v.  Saline  County,  69  Kan. 
284,  76  Pac.  867,  67  L.  R.  A.  61,  where  suit  involving  interests  of 
county  brought  against  persons  designated  as  county  commissioners 
instead  of  suing  them  as  board  of  county  commissioners,  and  no  ob- 
jection made  to  misnomer,  county  bound  by  judgment. 

97  U.  S.  379,  380,  24  L.  1012,  WORK  v.  LEATHERS. 

Syl.   1    (IX,  557).     Charter  of  vessel — Warranty  of  seaworthiness. 

Approved  in  The  Oregon,  133  Fed.  617,  68  C.  C.  A.  603,  whether 
vessel  was  seaworthy  at  beginning  of  voyage  is  immaterial  in  suit 
by  passenger  for  injuries  received;  Smith  v.  Heinlein,  132  Fed.  1002, 
holding  cargo  of  mahogany  logs  tendered  for  loading  under  charter 
not  of  such  unusual  size  as  to  warrant  masteu's  refusal  to  take  only 
smaller  logs,  and  vessel  liable  through  refusal  due  to  vessel's  un- 
suitableness  for  charter  service  or  to  want  of  proper  tackle. 

Distinguished  in  Swenson  v.  Snare  &  Triest  Co.,  145  Fed.  729, 
holding  capsizing  of  pile-driver  while  being  towed  not  due  to  un- 
seaworthiness but  to  improper  towing  in  turning  it  too  suddenly. 

Syl.  3   (IX,  557).     Presumption  on  development  of  defect  in  ship. 

Approved  in  The  Presque  Isle,  140  Fed.  205,  vessel  owner  who  re- 
ceives goods  in  good  condition  as  evidenced  by  bill  of  lading  and  de- 
livers them  damaged  has  burden  of  showing  damage  arose  from  ex- 
cepted risk. 

97  U.  S.  381-385,  24  L.  1104,  BURGESS  v.  SALMON. 

Syl.  2   (IX,  558).     Statutes— Time  of  taking  effect. 

Distinguished  in  Gibson  v.  Anderson,  131  Fed.  42,  65  C.  C.  A.  277, 
where  published  record  of  congressional  joint  resolutions  show  resolu- 
tions approved  May  27,  1902,  it  cannot  be  impeached  by  proof  of  ap- 
proval on  later  date. 

97  U.  S.  392-397,  24  L.  1065,  ERWIN  v.  UNITED  STATES, 
Syl.  1   (IX,  559).     Bankruptcy — Claim  against  government. 
Approved   in   In   re   Burnstine,   131   Fed.    831,   where   bankrupt   had 

orally   transferred  to  wife   claim  against   railroad  for  killing   of   son 


885  Notes  on  U,  S.  Reports.  97  U.  S.  398-423 

in  consideration  of  her  paying  funeral  expenses,  trustee  only  entitled 
to  assignment  of  claim  in  payment  of  funeral  expenses  expended. 

Syl.  2   (IX,  559).     Assignment  of  demands  against  government. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  20,  50  L.  352,  26  Sup.  Ct. 
216,  illegality  of  clause  in  contract  for  prosecution  of  claim  against 
government,  making  payment  for  services  thereunder  lien  on  claim, 
does  not  invalidate  part  of  contract  providing  for  payment  for  ser- 
vices of  percentage  of  amount  allowed. 

97  U.  S.  398-403,  24  L.  1106,  KIHLBURG  v.  UNITED  STATES. 

Syl.  1   (IX,  560).     Transportation  contract — Estimate  of  distances. 

Approved  in  Bush  v,  Jones,  144  Fed.  945,  applying  rule  where  build- 
ing contract  provided  for  payments  on  architect's  certificates;  Moore 
v.  Cornwall,  144  Fed.  30,  where  charter  provided  captain  to  furnish 
certificate  of  seaworthiness  from  charterer's  marine  surveyor,  latter 
could  not  refuse  certificate  because  of  vessel's  age  without  actual 
survey;  Roberts  etc.  Co.  v.  "Westinghouse  etc.  Mfg.  Co.,  143  Fed.  224, 
where  contract  for  purchase  of  machinery  provided  for  reference  of 
disputes  to  engineer,  reserving  final  decision  to  arbitrators,  decision 
of  engineer  on  claim  for  delay,  wuthout  appeal,  is  binding;  Guihl  v. 
Andrews,  137  Fed.  371,  70  C.  C.  A.  49,  holding  engineer's  acceptance 
of  sewer  construction  based  on  such  gross  mistakes  as  to  imply  bad 
faith;  Adams  v.  O'Connor,  6  Ariz.  410,  59  Pac.  108,  construing  build- 
ing contract;  Lamson  v.  Marshall,  133  Mich.  266,  95  N.  W.  83,  apply- 
ing rule  where  sewer  contract  provided  for  higher  price  for  rock  ex- 
cavation than  for  earth,  payments  to  be  made  on  engineer's  estimates; 
Merchants'  Nat.  Bank  v.  East  Grand  Forks,  94  Minn.  252,  102  N.  W. 
705,  applying  rule  to  city  paving  contract;  Livesley  v.  Johnston,  45 
Or.  46,  106  Am.  St.  Rep.  647,  76  Pae.  949,  65  L.  E.  A.  783,  upholding 
contract  for  sale  of  quantity  of  hops  to  be  grown  of  certain  quality, 
buyer  to  have  privilege  of  taking  them  at  reduced  rate  if  in  his 
judgment  they  be  of  less  quality;  Plumbing  Co.  v.  Carr,  54  W.  Va. 
279,  46  S.  E.  461,  where  plumbing  contract  provides  for  final  payment 
when  work  completed  to  satisfaction  of  owner  and  architect,  reasons 
for  rejection  cannot  be  ignored. 

Distinguished  in  The  Nimrod,  141  Fed.  216,  where  contract  to  make 
boiler  for  tug  provided  that  it  should  be  satisfactory  to  engineer, 
fact  that  boiler  was  received  by  him  and  put  in  tug  does  constitute 
acceptance  if  defects  not  obvious. 

97  U.  S.  413-423,  24  L.  1013,  UNITED  STATES  v.  MORA. 

Syl.  3  (IX,  562).     Conditions  in  bond — One  good. 

Approved  in  Probate  Court  of  Central  Falls  v.  Adams,  27  E.  I. 
100,  60  Atl.  770,  bond  of  executor  who  is  residuary  legatee  conditioned 
to  pay  debts  and  legacies  is  not  invalidated  by  addition  of  clause 
requiring  executor  to  account. 


97  U.  S.  423-450  Notes  on  U.  S.  Ecports.  8SG 

97  U.  S.  423-426,  24  L.  10G7,  KENDIG  v.  DEAN. 

Syl.  3   (IX,  563).     Necessary  parties  defined. 

Distinguished  in  Lucas  v.  Milliken,  139  Fed.  823,  where  bill  for 
specific  performance  of  contract  for  sale  of  shares  of  stock  in  cor- 
poration does. not  allege  insolvency  of  other  party  to  contract  or  that 
he  is  about  to  dispose  of  stock,  corporation  is  not  necessary  party. 

97  U.  S.  426-438,  24  L.  1067,  MIMMACK  v.  UNITED  STATES. 

Syl.  3  (IX,  563).     Revocation  of  acceptance  of  officer's  resignation. 

Approved  in  State  v,  Grace,  113  Tenn.  17,  82  S.  W.  487,  applying 
rule  where  councilman 's  resignation  accepted  and  was  subsequently 
withdrawn  with  council's  permission. 

97  U.  S.  444-450,  24  L.  1110,  SETTLEMIER  v.  SULLIVAN. 

Syl.  2   (IX,  564).     Strict  construction  substituted  service  acts. 

Approved  in  King  v.  Davis,  137  Fed.  206,  under  Va.  Code  1904, 
p.  1684,  authorizing  service  by  posting  on  "front  door,"  return  show- 
ing posting  and  leaving  on  "door"  of  defendant's  dwelling  is  in- 
sufficient. 

Syl.  3   (IX,  565).     Scope  of  presumption  as  to  jurisdiction. 

Approved  in  Johnson  v.  Hunter,  147  Fed.  138,  139,  applying  rule 
rnder  Kan.  Laws  1895,  p.  88,  relating  to  enforcement  of  levee  taxes; 
King  V.  Davis,  137  Fed.  208,  under  Va.  Code  1904,  p.  1684,  authorizing 
service  by  leaving  copy  at  defendant's  home  and  giving  notice  of 
purport  to  wife  or  any  person  member  of  family,  return  showing 
leaving  of  copy  with  wife,  but  not  showing  she  is  member  of  family, 
is  insufficient;  Alaska  Commercial  Co.  v.  Debney,  2  Alaska,  319,  where 
defendant,  prior  to  leaving  territory,  gave  brother  power  to  transact 
all  business  relating  to  his  interests  and  at  time  of  service  brother 
was  not  doing  any  business  for  defendant,  service  on  agent  was  in- 
sufficient. 

Syl.  4   (IX,  565).     Record  making  jurisdictional  averment. 

Approved  in  Nevada  Countyv.  Williams,  72  Ark.  397,  81  S.  W.  385, 
where  sheriff's  return  as  to  notice  of  order  calling  in  county  war- 
rants does  not  show  order  posted  at  courthouse  door  as  required  by 
statute,  finding  that  proper  return  made  and  proofs  filed  of  service 
of  notice  is  void;  Clay  v.  Bilby,  72  Ark.  107,  78  S.  W.  751,  in  pro- 
ceedings under  overdue  tax  act,  affidavit  of  publication  of  warning 
order  held  sufficient  on  collateral  attack,  though  containing  irreg- 
ularities. 

Distinguished  in  dissenting  opinion  in  Clay  v.  Bilby,  72  Ark.  116, 
78  S.  W.  754,  majority  holding,  in  proceedings  under  overdue  tax 
act,  affidavit  of  publication  of  warning  order  held  sufficient  on  col- 
lateral attack,  though   containing  irregularities. 


887  Notes  on  U.  W.   Hcports.  97  U.  S.  450-501 

97  U.  S.  450-454,  24  L.  1051,  HILL  v.  NATIONAL  BANK. 

Syl.  3   (IX,  5GG).     Machinery  as  fixture, 

Approvpd  in  Pfliieger  v.  Lewis  etc.  Macliine  Co.,  134  Fed.  31,  67 
C.  C.  A.  102,  where  bankrupt  purchased  heavy  machinery  for  steel 
mill  which  was  erected  on  brick  base,  to  which  it  was  fastened,  but 
no  part  connected  with  walls  of  building,  machinery  was  fixture 
within  mechanic's  lien  law;  White  v.  Cincinnati  etc.  R.  R.  Co.,  34 
Ind.  App.  293,  71  N.  E.  278,  in  proceeding  to  condemn  for  right  of 
way  land  on  which  factory  is  situated,  machinery  necessary  to  carry 
on  business  is  part  of  freehold  regardless  of  manner  of  attachment. 

97  U.  S.  454-483,  24  L.  1071,  KEITH  v.  CLARK. 
Syl.  4   (IX,  567).     Receipt  of  bank  notes  for  taxes. 
See  101  Am.  St.  Rep.  162,  note. 

97  U.  S.  4S4-490,  24  L.  1032,  SPOFFORD  v.  KIRK. 

Syl.  2   (IX,  568).     Assignment  of  claim  against  government. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  20,  50  L.  352,  26  Sup.  Ct.  216, 
illegality  of  clause  in  contract,  for  prosecution  of  claim  against  gov- 
ernment, making  payment  for  services  thereunder  lien  on  claim,  does 
not  invalidate  part  of  contract  providing  for  payment  for  services  of 
percentage  of  amount  alleged;  Henningsen  v.  United  States  etc.  Guar- 
anty Co.,  143  Fed.  813,  assignment  by  public  contractor  of  claim 
against  government  for  money  accruing  on  building  contract  is  void 
as  against  government,  surety,  and  laborers  and  materialmtn. 

97    U.    S.    491-501,    24    L.    1095,    MISSOURI    ETC.    RY.    v.    KANSAS 
PACIFIC  RY. 

Syl.  1  (IX,  569).     Land  grants  in  pracsenti. 

Approved  in  Okanogan  Co.  v.  Cheetham,  37  Wash.  687,  80  Pac.  203, 
70  L.  R.  A.  1027,  under  U.  S.  Rev.  St.,  §  2477.  and  Laws  1903,  p. 
155,  §  103,  where  public  used  highway  over  public  lands  for  seven 
years  prior  to  homestead  entry,  user  was  acceptance  of  congressional 
grant  without  resolution  of  acceptance  of  highway. 

Syl.  5  (IX,  570).     Land  grant  on  condition — Relation  back. 

Approved  in  Kneeland  v.  Korter,  40  Wash.  367,  82  Pac.  610,  1 
L.  R.  A.  (N.  S.)  745,  where  tide  lands  within  place  limits  of  railroad 
grant  surveyed  and  railroad  performed  all  conditions  prior  to  admis- 
sion of  state,  railroad  entitled  to  land,  though  patent  issued  after 
constitution. 

Syl.  7  (IX,  571).     Railroad  land  grant. 

Approved  in  Sjoli  v.  Dreschel,  199  U.  S.  566,  50  L.  312,  26  Sup. 
Ct.  154,  no  interest  in  lands  within  indemnity  limits  of  Northern 
Pacific  grant  acquired  by  that  company  by  virtue  of  filing  lists  of 
selection   to   supply   deficiencies  within  place   limits. 


97  U.  S.  501-509  Notes  on  U.  S.  Eeports,  888 

97  U.  S.  501-509,  24  L.  1115,  PATTERSON  v.  KENTUCKY. 

Syl.  2  (IX,  572),     Extent  of  police  power. 

Approved  in  Chicago  etc.  Ey.  Co.  v.  Illinois,  200  U.  S.  584,  50  L. 
606,  26  Sup.  Ct.  341,  upholding  imposition  on  railroad  of  entire  cost 
of  removing  and  rebuilding  bridge  made  necessary  by  proposed  widen- 
ing of  creek  channel  by  commissioners  acting  under  Illinois  farm 
drainage  act;  Bland  v.  People,  32  Colo.  329,  76  Pac.  362,  upholding 
act  of  1899,  prohibiting  use  of  unregistered  docked  horses;  Louisville 
V.  Wehmhoflf,  116  Ky.  830,  848,  76  S.  W.  881,  79  S.  W.  202,  upholding 
ordinance  forbidding  transmission  to  poolroom  operator  of  messages 
intended  for  use  in  pool-selling  business  in  city;  Commonwealth  v. 
Strauss,  191  Mass.  553,  78  N.  E.  139,  upholding  Hcv.  Laws,  c.  56,  §  1, 
prohibiting  anyone  from  making  it  condition  of  sale  of  goods  that 
purchaser  shall  not  deal  in  those  of  others;  Wallace  v.  Mayor  etc. 
of  Eeno,  27  Nev.  81,  73  Pac.  530,  63  L.  R.  A.  337,  under  Ecno  charter, 
city  board  may  revoke  liquor  license  without  notice;  dissenting  opin- 
ion in  Lochner  v.  New  York,  198  U.  S.  65,  69,  49  L.  945,  947,  25  Sup. 
Ct.  539,  majority  holding  void  New  York  act  of  1897,  limiting  hours 
of  work  in  bakeries;  Bobbs-Merrill  Co.  v.  Straus,  139  Fed.  170,  ar- 
guendo. 

Syl.  4   (IX,  573).     Police  regulation — Oil  regulations. 

Distinguished  in  Ozan  Lumber  Co.  v.  Union  County  Nat.  Bank,  145 
Fed.  345,  346,  holding  void  Arkansas  act  of  1891,  providing  that 
negotiable  instrument  taken  in  payment  for  patented  article  must 
be  executed  on  printed  form  showing  it  was  so  taken. 

Syl.  5  (IX,  573).     Patentee's  rights  subordinate  to  police  power. 

Approved  in  Woods  v.  Carl,  75  Ark.  340,  87  S.  W.  623,  upholding 
Kirby's  Dig-,  §§  513,  514,  making  void  notes  given  in  payment  of 
patented  articles  when  they  do  not  show  on  face  for  what  given; 
J.  H.  Clark  Co.  v.  Eice,  127  Wis.  459,  106  N.  W.  234,  holding  void 
Laws  1901,  p.  364,  as  amended  in  1903,  providing  that  notes  given  for 
patents  or  interests  therein  shall  state  that  they  are  so  given;  Kipp 
V.  Gates,  126  Wis.  572,  105  N.  W.  947,  holding  answer  in  action  on 
notes  alleging  note  given  for  price  of  patent  and  note  did  not  so 
show  as  provided  by  statute,  insufficient. 

Distinguished  in  Ozan  Lumber  Co.  v.  Union  Co.  Nat.  Bank,  145  Fed. 
347,  holding  void  Arkansas  act  of  1891,  providing  that  negotiable  in- 
strument taken  in  payment  for  patented  article  must  be  executed  on 
printed  form  showing  it  was  so  taken. 

Syl.  6   (IX,  574).     Patents — Property  in  machine  and  invention. 

Approved  in  Hartman  v.  Park  &  Sons  Co.,  145  Fed.  363,  upholding 
system  of  contracts  whereby  owner  of  proprietary  medicine  sold  to 
wholesalers  and  retained  control  over  trade  as  to  retailers  to  whom 
and  prices  at  which  wholesalers  may  resell  and  at  prices  at  which 
retailers  may  resell;  In  re  Dann,  129  Fed.  496,  497,  incorporeal  inter- 


889  Notes  on  U.  S.  Eoports.  97  U.  S.  509-553 

est  of  inventor  in  invention  prior  to  patent  does  not  pass  to  trustee 
in  bankruptcy;  dissenting  opinion  in  Continental  Paper  Bag  Co.  v. 
Eastern  Paper  Bag  Co.,  150  Fed.  750,  majority  holding  fact  that 
machine  of  patent  never  put  to  commercial  use  does  preclude  owner 
from  enjoining  infringement. 

^X,  571.)  Miscellaneous.  Cited  in  Kentucky  v.  Powers,  139  Fed. 
490,  on  taking  ease  to  supreme  court  from  Kentucky,  after  affirmance 
of  circuit  court,  by  court  of  ajjpeals,  writ  of  error  taken  from  latter 
court. 

97  U.  S.  509-540,  24  L.  1118,  COLEMAN  v.  TENNESSEE. 

Syl.  1   (IX,  575).     Exclusiveness  of  court-martial's  jurisdiction. 

Approved  in  United  States  v.  Lewis,  129  Fed.  826,  under  Eev.  St., 
§  1342,  state,  in  time  of  peace,  has  jurisdiction  over  persons  in  military 
service  accused  of  offenses  against  citizens  of  state. 

Syl.  2   (IX,  575).     Court-martial — Offense  in  enemy's  country. 

Approved  in  Hamilton  v.  McClaughry,  136  Fed.  448,  449,  boxer 
uprising  in  China  constituted  time  of  war  within  fiftj^-ninth  article 
of  war,  providing  for  trial  of  offenses  by  soldiers  by  court-martial. 

Syl.   4    (IX,   575).     Conflicting   jurisdictions — Court-martial. 

Approved  in  Kepner  v.  United  States,  195  U.  S.  128,  49  L.  124,  24 
Sup.  Ct.  797,  right  of  government  to  appeal  from  acquittal  in  Philip- 
pine court  of  first  instance  taken  away  by  §  5  of  Act  of  1902  for  tem- 
porary government  of  Philippines. 

97  U.  S.  541-545,  24  L.  1112,  WELSH  v.  COOK. 

Syl.  1    (IX,  576).     Congressional  power  over  territories. 

Approved  in  Binns  v.  United  States,  194  U.  S.  492,  48  L.  1089,  24 
Sup.  Ct.  816,  license  fees  imposed  by  Alaska  Pen.  Code,  §  460,  are 
local  taxes  imposed  under  plenary  power  of  Congress  over  territories 
for  purpose  of   defraying  expenses  of  territory. 

97  U.  S.  546-553,  24  L.  1082,  UNITED  STATES  v.  CLAFLIN. 

Syl.  4  (IX,  577).     Statutes — Kepeals  by  implication. 

Approved  in  Succession  of  Dupre,  116  La.  1094,  41  So.  325,  amenda- 
tory act  of  1872  impliedly  repeals  Eev.  St.,  §§  2323-2328,  relating  to 
adoption. 

Distinguished  in  In  re  Dietrick,  32  Wash.  478,  73  Pac.  508,  upholding 
Sess.  Laws  1903,  p.  63,  §  1,  making  conduct  of  gambling  games  a 
felony  which  impliedly  repeals  Laws  1879,  p.  97,  §  1,  making  con- 
duct of  games  a  misdemeanor. 

Syl.  5  (IX,  578).     Eepeal  of  old  by  new  statute. 

Approved  in  Giles  v.  Dennison,  15  Okl.  63,  78  Pac.  177,  Laws  1897, 
p.  256,  §  2,  relative  to  construction  of  courthouses  and  jails,  not  re- 
pealed by  Laws  1903,  p.  146,  c.  11;  McMillan  v.  Payne  Co.  Commrs., 


97  U.  S.  554-581  Notos  on  U.  S.  Reports.  890 

14  Okl.  662,  79  Pac.  899,  act  of  1903,  authorizing  construction  of 
bridges,  not  impliedly  repealed  by  act  of  1903,  concerning  roads  and 
bridges;  Carpenter  v.  Eussell,  13  Okl.  283,  73  Pac.  932,  Stat.  1893,  c. 
18,  art.  13,  relating  to  appeals,  does  not  repeal  Stat.  1890,  c.  19, 
art.  12,  §  14. 

97  U.  S.  554-564,  24  L.  1053,  CHICAGO  &  N.  W.  RY.  CO.  v.  SAYLES. 

Syl.   1   (IX,  579).     Patent   monopolizes  variations. 

Approved  in  Marconi  Wireless  Tel.  Co.  v.  De  Forest  Wireless  Tel. 
Co.,  138  Fed.  678,  holding  Marconi  reissue  No.  11,913,  for  wireless 
telegraph  apparatus,  claims  3  and  5,  infringed  by  De  Forest  apparatus. 

Syl.  2   (IX,  580).     Patents — Gradual   advance  in   art. 

Approved  in  Hunt  v.  Milwaukee  Hay  Tool  Co.,  148  Fed.  225,  Ferris 
patent  No.  584,340,  for  hoist,  not  infringed  by  device  of  Gatenkunst 
patent  No.  785,385;  Mallon  v.  Gregg,  137  Fed.  80,  69  C.  C.  A.  48, 
holding  Mallon  patent  No.  583,408,  for  automatic  machine  for  unload- 
ing and  feeding  sugar-cane,  valid,  but  not  infringed  by  machine  of 
Gregg  patent  No.  670,176. 

Syl.  4   (IX,  581).     Patents — Variations  in  amended  application. 

Approved  in  Cleveland  Foundry  Co.  v.  Detroit  Vapor  Stove  Co., 
131  Fed.  744,  748,  holding  void  Jeawns  patent  No.  475,401,  for  oil 
burner. 

97  U.  S.  566-575,  24  L.  1015,  COOK  v.  PENNSYLVANIA. 

Syl.  1   (IX,  582).     Tax  on  auctioneers  based  on  sales. 

Approved  in  Commonwealth  v.  Caldwell,  190  Mass.  356,  357,  76 
N.  E.  955,  holding  void  Rev.  Laws,  c.  65,  §§  15,  16,  permitting  sale 
by  peddlers  without  license  of  agricultural  products  of  United  States, 
but  forbidding  unlicensed  sales  of  agricultural  products  of  other  coun- 
tries; Mosely  v.  State,  115  Tenn.  57,  86  S.  W.  716,  interest  on  United 
States  bonds  not  taxable  by  state  on  being  paid  into  hands  of  bond- 
holder. 

97  U.  S.  575-581,  24  L.  1130,  HOSMER  v.  WALLACE. 

Syl.  4   (IX,  584).     Requisites  of  pre-emption. 

Cited  in  Wallace  v.  Adams,  143  Fed.  724,  arguendo. 

Syl.  5   (IX,  584).     No  pre-emption  on  occupied  lands. 

Approved  in  Clipper  Min.  Co.  v.  Eli  Min.  etc.  Co.,  194  U.  S.  231, 
48  L.  952,  24  Sup.  Ct.  632,  entry  on  prior  valid  placer  location  for 
prospecting  for  unknown  lodes  initiates  no  title  to  lode  claims  located 
within  boundaries  of  placer  claims;  Crawford  v.  Burr,  2  Alaska,  37, 
one  acquiring  peaceable  possession  of  small  tract  for  lot  and  stable 
on  military  reservation  by  permission  of  commandant,  initiated  no 
right  to  ground ;  Smith  v.  Love,  49  Fla.  242,  38  So.  380,  holding  plaintiff 
held  land  in  trust  for  defendant. 


891  Notes  on  U.  S.  Keports.  97   U.  S.  581-642 

97  U.  S.  581-584,  24  L.  1085,  NEWCOMB  v.  WOOD. 

Syl.  4   (IX,  585).     Eeview  of  ruling  on  new  trial. 

Approved  in  Clement  v.  Wilson,  135  Fed.  750,  68  C.  C.  A.  387,  fol- 
lowing rule;  Francisco  v.  Chicago  &  A.  R.  Co.,  149  Fed.  359,  where 
at  fkise  of  trial  defendant's  motion  for  instruction  in  his  favor 
granted,  but  before  instruction  given  plaintiff  granted  leave  to  take 
involuntary  nonsuit,  error  does  not  lie  to  review  nonsuit;  Peltomaa 
V.  Katahdin  etc.  Paper  Co.,  149  Fed.  283,  refusing  new  trial  in  action 
for  personal  injuries;  Trafton  v.  United  States,  147  Fed.  514,  court 
cannot  grant  new  trial  in  criminal  case  after  term  at  which  sentence 
proiKiunced. 

97  U.  S.  584-594,  24  L.  1009,  GAUSSEN  v.  UNITED  STATES. 

Syl.  2   (IX,  586).     Official  bond — Addition  of  new  duties. 

Approved  in  Smith  v.  United  States,  5  Ariz.  63,  45  Pac.  343,  deter- 
mining liability  of  sureties  on  bond  of  receiver  of  land  district  for 
moneys  received  for  entries. 

Syl.  3   (IX,  586).     Official  bonds — Addition  of  different  duties. 

Approved  in  Lowe  v.  City  of  Guthrie,  4  Okl.  300,  44  Pac.  202, 
sureties  on  bond  of  city  clerk  are  not  liable  for  liquor  license  moneys 
paid  to  clerk  instead   of  to  treasurer  as  required  by  law. 

U7   U.  S.  624-028,  24  L.  1027,  IIOWLAND  v.  BLAKE. 

Syl.  1   (IX,  587).     Burden  of  showing  intent  contrary  to  writing. 

Approved  in  Sing  Yon  v.  Wong  Free  Lee,  16  S.  D.  3SS,  92  N.  W. 
1075,  holding  interveners  had  advanced  money  to  pay  for  part  of 
interest  in  mining  claim  purchased  in  plaintiff's  name,  making  them 
beneficiaries  of  resulting  trust;  Liskey  v.  Snyder,  56  W.  Va.  624,  49 
S.  E.  521,  mortgagee  obtaining  release  of  equity  of  redemption  has 
burden  of  showing  good  faith  and  payment  of  fair  price. 

Syl.  2  (IX,  588).     Sufficiency  of  evidence  to  show  writing  different. 

Approved  in  Neely  v.  Boyd,  145  Fed.  174,  holding  parol  agreement 
by  purchaser  of  land  at  execution  sale  to  hold  title  for  benefit  of 
judgment  defendant  and  to  permit  latter  to  redeem  at  any  time,  not 
known;  Houghteling  v.  Stockbridge,  136  Mich.  548,  99  N.  W.  760, 
holding  intent  of  widow  that  order  for  family  allowance  for  one  year 
should  be  substitute  for  annuity  given  by  will  not  shown;  Stitt  v. 
Rat  etc.  Lumber  Co.,  96  Minn.  32,  104  N.  W.  563,  construing  deed 
absolute  as  mortgage. 

97  U.  S.  628-642,  24  L.  1086,  DAVIE  v.  BRIGGS. 

Syl.   1   (IX,  588).     Presumption  of  death  from  absence. 

Approved  in  The  San  Rafael,  141  Fed.  278,  where  man  intending 
to  take  certain  boat  reached  ferry  in  time,  and  one  answering  his  de- 
scription seen  on  boat,  and  boat  sunk  and  man  not  seen  afterward, 


97  U.  S.  642-651  Notes  on  U.  S,  Eeports.  892 

he  is  presumed  dead,  though  only  three  years  elapsed  since  accident. 
See  104  Am.  St.  Eep.  199,  203,  204,  note. 

97  U.  S.  642-646,  24  L.  1035,  STAGEY  v.  EMERY. 

Syl.  2   (IX,  589).     Probable  cause  for  seizure. 

Approved  in  United  States  v.  83  Sacks  of  Wool,  147  Fed.  748,  on 
judgment  for  claimant  of  property  seized  by  customs  officers  for 
fraudulent  importation,  certificate  of  probable  cause  entered  where 
officers  acted  in  good  faith. 

Syl.  3   (IX,  589).     Elements  of  malicious  prosecution. 

Approved  in  Agnew  v.  Haymes,  141  Fed.  638,  in  action  against  rev- 
enue officer  for  wrongful  seizure  of  goods  returned  to  claimant,  prob- 
able cause  is  defense,  though  certificate  thereof  not  granted  where 
goods  seized  on  order  of  revenue  commissioner  on  information  fur- 
nished by  special  agent;  Moore  v.  Bank,  140  N.  C.  303,  52  S.  E.  947, 
applying  principle   in  action  for  malicious   attachment. 

Distinguished  in  Haymes  v.  Brown,  132  Fed.  529,  under  Eev.  St., 
§  989,  probable  cause  not  defense  to  action  for  wrongful  seizure  made 
under  order  of  superior. 

97  U.  S.  646-651,  24  L.  1057,  ROBEETSON  v.  CEASE. 

Syl.  1   (IX,  589).     Record  showing  jurisdictional  facts — Citizenship. 

Approved  in  Sun  Printing  etc.  Assn.  v.  Edwards,  194  U.  S.  382,  48 
L.  1030,  24  Sup.  Ct.  696,  holding  averment  of  residence  of  plaintiff 
in  certain  state  aided  by  testimony  in  certificate  from  circuit  court  of 
appeals  sufficiently  shows  citizenship;  Utah-Nevada  Co.  v.  Be  Lamar, 
133  Fed.  117,  66  C.  C.  A.  179,  objection  to  jurisdiction  over  action 
on  assigned  contract,  where  it  does  not  appear  assignor  could  sue, 
need  not  be  presented  by  assignment  of  error  in  appellate  court. 

Syl.  3    (IX,  590).     Citizenship — Averment  of  residence   insufficient. 

Approved  in  Steigleder  v.  McQuesten,  198  U.  S.  143,  49  L.  988,  25 
Sup.  Ct.  616,  and  Yocum  v.  Parker,  130  Fed.  771,  66  C.  C.  A.  80, 
both  following  rule;  Sun  Printing  etc.  Assn.  v.  Edwards,  194  U.  S. 
382,  48  L.  1030,  24  Sup.  Ct.  696,  holding  averment  of  residence  of 
plaintiff  in  certain  state  aided  by  evidence  contained  in  certificate 
from  circuit  court  of  appeals  sufficiently  shows  citizenship;  Kansas 
City  etc.  Ry.  Co.  v.  Prunty,  133  Fed.  16,  66  C.  C.  A.  163,  petition  for 
removal  is  insufficient  where  plaintiff's  citizenship  not  alleged,  though 
alleged  to  be  resident  of  state  where  action  brought. 

Syl.  4  (IX,  591).     Federal  jurisdiction  must  affirmatively  appear. 

■Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup.  Ct. 
220,  foreclosure  of  trust  deed  cannot  be  maintained  in  federal  court 
by  assignee  where  assignor  could  not  sue  therein,  though  cancellation 
of  release  of  trust  deeds  to  grantor  also  prayed;  Thomas  v.  Board  of 
Trustees,   195   U.    S.   210,   49   L.    164,   25    Sup.    Ct.    24,   citizenship   of 


893  Notes  on  U.  S.  Eeports.  97  U.  S.  652-082 

members  of  Ohio  University  trustees  does  not  appear  for  jurisdictional 
purposes  from  averments  showing  that  board,  while  not  Ohio  cor- 
poration, was  created  as  organized  body  by  laws  of  state;  Minnesota 
V.  Northern  Securities  Co.,  194  U.  S.  63,  48  L.  877,  24  Sup.  Ct.  598, 
denying  federal  jurisdiction  over  suit  by  state  to  restrain  competing 
interstate  railways  from  violating  anti-trust  act;  Dodd  v,  Louisville 
Bridge  Co.,  130  Fed.  193,  holding  removal  petition  by  corporation 
formed  by  consolidation  of  corporations  of  different  states  did  not 
show  diversity  of  citizenship. 

Syl.  5   (IX,  591).     Amendment  of  pleadings  on  reversal. 

Approved  in  Sanbo  v.  Union  Pac.  Coal  Co.,  140  Fed.  714,  following 
rule. 

97  U.  S.  652-659,  24  L.  1003,  BARNEY  v.  DOLPH, 

Syl.  3  (IX,  591).  Sale  before  issuance  of  land  patent. 
Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
336,  50  L.  505,  26  Sup.  Ct.  282,  purchaser  from  patentees  for  value 
and  without  notice  of  entryman's  fraud  is  bona  fide  purchaser  within 
timber  act  of  1878,  though  he  acquired  interest  in  lands  under  con- 
tract for  standing  timber  before  patent;  Flanagan  v.  Forsythe,  6 
Okl.  236,  50  Pac.  155,  after  final  proof  and  issuance  of  final  certifi- 
cate, lands  entered  as  homestead  are  not  exempt  from  liability  for 
debts. 

97  U.  S.' 659-082,  24  L.  1036,  NOETHWESTERX  FERTILIZING  CO. 
V.  HYDE  PARK. 

Syl.  1  (IX,  592).  Grants  to  corporations  not  implied.  ■ 
Approved  in  Blair  v.  Chicago,  201  U.  S.  472,  50  L.  831.  26  Sup.  Ct. 
427,  construing  terms  of  Chicago  street  railway  franchise;  Knoxvillc 
Water  Co.  v.  Knoxville,  200  U.  S.  35,  50  L.  359,  26  Sup.  Ct.  224, 
municipal  grant  of  waterworks  franchise  does  not  impliedly  devest 
city  of  power  to  construct  own  waterworks  system;  Cleveland  Electric 
Ey.  Co.  V.  Cleveland,  137  Fed.  123,  determining  time  of  termination 
of  franchise  where  company  operating  car  lines  on  various  streets 
under  franchises  expiring  at  different  times  accepted  ordinance  au- 
thorizing substitution  of  electric  power  for  horses  on  certain  line; 
Story  V.  Woolverton,  31  Mont.  355,  78  Pac.  590,  act  of  Congress  of 
1S91  granting  to  Montana  one  section  of  land  of  former  military  res- 
ervation, to  be  selected  so  as  to  embrace  improvements  thereon,  did 
not  grant  right  to  use  of  water  of  stream  from  which  government 
had  taken  water  by  means  of  ditch  across  other  lands. 

Syl.  4  (IX,  594).     Nuisance — Prescription. 

Approved  in  Dobbins  v.  Los  Angeles,  195  U.  S.  239,  49  L.  176,  25 
Sup.  Ct.  18,  holding  void  ordinance  narrowing  limits  for  gasworks  so 
as  to  include  property  on  which  works  being  erected  in  compliance 
with  existing  ordinance  where   change  not  demanded  by  public   wel- 


97  U.  S.  687-G97  Notes  on  U.  S.  Reports.  894 

fare;  Glucose  Ecfining  Co.  v.  Chicago,  138  Fed.  217,  upholding  or- 
dinance declaring  emission  of  dense  smoke  a  nuisance  and  prohibiting 
emission  for  more  than  three  minutes. 

Syl.  5  (IX,  59i).     Scope  of  police  power. 

Approved  in  State  v.  Tower,  185  Mo.  93,  84  S.  W.  12,  68  L.  R.  A. 
402,  upholding  Laws  of  1901,  p.  73,  making  emission  of  dense  smoke  in 
cities  of  certain  population  a  nuisance;  Wallace  v.  Mayor  of  Reno, 
27  Nev.  81,  73  Pac.  530,  63  L.  R.  A.  337,  under  Reno  incorporation  act, 
city  board  may  revoke  liquor  license  without  notice;  Houston  etc. 
Ry.  Co.  V.  Dallas,  98  Tex.  415,  84  S.  W.  653,  upholding  Dallas  or- 
dinance requiring  railroads  at  own  expense  to  reduce  tracks  at  cross- 
ings to  grade. 

Distinguished  in  dissenting  opinion  in  Ex  parte  Boyce,  27  Nev.  361, 
75  Pac.  16,  65  L.  R.  A.  47,  majority  upholding  act  of  1903,  providing 
eight-hour  day  for  workmen  in  mines,  smelters  and  ore-mills. 

Syl.  6   (IX,  595).     Police  power — Regulation   of  business. 

Approved  in  Grainger  v.  Douglas  Park  Jockey  Club,  148  Fed.  521, 
522,  523,  526,  upholding  Ky.  Act  of  1906,  creating  state  racing  com- 
mission, regulating  running  horseraces  and  exempting  from  its  pro- 
visions trotting  races  and  races  conducted  by  fair  associations. 

97  U.  S.   687-693,  24  L.   1098,  MATTINGLY  v.  DISTRICT  OF  COL- 
UMBIA. 

Syl.  1   (IX,  596).     Legislation  for  District  of  Columbia. 

Approved  in  Binns  v.  United  States,  194  U.  S.  492,  48  L.  1089,  24 
Sup.  Ct.  816,  license  fees  imposed  by  Alaska  Pen.  Code,  §  460,  are 
local  taxes  and  not  excises,  and  need  not  be  uniform. 

Syl.  2    (IX,   596).     Front  foot   assessments  for  improvements. 

Approved  in  Louisville  etc,  E.  R.  Co.  v.  Barber  Asphalt  Pav.  Co., 
197  U.  S.  434,  49  L.  822,  25  Sup.  Ct.  466,  fact  that  lot  abutting  on 
street  improvement  used  only  for  railway  right  of  way  does  not 
invalidate  assessment  levied  under  area  rule;  McMillan  v.  Butte,  30 
Mont.  226,  76  Pac.  204,  upholding  Sess.  Laws  1897,  p.  219,  §  30, 
making  street  improvements  payable  by  district  according  to  area. 

Syl.  3  (IX,  596).     Validation  of  erroneous  assessment. 

Approved  in  Duniway  v.  Portland,  47  Or.  Ill,  81  Pac.  94S,  constru- 
ing Portland  Charter,  §  400,  authorizing  reassessment  for  local  im- 
provements in  case  of  invalidity  of  original  assessment. 

97  U.  S.  693-697,  24  L.  1101,  RUCH  v.  ROCK  ISLAND. 

Syl.  1   (IX,  596).     Testimony  given  at  former  trial. 

Approved  in  State  v.  Harmon,  70  Kan.  479,  78  Pac.  806,  admitting 
substance  of  testimony  of  absent  witness  given  at  preliminary  exam- 
ination by  one  who  heard  testimony. 


895  Notes  on  U.  S.  Kcports.  97  U.  S.  G97-712 

Syl.  2   (IX,  59G).     Notes  of  testimony  at  former  trial. 

Approved  in  Toledo  Traction  Co.  v.  Cameron,  137  Fed.  61,  69  C.  C. 
A.  28,  in  action  for  personal  injuries,  testimony  of  witness  at  former 
trial  is  admissible  where  witness  is  outside  of  district  and  over  one 
hundred  miles  from  place  of  trial. 

Syl.  5  (IX,  597).     Breach  of  condition  subsequent — Eevertcr. 

Approved  in  Kannels  v.  Eowe,  145  Fed.  301,  where  deed  to  railroad 
was  subject  to  completion  of  road  in  three  years  or  lands  would 
revert,  execution  of  another  deed  to  third  'person  by  grantors  of 
former  deed  is  not  forfeiture  of  first  grant  for  breach  of  condition; 
Catron  v.  Laughlin,  11  N.  M.  635,  72  Pac.  33,  where  Congress  confirmed 
Mexican  grant  to  such  of  grantees  as  had  not  forfeited  rights  by 
noncompliance  with  conditions,  forfeiture  can  only  be  shown  by  proof 
of  denouncement  and  oflQcial  action  thereon  under  former  government. 

Syl.  6   (IX,  597).     Who  enforces  condition  subsequent. 

Approved  in  Wilmore  Coal  Co.  v.  Brown,  147  Fed.  938,  where  con- 
dition subsequent  in  deed  of  mineral  under  certain  land  provides  tliat 
it  shall  be  void  if  railroad  not  built  in  certain  place  in  five  years, 
and  grantor  gives  second  deed  to  another,  who  takes  possession,  title 
of  first  grantee  vested  in  grantor  for  benefit  of  second  grantee;  Helms 
V.  Helms,  137  N.  C.  209,  49  S.  E.  Ill,  possibility  of  reverter  under 
condition  subsequent  in  deed  is  not  assignable. 

Syl.  7  (IX,  597).     Breach  of  condition  subsequent — Eeentry. 

Approved  in  Lewiston  Water  etc.  Co.  v.  Brown,  42  Wash.  558,  85 
Pac.  48,  under  Bal.  Code,  §  5500,  grantor  in  deed  may  recover  pos- 
session for  breach  of  condition  subsequent  without  demand  prior  to 
suit. 

97  U.  S.  697-712,  24  L.  1091,  MEMPHIS  &  C.  E.  E.  CO.  v.  GAINES. 

Syl.  1   (IX,  597).     Taxation — Exemption  of  capital  stock. 

Approved  in  Powers  v.  Detroit  etc.  Ey.  Co.,  201  U.  S.  560,  50  L. 
866,  26  Sup.  Ct.  556,  Mich.  Laws  1855,  p.  305,  §  9,  providing  railroad 
shall  pay  annual  tax  of  percentage  of  capital  stock  in  lieu  of  other 
taxes,  created  contract;  First  National  Bank  v.  Douglas,  124  Wis. 
21,  102  N.  W.  317,  real  estate  belonging  to  national  bank,  acquired 
with  and  constituting  part  of  its  capital   is  exempt  from  taxation. 


XCVIII  UNITED  STATES. 


98  U.  S.  1-19,  25  L.  GO,  PALMER  v.  LOW. 

Syl.  5   (IX,  599).     San  Francisco  pueblo  lands. 

Approved  in  Catron  v,  Laughlin,  11  N.  M.  G26,  72  Pac.  30,  wliero 
New  Mexico  surveyor  general  declared  Mexican  grant  valid  and 
recommended  its  confirmation,  congressional  confirmation  is  adjudi- 
cation of  perfect  title. 

Syl.  7  (IX,  599).     Confirming  pueblo  land  titles. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  632,  72  Pac.  32,  wliere 
New  Mexico  surveyor  general  declared  Mexican  grant  valid  and 
recommended  its  confirmation,  congressional  confirmation  is  adjudica- 
tion of  perfect  title. 

98  U.  S.  20-31,  25  L.  43,  GLENNY  v.  LANCxDON. 

Syl.  1   (IX,  600).     Bankruptcy — Eecovery  of  fraudulent  transfer. 

Approved  in  Mitchell  v.  Mitchell,  147  Fed.  286,  bankruptcy  trustee 
may  sue  to  recover  possession  of  property  fraudulently  conveyed 
within  four  months  of  bankruptcy,  though  judgment  creditors  could 
maintain  creditor's  bill;  Northwestern  etc.  Ins.  Co.  v.  Kidder,  162 
Ind.  391,  70  N.  E.  492,  66  L.  R.  A.  89,  where,  after  insured  gave  check 
to  beneficiary  in  payment  of  life  policy,  creditors  of  insolvent  cor- 
poration demanded  stoppage  of  payment  on  ground  that  insured  had 
paid  premiums  with  corjjoration  's  assets,  insurer  could  not  compel 
them  to  interplead  as  to  rights  to  proceeds;  Annis  v.  Butterfield,  99 
Me.  187,  58  Atl.  900,  purchaser  of  property  which  bankruptcy  trustee 
sold  cannot  sue  to  set  aside  fraudulent  transfer  of  such  property  made 
by  bankrupt;  Moore  etc.  Mfg.  Co.  v.  Billings,  46  Or.  404,  80  Pac. 
424,  under  Bankr.  Act,  §  70,  trustee  alone,  to  exclusion  of  creditors 
having  no  special  lien,  can  maintain  creditor  's  bill  to  set  aside  bank- 
rupt's  fraudulent  transfer. 

98  U.  S.  31-50,  25  L.  68,  BATES  v.  COE. 

Syl.  1  (IX,  601).     Presumption  as  to  time  of  invention. 

Approved  in  Los  Angeles  Art  Organ  Co.  v,  Aeolian  Co.,  143  Fed. 
884,  construing  Tremaine  &  Pain  patent  No.  552,796,  for  mechanical 
instrument  using  perforated  music  sheets  and  holding  it  infringed 
by  device  of  Fleming  patent  No.  659,442;  Johnson  v.  Foos  Mfg.  Co., 
141  Fed.  82,  holding  Johnson  patent  No.  506,268,  for  process  and 
machine   for  separating  cotton-seed   and  hulls   from   fiber,   not   antici- 

[896] 


897  Notes  on  U.  S.  Eeports.  98  U.  S.  56-71 

patcd;   Eck  v.  Kutz,   132  Fed.   764,  holding  Eck  patent   No.   523,111, 
for  knitting-machine,  not  anticipated. 

Syl.  6   (IX,  602).     Patents— Prior  public  use. 

Approved  in  Louden  Mach.  Co.  v.  Janesville  etc.  Tool  Co.,  141  Fed. 
978,  979,  upholding  Louden  patent  No.  444,546,  for  hay  sling;  Spear 
V.  Keystone  Lantern  Co.,  131  Fed.  881,  holding  Spear  patent  No. 
413,404,  for  improvement  in  lanterns,  valid  and  not  abandoned  by 
taking  out  patent   No.   399,944. 

Syl.  8  (IX,  602).     Secrecy  does  not  forfeit  invention. 
Approved  in  Eck  v.  Kutz,  132  Fed.  777,  holding  over  three  years- 
delay  in  developing  invention  not  abandonment. 

98  U.  S.  56-61,  25  L.  91,  PETERS  v.  BOWMAN. 

Syl.    2    (IX,    604).     Vendor's    lien — Adverse    fitle. 

Approved  in  Tinsley  v.  Atlantic  Mines  Co.,  20  Colo.  App.  65,  7' 
Pac.  13,  where  on  foreclosure  one  made  defendant  under  allcgatioj. 
that  he  held  interest  subsequent  and  subject  to  mortgage,  disclaimed 
c'lainiiiig  under  paramount  tax  lien,  he  cannot  be  compelled  to  litigati- 
title  in  such  action;  Townsend  v.  Kroigh,  133  Mich.  246,  94  N.  \\". 
733,  grantee  who  has  given  back  purchase  money  morgtage  is  estopped 
from  disputing  grantor's  title  for  purpose  of  defeating  payment  oC 
mortgage. 

(IX,  004.)  Miscellaneous.  Cited  in  Boatmen's  Bank  v.  Fritzleo, 
135  Fed.  6C0,  68  C.  C.  A.  288,  holder  of  senior  mortgage  is  not  neces- 
sary party  to  foreclosure  of  junior  mortgage. 

9S  U.  S.  61-71,  25  L.  93,  UNITED  STATES  v.  THROCKMORTON. 

Syl.   1   (IX,   604).     Limitations  against  government. 

Approved  in  Lynch  v.  United  States,  13  Okl.  145,  73  Pac.  1090, 
where  one  has  made  homestead  entry  and  made  final  proof  and  paid 
price  and  obtained  patent,  United  States  cannot  sue  to  annul  patent 
for  perjury  of  patentee  in  obtaining  patent.  See  lUl  Am.  St.  Eep. 
170,  note. 

Syl.  3   (IX,  605).     Equity — Setting  aside  judgment  for  fraud. 

Approved  in  Bailey  v.  Willcford,  136  Fed.  384,  09  C.  C.  A.  226, 
where  nonresident  defendant  in  state  court  appealed  to  state  supreme 
court  and  lost,  and  thereafter  sued  to  set  aside  judgment  on  ground 
of  its  procurement  by  fraud,  and  preliminary  injunction  refused,  fed- 
eral court  refused  to  restrain  collection  of  judgment  on  same  ground 
supported  by  same  affidavits;  Le  Marchel  v.  Teegarden,  133  Fed.  827, 
one  attacking  patent  for  mistake  of  fact  must  plead  evidence  before 
department  from  which  mistake  resulted,  particular  mistake  and  how 
it  occurred;  Nelson  v.  Meehau,  2  Alaska,  493,  vacating  judgment  ob- 
tained by  fraud  and  perjury;  Wabash  R.  R.  Co.  v.  Mirrielees,  182 
Mo.  142,  81  S.  W.  442,  petition  to  set  aside  judgment  procured  by 
67 


98  U.  S.  61-71  Notes  on  U.  S.  Ecports.  898 

perjury  must  show  diligence  in  preparing  to  meet  false  testimony  or 
that  party  prevented  from  exercising  diligence  by  fraud  of  successful 
party;  Klabunde  v.  Byron-Eeed  Co.,  69  Neb.  137,  98  N.  W.  186,  grant- 
ing new  trial  where  illiterate  defendant  in  foreclosure  suit  who  had 
equitable  interest  in  land  defrauded  by  plaintiff's  attorney  who  drew 
his  answer;  Keith  v,  Alger,  114  Tenn.  22,  24,  25,  85  S.  W.  76,  77, 
where  vendee  obtained  decree  setting  aside  sale  for  fraud  and  under 
decree  land  sold  as  that  of  vendor's  estate,  and  heirs  sued  to  set 
aside  decree  because  vendee  pending  former  action  sold  land,  but  con- 
cealed conveyance,  petition  dismissed;  Farmers'  etc.  Warehouse  Co. 
V.  Pridemore,  55  W.  Va.  463,  465,  47  S.  E.  263,  264,  refusing  to  restrain 
judgment  where  complainant  alleges  that  he  can  prove  matter  of  de- 
fense which  he  could  not  prove  at  trial,  but  does  not  give  reason 
founded  in  fraud  or  mistake  as  cause  of  failure. 

Syl.  4   (IX,  607).     Setting  judgment  aside  for  fraud. 

Approved  in  Estes  v.  Timmons,  12  Okl.  542,  73  Pac.  305,  following 
rule;  Harter  v.  Shull,  17  Colo.  App.  167,  67  Pac.  913,  in  action  on 
jiKlgmcnt  it  is  no  defense  that  judgment  was  procured  by  collusion 
of  plaintiff  with  defendant's  attorney;  Tucker  v.  Stewart,  121  Iowa, 
716,  97  N.  W.  149,  upholding  equity  jurisdiction  of  suit  to  set  aside 
order  discharging  administrator  for  errors  in  final  settlement;  Graham 
V.  Loh,  32  Ind.  App.  188,  69  N.  E.  476,  in  action  to  vacate  judgment, 
trti'ihcr  averment  that  plaintiff's  name  forged  to  note  on  which  judg- 
a,t:.^  •■endered  nor  long  delay  in  enforcing  judgment  are  equivalent 
to  charge  of  fraud  in  procuring  jurisdiction;  Keyes  v.  Brackett,  187 
Mass.  308,  72  N.  E.  987,  where  owner  of  property  charged  with 
mechanic's  lien  fraudulently  conveyed  it  and  procured  grantee  to 
give  bond  with  two  irresponsible  sureties  to  dissolve  lien,  lienor  could 
cancel  bond  and  restrain  grantee  from  claiming  rights  thereunder; 
Fitzpatrick  v.  Stevens,  114  Mo.  App.  502,  89  S.  W.  899,  where  holder 
of  note  which  was  paid  presented  it  to  maker's  estate  with  false 
affidavit  that  whole  thereof  was  due,  and  court  allowed  same,  ad- 
ministrator having  no  knowledge  of  payment  could  thereafter  sue  to 
set  aside  judgment;  Thornton  v.  Peery,  7  Okl.  450,  54  Pac.  652,  re- 
fusing to  set  aside  entry  on  allegations  of  perjury  on  contest  in  land 
office;  Cummings  v.  McDermid,  4  Okl.  277,  44  Pac.  277,  allegations 
that  defendant,  through  false  representations  and  perjury,  procured 
deed  are  insufficient  to  review  award  of  townsite  trustees;  Keith  v. 
Alger,  114  Tenn.  26,  85  S.  W.  77,  where  vendee  obtained  decree  set- 
ting aside  sale  for  fraud,  and  under  decree  land  sold  as  that  of 
vendor's  estate,  petition  by  heirs  to  set  aside  decree  because  pending 
former  action  vendee  sold  land  and  concealed  conversance  dismissed; 
dissenting  opinion  in  Haddock  v.  Haddock,  201  U.  S.  627,  50  L.  893, 
26  Sup.  Ct.  525,  majority  holding  mere  domicile  within  state  of  one 
spouse  does  not  give  state  court's  jurisdiction  to  grant  divorce  en- 
forceable in  other  states  against  nonresident  nonappearing  defendant 
served  by  publication. 


8D9  Notes  on  U.  S.  Reports.  98  U.  S.  75-98 

Syl.   5   (IX,  G08).     Fraud — Land   commissioner's   decision. 

Approved  in  Estes  v.  Timmons,  199  U.  S.  396,  50  L.  244,  2G  Sup. 
Ct.  85,  perjury  on  hearing  before  Land  Department  on  hearing  of 
contest  over  homestead  entry  is  not  ground  for  equitable  relief 
against  decision  of  department;  Cagle  v.  Dunham,  14  Okl.  615,  623, 
624,  78  Pac.  562,  565,  refusing  to  set  aside  Land  Department  decision  on 
allegation  that  perjury  was  committed  on  trial  before  department. 

S}'!.  6   (IX,  609).     Who  sues  to  set  aside  patent. 
Approved  in  Henry  v.  State,  87  Miss.  31,  38,  39  So.  862,  864,  gov- 
ernor cannot  sue  in  name  of  state. 

Distinguished  in  dissenting  opinion  in  Henry  v.  State,  87  Miss.  103, 
39  So.  887,  majority  holding  governor  cannot  sue  in  name  of  state. 

98  U.  S.  75-79,  25  L.  84,  GARRATT  v.  SIEBERT. 

Syl.   1    (IX,   609).     When   patent   infringed. 

Distinguished  in  Boston  Pneumatic  Power  Co.  v.  Eureka  Patents 
Co.,  139  Fed.  31,  under  Rev.  St.,  §  4918,  court  cannot  declare  later 
patent  void  for  want  of  patentability. 

98  U.  S.  79-83,  25  L.  66,  lYIXSON  v.  HUTTON. 

Syl.  1   (IX,  609).     Reformation  of  instruments — Mistake, 
Approved  in  Lefler  v.  New  York  Life  Ins.  Co.,  143  Fed.  817,  refu?''" 

parol  evidence  to  contradict  provision  of  premium  note  relating  to  g'Tr*^ 

98  U.  S.  85-98,  25  L.  52,  SXELL  v.  INSURANCE  CO. 

Syl.  1   (IX,  610).     Insurance — Reforming  policy. 

Approved  in  American  Cereal  Co.  v.  Western  Assur.  Co.,  148  Fed. 
79,  where  policy  provided  that  it  insured  A  against  loss  on  described 
property,  loss  payable  to  B  as  his  interest  may  appear,  A  was  in- 
sured; Phoenix  Assurance  Co.  v.  Boyette,  77  Ark.  49,  90  S.  W.  286, 
reforming  policy  where  parties  intended  policy  should  cover  only  part 
of  cotton  in  warehouse  and  insured  relied  on  assurance  of  insurance 
agent  that  this  was  effect  of  policy;  Phoenix  Ins.  Co.  v.  State,  76  Ark. 
182,  88  S.  W.  918,  reforming  insurance  policy  for  mistake  as  to  name 
of  insured  and  location  of  subject  matter  of  risk;  Marshall  v.  Hornier, 
13  Okl.  275,  74  Pac.  371,  upholding  action  by  grantor  to  reform  deed 
to  realty  where  by  agreement  growing  crops  reserved  and  reservation 
left  out  of  deed  by  mutual  mistake. 

Syl.  2  (IX,  611).     Reformation  of  instruments — Mistake  of  law. 

Approved  in  Greer  Co.  v.  Texas,  197  U.  S.  241,  49  L.  738,  25  Sup. 
Ct.  437,  legal  title  to  Texas  lands  patented  to  Geer  county  under 
supposition  that  county  belonged  to  Texas  does  not  pass  to  Geer 
county,  Oklahoma;  Utermehle  v.  Norment,  197  U.  S.  56,  49  L.  662, 
25  Sup.  Ct.  291,  ignorance  of  rule  that  one  taking  benefit  of  will  in 
his  favor  cannot  attack  its  validity  does  not  prevent  its  application; 


98  U.  S.  118-125  Notes  on  U.  S.  Eeports.  900 

Carrell  v.  McMurray,  136  Fed.  669,  where  parties  entered  into  parol 
agreement  for  exchange  of  plaintiff's  land  for  defendant's  store, 
plaintiff  to  retain  possession  of  farm  and  collect  rent  for  ensuing  year, 
and  by  mistake  of  scrivener  deed  and  contract  failed  to  make  res- 
ervation, deed  reformable. 

98  U.  S.  118-122,  25  L.  86,  WIETH  v.  BEANSON. 

Syl.  1  (IX,  612).     Second  location  when  first  unvacated. 

Approved  in  Metz  v.  Wright,  116  Mo.  App.  647,  92  S.  W.  1129, 
absence  of  patent  does  not  vitiate  title  where  land  duly  entered  an.i 
entryman  has  complied  with  all  essentials  necessary  to  entitle  him  to 
patent. 

Syl.  2   (IX,  614).     Equitable  owner  of  lands. 

Approved  in  Waldron  v.  United  States,  143  Fed.  418,  where  Sioux 
woman  filed  selection  of  reservation  lands,  but  claim  rejected  on 
ground  that  she  was  not  Indian,  and  patent  issued  to  later  settler, 
former  entitled  to  cancellation  of  latter 's  patent;  Tegarden  v.  Le 
Marchel,  129  Fed.  490,  state  statute  giving  ejectment  defendant  right 
to  recover  for  improvements  does  not  apply  where  plaintiff  claims 
under  patent  issued  after  improvements  made;  Blumer  v.  Iowa  E.  E. 
Land  Co.,  129  Iowa,  38,  105  N.  "W.  344,  as  against  railroad  entitled  to 
public  land  under  grant,  limitations  run  in  favor  of  occupant  under 
timber  culture  act  from  time  he  takes  possession  under  receiver's 
receipt;  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S.  339,  50 
L.  506,  26  Sup.  Ct.  282,  arguendo. 

98  U.   S.   123-125,   25   L.   75,   NATIONAL  BANK   OF   ST.   LOUIS   v. 
GEAND  LODGE   OF  MASONS. 

Syl.  1   (IX,  614).     Suit  by  beneficiary  of  contract. 

Approved  in  Quigley  v.  Spencer  Stone  Co.,  143  Fed.  90,  where  com- 
plainants contracting  to  furnish  stone  in  daily  installments  assigned 
same  to  one  defendant,  who  assigned  his  contract  to  codefendant,  who 
assumed  all  obligations,  on  first  defendant's  insolvency,  complainant 
could  sue  both  defendants  in  equity  for  breach  of  contract;  First  Nat. 
Bank  v.  Fish,  2  Alaska,  347,  349,  where  A  purchased  goods  and  gave 
note  therefor,  and  goods  sold  to  B,  who  agreed  with  A  to  pay  note, 
B  liable  to  holder  of  note. 

Distinguished  in  Hawkins  v.  Central  Ey.  Co.,  119  Ga.  165,  46  S.  E. 
85,  where  one  railroad  sold  all  property  to  another,  who  agreed  to 
pay  former's  current  liabilities,  latter  not  liable  to  suit  for  personal 
injuries  inflicted  prior  to  sale. 

Syl.  4   (IX,  615).     Corporation   assuming  another's   debt. 

Approved  in  Bort  v.  McCutchcn,  147  Fed.  630,  where  depository 
for  funds  of  corporation  executed  bond  to  president  and  corporation 
jointly  and  severally,  president  could  not  sue  on  bond  after  ceasing 
to  be  such;  Hardison  v.  Yeaman,  115  Tenn.  654,  91  S.  W.  1114,  under 


901  Notes  on  U.  S.  Eeports.  98  U.  S.  145-169 

bond  of  contractor  for  erection   of   courthouse   providing  that   surety 
only  liable  to  owner,  materialman  cannot  sue  thereon. 

98  U.  fe.  145-169,  25  L.  244,  REYNOLDS  v.  UNITED  STA'CES. 

Syl.  1   (IX,  618).     Indictment  according  to  territorial  laws. 

Approved  in  Cochran  v.  United  States,  147  Fed.  207,  on  trial  in 
Oklahoma  court  of  indictment  for  federal  offense,  questions  relating 
to  severance  and  peremptory  challenges  are  determined  by  territorial 
laws;  Welty  v.  United  States,  14  Okl.  15,  76  Pac.  123,  in  prosecution 
in  territorial  court  for  federal  offense,  defendant  need  not  be  served 
with  list  of  jury  before  trial  as  provided  by  federal  law;  Ex  parte 
Murphy,  1  Okl.  290,  29  Pac.  653,  allowing  bail  pending  appeal  in 
criminal  case  on  federal  side  of  territorial  court  as  provided  by 
territorial  statute. 

Syl.  2   (IX,  619).     Jury  trial— Sixth  amendment. 

Approved  in  Kasmussen  v.  United  States,  197  U.  S.  526,  49  L.  865, 
25  Sup.  Ct.  514,  holding  void  31  Stat.  358,  §  171,  providing  for  jury 
of  six  in  misdemeanor  trials  in  Alaska;  Queenan  v.  Territory,  11  Okl. 
266,  71  Pac.  219,  61  L.  E.  A.  324,  disqualification  of  juror  in  criminal 
case  known  during  progress  of  trial  is  waived  by  failing  to  raise 
objection  till  after  verdict. 

Syl.  4   (IX,  620).     Competency  of  jurors — Review. 

Approved  in  Jacobson  v.  Massachusetts,  197  U.  S.  23,  49  L.  648, 
25  Sup.  Ct.  358,  scope  and  meaning  of  state  vaccination  statute  as 
indicated  by  exclusion  of  evidence  on  ground  of  immateriality  are 
conclusive  on  federal  court  in  determining  validity  of  statute;  Jarvis 
V.  State,  138  Ala.  36,  34  So.  1031,  applying  rule  in  murder  case; 
Brady  v.  Territory,  7  Ariz.  19,  60  Pac.  700,  upholding  refusal  of  chal- 
lenge for  actual  bias  where  juror  had  formed  opinion  from  talking 
with  others  and  from  hearing  part  of  former  trial;  Burns  v.  Dunham- 
Carrigan  etc.  Co.,  148  Cal.  211,  82  Pac.  960,  refusing  to  reverse  for 
refusal  of  challenge  to  juror  who  made  conflicting  statements  on  voir 
dire;  Graybill  v.  De  Young,  146  Cal.  423,  80  Pac.  619,  holding  news- 
paper man  not  incompetent  juror  in  libel  case  where  he  would  try 
case  on  evidence  and  law  though  he  thought  libel  actions  speculative; 
Williams  v.  Supreme  Court  of  Honor,  221  111.  158,  77  N.  E.  543, 
juror  forming  opinion  from  reading  papers  which  it  would  take 
evidence  to  remove,  but  who  would  be  governed  by  law  and  evidence, 
not  disqualified;  Huntley  v.  Territory,  7  Okl.  68,  54  Pac.  316,  upholding 
denial  of  challenge  for  bias  where  juror  formed  opinion  from  street 
rumor,  but  could  try  case  fairly  on  law  and  evidence;  Keffer  v. 
State,  12  Wyo.  65,  73  Pac.  559,  where  in  murder  case  only  issue  was 
as  to  defendant's  sanity  at  time  of  killing,  juror  stating  he  had  formed 
opinion  from  speaking  with  others,  which  it  would  take  evidence  to 
remove,  not  disqualified;  dissenting  opinion  in  People  v.  Mol,  137 
Mich.  706,  100  N.  W.  918,  majority  holding  where  several  defendants 


98  U.  S.  176-202  Notes  on  U.  S.  Eeports.  902 

charged  with  bribery  arising  out  of  same  conspiracy,  jurors  who  sat 
in.  trial  of  one  conspirator  were  disqualified  on  trial  of  others.  See 
103  Am.  St.  Eep.  867,  note. 

Syl.  7  (IX',  621).     Testimony  taken  at  former  trial. 

Approved  in  West  v.  Louisiana,  194  U.  S.  265,  48  L.  970,  24  Sup. 
Ct.  650,  admitting  testimony  taken  at  preliminary  examination  on 
proof  of  nonresidence,  permanent  absence  and  inability  to  procure 
attendance  of  witness;  United  States  v.  Greene,  146  Fed.  801,  sten- 
ographic report  of  testimony  of  witness  on  issue  of  probable  cause 
taken  before  commissioner  on  proceeding  for  removal  of  defendant 
to  another  federal  district  for  trial  is  admissible  on  trial  where  wit- 
ness is  dead;  Persons  v.  Smith,  12  N.  D.  417,  97  N.  W.  556,  admitting 
testimony  given  at  former  trial  in  federal  court  between  same  par- 
ties involving  same  issues,  where  witness  dead. 

Syl.  9  (IX,  621).     Eeligious  belief  no  defense  to  crime. 

Approved  in  State  v.  Chenoweth,  163  Ind.  99,  71  N.  E.  199,  belief  in 
Divine  Healing  is  no  defense  to  prosecution  for  involuntary  man- 
slaughter caused  by  failure  to  provide  medical  attendance  for  child; 
United  States  v.  Griego,  11  N.  M.  399,  72  Pac.  21,  indictment  for 
adultery  under  federal  statute  is  sufficient  where  it  charges  married 
man  with  committing  adultery  by  having  "unlawful  intercourse." 

(IX,  618.)  Miscellaneous.  Cited  in  State  v.  Marble,  72  Ohio  St. 
32,  106  Am.  St.  Eep.  570,'  73  N.  E.  1066,  70  L.  E.  A.  835,  upholding 
medical  statute  in  so  far  as  it  regulates  Christian  Science;  Fuller  & 
Fuller  Co.  v.  Johnson,  8  Okl.  605,  58  Pac.  747,  United  States  court  of 
Indian  Territory  is  not  United  States  court  within  Okl.  St.  1890,  p. 
930,  §  2. 

98  U.  S.  176-179,  25  L.  238,  ORVIS  v.  POWELL. 

Syl.  3   (IX,  624).     Foreclosure  decree — Time  to  redeem. 

Approved  in  County  of  Logan  v.  McKinley  etc.  Trust  Co.,  70  Neb. 
414,  101  N.  W.  993,  absolute  order  of  confirmation  of  sale  made  pur- 
suant to  decree  of  sale  for  taxes  which  deprives  debtor  of  statutory 
right   of   redemption   is   erroneous, 

98  U.  S.  179-186,  25  L.  115,  McKNIGHT  v.  UNITED  STATES. 

Syl.  1   (IX,  624).     Assignment  of  government  contractor's  claim. 

Approved  in  Henningsen  v.  United  States  etc.  Guaranty  Co.,  143 
Fed.  813,  assignment  by  pviblic  contractor  of  claim  against  United 
States  for  money  under  building  contract  is  void  as  against  govern- 
ment, surety  and  laborers  and  materialmen. 

98  U.  S.  187-202,  25  L.  116,  STEWART  v.  SONNEBOEN. 

Syl.  3  (IX,  625).     Malicious  prosecution — Probable  cause. 

Approved  in  Moore  v.  Bank,  140  N.  C.  309,  52  S.  E.  949,  holding 
facts  did  not  show  want  of  probable  cause  for  attachment;  Cooper  v. 


903  Notes  on  U.  S.   Reports.  98  U.  S.  203-239 

Flemming,  114  Tcnn.  52,  84  S.  W.  804,  instruction  that  whether  opinion 
of  attorney  general  on  which  iiroseoution  based  was  justified  by 
statute  was  to  be  determined  by  court  is  erroneous, 

Syl.  8  (IX,  627).     Malicious  prosecution  of  bankruptcy  proceedings. 

Approved  in  Wilkinson  v.  Goodfellow  etc.  Shoe  Co.,  141  Fed.  219, 
220,  action  for  malicious  prosecution  lies  for  institution  of  bank- 
ruptcy proceedings  without  probable  cause  and  with  malice,  though 
unaccompanied  by  seizure  of  property. 

Syl.  9  (IX,  627).  Malicious  prosecution — Legal  advice. 
Approved  in  Cooper  v.  Flemming,  114  Tenn.  49,  84  S.  W.  803,  fol- 
lowing rule;  United  States  v.  Praeger,  149  Fed.  484,  refusal  of  civilian 
witness  to  answer  questions  before  court-martial  on  advice  of  counsel 
that  answers  might  subject  him  to  prosecution  for  libel  is  defense  to 
prosecution  under  Comp.  St.  1901,  p.  905;  Adkin  v.  Pillen,  136  Mich. 
086,  100  N.  W.  178,  where  attorney  who  advised  prosecution  was 
directly  interested  in  controversy  and  defendant  informed  by  other 
attorneys  that  facts  insufficient  to  sustain  prosecution,  advice  of  first 
attorney  no  defense  to  malicious  prosecution  suit. 

Distinguished  in  Cook  v.  Proskey,  138  Fed.  276,  proof  that  defendant 
in  suit  for  malicious  prosecution  before  beginning  prosecution  madd 
disclosure  of  facts  to  magistrate  and  was  advised  to  prosecute  is  no 
defense  in  absence  of  showing  that  magistrate  was  attorney. 

98  U.  S.  203-217,  25  L.  97,  SNYDEE  v.  SICKLES. 

Syl.  1   (IX,  628).     Appeal  from  general  land  oflice. 

Distinguished  in  McDaid  v.  Territory,  1  Okl.  101,  30  Pac.  441, 
under  26  U.  S.  Stat.  109,  relating  to  townsite  lots,  after  patent  issued 
to  townsite  trustees,  no  appeal  lies  to  general  land  office  or  Secretary 
of  Interior. 

(IX,  628.)  Miscellaneous,  Cited  in  Territory  v.  Delinquent  Tax- 
payers, 12  N.  M.  65,  73  Pac.  622,  titles  complete  under  Mexican  law 
were  perfect  after  cession  and  required  no  confirmation. 

98  U.  S.  218-224,  25  L.   103,  ELCOX  v.  HILL. 

Syl.  1  (IX,  628).     Innkeepers — Safe  provided  for  valuables. 
See  99  Am.  St.  Eep.  592,  note. 

98  U.  S.  225-239,  25  L.  158,  ANDEEAE  v.  EEDFIELD. 

Syl.  3   (IX,  629).     Statement  of  officials  as   estoppel. 

Approved  in  Monroe  v.  Herrington,  110  Mo.  App.  518,  85  S.  W.  1005, 
where  indorser  informed  holder  of  note  of  property  of  estate  of  one 
previously  liable  and  asked  him  to  try  to  collect  from  estate,  agreeing 
to  pay  balance  when  estate  settled,  indorser  not  estopped  from  pleading 
bmitationsi  NeweU  v,  Clark,  73  N.  H.  291,  61  Atl.  555,  arguendo. 


98  U.  S.  240-342  Notes  on  U.  S.  Reports.  90'< 

Syl.  4  (IX,  629).     Limitations — Concealment  of  cause  of  action. 

Approved  in  Rankin  v.  Barton,  69  Kan.  632,  77  Pac.  532,  if  comp- 
troller fails  to  make  accounting  and  determine  necessity  for  stock- 
holder's assessment  within  reasonable  time  after  insolvency  of  national 
bank,  limitations  begin  to   run  in   favor  of  stockholders. 

98  U.  S.  240-242,  25  L.  105,  EX  PARTE  SCHWAB. 

Syl.  1  (IX,  629).     Mandamus  not  substitute  for  appeal. 

^.pproved  in  Hanson  v.  Police  Jury,  116  La.  1084,  41  So.  322,  refus- 
ing mandamus  to  compel  trial  judge  to  enjoin  police  jury  from  demol- 
ishing courthouse  and  erecting  new   one. 

98  U.  S.  254-266,  25  L.  47,  BOWEN  v.  CHASE. 

Syl.  2  (IX,  631).     Agreement  that  evidence  did  not  conflict. 

Approved  in  Phenix  Ins.  Co.  v.  Kerr,  129  Fed.  725,  64  C.  C.  A. 
251,  66  L.  R.  A.  569,  where  at  close  of  jury  trial  each  party  requests 
peremptory  instruction,  and  court  grants  one  request,  only  question 
reviewable  is  sufficiency  of  evidence. 

98  U.  S.  315-331,  25  L.   139,  BLAKE  v.  HAWKINS. 

Syl.   1    (IX,   633).     Will   construction — Attending  circumstances. 

Approved  in  Anderson  v.  Messinger,  146  Fed.  938,  construing  estate 
of  sons  where  will  provided  that  if  either  of  two  sons  died  without 
lineal  descendants  survivor  shall  take  his  share,  and  if  survivor  so 
dies,  portion  taken  by  survivorship  shall  go  to  testator's  brothers 
and  sisters. 

Syl.  3   (IX,  633).     Wills— Execution  of  power. 

Approved  in  Walters  v.  Bristol,  77  Ark.  185,  91  S.  W.  306,  where 
will  gave  life  tenant  power  to  convey,  and  she  conveyed  for  one-third 
value,  being  joined  by  one  of  remaindermen,  deed  not  pursuant  to 
power;  Lane  v.  Lane's  Admx.,  4  Penne  (Del.),  377,  55  Atl.  187,  64  L.  R. 
A.  849,  will  of  testator  domiciled  in  Pennsylvania  disposing  of  all  his 
estate  is  not  execution  of  power  of  Delaware  testator  authorizing 
former  to  dispose  of  by  will  the  principal,  income  of  which  given  him 
for  life,  though  under  Pennsylvania  law  it  would  be  valid  execution. 

98  U.  S.  334-342,  25  L.  198,  UNITED  STATES  v.  BURLINGTON 
ETC.  R.  R.  CO. 

Syl.  4  (IX,  635).     Statutes — Executive  construction. 

Approved  in  State  v.  Northern  Pac.  Ry.  Co.,  95  Minn.  47,  103  N.  W. 
732,  foreign  railroad  paying  taxes  under  gross  earnings  law,  upon 
which  no  demand  made  for  listing  of  credits,  tax  on  which  not  com- 
muted by  that  law,  is  not  prevented  by  failure  to  list  credits  from 
deducting  debts  from  credits. 


905  Notes  on  U.  S.  Eeports.  98  U.  S.  343-366 

Syl.  6  (IX,  635).     Cancellation  of  patents — Innocent  purchasers. 

Approved  in  United  States  v.  Stinson,  197  U.  S.  205,  49  L.  725,  25 
Sup.  Ct.  426,  refusing  to  set  aside  patents  fraudulently  acquired  where 
forty  years  elapsed  since  alleged  fraud  and  property  had  passed  to 
receiver  of  patentee;  United  States  v.  Detroit  etc.  Lumber  Co.,  131 
Fed.  677,  title  of  bona  fide  purchasers  of  equitable  title  evidenced  by 
receiver's  final  receipts  on  which  patents  subsequently  issue  is  un- 
assailable at  suit  of  United  States  to  avoid  patents  for  fraud  in  pro- 
curement of  patents;  Lynch  v.  United  States,  13  Okl.  145,  156,  158, 
73  Pac.  1096,  1100,  where  homesteader  made  entry  for  townsite  pur- 
poses and  made  final  proof  and  payments  and  obtained  patents,  United 
States  cannot  annul  patent,  though  patentee  committed  bribery  and 
perjury  in  obtaining  title,  where  lots  sold  to  bona  fide  purchasers. 

98  U.  S.  343-358,  25  L.  180,  UNITED  STATES  v.  HALL. 

Syl.  1   (IX,  636).     Seizure  of  pension  money. 

Approved  in  Manning  v.  Spry,  121  Iowa,  198,  199,  96  N.  W.  875, 
pension  money  paid  to  guardian  of  insane  pensioner  and  by  him 
loaned  is  exempt  from  taxation. 

98    U.    S.    359-306,    25    L.    185,    ATLANTIC    &    GULF    E.    E.    CO.    v. 
GEOEGIA. 

Syl.  1  (IX,  636).     Consolidation  of  railroads — Eeserved  power. 

Approved  in  Walsey  v.  Chicago  etc.  Ey.  Co.,  147  Fed.  614,  where 
railroad  which  was  corporation  of  both  Illinois  and  Iowa  united  with 
Iowa  companies  to  form  new  company,  into  which  all  property  con- 
solidated and  merged,  it  was  corporation  of  both  states  for  purposes 
of  federal  jurisdiction;  Eochester  v.  Eochestef  Ey.  Co.,  182  N.  Y. 
118,  74  N.  E.  959,  70  L.  E.  A.  773,  where  railroad  had  statutory 
exemption  from  cost  of  new  pavements,  such  exemption  did  not  pass 
to  its  lessee  with  reference  to  streets  in  which  road  built  prior  to 
enactment  of  statute  imposing  on  railroads  cost  of  repaving;  Gladding 
V.  Saint  Matthews  Church,  25  E.  I.  634,  105  Am.  St.  Eep.  904,  57 
Atl.  863,  65  L.  E.  A.  225,  where  testator  bequeathed  property  to  deaf 
mute  church,  but  before  death  church  consolidated  with  another, 
which  had  department  doing  same  work  as  old  church,  new  church  not 
entitled  to  bequest. 

Distinguished  in  Lee  v.  Atlantic  Coast  Line  E.  Co.,  150  Fed.  787, 
788,  construing  agreement  between  two  railroads  as  merger  and  not 
consolidation. 

Syl.  2  (IX,  637).     Consolidation  of  railroads — Taxation. 

Approved  in  San  Antonio  Traction  Co.  v.  Altgelt,  200  U.  S.  309, 
50  L.  494,  26  Sup.  Ct.  261,  contract  exemption  from  rate  regulation 
possessed  by  street  railway  chartered  prior  to  Texas  constitution  of 
1876,  lost  by  acquisition  on  foreclosure  of  its  property  by  new  com- 
pany. 


98  U.  S.  3S1-410  Notes  on  U.  S.  Eeports.  906 

98  U.  S.  381-398,  25  L.  225,  UNITED  STATES  v.  NEW  ORLEANS. 

Syl.  3  (IX,  640).     City's  power  to  borrow  implies  tax. 

Approved  in  Eose  v.  McKie,  145  Fed.  591,  granting  mandamus 
to  compel  levy  of  tax  by  town  to  pay  judgment,  though  authority  to 
tax  is  limited,  where  not  shown  that  authority  exhausted;  City  Coun- 
cil etc.  of  Denver  v.  Board  Co.  Commrs.  Adams  Co.,  33  Colo.  8,  77 
Pac.  860,  holding  Denver  not  precluded  from  levying  tax  in  excess  of 
rate  provided  for  by  Sess.  Laws  1899,  p.  330,  c.  133,  to  meet  charge 
imposed  by  act  of  1903,  relating  to  adjustments  between  municipalities 
created  out  of  Arapahoe  county. 

98  U.  S.  398-403,  25  L.  231,  BALTIMOEE  &  P.  R.  E.  CO.  v.  GEAXT. 

Syl.  1  (IX,  642).     Statutes  authorizing  review — Eepeal. 

Distinguished  in  Sena  v.  United  States,  147  Fed.  488,  under  New 
Mexico  Organic  Act,  §§  7,  10,  where  defendant,  after  conviction  in  dis- 
trict court,  appealed  in  accordance  with  existing  statute,  repeal  of  such 
statute  without  saving  clause  did  not  deprive  supreme  court  of  juris- 
diction. 

Syl.  2  (IX,  642).    Eepeal  of  law  giving  jurisdiction. 

Approved  in  United  States  v.  Sena,  12  N.  M.  414,  415,  78  Pac.  62, 
repeal  of  Sess.  Laws  1901,  p.  190,  deprived  supreme  court  of  juris- 
diction over  criminal  appeals  not  applied  for  during  term  of  rendition 
of  judgment;  Terry  v.  McClung,  104  Va.  601,  52  S.  E.  356,  where  no 
final  order  establishing  road  as  applied  made  at  time  of  passage  of 
act  of  1888,  depriving  county  court  of  Highland  county  of  jurisdiction 
in  road  cases,  proceedings  lapsed. 

Distinguished  in  dissenting  opinion  in  United  States  v.  Sena,  12  N. 
M.  417,  418,  78  Pac.  63,  majority  holding  repeal  of  Sess.  Laws  1901, 
p.  190,  deprived  supreme  court  of  jurisdiction  over  criminal  appeals  not 
applied  for  during  term  of  rendition  of  judgment. 

98   U.   S.   403-410,   25   L.   206,  MISSISSIPPI  &  EUM  EIVEE   BOOM 
CO.  V.  PATTEESON. 

Syl.  5   (IX,  644).     Eminent  domain — Necessity  for  appropriation. 

Approved  in  Eichland  School  Tp.  v.  Overmyer,  164  Ind.  386,  73  N.  E. 
813,  denying  jurisdiction  to  review  action  of  trustee  under  Burns'  St. 
1901,  §  60U6,  providing  for  condemnation  of  land  by  township  for  school 
purposes  whenever  trustee  deems  necessary;  Lafayette  etc.  Ey.  Co.  v. 
Butner,  162  Ind.  462,  70  N.  E.  529,  no  appeal  lies  from  order  of  circuit 
court  denying  application  for  appointment  of  appraisers  in  proceeding 
to  condemn  lands  for  railroad  right  of  way. 

Distinguished  in  Chicago  etc.  Ey.  Co.  v.  Williams,  148  Fed.  444,  where 
local  board  attempts  to  exercise  power  of  eminent  domain  not  conferred 
by  legislature,  its  action  is  reviewable  by  federal  court. 


907  Notes  on  U.  S.  Ecporta.  98  U.  S.  403-410 

Syl.  7   (IX,  645).     Eiiiincnt  domain — Value,  how  determined. 

Approved  in  Metropolitan  St.  Ey.  Co.  v.  Walsh,  197  Mo.  419,  94  S.  W. 
868,  following  rule;  City  of  Seattle  v.  Board  Home  Missions,  138 
Fed.  311,  under  Laws  Wash.  1893,  p.  194,  c.  84,  §  15,  relating  to  com- 
pensation for  damages  from  change  of  grade,  local  or  special  benefits 
that  particular  property  derives  by  reason  of  improvements  deducted 
from  damages  it  would  sustain;  Callaway  v.  Hubuer,  99  Md.  535,  58 
Atl.  365,  refusing  to  ratify  sale  of  trust  property;  Conan  v.  City  of 
Ely,  91  Minn.  131,  97  N.  W.  739,  in  condenming  piece  of  land  ap- 
propriated from  larger  tract  by  city  to  be  used  in  extending  waterworks, 
fact  that  valuable  spring  enhances  market  value  of  property  taken  was 
proper  subject  of  inquiry;  Kichmond  etc.  Ry.  Co.  v.  Seaboard  etc.  Ry. 
Co.,  103  Va.  408,  49  S.  E.  515,  on  condemnation  of  laud  for  railway 
right  of  way,  fact  that  land  was  available  for  public  park  and  owners 
intended  to  improve  it  for  that  purpose  in  future  and  use  it  as  source 
of  revenue  is  not  element  of  damages ;  In  re  Westlake  Avenue,  40  Wash. 
151,  82  Pac.  281,  applying  rule  in  estimating  benefits  on  projjerty  by 
reason  of  opening  of  street;  Brown  v.  Weaver  Power  Co.,  140  N.  C. 
342,  343,  52  S.  E.  957,  958,  determining  measure  of  damages  where  land 
damaged  by  exercise  of  power  of  eminent  domain  in  erection  of  dam 
for  generating  water-power;  Norfclk  etc.  Ry.  Co.  v.  Davis,  58  W.  Va.  623, 
624,  52  S.  E.  726,  determining  measure  of  damages  where  developed  gas 
X)roperty  taken  for  railway  right  of  way;  Guyandot  Valley  Ry.  Co.  v. 
Buskirk,  57  W.  Va.  425,  430,  110  Am.  St.  Rep.  792,  50  S.  E.  524,  526, 
determining  market  value  of  land  condemned  for  railroad  right  of  way 
and  station. 

Distinguished  in  Atlantic  etc.  R.  R.  Co.  v.  Postal  Tel.  Co.,  120  Ga. 
281.  48  S.  E.  20,  determining  measure  of  damages  for  condemnation  of 
railroad  right  of  way  by  telegraph  company. 

Syl.  8   (IX,  646).     Federal  jurisdiction — Condemnation. 

Apfiroved  in  Madisonville  Traction  Co.  v,  St.  Bernard  Min.  Co.,  196 
U.  S.  247,  248,  250,  49  L.  465,  466,  25  Sup.  Ct.  251,  affirming  130  Fed. 
790,  791,  holding  condemnation  for  railroad  right  of  way  by  Kentucky 
railroad  against  citizen  of  another  state  is  removable;  Helena  Power 
etc.  Co.  V.  Spratt,  146  Fed.  312,  upholding  federal  jurisdiction  over  pro- 
ceeding by  corporation  to  condemn  land  under  Montana  eminent  domain 
statute;  Buckhannon  etc.  R.  Co,  v.  Davis,  135  Fed.  709,  68  C.  C.  A. 
345,  where  federal  court  in  liquidation  proceedings  against  railroad 
appointed  receiver,  order  requiring  suit  against  receiver  to  condemn 
crossing  over  right  of  way  to  be  brought  in  federal  court  is  not  interfer- 
ence with  state's  right  of  eminent  domain;  Union  Ry.  Co.  v.  Standard 
Wheel  Co.,  149  Fed.  701,  arguendo. 

Distinguished  in  dissenting  opinion  in  Madisonville  Traction  Co.  v. 
St.  Bernard  Min.  Co.,  196  U.  S.  259,  260,  49  L.  470,  25  Sup.  Ct.  251, 
majority  holding  condemnation  for  railroad  right  of  way  by  Kentucky 
railroad  against  citizen  of  another  state  is  removable. 


98  U.  S.  425-439  Notes  on  U.  S.  Keports.  908 

(IX,  643.)  Miscellaneous.  Cited  in  Western  Union  Tel.  Co.  v. 
Pennsylvania  R.  E.  Co.,  195  U.  S.  583,  49  L.  328,  25  Sup.  Ct.  133,  right 
of  eminent  domain  is  incident  of  sovereignty  and  needs  no  constitutional 
recognition.     See  102  Am.  St.  Eep.  822,  note,  boom  as  public  use. 

98  U.  S.  425-428,  25  L.  191,  FOSTER  v.  MORA. 

Syl.  1   (IX,  649).     Ejectment — Legal  title  prevails. 

Approved  in  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  47,  69 
C  C.  A.  22,  action  at  law  for  allowance  of  claims  against  estate  of 
decedent  presented  after  eighteen  months  from  order  of  probate  court 
under  Minnesota  statute  is  not  maintainable  in  federal  court;  Anglo- 
American  Land  etc.  Co.  v.  Lombard,  132  Fed.  731,  68  C.  C.  A.  89,  in  law 
action  in  federal  court  to  enforce  Kansas  corporation  stockholder 's  lia- 
bility,  defendant  cannot   set  off  corporation's   debt  to   him. 

Distinguished  in  Cheatham  v.  Edgefield  Mfg.  Co.,  131  Fed.  120,  121. 
facts  constituting  equitable  estoppel  are  pleadable  as  defense  to  eject- 
ment in  federal  court. 

98  U.  S.  428-432,  25  L.  251,  UNITED  STATES  v.  PEROT. 

Syl.  2   (IX,  649).     Judicial  notice  of  foreign  laws. 

Approved  in  United  States  v.  Berrigan,  2  Alaska,  446,  under  article 
3  of  Russian  treaty  ceding  Alaska,  native  bands  of  Tanana  are  entitled 
to  equal  protection  of  laws  with  similar  aboriginal  tribes.  See  113  Am. 
St.   Rep.   8G9,   note. 

98  U.  S.  433-439,  25  L.  209,  CARR  v.  UNITED  STATES. 

Syl.  2  (IX,  650).  Judgment  against  officers — Estoppel  of  govern- 
ment. 

Approved  in  Sanders  v.  Saxton,  182  N.  Y.  480,  108  Am.  St.  Rep.  826, 
75  N.  E.  530,  action  by  land  owner  against  commissioner  of  land  office 
and  state  comptroller  to  have  tax  deed  executed  to  state  declared  void 
is  not  maintainable,  as  state  is  necessary  party  and  cannot  be  sued.  See 
105  Am.  St.  Rep.  210,  note. 

Syl.  3   (IX,  651).     Suit  against  government. 

Approved  in  Tyee  Consol.  etc.  Min.  Co.  v.  Langstedt,  1  Alaska,  466, 
ten  year  statute  of  limitation  begins  to  run  in  favor  of  one  in  adverse 
possession  of  part  of  mining  claim  from  time  of  location  and  not  from 
date  of  patent.     See  108  Am.  St.  Rep.  831,  note. 

Syl.  4   (IX,  651).     Government's  enforcement  of  equitable  rights. 

Approved  in  dissenting  opinion  in  State  v.  Marsh,  134  N.  C.  192,  47 
S.  E.  9,  67  L.  R.  A.  179,  majority  holding  where  conviction  for  rape 
reversed  because  indictment  in  record  did  not  show  allegation  of  non- 
consent,  and  it  is  thereafter  shown  that  such  allegation  omitted  from 
record  by  misprision  of  clerk,  supreme  court  granted  certiorari  to  correct 
record  and  reset  case  for  hearing. 


909  Notes  on  U.  S.  Eeports.  98  U.  b.  440-462 

98  U.  S.  440-447,  25  L.  168,  THE  ABBOTSFORD. 

Syl.  1  (IX,  651).     Admiralty — Conclusiveness  of  finding  of  fact. 

Approved  in  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  12G,  66 
C.  C.  A.  190,  where  jury  is  waived,  and  general  finding  made,  review 
is  limited  to  rulings  at  trial  presented  in  bill  of  exceptions;  Wiser  v. 
Lawler,  7  Ariz.  183,  62  Pac.  700,  holding  assignments  of  error  on  equity 
appeal  too  general  to  review  findings. 

Syl.  2   (IX,  052).     Statutes — Judicial  interpretation. 

Approved  in  Kepner  v.  United  States,  195  U.  S.  124,  49  L.  122,  24 
Sup.  Ct.  797,  right  of  apjseal  by  government  from  acquittal  in  Philippine 
court  of  first  instance  was  taken  away  by  §  5  of  Act  of  1902,  for  gov- 
ernment of  Philippines;  United  States  v.  Green,  136  Fed.  650,  bank 
check  is  not  "obligation  for  payment  of  money"  within  Rev.  St.,  § 
5451,  punishing  bribery  of  United  States  officers;  dissenting  opinion  in 
Trono  v.  United  States,  199  U.  S.  540,  50  L.  299,  26  Sup.  Ct.  121,  majority 
holding  one  is  not  put  in  double  jeopardy  within  act  of  1902,  for  gov- 
ernment of  Philippines  by  conviction  of  murder  in  Philippine  supreme 
court  on  appeal  from  judgment  of  trial  court  which  acquitted  of 
murder  but  convicted  of  assault. 

Distinguished  in  Hackfeld  v.  United  States,  197  U.  S.  451,  49  L.  830, 
25  Sup.  Ct.  456,  ship  owners  who  have  wrongfully  brought  aliens  to 
United  States  and  have  received  them  back  on  board  for  deportation  are 
not  insurers  of  return  of  immigrants  under  Comp.  St.  1901,  p.  1299,  § 
10. 

98  U.  S.  453-462,  25  L.  240,  JENNISON  v.  KIRK.      . 

Syl.  2   (IX,  654).     Miners'  rules  enforceable. 

Approved  in  Revenue  Min.  Co.  v.  Baldcrston,  2  Alaska,  368,  subse- 
quent a[)}>r()priator  of  excess  waters  on  public  domain  for  mining 
purposes  must  use  same  so  as  not  to  injure  first  appropriator  's  use 
thereof;  Price  v.  Mcintosh,  1  Alaska,  293,  miner's  rule  fixing  size  of 
placer  claims  at  1320  feet  long  by  660  feet  wide  is  void. 

Syl.   3    (IX,   654).     Statutory   construction — Legislative    debates. 

Approved  in  Wadsworth  v.  Boysen,  148  Fed.  778,  where  only  question 
of  fact  is  whether  Congress,  when  it  passed  act,  understood  that  imder 
certain  provision  beneficiary  could  select  640  acres  of  mineral  land  within 
certain  area,  debates  may  be  resorted  to  to  ascertain  object  of  proviso; 
Miocene  Ditch  Co.  v.  Jacobson,  2  Alaska,  572,  where  ditch  for  carrying 
water  for  mining  purposes  is  built  across  valid  placer  claim  without 
condemnation  proceedings  or  consent  of  mine  owner,  first  appropriator 
prevails. 

Syl.  4   (IX,  654).     Water  rights. 

Approved  in  Morris  v.  Bean,  146  Fed.  426,  where  citizen  of  Wyoming 
sued  in  Montana  federal  circuit  court  to  enjoin  defendants  residing 
in  such  state  from  diverting  waters  of  stream  rising  in  Montana  and 
flowing    into    Wyoming,    priority    of    appropriation    governs;    Meug    v. 


98  U.  S.  4G3-479  Notes  on  U.  S.  Eeport3.  910 

Coffey,  67  Neb.  518,  108  Am.  St.  Eep.  712,  93  N.  W.  719,  settler  who 
appropriates  water  bv  ' '  squatter  's  rights ' '  not  recognized  by  state  law 
or  custom,  and  afterward  gets  patent  from  government,  may,  as  against 
subsequent  patentees  on  same  stream,  count  time  he  appropriated  water 
as   squatter   in   making   prescriptive    time. 

98  U.  S.  463-470,  25  L.  253,  FLAGSTAFF  SILVER  MINING  CO.  v. 
TARBET. 

Syl.  1  (IX,  656).     Mining  locations — Direction  of  side  lines. 

Approved  in  Davis  v.  Shepherd,  31  Colo.  147,  72  Pac.  58,  under 
congressional  act  of  1866,  right  to  follow  vein  upon  its  strike  is  lim- 
ited to  lines  of  survey  purporting  to  embrace  it. 

Syl.  3  (IX,  656).     Mines — Location  crosswise  of  lode. 

Approved  in  Last  Chance  Min.  Co.  v.  Bunker  Hill  etc.  Co.,  131  Fed. 
588,  66  C.  C.  A.  299,  following  rule;  Empire  State  Min.  etc.  Co.  v. 
Bunker  Hill  etc.  Co.,  131  Fed.  600,  604,  66  C.  C.  A.  99,  where  end  lines 
of  amended  location  do  not  correspond  with  side  lines  of  original  claim, 
not  error  for  court  in  determining  collateral  rights  as  against  inter- 
vening locator  to  draw  vertical  planes  through  side  lines  of  original 
claim  and  through  end  lines  of  amended  claim,  extending  both  in  direc- 
tion of  dip;  Watervale  Min.  Co.  v.  Leach,  4  Ariz.  61,  33  Pac.  421,  under 
Rev.  St.  U.  S.,  §  2320,  providing  that  mining  claim  shall  not  exceed 
1500  feet  in  length  along  vein,  claim  need  not  be  located  along  course 
of  vein. 

Syl.  5  (IX,  657).     Mines — Course  of  vein — Outcrop. 
Approved  in  Last  Chance  Min.  Co.  v.  Bunker  Hill  etc.  Co.,  131  Fed. 
5S9,  66  C.  C.  A.  299,  following  rule. 

98  U.  S.  470-476,  25  L.  228,  AMY  v.  DUBUQUE. 

Syl.  4  (IX,  659).     Limitations — Bond  coupons. 

Approved  in  Wilkinson  v.  John  Hancock  etc.  Ins.  Co.,  27  R.  I.  149,  61 
Atl.  44,  where  policy  payable  to  insured's  administrator  provided  for 
payment  to  beneficiary  within  twenty-four  hours  after  satisfactory  proof 
of  death,  and  that  action  must  be  brought  within  two  years  after  ac- 
crual of  action,  cause  of  action  accrued  twenty-four  hours  after  proof 
of  death,  though  no  administrator  appointed. 

98  U.  S.  476-479,  25  L.  237,  HARKNESS  v.  HYDE. 

Syl.   1    (IX,  659).     Treaty  reserving  Indian  lands. 

Approved  in  Keokuk  v,  Ulam,  4  Okl.  13,  38  Pac.  1083,  where  tribe 
located  on  reservation  under  treaty,  and  reservation  is  afterward  included 
in  organized  county  and  territory,  and  tribe  surrenders  its  interest  in 
reservation  and  members  take  allotments,  their  personalty  is  subject  to 
county  taxes. 

Syl.  2   (IX,  660).     Process  served  on  Indian  reservation. 
Approved  in  Murray  v.  Strong,  2  Alaska,  519,  judgment  obtained  in 
Canada   against   resident   of   Alaska   on   notice   served   in   Alaska   gave 


911  Notes  on  U.  S.  J?eports.  98  U.  S.  470-191 

<'\ina(]ian  court  no  jurisdiction;  American  etc.  Colony  Co.  v.  Schuler,  34 
Tex.  Civ.  566,  79  S.  W.  374,  under  petition  by  domestic  stockholders  in 
foreign  land  corporation  which  acquired  land  in  Texas  for  which  it 
failed  to  pay,  local  court  can  only  determine  plaintiff's  interest  in  and 
partition  Texas  lands;  Northwestern  etc.  Ins.  Co.  v.  Kidder,  162  Ind. 
392..  70  N.  E.  492,  66  L.  R.  A.  89,  arguendo. 

Syl.  3    (IX,  661).     Waiver  of  objection  to  service. 

Approved  in  Chicago  Bldg.  etc.  Co.  v.  Pewthers,  10  Okl.  729.  63  Pac. 
965,  following  rule;  Lathrop  etc.  Co.  v.  Interior  Const,  etc.  Co.,  15U  Fed. 
670,  special  aj)pearance  of  foreign  corporation  defendant  in  state  court 
for  purpose  of  insisting  tliat  no  valid  service  made  upon  it  is  not  sub- 
nussion  to  jurisdiction;  Davis  v.  Cleveland  etc.  Ry.  Co.,  146  Fed.  407, 
special  appearance  to  move  to  quash  attachment  on  ground  that  court 
had  no  jurisdiction  of  defendant  or  property  attached  is  not  general 
appearance;  Williamson  v.  Liverpool  etc.  Ins.  Co.,  141  Fed.  57,  where 
motion  to  strike  out  portion  of  petition  erroneously  sustained  and  ruling 
excepted  to,  plaintiff  did  not  waive  error  by  amending;  Stonega  Coal  etc. 
Co.  V.  Louisville  etc.  R.  Co.,  139  Fed.  272,  where  federal  court  had  no 
jurisdiction  because  neither  party  resided  in  district  and  objection  raised 
by  demurrer,  objection  not  waived  by  defendant 's  appearance  at  taking 
of  depositions  without  insisting  on  objection;  Groel  v.  United  Elec.  Co., 
69  N.  Y.  Eq.  404,  60  Atl.  825,  defendant  may  take  advantage  of  insuffi- 
cient service  in  equity  by  plea  to  jurisdiction  reciting  special  appearance; 
Fisher  v.  Crowley,  57  W.  Va.  319,  50  S.  E.  425,  defect  in  summons 
not  waived  by  pleading  to  merits  after  overruling  of  motion  to  quash, 
to  which  exception  taken;  dissenting  opinion  in  Boston  etc.  R.  Co.  v. 
Gokey,  149  Fed.  48,  majority  holding  under  Comp.  St.  1901,  p.  549,  §  5, 
circuit  court  of  appeals  has  no  jurisdiction  to  pass  on  questions  challeng- 
ing  circuit   court's   jurisdiction. 

98  U.  S.  479-485,  25  L.  233,  WASHINGTON  ETC.  R.  R.  CO.  v.  VAR- 
NELL. 

Syl.    2    (IX,   663).     Exceptions   to   instructions. 

Approved  in  Ball  v.  United  States,  147  Fed.  43,  applying  rule  in 
prosecution   for   nmrder. 

98  U.  S.  486-491,  25  L.  194,  UNITED  STATES  v.  THOMPSON. 

Syl.  1   (IX,  663).     Government  not  barred  by  state  limitations. 

Approved  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  1  Alaska,  447,  ten 
year  statute  of  limitations  begins  to  run  in  favor  of  adverse  possessor 
of  part  of  mining  claim  from  time  of  location  and  not  from  date  of 
location.     See  101  Am.  St.  Rep.  151,  182,  note. 

Syl.  3  (IX,  664).     State  law  as  rule  of  decision. 
See   101   Am.   St.   Rep.   152,   164,   note. 


98  U.  S.  514-546  Notes  ou  U.  S.  Eeports.  912 

98  U.  S.  514-517,  25  L.  256,  BRICK  v.  BRICK. 

Syl.  2    (IX,  666).     Parol  to  vary  writing. 

Approved  in  Barcus  v.  Gates,  130  Fed.  367,  where  attorney  employed 
in  writing  to  collect  sums  on  percentage,  of  which  defendant  defrauded, 
and  it  appeared  expected  settlement,  not  made,  and  suit  brought  and 
attorney  had  to  look  up  evidence  which  defendant  did  not  supply  and 
to  collect  decree,  such  services  not  embraced  in  written  contract ; 
Humphrey  v.  Timken  Carriage  Co.,  12  Okl.  432,  75  Pac.  534,  in  action 
on  order  for  goods  which  sets  out  order  in  full  and  alleges  order  duly 
accepted  and  goods  shipped  to  defendant,  oral  evidence  that  order  not 
given  as  purchase  but  for  different  purpose,  is  admissible;  Weiseham  v. 
Hocker,  7  Okl.  254,  54  Pac.  465,  admitting  parol  to  show  deed  absolute 
was  mortgage  and  that  bond  given  by  grantee  for  reconveyance  if  debt 
paid  was  intended  as  defeasance  and  not  bond  for  title;  Earle  v. 
Owings,  72  S.  C.  364,  51  S.  E.  981,  admitting  testimony  of  contem- 
poraneous agreement  that  when  land  sold  to  four  defendants,  title  to 
be  taken  in  name  of  one  and  grantor  was  to  give  each  defendant  deed 
on  payment  of'  price  and  release  mortgage  therefrom. 

(IX,  666.)  Miscellaneous.  Cited  in  James  v.  Gray,  131  Fed.  408, 
65  C.  C.  A.  385,  loan  by  wife  to  husband  from  her  separate  property 
is  provable  as  debt  against  his  bankrupt  estate,  irrespective  of  its  en- 
forceability under  state  law. 

98  U.  S.  528-541,  25  L.  219,  HOOPER  v.  EOBINSOlSr. 

Syl.  5    (IX,  668).     Insurability  of  contingent  interest. 

Approved  in  Althouse  v.  McMillan,  132  Mich.  148,  92  N.  W.  942,  under 
contract  of  sale  at  ' '  $6.35  per  100  sets  of  headings,  delivered,  less 
New  York  rates  of  freight,  terms  net  30  days  from  date  of  shipment," 
title  passed  to  vendee  on  delivery  to  carrier. 

98  U.  S.  541-546,  25  L.  196,  UNION  PACIFIC  R.  R.  CO.  v.  COUNTY 
COMMISSIONERS. 

Syl.  1   (IX,  669).     Recovery  of  taxes  paid  under  protest. 

Approved  in  United  States  v.  New  Y^ork  etc.  S.  S.  Co.,  200  U.  S. 
494,  50  L.  571,  26  Sup.  Ct.  327,  purchase  of  documentary  stamps  withouv 
protest  and  afl&xing  stamps  to  manifests  is  not  under  duress  though 
clearance  papers  for  vessel  could  not  be  procured  without  delivery  to 
collector  of  stamped  manifests;  Newhall  v.  Jordan,  149  Fed.  589,  im- 
jiorter  of  Porto  Eican  goods  who  entered  same  and  purchased  revenue 
stamps  without  protest  cannot  recover  tax,  though  goods  not  taxable; 
Kahn  v.  Herold,  147  Fed.  579,  where  at  time  executors  paid  revenue 
inheritance  tax  on  life  estate  under  protest  they  did  not  know  life  tenant 
had  died,  payment  was  not  voluntary;  Morris  v.  New  Haven,  78  Conn. 
675,  63  Atl.  124,  where  at  time  taxes  paid  collector  had  no  warrant 
authorizing  him  to  collect  taxes  from  plaintiff  on  tax  list  in  question, 
pavment  under  protest  was  voluntary  payment;  Phoebus  v.  Manhattan 
Club,  105  Va.  150,  52  S.  E.  841,  mere  declaration  of  taxpayer,  indorsed 
on  stub  of  official  tax  book,  that  payment  made  under  protest,  does  not 


913  Notes  on  U.  S.  Keports.  98  U.  S.  553-020 

show  involuntary  payment;  Shirley  v.  Waukesha,  124  Wis.  242  102  N. 
W.  577,  where  plaintiff's  attorney  voluntarily  paid  street  improvement 
assessinent  so  that  she  could  not  recover  it  because  of  invalidity  of 
assessment,  she  could  not  sue  for  reassessment  to  reduce  assessment  paid. 

98  U.  S.  555-559,  25  L.  212,  BARXET  v.  NATIONAL  BANK. 

Syl.   1    (IX,   672).     Usury  as  setoff  against  national  bank. 

Approved  in  Gunby  v.  Armstrong,  133  Fed.  434,  66  C.  C.  A.  627,  under 
Louisiana  statute  authorizing  recovery  of  usurious  interest  paid,  if  suit 
brouglit  within  twelve  months  after  i)ayment,  it  cannot  be  chiiiiicd  in 
any    form. 

98    U.   S.    559-565,    25   L.    222,    ST.   LOUIS,    I.   M.    &   S.   KY.    CO.    v. 
LOPTIN, 

Syl.  1  (IX,  ()73).     Railroad  charter  tax  exemption. 

Approved  in  Powers  v.  Detroit  etc.  Ry.  Co.,  201  U.  S.  560.  50  L.  SG6, 
26  Sup.  Ct.  556,  tax  exemption  contract  created  by  Mich.  Laws,  1S55,  p. 
305,  §  9,  providing  that  company  shall  pay  annual  percentage  of  capital 
stock  in  lieu  of  other  taxes. 

98  U.  S.  565-568,  25  L.  237,  UNITED  STATES  v.  SHERMAN. 

Syl.  1   (IX,  674).     Seizure — Probable  cause. 

Approved  in  Agnew  v.  Haymes,  141  Fed.  637,  under  Rev.  St.,  §§  970, 
989,  proof  of  probable  cause  for  seizure  by  revenue  officer  is  defense 
and  may  be  made  though  decree  for  claimant  in  forfeiture  proceeding 
failed  to  make  certificate  of  probable  cause  where  proof  shows  seizure 
nuide  by   direction   of  internal  revenue   commissioner. 

Syl.  2  (IX,  674).     Probable  cause — Interest  on  judgment — Seizures. 

Distinguished  in  Ilaynies  v.  Brown,  132  Fed.  529,  under  Rev.  St.,  § 
989,  fact  that  revenue  officer  made  unwarranted  seizure  with  probable 
cause  or  under  orders  from  superior,  is  no  defense. 

Syl.  3  (IX,  674).     Interest  on  judgment  against  government. 

Approved  in  Watts  v.  United  States,  129  Fed.  226,  in  suit  against 
United  States,  under  special  act  for  damages  for  loss  of  British  vessel 
through  collision  with  naval  vessel,  decree  cannot  allow  interest  as  part 
of   damages. 

98  U.  S.  569-620,  25  L.  143,  UNITED  STATES  v.  UNION  PAC.  R.  R. 
CO. 

Syl.  2   (IX,  675).     Equity  bill — Multifariousness. 

Approved  in  Brown  v.  Tilley,  25  R.  I.  584,  57  Atl.  3S2,  where  different 
lots  deeded  to  seperate  children  on  condition  of  annuity  to  mother,  bill 
by  mother  to  enforce  payment  of  annuity  against  administrator  and 
all  heirs  of  father,  present  owners  of  parcels,  and  administrators  of 
deceased  heirs  not  multifarious. 
^3 


98  U.  S.  621-630  Notes  on  U.  S.  Eeports.  914 

Syl.   17    (IX,   677).     Trusts — Legal  right   and  use  in  one. 

Approved  in  Young  v.  Mercantile  Trust  Co.,  140  Fed.  62,  bill  for  ac- 
counting alleging  complainant  delivered  securities  to  defendant  as  trustee 
and  depository  to  hold  and  deliver  them  as  authorized"  by  complainant 
does  not  show  trust  relation  so  as  to  give  equity  jurisdiction. 

98  U.  S.  621-630,  25  L.  188,  NATIONAL  BANK  v.  MATTHEWS. 

Syl.  1   (IX,  677).     Objection  to  conveyance  to  corporation. 

Approved  in  Watkins  v.  Iowa  Cent.  Ey.  Co.,  123  Iowa,  400,  98  N.  W. 
914,  reaffirming  rule;  Iowa  etc.  Min.  Co.  v.  United  States  etc.  Guaranty 
Co.,  146  Fed.  439,  where  foreign  corporation  was  acting  as  corporation 
in  Iowa  at  time  it  made  contract  in  suit,  it  is  no  defense  to  action  thereon 
that  plaintiff  had  not  complied  with  Iowa  Code,  §  1637,  requiring  foreign 
corporations  to  file  copies  of  articles  of  incorporation;  Brigham  v. 
Peter  Bent  Brigham  Hospital,  134  Fed.  527,  67  C.  C.  A.  393,  where 
testator  made  trust  devise  to  accumulate  for  term  and  then  be  transferred 
to  corporation  to  be  organized,  to  be  used  in  founding  hospital,  fact 
that  at  testator's  death,  charitable  corporation  not  permitted  by  law  to 
hold  property  to  amount  of  devise  did  not  invalidate  gift  as  to  excess; 
Tidwell  V.  Chiricahua  Cattle  Co.,  5  Ariz.  361,  362,  53  Pac.  194,  195,  valid- 
ity of  conveyance  by  settler  on  government  lands  to  corporation  can  be 
questioned  on  ground  of  incapacity  of  corporation  to  acquire  title  to  such 
lands  only  by  government  in  direct  proceedings;  State  v.  American  Book 
Co.,  69  Kan.  10,  13,  76  Pac.  414,  1  L.  E.  A.  (N.  S.)  1041,  contract 
made  with  foreign  corporation  before  it  has  obtained  permission  under 
statutes  to  do  business  in  state  are  not  cancelable  at  suit  of  one  of  con- 
tracting parties;  Farmers'  Deposit  Nat.  Bank  v.  Western  Penn.  Fuel 
Co.,  215  Pa.  119,  64  Atl.  375,  in  action  for  rent  against  tenant  in  build- 
ing owned  and  occupied  in  part  by  national  bank,  fact  that  bank  had 
no  charter  authority  to  erect  office  building  and  rent  offices  is  no  de- 
fense; Scott  V.  Farmers'  etc.  Nat.  Bank,  97  Tex.  57,  75  S.  W.  15. 
judgment  creditor  of  president  of  corporation  cannot,  by  purchase  at  ex- 
ecution sale  of  property  held  by  him  in  trust,  defeat  corporation's  title 
on  ground  of  corporation's  want  of  power  to  acquire  such  property. 

Distinguished  in  Dunbar  v.  American  Tel.  Co.,  224  111.  31,  79  N.  E. 
430,  minority  stockholders  may  restrain  ultra  \dres  sale  by  corporation 
of  majority  stock  to  other  corj^oration  to  prevent  competition. 

Syl.    2    (IX,    678).     National   bank — Loan   on    realty. 

Approved  in  Waterbury  v.  McKinnon,  146  Fed.  739,  fact  that  lender, 
resident  of  Montana,  procured  note  and  mortgage  securing  same  to  be 
executed  in  name  of  Canadian  to  avoid  taxation,  is  no  defense  to  fore- 
closure by  Canadian;  Fidelity  Ins.  Co.  v.  German  Sav.  Bank,  127  Iowa, 
596,  103  N.  W.  960,  where  insurance  company  received  bank  stock,  cer- 
tificates of  deposit  and  cash  in  payment  of  deposit  in  insolvent  bank, 
it  could  not  repudiate  transaction  on  ground  of  ultra  vires;  Schoonover 
V.  Petcina,  126  Iowa,  267,  100  N.  W.  493,  where  private  banker  sold 
out  to  national  bank  in  which  he  acquired  stock  and  to  which  he  trans- 
ferred assets  of  bank,  including  notes  held  by  him  in  connection  there- 


915  Notes  on  U.  S.  Reports.  98  U.  S.  621-630 

with,  notes  not  taxable  as  his  moneys  and  credits;  Buhrer  v.  Baldwin. 
137  Mich.  2G9,  100  N.  W.  470,  where  statute  provided  that  county 
treasurer  shall  deposit  receipts  in  state  or  federal  bank  and  made  it 
felony  to  violate  it,  fact  that  funds  deposited  with  partnership  engaged 
in  banking  is  no  defense  to  action  on  bond;  Hinds  County  v.  Natchez 
etc.  R.  R.  Co.,  85  Miss.  629,  107  Am.  St.  Rep.  310,  38  So.-  191, 
stockholders  of  corporation  which  sells  its  franchise  cannot  set  up  want 
of  authority  of  purchasing  corjwration  to  buy  same  in  order  to  defeat 
sale;  Norwich  etc.  Ins.  Co.  v.  Buclialter,  102  Mo.  App.  340,  76  S.  W. 
486,  where  Kansas  statute  prohibited  foreign  insurance  companies  to 
do  business  except  through  resident  agent,  and  defendant,  appointed 
such  agent,  executed  bond  to  faithfully  perform  such  duties,  fact  that 
scheme  of  appointment  was  to  avoid  Kansas  statutes  on  bond  is  no 
defense  to  action. 

Distinguished  in  Poling  v.  Board,  56  W.  Va.  255,  49  S.  E.  149,  contract 
of  sale  to  board  of  education  of  articles  for  use  in  free  school  made  by 
member  of  board  of  education  is  void  and  unenforceable. 

Syl.  3    (IX,  6S0).     Corporate  power — Estoppel  of  beneficiary. 

Approved  in  Iowa  etc.  Min.  Co.  v.  United  States  etc.  Guaranty  Co., 
146  Fed.  439,  440,  where  foreign  corporation  was  acting  as  corpora- 
tion in  Iowa,  at  time  it  made  contract  in  suit,  it  is  no  defense  to  action 
thereon  that  plaintiff  had  not  complied  with  Iowa  Code,  §  1637,  requiring 
foreign  corporations  to  file  copies  of  articles  of  incorporation;  Burnes 
V.  Burnes,  132  Fed.  497,  in  absence  of  inhibition,  solvent  corporation 
which  accepts  transfer  of  its  own  shares  under  agreement  to  pay  to 
former  owners  an  annuity  and  has  received  dividends  on  such  stock 
cannot  avoid  contract  as  ultra  vires;  Wisconsin  Lumber  Co.  v.  Green, 
etc.  Tel.  Co.,  127  Iowa,  360,  109  Am.  St.  Rep.  387,  101  N,  W.  745,  69 
L.  R.  A.  968,  agreement  by  corporation  to  repurchase  stock  from  certain 
stockholders  at  par  if  it  should  sell  its  franchise  and  that  stockholders 
should  receive  dividend  at  par  is  not  void ;  Ober  v.  Stephens,  54  W.  Va. 
360,  46  S.  E.  197,  upholding  contract  for  commissions  for  sale  of  land 
by  broker  who  had  no  state  license ;  Third  Nat.  Bank  v.  Buffalo  German 
Ins.  Co.,  193  U.  S.  588,  48  L.  803,  24  Sup.  Ct.  524,  arguendo. 


XCIX  UNITED  STATES. 


99  U.  S.  1-10,  25  L.  309,  WOLF  v.  STIX. 

Syl.  5  (IX,  68C).     Bankruptcy — Debt  of  replevin  claimant. 

Approved  in  Laffoon  v.  Kerner,  138  N.  C.  286,  50  S.  E.  656,  where 
on  appeal  from  justice  defendant  furnished  bond  and  on  appeal  he 
pleaded  discharge  in  bankruptcy  obtained  pendente  lite,  and  no  judg- 
ment rendered  against  him,  judgment  could  not  be  rendered  against 
sureties.  * 

Distinguished  in  In  re  Thompson  Milling  Co.,  144  Fed.  315,  316, 
attorney's  fee  provided  for  in  note  payable  on  condition  that  default 
made  in  payment,  and  it  is  placed  with  attorney  for  collection  or 
suit  brought  on  it,  is  not  provable  against  bankrupt  estate. 

Syl.   6    (IX,   686).     Bankruptcy   discharge — Eeplevin   sureties. 

Approved  in  Klipstein  v.  Allen-Miles  Co.,  136  Fed.  389,  69  C.  C.  A. 
229,  where  debt  sued  on  in  garnishment  proceedings  was  discharged 
pending  suit  by  proceedings  in  bankruptcy  against  debtor,  plaintiff 
could  not  have  judgment  thereon  against  debtor;  Boyd  v.  Agricul- 
tural Ins.  Co.,  20  Colo.  App.  43,  76  Pac.  990,  liability  of  surety  for 
bankrupt  not  altered  by  discharge  of  bankrupt;  World  Pub.  Co.  v. 
Eialto  Grain  Co.,  108  Mo.  App.  485,  83  S.  W.  783,  where  liability 
of  sureties  on  appeal  bond  is  fixed  prior  to  adjudication  in  bankruptcy 
as  to  principal,  sureties  remain  liable,  though  judgment  inoperative  as 
to  principal. 

99  U.  S.  20-25,  25  L.  314,  HUSSEY  v.  SMITH. 

Syl.  1  (IX,  686).     Sale  of  interest  of  townsite  occupant. 

Approved  in  Sawyer  v.  Van  Hook,  1  Alaska,  110,  entry  on  town 
lot  and  depositing  thereon  of  building  material  with  intention  of  erect- 
ing dwelling  constitutes  settlement  within  townsite  act;  Shy  v,  Brock- 
hause,  7  Okl.  41,  54  Pac.  308,  townsite  occupant  may,  prior  to  passing 
of  title  from  government,  maintain  ejectment  against  his  tenant; 
City  of  Guthrie  v.  Beamer,  3  Okl.  662,  41  Pac.  650,  where  lands  entered 
prior  to  survey  for  townsite  and  settlers  adopted  provisional  govern- 
ment, which  platted  town  and  later  townsite  trustees  appointed,  who 
approved  plat,  occupant  of  lands  platted  as  street  devested  of  interest 
in  lands;  Hagar  v.  Wikoff,  2  Okl.  587,  39  Pac.  283,  interest  in  town 
lot  on  public  land  acquired  by  occupant  being  transferable,  grantee 
eucceeds  to  all  rights  of  occupant  as  against  grantor's  tenant;  Me- 
Kennon  v.  Winn,  1  Okl.  335,  33  Pac.  585,  22  L.  R.  A.  501,  upholding 
as  between   parties   contract   by  actual   settler   concerning  possessory 

[916] 


917  Notes  on  U.  S.  Eeports.  99  U.  S.  25-67 

rights,  and  title  to  be  acquired  in  future  from  United  States,  though 
tliere  was  at  time  no  act  of  Congress  by  which  title  could  be  acquired; 
Twiggs  V.  State  Board  of  Land  Commrs.,  27  Utah,  247,  75  Pac.  731, 
purchaser  of  possessory  rights  of  original  settler  entitled  to  prefer- 
ential right  to  purchase  under  Rev.  St.  1S98,  §  2337. 

Syl.  3  (IX,  G87).     De  facto  officer's  acts  binding. 

Approved  in  Monahan  v.  Lynch,  2  Alaska,  IS-l-,  upholding  appoint- 
ment of  poundmaster  by  de  facto  members  of  town  council;  Morford 
V.  Territory,  10  Okl.  745,  63  Pac.  960,  54  L.  R.  A.  513,  perjury  may  be 
committed  in  trial  before  probate  court  presided  over  by  one  not 
licensed  lawyer;  Ex  parte  Haly,  1  Okl.  15,  25  Pac.  515,  United  States 
commissioner  could  commit  one  oa  charge  of  assault  to  custody  of 
United   States   marshal. 

99  U.  S.  25-30,  25  L.  294,  MILLS  v.  SCOTT. 

Syl.  4   (IX,  687).     Equity— Enforcement  of  stockholder's  liability. 

Approved  in  Covcll  v.  Fowler,  144  Fed.  538,  prior  to  levy  of  assess- 
ment, bank  stockholder  cannot  be  pursued  by  suit  to  enforce  sub- 
scription liability. 

Syl.  6  (IX,  688).     "When  debt  lies. 

Approved  in  United  States  v.  Alcorn,  145  Fed.  1000,  proposal  bond 
given  by  bidder  for  mail  contract  conditioned  as  required  by  Comp. 
St.  1901,  p.  2695,  being  absolute  undertaking  to  pay  amount  named 
as  liquidated  damages,  in  action  thereon  actual  damages  not  subject  of 
inquiry. 

99  U.  S.  48-67,  25  L.  424,  PLATT  v.  UNION  PACIFIC  E.  R.  CO. 

Syl.  1  (IX,  690).     Deed  of  trust  held  to  be  mortgage. 

Approved  in  Hiint  v.  Springfield  etc.  Ins,  Co.,  196  U.  S.  50,  49 
L.  382,  25  Sup.  Ct.  179,  condition  in  fire  policy  for  unconditional 
ownership  of  property  by  insured  and  for  nonexistence  of  chattel 
mortgage  is  broken  by  existence  of  trust  deed  to  secure  debt. 

Syl.  8  (IX,  691).  Statutory  construction — Surrounding  circum- 
stances. 

Approved  in  United  States  v.  Smith,  197  U.  S.  393,  49  L.  803,  25 
Sup.  Ct.  489,  prohibition  against  convocation  of  general  court-martial 
by  commander  of  fleet  without  order  of  President,  made  by  Rev.  St., 
§  1C24,  art.  38,  while  fleet  is  in  United  States  waters,  applies  only 
to  continental  limits  of  United  States;  United  States  v.  Ninety-nine 
Diamonds,  139  Fed.  965,  2  L.  R.  A.  (N.  S.)  185,  where  one  who  had 
right  of  possession  of  and  lien  on  imported  merchandise,  together  with 
option  to  purchase  at  fixed  price,  declared,  in  making  entry  of  goods, 
that  he  was  owner,  there  was  no  offense  under  Comp.  St.  1901,  p.  1895. 


S9  U.  S.  72-129  Notes  on  U.  S.  Ecports.  018 

99  U.  S.  72-78,  25  L.  301,  DOGGETT  v.  FLORIDA  RAILROAD  CO. 

Syl.  3  (IX,  692).     No  construction  when  intent  plain. 

Approved  in  Farmers'  Loan  etc.  Co.  v.  Sioux  Falls,  131  Fed.  90S, 
under  Const.  S.  D.,  art.  13,  §  4,  as  amended  in  1902,  city  already 
indebted  to  amount  nearly  equal  to  fifteen  per  cent  of  assessed  value 
of  property  therein  for  previous  year  could  not  issue  waterworks  bonds 
•which  would  increase  debt  to  twenty-three  per  cent  of  assessed  valu- 
ation. 

99  U.  S.  80-85,  25  L.  407,  BARROW  v.  IIUNTON. 

Syl.  2  (IX,  694).     Removal — Proceedings  subsequent  to  judgment. 

Approved  in  Kirk  v.  United  States,  131  Fed.  339,  upholding  juris- 
diction to  restrain  collection  of  execution  on  forfeited  recognizance. 

99  U.  S.  100-112,  25  L.  306,  GRAFTON  v.  CUMMINGS. 

Syl.  1  (IX,  696).     Statute  of  frauds — Memorandum. 

Approved  in  Usher  v.  Daniels,  73  N.  H.  208,  60  Atl.  747,  where  mctn- 
ornndum  of  sale  within  statute  of  frauds  signed  by  plaintiff's  agent 
in  own  name,  as  he  was  orally  authorized  to  do,  parol  evidence 
admissible  to  identify  plaintiff  as  real  party  in  interest. 

Distinguished  in  Stuart  v.  Mattcrn,  141  Mich.  691,  105  N.  W.  37, 
where  owner,  in  writing,  requested  agent  to  sell  land,  and  latter  pro- 
nirod  purchaser  and  contract  naming  him  was  signed  by  agent  in 
nnnie  of  owner,  contract  complied  with  statute  of  frauds. 

99  U.  S.  112-119,  25  L.  470,  TOWN  OF  WEYAUWEGA  v.  AYLING. 

Syl.  1  (IX,  697).     Town  bonds — Estoppel  to  question  legality. 

Approved  in  dissenting  opinion  in  Wright  v.  East  Riverside  Irr. 
Dist.,  138  Fed.  327,  majority  holding  where  irrigation  district  pre- 
pared bonds,  coupons  of  which  contained  lithographed  signature  of 
then  secretary,  but  bonds  not  delivered  till  eighteen  months  later,  but 
neither  date  nor  signature  to  coupons  changed,  and  new  secretary 
signed  bonds,  bonds  void. 

Distinguished  in  Gage  v.  McCord,  5  Ariz.  234,  51  Pac.  979,  terri- 
torial bonds  once  dated  and  executed  under  Act  Cong.,  June  25,  1890, 
§  4,  may  be  thereafter  negotiated  by  successors  of  officers. 

99  U.  S.  119-129,  25  L.  370,  CASE  v.  BEAUREGARD. 

Syl.  5  (IX,  698).     Firm  assets  applied  to  firm  debts. 

Approved  in  People's  Nat.  Bank  v.  Wilcox,  136  Mich.  581,  100 
N.  W.  29,  where  surviving  partner,  as  such  and  individually,  executed 
mortgage  on  firm  property  to  pay  firm  debts,  mortgagees  have  lien  on 
firm  property  prior  to  individual  creditors  of  partner  whose  execu- 
tions levied  after  mortgage;  Reddington  ▼.  Franey,  124  Wis.  593,  102 
N.  W.  1066,  where  incoming  and  retiring  partner  agreed  that  latter 
should  pay  outstanding  debts,  former  not  liable  for  firm  debts. 


919  Notes  on  U.  S.  Ecports.  99  U.  S.  149179 

99  U.  S.  149-151,  23  L.  4C0,  KLEIX  v.  NEW  OKLEANS. 

Syl.  1  (IX,  702).     Levy  on  lands  held  for  public  purpose. 

Approved  in  The  John  McCracken,  145  Fed.  707,  vessels  owned 
by  port  of  Portland,  and  used  by  it  in  maintaining  navigation  in 
harbor,  are  not  seizable  by  United  States  in  civil  suit  in  rem  to  re- 
cover dama^^i'S  for  marine  tort. 

09  U.  S.  152-lGl,  23  L.  34S,  UNITED  STATES  v.  FOKT  SCOTT. 

Syl.  1   (IX,  702).     City  improvement  bonds — Taxes. 

Approved  in  City  of  Sui)crior  v.  Marble  Sav.  Bank,  148  Fed.  10, 
where  city  charter  authorized  council  to  issue  sewerage  bonds  charge- 
able to  particular  lots  described,  and  that  city  shall  pay  principal 
aud  interest  when  due,  and  reimburse  itself  by  tax  on  lots  mentioned 
in  bonds,  bonds  are  general  obligations  of  city;  Brockenbeough  v. 
Board  of  "Water  Conimrs.,.  134  N.  C.  14,  46  S.  E.  32,  issue  of  bonds 
under  Priv.  Laws  1903,  p.  440,  c.  196,  providing  that  they  shall  be 
paid  from  income  of  city  waterworks  and  that  none  of  city's  funds 
raised  by  taxation  shall  be  applied  to  their  payment,  is  not  contract- 
ing of  debt  by  city. 

99  U.  S.   lCl-168,  25  L.  317,  HARRIS  v.  McGOVERN. 

Syl.  2   (IX,  703).     Adverse  possession — Subsequent  disability. 

Approved  in  Schauble  v.  Schulz,  137  Fed.  396,  69  C.  C.  A.  581, 
construing  Rev.  Codes  N.  D.  1S99,  §  3491a,  relating  to  adverse  pos- 
session. 

99  U.  S.  lGS-179,  25  L.  3S3,  GORDON  v.  GILFOIL. 

Syl.  3  (IX,  703).     Abatement — Pendency  of  state  suit. 

Approved  in  German  Savings  &  Loan  Society  v.  Tull,  136  Fed.  12, 
69  C.  C.  A.  1,  following  rule;  Slaughter  v.  Mallet  Land  etc.  Co.,  141 
Fed.  290,  pendency  of  state  action  of  trespass  to  try  title  and  to 
remove  cloud  from  title  not  ground  for  abatement  of  subsequent  fed- 
eral suit  between  same  parties  to  quiet  title  to  same  land;  Burk  v. 
McCaffrey,  136  Fed.  696,  fact  that  counterclaim  is  set  up  in  state 
action  is  not  ground  for  abatement  of  federal  action  for  same  subject 
matter;  Loewe  v.  Lawlor,  130  Fed.  633,  pendency  of  state  suit  cannot 
be  pleaded  in  abatement  of  federal  action  to  recover  treble  damages 
under  Anti-trust  Act,  §  7;  Lake  Co.  v.  Schradsky,  31  Colo.  184,  71 
Pac.  1106,  pendency  of  writ  of  error  in  federal  supreme  court  to  re- 
view judgment  of  dismissal  for  want  of  jurisdiction  entered  by  circuit 
court,  where  no  supersedeas  granted,  does  not  bar  state  action  between 
same  parties  for  same   cause  of  action. 


99  U.  S,  lSO-212  Notes  on  U.  S.  Eeports.  920 

99  U.  S.  180-183,  25  L.  451,  BURT  v.  PANJAUD. 

Syl.  3   (IX,  704).     Ejectment — Possession  evidence  of  title. 

Approved  in  Lasswell  v.  Kitt,  11  N.  M.  463,  70  Pac.  562,  where  one 
made  location  on  land  and  fully  complied  with  law  to  obtain  title, 
he  may  maintain  ejectment  against  subsequent  locator. 

99  U.  S.  .191-201,  25  L.  319,  SOUTHERN  EXPRESS  CO.  v.  WESTERN 
NORTH  CAROLINA  R.  R.  CO. 

Syl.  3  (IX,  705).     Corporation's  contract  presumed  valid. 

Approved  in  In  re  Castle  Braid  Co.,  145  Fed.  234,  contract  by  cor- 
poration to  purchase  stock  of  directors  made  to  settle  pending  litiga- 
tion is  prima  facie  valid,  where  bad  faith  or  insolvency  of  corporation 
at  time  of  contract  not  shown. 

Syl.  5  (IX,  705).     Specific  performance — Contract  for  personalty. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Blair,  130  Fed.  976,  where  life 
policy  provided  for  settlement  by  issuance  to  insured's  wife  of 
annuitj^  policy  payable  in  twenty  annual  installments,  policy  was 
subject  of  specific  performance. 

Syl.   6   (IX,  705).     Specific  performance— Power  of  revocation. 
Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  812,  construing 
covenants  and  conditions  for  forfeiture  in  oil  and  gas  lease. 

Syl.  7  (IX,  706).     Receiver — Railroad  contract  to  furnish  facilities. 
Cited  in  Wightman  v.  Yaryan  Co.,  217  111.  381,  108  Am.   St.  Rep. 
258,  75  N.  E.  505,  arguendo. 

99  U.  S.  201-212,  25  L.  431,  GODDEN  v.  KIMMELL. 

Syl.  1   (IX,  706).     Stale  claims  not  favored. 

Approved  in  Ryan  v.  Woodin,  9  Idaho,  531,  75  Pac.  262,  refusing 
to  cancel  judgment  and  sheriff's  deed  resulting  from  execution  sale 
based  thereon  where  suit  brought  over  six  years  after  execution  of 
deed;  dissenting  opinion  in  Werner  Co.  v.  Encyclopedia  Brit.  Co.,  134 
Fed.  1024,  majority  holding  where  complainant  and  predecessors  in 
title  had  no  knowledge  of  infringing  articles  until  less  than  eighteen 
months  prior  to  suit,  and  infringing  articles  did  not  appear  in  defend- 
ants' publication  at  first,  no  laches. 

Syl.  3   (IX,  709).     Equity — Analogy  of  limitation  statutes. 

Approved  in  Williams  v.  Neely,  134  Fed.  13,  69  L.  R.  A.  232,  67 
C.  C.  A.  171,  it  is  not  laches  for  one  having  equitable  defense  to  note 
which  is  being  sued  on  in  another  court  to  wait  till  affirmative  action 
at  law  on  subject  of  defense  is  barred  and  until  equitable  defense  is 
rejected  in  law  action  on  note,  before  seeking  to  enjoin  latter  action 
till  equitable  defense  allowed;  Moore  v.  Nickey,  133  Fed.  292,  66 
C.  C.  A.  667,  suit  to  recover  mining  stock  under  written  contract 
brought   nine   years  after   contract   and   eight  years   after   demand   is 


921  Notes  on  U.  S.  Eeports.  99  U.  S.  214-256 

barred  where  state  law  would  bar  it  in  five  years;  dissenting  opinion 
in  Burrus  v.  Cook,  117  Mo.  App,  403,  93  S.  W.  893,  majority  holding 
surety  of  judgment  debtor  paying  judgment  may  sue  cosurety  for  con- 
tribution after  running  of  limitations. 

Syl.  4  (IX,  709).     Stale  claims — Reasons  for  delay. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  41,  66  Pac.  564,  55  L. 
R.  A.  638,  holding  eight  years'  delay  in  bringing  suit  to  enforce  rigLta 
under  verbal  trust  relating  to  mining  locations  barred  right. 

99  U.  S.  214-220,  25  L.  410,  SUPEKVISOES  v.  GALBEATTII. 

Syl.  1  (IX,  710).     Directory  statutes. 

Approved  in  Mestas  v.  Diamond  Coal  etc.  Co.,  12  Wj'o.  427,  430, 
76  Pac.  509,  570,  Const.  1890,  art.  10,  §  4,  providing  that  no  law 
shall  be  enacted  limiting  amount  of  recovery  for  personal  injuries,  did 
not  repeal  Rev.  St.  18S7,  §  2364b,  limiting  recovery  in  actions  for 
death  to  $5,000, 

99  U.  S.  221-224,  25  L.  321,  FARRELL  v.  UNITED  STATES. 

Syl.  1  (IX,  711).     Revenue  tax — Destruction  of  goods  in  bond. 

Approved  in  Powell  v.  United  States,  135  Fed.  882,  upholding  regu- 
lations prescribed  by  commissioner  of  internal  revenue  for  claims  for 
rebate  of  taxes  paid  on  manufactured  tobacco  and  snuff. 

99  U.  S.  229-234,  25  L.  373,  KING  v.  UNITED  STATES. 

Syl.  1  (IX,  711).     Defense  of  sureties  of  collector's  bond. 

Approved  in  Lake  Co.  v.  Neilon,  44  Or.  19,  74  Pac.  213,  fact  that 
taxes  were  collected  by  tax  collector  under  defective  warrant  is  no 
defense  to  sureties  sued  for  collector's  conversion  of  moneys  so  col- 
lected. 

99  U.  S.  235-256,  25  L.  339,  FOSDICK  v.  SCHALL. 

Syl.  2  (IX,  712).     Mortgage  lien  on  after-acquired  property. 

Approved  in  Tilford  v.  Atlantic  Match  Co.,  134  Fed.  927,  where 
stockholding  corporation  acquired  nearly  all  stock  in  manufacturing 
company  and  manager  of  both  companies  agreed  to  furnish  latter  with 
boiler,  title  to  remain  in  seller  until  paid  for,  and  acceptance  signed 
by  first  company  by  manager,  and  no  payments  made  by  it,  but  two 
made  by  manufacturing  company,  receiver  of  first  company  not  enti- 
tled to  fund  derived  from  sale  of  boiler. 

Syl.  3   (IX,  712).     Receiver's  possession  is  court's. 

Approved  in  Paige  v.  Schenectady  Ry.  Co.,  178  N.  Y.  114,  70  N.  E. 
217,  receiver  by  abandoning  use  of  street  for  railroad  does  not  give 
consenting  owners  of  fee  in  street  right  to  enjoin  subsequent  opera- 
tion of  road. 


99  U.  S.  235-256  Notes  on  U.  S.  Keports.  922 

Syl.  4  (IX,  712).     Mortgage  lien — After-acquirccl  property. 

Approved  in  General  Fire  Ext.  Co.  v.  Lamar,  141  Fed.  357,  358, 
master's  finding  that  appliances  were  attached  to  factory  presumed 
correct  in  determining  whether  appliances  were  subject  to-  prior  mort- 
gage on  building  and  machinery,  in  absence  of  evidence  as  to  character 
of  appliances;  Missouri  Pac.  Ey.  Co.  v.  Bradbury,  106  Mo.  App.  458, 
79  S.  W.  908,  where  railroad  abandoned  right  of  way  without  re- 
moving tracks,  rails  became  property  of  owner  of  land.  See  99  Am. 
St.  Eep.  253,  note. 

Sj'l.  5  (IX,  714).     Receivers — Payment  of  debts  pending  foreclosure. 

Approved  in  Atchison  etc.  Ey.  Co.  v.  Osborn,  148  Fed.  610,  Cll, 
holder  of  unsecured  claim  for  damages  arising  from  negligence  of 
mortgagor  railroad  prior  to  appointment  of  receiver  is  not  entitled 
to  priority  of  payment  over  mortgage  creditor;  Le  Hote  v.  Boyet,  85 
Miss.  642,  38  So.  1,  2,  claims  for  labor  performed  just  prior  to  re- 
ceivership, necessary  to  continuance  of  business  of  corporation  and 
to  preserve  property,  are  preferred  over  mortgage  creditors;  Perrin 
etc.  Printing  Co.  v.  Cook  Hotel  etc.  Co.,  118  Mo.  App.  59,  93  S.  W. 
341,  receiver's  certificates  issued  for  completion  of  building  on  leased 
land  are  not  entitled  to  priority  over  claim  for  rent  during  occupancy 
of  receiver;  Vila  v.  Grand  Island  etc.  Co.,  68  Neb.  230,  110  Am.  St. 
Eep.  408,  94  N.  W.  140,  holding  labor  claims  not  preferential  lien  over 
mortgage;  Security  Sav.  &  Trust  Co.  v.  Globe  etc.  E.  Co.,  44  Or.  374, 
74  Pac.  921,  services  rendered  railroad  within  ninety  days  of  appoint- 
ment of  receiver  in  logging  venture  in  which  railroad  interested  are 
not  prior  to  mortgage  lien;  dissenting  opinion  in  Gregg  v.  Metro- 
politan Trust  Co.,  197  U.  S.  192,  49  L.  721,  25  Sup.  Ct.  415,  majority 
holding  claim  for  ties  necessary  to  preservation  of  railroad  furnished 
within  six  months  of  appointment  of  receiver  is  not  entitled  to  pref- 
erence over  prior  mortgage. 

Distinguished  in  Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  188, 
49  L.  719,  25  Sup.  Ct.  415,  claim  for  ties  necessary  for  preservation 
of  railroad  furnished  within  six  months  of  appointment  of  receiver 
is  not  entitled  to  preference  over  prior  mortgage. 

Syl.  7  (IX,  718).     Eailroad  mortgages — Current  debts. 

Approved  in  Mersiek  v.  Hartford  etc.  E.  E.  Co.,  76  Conn.  18,  20, 
22,  23,  24,  100  Am.  St.  Eep.  977,  55  Atl.  667,  668,  669,  persons  fur- 
nishing  to  street  railway  supplies  needed  to  operate  road  and  money 
to  pay  wages,  after  default  in  payment  of  interest  on  bonds,  but 
before  trustee  took  charge,  are  not  entitled  to  preference  over  bond- 
holders from  proceeds  of  sale. 

Syl.  10   (IX,  718).     Eailroad  receivers — Division  of  income. 

Approved  in  Fordyce  v.  Omaha  etc.  R.  E.  Co.,  145  Fed.  559,  where 
several  railroads  owned  by  diflferent  companies  operated  together 
as  single  system,  charges  made  by  one  against  another  for  rental  of 


923  Notes  on  U.  S.  Keports.  99  U.  S.  256-272 

locomotives  and  joint  odlee  expenses  are  not  entitled  to  priority  over 
mortfjage  given  by  cliarged  company  where  there  was  no  diversion  of 
net  iueume   to  mortgagee. 

99  U.  S.  256,  257,  25  L.  344,  FOSDICK  v.  CAR  CO.      , 

Syl.  1   (IX,  719).     Mortgage  lien  on  after-acquired  property. 
See  99  Am.  St.  Eep.  253,  259,  note. 

99  U.  S.  ::()1-2G5,  25  L.  435,  CAMPBELL  v.  RANKIN. 

Syl.  1  (IX,  720).     Ejectment — Possession  is  evidence  of  title. 

Approved  in  Bulette  v.  Dodge,  2  Alaska,  431,  actual  prior  possession 
of  part  of  mining  claim  gives  possession  of  whole;  Walsh  v.  Ford, 
1  Alaska,  152,  actual  prior  possession  of  first  occupant  of  lots  be- 
longing to  United  States  is  better  tlian  subsequent  possession  of 
last;  Lasswell  v.  Kitt,  H  N.  M.  463,  70  Pac.  562,  where  one  made 
location  on  land  and  fully  complied  witji  law  to  obtain  title,  he  may 
maintain  ejectment  against  subsequent  locator. 

Syl.- 2  (IX,  720).     Judgment  as  res  adjudicata. 

Approved  in  Georgia  Ry.  etc.  Co.  v.  Wright,  132  Fed.  917,  whore 
stfite  court  decided  in  suit  between  state  and  corporation  that  charter 
created  contract  precluding  state  from  imposing  tax  over  certain 
amount,  decision  concludes  state  in  subsequent  suit  for  taxes  levied 
for  different  year  under  different  statute;  Defries  v.  McMeans,  121 
Iowa,  541,  97  N.  W.  65,  judgment  that  land  contracts  not  assessable 
for  particular  year  estops  defendant  from  claiming  contracts  assessable 
for  subsequent  year;  Territory  v.  Hopkins,  9  Okl.  150,  59  Pac.  981, 
applying  rule  to  decree  upholding  validity  of  bonds. 

Syl.  3  (IX,  721).     Parol  to  ascertain  issue — Former  judgment. 

Approved  in  Halford  v.  James,  136  Fed.  555,  69  C.  C.  A.  203,  fol- 
lowing rule. 

Syl.  5  (IX,  721).     Mines — Parol  proof — Actual  possession. 

Approved  in  Webb  v.  Carlon,  148  Cal.  558,  83  Pac.  998,  where  loca- 
tion by  defendant's  grantor  was  in  fact  made  before  plaintiff  entered 
on  land,  and  notice  of  it  was  visible  and  boundaries  marked,  error 
in  date  of  location  notice  is  immaterial. 

99  U.  S.  265-272,  25  L.  322,  UNITED  STATES  v.  PUGH. 

Syl.   1   (IX,  721).     Statutes — Contemporaneous  construction. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591,  act  of 
legislature  attempting  to  regulate  fees  of  clerks  of  district  courts 
of  territory  is  void. 


99  U.  S.  273-361  Notes  on  U.  S.  Eeports.  924 

99  U.  S.  273-285,  25  L.  412,  WHEELING  ETC.  TEANSPOKTATION 
CO.  V.  WHEELING. 

Syl.  2   (IX,  723).     Commerce — State  tax  on  shipg. 

Approved  in  Old  Dominion  S.  S.  Co.  v.  Virginia,  198  U.  S.  306,  309, 
49  L.  1062,  1063,  25  Sup.  Ct.  686,  vessels  employed  in  interstate  com- 
merce wholly  within  limits  of  state  are  subject  to  state  taxation, 
though  enrolled  at  port  of  another  state;  Commonwealth  v.  Ayer  etc. 
Tie  Co.,  117  Ky.  169,  77  S.  W.  688,  home  port  of  vessel  engaged  in 
interstate  commerce  is  its  situs  for  taxation,  though  its  owner  resides 
in  different  state;  Harrell  v.  Speed,  113  Tenn.  228,  106  Am.  St.  Eep. 
814,  81  S.  W.  841,  one  running  bar  on  vessel  belonging  to  Arkansas 
corporation  and  plying  between  Arkansas  and  Tennessee  is  subject  to 
Tennessee  license  tax  for  running  bar  while  vessel  is  at  Tennessee 
landing. 

Syl.  4  (IX,  723).     Local  assessments  on  ships. 

Approved  in  Ayer  etc.  Tie  Co.  v.  Kentucky,  202  TJ.  S.  422,  50  L. 
1087,  26  Sup.  Ct.  678,  under  Comp.  St.  1901,  p.  2831,  §  21,  domicile 
of  owner  or  actual  situs  of  vessel,  and  not  place  of  enrollment  of 
vessel,  determines  tax  situs  of  vessel. 

99  U.  S.  298-309,  25  L.  473,  PHELPS  v.  McDONALD. 

Syl.  3  (IX,  725).     Equity — Ees  out  of  jurisdiction. 

Approved  in  Western  Union  Tel.  Co.  v.  Pittsburg  etc.  Ey.  Co.,  137 
Fed.  437,  applying  rule  in  suit  for  specific  performance  of  telegraph 
right  of  way  contracts  with  consolidated  railroads;  O'Connor  v.  Eoot, 
130  Iowa,  560,  107  N.  W.  610,  where  administrator  collected  all  assets 
of  estate  of  resident  decedent,  and  all  creditors  are  residents,  equity 
may  enjoin  one  of  each  creditors  from  petitioning  for  appointment 
as  administrator  in  another  state;  Fuller  v.  Horner,  69  Kan.  470,  77 
Pac.  89,  applying  rule  in  suit  to  set  aside  fraudulent  conveyance. 

99  U.  S.  309-325,  25  L.  387,  UNIVEESITY  v.  PEOPLE. 

Syl.  3   (IX,  726).     Taxation — Charter  obligation. 

Cited  in  State  ex  rel  Louisiana  Imp.  Co.  v.  Board  of  Assessors,  111 
La.  1001,  30  So.  98,  arguendo. 

99  IT.  S.  348-355,  25  L.  303,  HOGE  v.  EAILEOAD  CO. 

(IX,  728.)  Miscellaneous.  Cited  in  Iowa  etc.  Assn.  v  Gilbertson, 
129  Iowa,  665,  106  N.  W.  156,  upholding  Code  Supp.  1902,  §  1333d, 
requiring  insurance  companies,  except  county  mutuals,  not  organized 
for  profit,  to  pay  tax  of  percentage  of  gross  receipts  after  deducting 
amounts  paid  for  losses. 

99  U.  S.  355-361,  25  L.  476,  DENVEE  v.  EOANE. 

Syl.  1  (IX,  729),     Accounting  by  executor  of  surviving  partner. 

Approved  in  Brcvv'  v.  Cochran,  141  Fed.  462,  where  partnership 
articles  provided  that  on  death  of  any  member  his  capital  should  re- 


925  Notes  on  U.  S.  Eeports.  99  U.  S.  378-449 

main  in  firm  until  firm  expired  by  term,  and  all  but  one  partner  died, 
and  he  transferred  business  to  corporation  in  exchange  for  its  stock 
which  he  held  as  trustee,  administrator  of  one  of  deceased  partners 
could  sue  for  accounting  prior  to  closing  of  partnership;  Bowdish  v. 
Metzger,  71  Kan.  754,  81  Pac.  484,  where  petition  in  suit  to  remove 
cloud  and  quiet  title  fails  to  plead  statute  under  which  defendants 
claim,  but  states  nature,  character  or  extent  of  title  is  unknown  and 
prays  disclosure  of  title,  it  states  good  cause  of  action  for  discovery 
and  relief. 

Syl.  2   (IX,  729).     Allowance  to  surviving  partner  for  winding  up. 

See  112  Am.  St.  Eep.  84G,  note. 
99  U.  S.  378-382,  25  L.  453,  VAN  NOKDEN  v.  MORTON. 

Syl.  2  (IX,  731).     Federal  equity— New  state  right. 

Approved  in  Carlson  v.  Sullivan,  146  Fed.  479,  one  in  possession  of 
land  claiming  whole  title  is  entitled  to  jury  trial  in  action  in  ter- 
ritory; dissenting  opinion  in  San  Francisco  Nat.  Bank  v.  Dodge,  197 
U.  S.  112,  49  L.  687,  25  Sup.  Ct.  384,  majority  enjoining  enforcement 
of  tax  on  shares  of  national  bank  stock  under  Cal.  Pol.  Code,  §§ 
360S-3G10,  at  market  value. 

99  U.  S.  398-401,  25  L.  437,  SMITH  v.  EAILROAD  CO. 

Syl.  2   (IX,  735).     Creditor's  rights  against  debtor's  debtor. 

Approved  in  Craddock  v.  Fulton,  140  Fed.  429,  suit,  under  Code 
W.  Va.  1899,  c.  106,  permitting  simple  contract  creditor  of  nonresi- 
dent to  sue  at  law  and  attach,  is  removable;  Viquesney  v.  Allen,  131 
Fed.  24,  65  C.  C.  A.  259,  simple  contract  creditor  cannot  sue  in  equity 
to  set  aside  fraudulent  conveyance  by  debtor. 

Distinguished  in  Briggs  v.  Traders'  Co.,  145  Fed.  25S,  under  W. 
Va.  Code  1899,  c.  53,  §  58;  stockholder  may  sue  in  federal  court  for 
dissolution  of  corporation  wj;iere  it  has  ceased  to  do  business;  George 
v.  Wallace,  135  Fed.  293,  68  C.  C.  A.  40,  where  assets  of  national  bank 
in  voluntary  liquidation  put  in  hands  of  one  who  was  made  trustee 
for  benefit  of  another  bank,  which  assumed  obligations  of  first  bank, 
holder  of  note  executed  by  first  bank  as  part  of  assumption  contract 
may  assert  lien,  though  claim  not  reduced  to  judgment. 

99  U.  S.  441-449,  25  L.  327,  KEELY  v.  SANDEES. 

Syl.  5  (IX,  738).     Establishment  of  martial  law  political  question. 

Approved  in  Moyer  v.  Peabody,  148  Fed.  875,  whether  or  not  state 
of  insurrection  exists  in  locality  requiring  use  of  state  military  is 
question  for  exclusive  determination  of  state  executive  whose  decision 
is  not  reviewable  by  courts. 

Syl.  6   (IX,  738).     Officer  presumed  duly  appointed. 

Approved  in  Eeeve  v.  North  Carolina  Land  etc.  Co.,  141  Fed.  833, 
upholding  return  to  execution  made  by  one  who  does  not  append  to 
signature  on  return  office  held  by  him. 


99  U.  S.  455-512  Notes  on  U.  S.  Eeports.  926 

(IX,  738.)  Miscellaneous.  Cited  in  Lynch  v.  Burt,  132  Fed.  429, 
67  C.  C.  A.  305,  right  of  redemption  from  execution  sales  is  purely 
statutory. 

99  U.  S.  455-460,  25  L.  289,  UNITED  STATES  v.  KANSAS  PACIFIC 
E.  E.  CO. 

Syl.  2   (IX,  739).     Eailroad  net  earnings,  how  determined. 
Approved  in  Bell  v.  St.  Johnsbury  etc.  E.  E.  Co.,  76  Vt.  53,  56  Atl. 
109,  sum  necessary  to  keep  railroad  fences  in  repair,  but  which  not 
actually    expended,   not    deducted   as   operating    expenses   from    gross 
earnings. 

99  U.  S.  4G3-4S2,  25  L.  438,  DENVEE  &  E.  G.  EY.  CO.  v,  ALLTNG. 

Syl.  2  (IX,  740).     Eailroad  grant  in  praesenti. 

Approved  in  Nicomen  Boom  Co.  v.  North  Shore  etc.  Co.,  40  Wash. 
326,  82  Pac.  414,  where  complainant  selected  and  perfected  boom  loca- 
tion, it  could  enjoin  defendant  from  using  conflicting  location;  Chesa- 
peake etc.  Ey.  Co.  v.  Deepwater  Ey.  Co.,  57  W.  Va.  658,  659,  662, 
664,  50  S.  E.  897,  898,  899,  900,  determining  right  to  use  of  land 
as  between  two  rival  railroads. 

Syl.  3  (IX,  740).     Eailroad  grant  of  right  of  way. 

Approved  in  Chesapeake  etc.  Ey.  Co.  v.  Deepwater  Ey.  Co.,  57  W. 
Va.  660,  673,  694,  50  S.  E.  898,  903,  912,  determining  right  to  use  of 
land  as  between  two  rival  railroads. 

(IX,  739.)  Miscellaneous.  Cited  in  Columbia  Ave.  Sav.  Fund 
etc.  Co.  V.  Dawson,  130  Fed.  176,  enjoining  bond  issue  for  city  water- 
works where  city  had  granted  franchise  to  water  company  and  en- 
tered into  ten  year  contract  for  water  for  city  purposes. 

99  U.  S.  499-504,  25  L.  330,  WILSON  v.  SALAMANCA. 

Syl.  2  (IX,  742).     County  railroad  aid — Consolidation  of  roads. 

Approved  in  Jones  v.  Missouri-Edison  Elec.  Co.,  135  Fed.  157,  stock- 
holder in  one  of  two  consolidated  corporations  could  not  sue  in  equity 
to  enforce  rights  based  on  theory  that  corporation  was  still  in  ex- 
istence. 

Distinguished  in  Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  775, 
minority  stockholders  may  avoid  contract  of  corporation  consolidating 
it  with  another  wheref^»consolidation  constituted  fraud  on  them. 

99  U.  S.  505-508,  25  L.  354,  GEIGSBY  v.  PUECELL. 

Syl.  1  (IX,  742).     Dismissal  of  appeal — Transcript  not  filed. 
Approved  in  Eush  v,  Conner,  44  Fla.  171,  32  So.  797,  following  rule. 

99  U.  S.  508-512,  25  L.  482,  UNITED  STATES  v.  GEEMANIG. 

Syl.  1  (IX,  743).     Extortion  by  government  officer. 

Approved  in  United  States  v.  Schlierholz,  133  Fed.  333,  335,  336, 
and  United  States  v.  Schlierholz,  137  Fed.  620,  621,  both  holding  spe- 


927  Notes  on  U.  S.  Eeports.  99  U.  S.  539-5S2 

cial  agent  of  Land  Department  appointed  under  Appropriation  Act  of 
1897  (30  Stat.  32),  is  not  officer  within  extortion  statute;  United  States 
V.  Cole,  130  Fed.  618,  C19,  cashier  of  mint  appointed  under  Kev.  St., 
§  3504,  providing  that  mint  superintendent  shall  appoint  clerks  and 
assistants,  is  not  officer  of  mint  within  Eev.  St.,  §  3506,  providing 
superintendent  shall  be  keeper  of  all  coin  and  bullion  except  while 
same  is  in  hands  of  other  officers. 

99  U.  S.  539-546,  25  L.  355,  YULEE  v.  VOSE. 

Syl.  2  (IX,  745).     Kemoval — Record  must  show  cause. 

Approved  in  Illinois  etc.  Ey.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W. 
486,  where  petition  filed  in  state  court  does  not  prima  facie  sliow  re- 
movable controversy,  jurisdiction  of  federal  court  cannot  be  conferred 
by  consent;  State  v.  Southern  Ey.  Co.,  135  N.  C.  81,  47  S.  E.  232, 
where  complaint  to  corporation  commission  to  compel  railroad  to  de- 
liver cars  of  coal  to  siding  put  no  valuation  on  delivery,  and  removal 
petition  alleged  that  matter  in  controversy  involving  right  of  rail- 
road to  manage  its  interstate  business  without  interference  by  com- 
mission exceeds  $2,000,  removal  denied. 

99  U.  S.  547-560,  25  L.  357,  HAETELL  v.  TILGHMAN. 

Syl.  1  (IX,  745).  Federal  jurisdiction — Patents — Diverse  citizen- 
ship. 

Distinguished  in  Harrington  v.  Atlantic  etc.  Telegraph  Co.,  143  Fed. 
336,  where  owner  of  patent  and  controlling  stockholder  of  corporation 
contracted  for  transfer  of  patents  to  corporation  in  exchange  for  stock, 
but  stockholder  transferred  patent  to  corporation  in  disregard  of 
agreement,  federal  court  had  jurisdiction  of  suit  against  corporation 
for  infringing  use  though  it  also  sought  reconveyance;  Hartman  v. 
Park  &  Sons  Co.,  145  Fed.  371,  and  Cortelyou  v.  Chas.  Eneu  Johnson 
&  Co.,  138  Fed.  117,  both  arguendo. 

(IX,  745.)  Miscellaneous.  Cited  in  American  St.  Car.  Ad.  Co.  v. 
Jones,  142  Fed.  977. 

99  U.  S.  567-573,  25  L.  378,  McBUENEY  v.  CAESOX. 

Syl.  3  (IX,  748).  Trustee  accepting  Confederate  money  as  pay- 
ment. 

Distinguished  in  York  Co.  Sav.  Bank  v.  Abbot,  139  Fed.  993,  deny- 
ing jurisdiction  over  equity  suit  by  lessee  against  nonresident  lessor  to 
enforce  rights  under  lease  by  requiring  defendant  to  elect  to  seU  land 
or  buy  building  thereon,  where  defendant  has  not  appeared. 

99  U.  S.  578-582,  25  L.  420,  PENCE  v.  LANGDON. 

Syl.  5  (IX,  748).     Contracts — Eescission  must  be  prompt. 

Approved  in  Parsons,  Eich  &  Co.  v.  Lane,  97  Minn.  104,  106  N.  W. 
488,  insurer  by  issuing  policy  without  inquiry  did  not  waive  condi- 
tions aa  to  title  and  ownership;  Shevlin  v.  Shevlin,  96  Minn.  417,  105 


99  U.  S.  5S2-619  Notes  ou  U.  S.  Eeports.  928 

N.  W.  2G5,  holding  transfer  of  stock  made  by  younger  brother  to  elder 
by  fraud  and  duress  not  ratified;  Burnham  v.  Burnham,  119  Wis.  516, 
97  N.  W.  179,  where  plaintiff  expressed  apj;roval  of  deed  and  settle- 
ment and  for  three  months  treated  matter  as  concluded,  and  after 
employing  counsel  to  contest  same  for  fraud  he  insisted  on  and  pro- 
cured mortgage  to  raise  money  to  pay  debts  pursuant  to  settlement, 
he  ratified  settlement. 

99    U.    S.    582-592,    25    L.    331,    UNITED    STATES    v.    COUNTY    OF 
MACON. 

Syl.  2  (IX,  750).     Mandamus  to  compel  tax  levy — Bonds. 

Approved  iu  Kose  v.  McKie,  145  Fed.  590,  granting  mandamus  to 
compel  levy  of  tax  by  town  to  pay  judgment,  though  authority  of 
town  to  tax  is  limited  where  not  shown  authority  has  been  exhausted; 
Atchison  etc.  R.  E.  Co.  v.  Territory,  11  N.  M.  G76,  72  Pac.  16,  claim 
against  county  merged  into  judgment  carries  with  it  all  infirmities  o* 
want  of  authority  of  county  commissioners  to  levy  tax  to  pay  claim. 

Syl.  3  (IX,  750).     Judgment  on  county  bonds — Tax. 

Approved  in  Atchison  etc.  R.  R.  Co.  v.  Territory,  11  N.  M.  677,  7? 
Pac.  17,  claim  against  county  merged  in  judgment  carries  with  it  all 
infirmities  of  want  of  authority  of  county  commissioners  to  levy  tax 
to  pay  claim. 

99  U.  S.  502,  593,  25  L.  293,  TERHUNE  v.  PHILLIPS. 

Syl.  1  (IX,  751).     Patents — Judicial  notice  of  prior  use. 

Approved  in  Condernian  v.  Clements,  147  Fed.  917,  holding  void 
Conderman  patent  No.  669,621,  for  pleasure  wheel  similar  to  Ferris 
wheel;  Baker  v.  Buncombe  Mfg.  Co.,  146  Fed.  746,  holding  void,  for 
lack  of  invention,  Baker  patents  Nos.  726,812,  and  736,346,  for  process 
for  treating  coffee. 

99  U.  S.  610-619,  25  L.  421,  STRINGFELLOW  v.  CAIN. 

Syl.  1  (IX,  753).     Appeal  from  territorial  court. 

Approved  in  Shields  v.  Mongollon  etc.  Co.,  137  Fed.  543,  70  C.  C.  A. 
123,  under  Civ.  Code  Alaska,  §  504,  circuit  court  of  appeals  may  re- 
view decree  in  action  for  recovery  of  interest  in  mining  claim  tried 
to  court  by  writ  of  error. 

Syl.  2  (IX,  753).     Appeal — Findings  of  territorial  court. 

Approved  in  De  La  Rama  v.  Be  La  Rama,  201  U.  S.  309,  50  L.  767, 
26  Sup.  Ct.  485,  suflficieney  of  evidence  on  which  divorce  refused  is  re- 
viewable by  supreme  court  on  appeal  from  Philippine  supreme  court 
under  Act  of  1902,  §  10,  where  correctness  of  denial  of  alimony  can- 
not be  determined  without  passing  on  weight  of  such  evidence. 

Syl.  3  (IX,  754),     Townsite  occupant's  rights  pass  to  widow. 
Approved  in  Shy  v.  Brockhause,  7  Okl.  41,  54  Pac.  308,  townsite  oc- 
cupant may,  prior  to  passing  of  title  from  government,  maintain  eject- 


929  Notes  on  U.  S.  Reports.  99  U.  S.  619-635 

ment  against  his  tenant;  City  of  Guthrie  v.  Beamer,  3  Okl.  662,  41 
Pac.  650,  where  lands  entered  prior  to  survey  for  townsite  and  settlers 
adopted  provisional  government,  which  platted  town,  and  later  town- 
site  trustees  appointed  who  approved  plat,  occupant  of  lands  platted 
as  street  devested  of  interest  in  lands;  Hagar  v.  Wikofif,  2  Okl.  587, 
39  Pac.  283,  interest  in  town  lot  on  public  land  acquired  by  occupant 
being  transferable,  grantee  succeeds  to  all  rights  of  occupant  as 
against  grantor's  tenant;  Twiggs  v.  State  Board  of  Land  Commrs.,  27 
Utah,  247,  75  Pac.  731,  purchaser  of  possessory  rights  of  original  set- 
tler entitled  to  preferential  right  to  purchase  under  Rev.  St.  1898,  § 
2337. 

(IX,  753.)  Miscellaneous.  Cited  in  Sawyer  v.  Van  Hook,  1  Alaska, 
110,  entry  on  lot  and  depositing  thereon  of  building  material  with  in- 
tention of  erecting  dwelling  constitutes  settlement  within  townsite 
act. 

99  U.  S.  619-624,  25  L.  440,  CANNON  v.  PRATT. 

Syl.  3  (IX,  755).  Townsite  occupant  entitled  to  deed. 
Approved  in  City  of  Guthrie  v.  Beamer,  3  Okl.  662,  41  Pac.  650, 
where  lands  entered  prior  to  survey  for  townsite  and  settlers  adopted 
provisional  government,  which  platted  town,  and  later  townsite  trus- 
tees appointed,  who  approved  plat,  occupant  of  lands  platted  as  street 
devested  of  interest  in  lands, 

99  U.  S.  624-628,  25  L.  333,  COMMISSIONERS  v.  SELLEW. 

Syl.  1  (IX,  755).     Mandamus — Abatement  by  change  in  officer. 

Approved  in  Utter  v,  Franklin,  7  Ariz.  306,  64  Pac.  429,  mandamus 
against  members  of  loan  commission,  naming  them  individually,  not 
abated  by  defendants  going  out  of  office  and  being  succeeded  by  others, 
Territory  v.  Mayor  etc,  of  Socorro,  12  N.  M.  184,  76  Pac.  284,  manda- 
mus is  properly  directed  to  mayor  and  city  council  to  compel  tax 
levy;  Gouhenour  v.  Anderson,  35  Tex.  Civ.  571,  81  S.  W.  105,  ami 
Diefendcrfer  v.  State,  14  Wyo.  309,  83  Pac.  592,  both  arguendo. 

99  U.  S.  628-635,  25  U  448,  GERMANIA  NATIONAL  BANK  v.  CASE. 

Syl.  1  (IX,  756).     Stockholder's  liability  of  pledgee  of  stock. 

Approved  in  McDonald  v.  Dewey,  202  U.  S.  520,  524,  535,  536,  537, 
538,  50  L.  1133,  1134,  1139,  1140,  26  Sup.  Ct.  731,  one  who,  with 
knowledge  of  insolvency  of  national  bank,  transfers  stock  to  irre- 
sponsible vendee  to  evade  liability  for  bank's  debts,  is  liable  for  un- 
satisfied debts  existing  when  transfer  made;  First  Nat.  Bank  v.  Con- 
verse, 200  U.  S.  438,  50  L.  542,  26  Sup.  Ct.  306,  want  of  authority  of 
national  bank  to  subscribe  for  stock  in  speculative  enterprise  is  de- 
fense to  action  on  stockholder's  liability;  Merchants'  Nat.  Bank  v. 
Wchrmann,  202  U.  S.  300,  301,  50  L.  1040,  26  Sup.  Ct.  613,  want  of 
authority  of  national  bank  to  become  absolute  owner  of  transferable 
59 


99  U.  S.  635-645  Notes  on  U.  S.  Eeports.  930 

shares  in  partnership  formed  to  buy,  improve,  divide  into  lots  and  sell 
leasehold,  is  defense  to  action  on  liability  for  firm  debts;  Morris  v. 
Third  Nat.  Bank,  142  Fed.  32,  national  bank  which  has  become  owner 
of  notes  secured  by  mortgage  may  agree  with  owners  of  conflicting 
mortgages  to  represent  all  in  action  to  enforce  security;  McDonald  v. 
Dewey,  134  Fed.  530,  67  C.  C.  A.  408,  colorable  assignment  of  shares 
to  evade  stockholder's  liability  does  not  affect  liability;  People's 
Home  Sav.  Bank  v.  Eauer,  2  Cal.  App.  447,  84  Pac.  330,  upholding 
suit  by  corporation  against  stock  transferee  to  recover  unpaid  sub- 
scription where  fact  that  stock  held  as  pledgee  does  not  appear  on 
books;  Fidelity  Ins.  Co.  v.  German  Sav.  Bank,  127  Iowa,  597,  103  N. 
W.  960,  where  insurance  company  received  bank  stock,  certificates  of 
deposit  and  cash  in  payment  of  deposit  in  insolvent  bank,  it  could 
not  repudiate  transaction  after  its  execution  because  acquisition  of 
stock  was  ultra  vires;  Hill  v.  Shilling,  69  Neb.  157,  95  N.  W.  25,  sav- 
ings bank  acquiring  stock  in  other  corporation  in  discharge  of  debt 
of  insolvent  debtor  is  subject  to  stockholder's  liability;  Westminster 
Bank  v.  New  England  etc.  Works,  73  N.  H.  476,  111  Am.  St.  Rep.  040, 
62  Atl.  974,  national  bank  receiving  stock  as  collateral  security  for 
loan  may  take  stock  in  payment  of  loan. 

99  U.  S.  635-645,  25  L.  336,  NORTHERN  TRANSPORTATION  CO.  v. 
CHICAGO. 

Syl.  1   (IX,  758).     What  law  recognizes  is  not  nuisance. 

Approved  in  Atchison  etc.  Ry.  Co.  v.  Armstrong,  71  Kan.  370,  80 
Pac.  979,  holding  railroad  not  liable  to  one  whose  residence  is  per- 
meated by  smoke,  cinders  and  gas  from  engines  to  such  extent  as  to 
be  injurious  to  health;  Commonwealth  v.  Packard,  185  Mass.  66,  60 
N.  E.  1067,  under  statute  punishing  storing  of  petroleum  products 
without  license,  license  obtained  pending  period  that  defendant  is 
charged  with  storing  naphtha  is  defense  only  to  things  done  in  ac- 
cordance with  license  after  it  was  obtained;  Casey  v.  Wrought  Iron 
Bridge  Co.,  114  Mo.  App.  61,  89  S.  W.  334,  where  county  commission- 
ers contracted  for  building  of  bridge  according  to  law,  contractor  not 
liable  to  one  injured  by  its  fall;  Fisher  v.  Seaboard  Air  Line  Ry.  Co., 
102  Va.  369,  46  S  E.  383,  railroad  authorized  to  operate  adjoining 
plaintiff's  property  not  liable  for  annoyance  from  noise  and  smoke 
caused  by  operation  of  road;  Kansas  City  etc.  R.  R.  Co.  v.  Wiygul,  82 
Miss.  231,  33  So.  967,  61  L.  R.  A.  578,  arguendo. 

Syl.  2  (IX,  759).  Damages — Liability  of  city  making  improve- 
ments. 

Approved  in  Blincor  v.  Choctaw  etc.  R.  R.  Co.,  16  Okl.  293,  83  Pac. 
906,  in  determining  compensation  for  property  taken  under  eminent 
donvain,  damages  not  limited  to  realty  taken  and  injured,  but  may 
be  such  as  owner  actually  sustains  by  appropriation  of  land;  Davis 
V.  Silverton,  47  Or.  177,  82  Pac.  18,  where  city  in  grading  street  ex- 


931  Notes  on  U.  S.  Reports.  99  U.  S.  645-059 

ercised  care  and  skill  and  did  not  encroach  on  abutting  property,  in 
jury  to  such  property  is  damnum  absque  injuria. 

Syl.  4  (IX,  759).     Taking  for  public  use. 

Approved  in  Chicago  etc.  Ey.  Co.  v.  Illinois,  200  IT.  S.  583,  50  L. 
605,  26  Sup.  Ct.  341,  imposition  on  railroad  of  entire  cost  of  remov- 
ing and  rebuilding  bridge  made  necessary  by  proposed  deepening  and 
widening  of  channel  under  Illinois  drainage  act  is  not  taking  of  prop- 
erty for  public  use;  West  Chicago  St.  R.  R.  Co.  v.  Illinois,  201  U.  S. 
526,  50  L.  853,  26  Sup.  Ct.  518,  requiring  street  railway  to  stand  ex- 
pense of  lowering  or  removing  tunnel  under  river,  which,  though  not 
obstruction  to  navigation  when  constructed,  has  since  become  so  by 
reason  of  increased  draft  of  vessels,  does  not  deny  due  process;  Mani- 
gault  V.  Springs,  199  U.  S.  484,  50  L.  280,  26  Sup.  Ct.  127,  contract 
obligations  of  agreement  to  remove  existing  dam  from  navigable 
stream  not  impaired  by  subsequent  statute  authorizing  construction 
of  dam  to  drain  lowlands;  De  Lucca  v.  City  of  North  Little  Rock. 
142  Fed.  600,  under  Const.  Ark.,  art.  2,  §  22,  and  art.  12,  §  9,  lot 
owner  cannot  restrain  city  from  building  viaduct  on  street  in  front 
of  lot  unless  compensation  paid  where  property  only  damaged  in- 
cidentally; Saner  v.  New  York,  180  N.  Y.  32,  72  N.  E.  580,  70  L.  R.  A. 
717,  under  Laws  1887,  p.  787,  c.  576,  allowing  New  York  to  construct 
elevated  viaduct  along  street,  fee  of  which  is  in  city,  damages  to 
abutting  owner  by  its  construction  are  damnum  absque  injuria;  South 
Bound  R.  R.  v.  Burton,  67  S.  C.  521,  46  S.  E.  341,  where  city  council 
authorized  operation  of  railroad  in  street,  abutting  owner  entitled  lo 
damages  for  depreciation  in  value  of  lot. 

Syl.  6  (IX,  761).     Right  of  lateral  support. 

Approved  in  Farnandis  v.  Great  Northern  Ry.  Co.,  41  Wash.  492, 
•111  Am.  St.  Rep.  1031,  84  Pac.  19,  where  buildings  injured  by  excava- 
tions carried  on  by  defendants  in  land  one  hundred  and  twenty  feet 
distant,  and  weight  of  buildings  did  not  contribute  to  sinking  of 
earth,  which  resulted  from  excavations,  defendants  liable  for  injuries 
to  land  and  buildings. 

(IX,  758.)  Miscellaneous.  Cited  in  De  Lucca  v.  City  of  North  Lit- 
tle Rock,  142  Fed.  603,  fact  that  fee  of  street  is  in  abutting  owners 
does  not  make  construction  of  viaduct  by  city  on  street  a  taking  of 
property  of  lot  owner. 

99  U.  S.  645-659,  25  L.  487,  CONGRESS  ETC.  SPRING  CO.  v.  EDGAR. 

Syl.  1  (IX,  762).     Injuries  by  dangerous  animals. 

See  97  Am.  St.  Rep.  288,  note. 

Syl.  2   (IX,  762).     Expert  evidence. 

Distinguished  in  Hamann  v.  Milwaukee  Bridge  Co.,  127  Wis.  565, 
106  N.  W.  1086,  opinion  evidence  as  to  wliether  particular  manner  of 


99  U.  S.  660-668  Notes  on  U.  S.  Reports.  932 

moving  six  ton  machine  from  car  to  building  was  proper  was  incom- 
petent. 

(IX,  762.)  Miscellaneous.  Cited  in  Leone  v.  Kelly,  77  Conn.  571, 
60  Atl.  137,  complaint  in  action  under  Gen.  St.  1902,  §  4487,  making 
keeper  liable  for  damages  done  by  dog  need  not  allege  scienter  or 
other  facts   dispensing  with   necessity  of   scienter. 

99  U.  S.  660-668,  25  L.  306,  EVANSTON  v.  GUNN. 

Syl.  1   (IX,  763).     Specific  objection  waives  others. 

Approved  in  Texas  &  P.  Ey.  Co.  v.  Coutourie,  135  Fed.  470,  68  C.  C. 
A.  177,  general  objection  to  question  asked  witness  on  taking  of  dep- 
osition, as  immaterial  and  irrelevant  without  stating  specific  ground, 
properly  overruled. 

Syl.  2   (IX,  763).     Evidence — Records  kept  by  officers. 

Approved  in  Mclnerney  v.  United  States,  143  Fed.  736,  737,  veri- 
fied copy  of  ship 's  manifest  containing  list  of  alien  immigrant  pas- 
seDgers  delivered  to  inspection  officers  as  report  as  required  by  law 
and  preserved  in  immigration  office,  is  admissible  as  public  record; 
Scott  V.  Astoria  R.  R.  Co.,  43  Or.  35,  36,  99  Am.  St.  Rep.  710,  72  Pac. 
59fi,  597,  62  L.  R.  A.  543,  on  issue  as  to  maximum  daily  precipitation 
during  period  of  years,  weather-man  may  testify  from  records  kept 
by  himself  and  by  predecessor;  State  v.  Hall,  16  S.  D.  16,  91  N.  W. 
328,  65  L.  R.  A.  151,  entries  in  book  regularly  kept  by  postmaster 
of  advices  received  and  money  orders  drawn  are  competent  evidence 
of  facts  therein,  though  neither  statute  nor  postal  regulation  requires 
keeping  of  such  book. 

Distinguished  in  Monarch  Mfg.  Co.  v.  Omaha  etc.  Ry.  Co.,  127  Iowa, 
517,  103  N.  W.  495,  records  of  daily  observations  of  temperature  and 
precipitation  voluntarily  made  by  railroad  agent,  and  not  preserved 
by  requirement  of  law  or  railroad  nor  verified  by  person  making  them, 
are  inadmissible  to  show  weather  conditions. 

Syl.  3  (IX,  763).     City's  liability— Defective  sidewalk. 
See  108  Am.  St.  Rep.  154,  159,  note. 

Syl.  4  (IX,  763).     Defective  sidewalk — Means  to  repair. 

Approved  in  North  Jersey  etc.  Ry.  Co.  v.  Purdy,  142  Fed.  957,  ap- 
plying rule  in  action  by  street-car  passenger  for  personal  injuries; 
Heath  v.  Manson,  147  Cal.  701,  82  Pac.  333,  where  board  of  public 
works  had  ability  to  force  necessary  means  from  lot  owners  to  re- 
pair streets,  it  is  no  defense  to  action  for  injuries  due  to  defects  that 
board  not  shown  to  have  means  to  do  repairs.  See  103  Am,  St.  Rep. 
264,  note. 


933  Notes  on  U.  S.  Reports.  99  U.  S.  674-769 

99  U.  S.  674-676,  25  L.  308,  PERRIS  v.  HEXAMER. 

Syl.  1  (IX,  765).     Infringement  of  copyright. 

Approved  in  Bobbs-Merrill  Co.  v.  Straus,  147  Fed.  20,  23,  where 
copies  of  copyrighted  book  sold,  in  which  was  published  notice  that  re- 
tail price  was  one  dollar,  that  no  one  authorized  to  sell  for  less  and 
that  sale  for  less  was  infringement,  resale  at  less  than  one  dollar 
does  not  give  right  to  injunction;  White-Smith  Music  Pub.  Co.  v. 
Apollo  Co.,  139  Fed.  430,  copyright  of  printed  musical  composition 
not  infringed  by  perforated  record  for  use  with  mechanism  to  play 
coi.nposition  on  musical  instrument. 

Syl.  2   (IX,  765).     Copyright  of  map — Key  not  included. 

Approved  in  Dennison  Mfg.  Co.  v.  Scharf  etc.  Box  Co.,  135  Fed. 
635,  68  C.  C.  A.  263,  series  of  numbers  used  by  label  manufacturer  in 
catalogues  and  in  connection  with  name  on  boxes  containing  goods 
to  designate  style  do  not  constitute  trademark. 

99  U.  S.  686-699,  25  L.  491,  BLOCK  v.  COMMISSIONERS. 

Syl.  5  (IX,  767).     Conclusiveness  of  election  canvass. 

Approved  in  Barton  v.  State,  43  Fla.  485,  31  So.  364,  in  prosecu- 
tion for  selling  liquor  in  prohibition  county,  defendant  cannot  con- 
test election  for  mere  irregularities  in  its  conduct  where  prosecution 
introduces  certified  copy  of  return  of  canvassers. 

99  U.  S.  700-769,  25  L.  504,  SINKING  FUND  CASES. 

Syl.  1  (IX,  768).     Invalidity  of  statute   must  be  clear. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  767,  upholding 
Laws  N.  C.  1885,  p.  439,  c.  233,  incorporating  railroad  and  authoriz- 
ing issuance  of  county  aid  bonds;  Kane  v.  Erie  R.  Co.,  133  Fed.  684, 
68  L.  R.  A.  788,  67  C.  C.  A.  653,  upholding  87  Ohio  Laws,  p.  150,  § 
3,  defining  who  are  superior  and  fellow-servants  of  railroad  employees; 
Ex  parte  Kair,  28  Nev.  146,  436,- 80  Pac.  466,  82  Pac.  "^57,  upholding 
Stat.  1903,  p.  33,  imposing  penalty  on  one  working  more  than  eight 
hours  per  day  in  mines,  smelters  or  ore-reduction  mills.  See  113  Am. 
St.  Rep.  832,  note. 

Syl.  3   (IX,  768).     Government  bound  by  contracts. 

Approved  in  Walker  v.  United  States,  139  Fed.  413,  denying  right 
of  government  to  recover  moneys  paid  to  marshal  where  his  accounts 
for  services  of  deputies  audited  and  sum  paid  and  he  has  gone  out  of 
office. 

Syl.  5  (IX,  769).     Corporate  charters — Reserved  power  to  amend. 

Approved  in  Allen  v.  Ajax  Min.  Co.,  30  Mont.  506,  77  Pac.  50,  as 
to  corporation  organized  between  1889  and  1898,  authority  conferred 
on  corporation  by  Laws  1899,  p.  113,  did  not  impair  obligation  of 
contracts  as  to  stockholder;  Wheeling  etc.  R.  R.  Co.  v.  Town  of  Tria- 
delphia,  58  W.  Va.  506,  52  S.  E.  507,  after  declaration  of  forfeiture 


100  U.  S.  8-23  Notes  on  U.  S.  Eeports.  934 

of  street  railway,  privilege  in  street  by  council  by  repeal  of  ordi- 
nance granting  privilege  pursuant  to  reserved  power  so  to  do,  for 
cause,  on  notice,  railroad  may  enjoin  removal  of  tracks  if  no  cause  of 
forfeiture  existed. 

Syl.  11  (IX,  772).     Corporations — Reserved  power  to  regulate. 

Approved  in  McKee  v.  Chautauqua  Assembly,  130  Fed.  540,  65  C. 
C.  A.  8,  upholding  action  of  legislature  in  consolidating  corporation 
with  others  organized  for  different  purposes  and  requiring  it  to  as- 
sume their  liabilities. 

Syl.  12   (IX,  773).     Legislature  cannot  exercise  judicial  power. 

Approved  in  Greenough  v.  School  Com.  of  Pawtucket,  27  R.  I.  428, 
62  Atl.  978,  denying  certiorari  to  review  action  of  school  committee  in 
changing  text-books. 


C  UNITED  STATES. 


100  U.  S.  8-12,  25  L.  536,  SOULE  v.  UNITED  STATES. 

Syl.  2  (IX,  775).     Treasury  transcripts  as  evidence. 

Approved  in  United  States  v.  Pierson,  145  Fed.  817,  under  Rev, 
St.,  §  886,  in  absence  of  contrary  evidence,  in  action  on  Indian  agent's 
bond,  duly  certified  transcript  of  books  and  proceedings  of  Trea.sury 
Department  establishes  prima  facie  case. 

100  U.  S.  13-23,  25  L.  538,  EX  PARTE  REED. 

Syl.  2   (IX,  776).     Departmental  regulations. 

Approved  in  United  States  v.  Hardison,  135  Fed.  422,  oath  taken  by 
distiller's  surety  with  reference  to  his  qualifications  is  oath  taken  in 
case,  in  which  United  States  law  authorizes  administration  of  oath 
within  Rev.  St.,  §  5392,  defining  perjury;  Peters  v.  United  States,  2 
Okl.  123,  33  Pac.  1033,  false  swearing  before  register  of  land  ofiice  in 
any  contest  is  perjury  under  Rev.  St.  U.  S.,  §  5392. 

Syl.  4  (IX,  776).     Collateral  attack  on  court-martial 's  judgment. 

Approved  in  United  States  v.  Praeger,  149  Fed.  484,  485,  where 
civilian  witness  was  subpoenaed  before  general  court-martial  and  re- 
fused to  answer  questions  because  answers  might  incriminate  him, 
decision  of  such  court  that  questions  were  proper  is  not  conclusive  in 
civil  courts  on  question  of  witness'  contempt  in  refusing  to  answer. 

Syl.  5   (IX,  777).     Habeas  corpus — Errors  not  reviewed. 

Approved  in  In  re  Burkell,  2  Alaska,  110,  where  justice  of  peace 
incorrectly  added  "at  hard  labor"  to  penalty,  habeas  corpus  doc3 
not  lie  to  cure  error  where  hard  labor  is  not  in  fact  being  imposed; 
Ex  parte  McCown,  139  N.  C.  99,  51  S.  E.  959,  2  L.  R.  A.  (N.  S.)  603, 


935  Notes  on  U.  S.  Eeports,  100  U.  S.  24-36 

applying  rule  on  habeas  corpus  to  determine  legality  of   confinement 
for  contempt. 

Syl.  6  (IX,  777).     Proceedings  without  jurisdiction  is  void. 

Approved  in  Cuyler  v.  Atlantic  etc.  E.  Co.,  131  Fed.  99,  where  fed- 
eral, court  rendered  judgment  against  newspaper  publisher  for  con- 
tempt which  judgment  was  void  as  exceeding  court's  jurisdiction, 
publisher  entitled  to  release  on  habeas  corpus;  In  re  Burkell,  2  Alaska, 
110,  where  justice  of  peace  incorrectly  added  "at  hard  labor"  to 
penalty,  habeas  corpus  does  not  lie  to  cure  error  where  hard  labor  is 
not  in  fact  being  imposed. 

100  U.  S.  24-32,  25  L.  531,  NEW  YORK  CENTRAL  ETC.  R.  R.  CO.  v. 
FRALOFF. 

Syl.  4  (IX,  778).     Carrier's  limitation  for  loss  of  baggage. 

Approved  in  La  Bourgogne,  144  Fed.  787,  Rev.  St.,  §  4281,  re- 
specting liability  of  vessels  "as  carriers,"  does  not  apply  to  arti- 
cles carried  by  passenger  as  baggage.  See  99  Am.  St.  Rep.  358,  383, 
note. 

Syl.  7  (IX,  779).     Carriers — What  is  baggage. 

Approved  in  Zazoo  etc.  R.  R.  Co.  v.  Baldwin,  113  Tenn.  211,  81  S. 
W.  601,  holding  female's  clothes  and  that  of  children  and  miscel- 
laneous ornaments,  bank-book  and  husband's  underwear,  carried  in 
her  trunk  were  baggage,  but  household  goods  were  not;  Missouri  etc. 
Ry.  Co.  V.  Meek,  33  Tex.  Civ.  49,  75  S.  W.  318,  determining  whether 
tools  carried  by  mechanic  were  baggage.  See  99  Am.  St.  Rep.  349, 
353,  note. 

Syl.  8  (IX,  780).     Carriers — Baggage  is  question  for  jury. 

See  99  Am.  St.  Rep.  347,  note. 

Syl.  9  (IX,  780).     Reversal  because  of  amount  of  verdict. 

Approved  in  Illinois  Cent.  Ry.  Co.  v.  Davies,  146  Fed.  24S,  applying 
rule  in  action  for  malicious  assault  by  agent  of  railroad;  Southern 
Pac.  Co.  V.  Maloney,  136  Fed.  173,  69  C.  C.  A.  S3,  applying  rule  in 
action  against  railroad  for  acts  of  train  porter  in  stealing  passen- 
ger's effects. 

100  U.  S.  33-36,  25  L.  539,  UNITED  STATES  v.  HTRSCH. 

Syl.  2  (IX,  781).     Construction  of  Revised  Statutes. 

Approved  in  United  States  v.  Thomas,  145  Fed.  80,  fact  that  overt 
act  charged  to  have  been  committed  may  constitute  substantive  of- 
fense on  part  of  one  or  more  of  accused  under  statute  which  they 
conspired  to  violate  is  no  defense  to  prosecution  for  conspiracy. 

Syl.  3  (IX,  781).     Conspiracy  to  defraud  of  duties — Limitations. 
Distinguished  in  Curley  v.  United  States,   130  Fed.   12,  64  C.   C.  A. 
369,  one  desiring  appoiulment  as  letter-carrier   wi»   procures  another 


100  U.  S.  37-61  Notes  on  U.  S.  Eeports.  936 

to  take  civil  service  examination  for  him  and  sign  name  to  all  papers 
is  guilty  of  conspiracy  to  defraud  United  States  within  Eev.  St.,  § 
5440. 

100  U.  S.  37-42,  25  L.  541,  UNION  CON.  SILVER  MINING  CO.   v. 
TAYLOR. 

Syl.  5   (IX,  782).     Parol  transfer  of  mining  claim. 

Distinguished  in  Cascaden  v.  Dunbar,  2  Alaska,  412,  one  gratuitously 
staking  mining  claim  in  name  of  another  cannot  specifically  enforce 
performance  of  oral  agreement  made  by  principal  that  he  will,  after 
acquisition  of  title  by  location,  convey  interest  in  claim. 

Syl.  6  (IX,  782).     Reversal — Admission  of  irrelevant  evidence. 

Approved  in  Brown  v.  United  States,  142  Fed.  4,  applying  rule  in 
prosecuting  for  aiding  and  abetting  national  bank  officer  in  misaj)- 
plication  of  funds  by  lending  same  to  insolvent  corporation  of  which 
defendant  was  president. 

100  U.  S.  43-47,  25  L.  543,  TILLSON  v.  UNITED  STATES. 

Syl.  2  (IX,  783).     Interest  on  government  claims. 

Approved  in  Watts  v.  United  States,  129  Fed.  226,  227,  in  suit 
against  United  States  under  special  act  for  recovery  of  damages  for 
loss  of  British  vessel  through  collision  with  naval  vessel,  court  can- 
not allow  interest  as  part  of  damages;  Trigg  Co.  v.  Bucyrus  Co.,  101 
Va.  88,  51  S.  E.  177,  where  government  bought  machinery  from  ship- 
builder under  system  of  partial  payments  and  liens  filed  on  ma- 
chinery, lien  claimant  cannot  recover  interest  on  proceeds  in  hands 
of  United  States. 

Distinguished  in  United  States  v.  Cherokee  Nation,  202  U.  S.  124, 
50  L.  959,  26  Sup.  Ct.  588,  upholding  allowance  of  interest  on  ac- 
count of  sums  due  Cherokees  pursuant  to  agreement  for  cession  of 
Cherokee  Outlet. 

100  U.  S.  55-61,  25  L.  547,  COWELL  v.  COLORADO  SPRINGS  CO. 

Syl.  1   (IX,  785).     Deeds — Condition  against  sale  of  liquor. 

Approved  in  Jetter  v.  Lyon,  70  Neb.  433,  97  N.  W.  597,  following 
rule;  Wallace  v.  Smith,  113  Ky.  266,  68  S.  W.  132,  upholding  provi- 
sion in  will  that  land  devised  to  infant  shall  not  be  sold  until  he  is 
thirty-five  years  old. 

Syl.  2   (IX,  786).     Ejectment — Breach  of  condition  in  deed. 

Approved  in  Griswold  v.  Minneapolis  etc.  Ry.  Co.,  12  N.  D.  444, 
102  Am.  St.  Rep.  572.  97  N.  W.  541,  applying  rule  where  land  owner 
conveyed  to  railroad  for  right  of  way  on  condition  contained  in  deed 
that  if  grantee  failed  to  erect  depot  at  point  named  land  should  re- 
vert; Lewiston  Water  etc.  Co.  v.  Brown,  42  Wash.  557,  85  Pac.  48, 
under  Bal.  Code,  §^  5500,  grantor  in  deed  may  recover  possession  for 
breach    of    condition    subsequent    without    prior    demand    for    posses- 


937  Notes  on  U.  S.  Reports.  100  U.  S.  61-99 

sion;   Oklahoma  City  v.  McMaster,   12   Okl.   584,   73   Pac.   1016,  judg- 
ment against  townsite  trustees  is  binding  against  city. 

Syl.  3   (IX,  786).     Business  by  foreign  corporations. 

Approved  in  United  States  Fidelity  etc.  Co.  v.  Linehan,  73  N.  H. 
42,  58  Atl.  957,  under  Pub.  St.  1901,  c,  169,  §  6,  insurance  coniniis- 
sioner  cannot  refuse  license  to  foreign  company  because  it  is  doing 
surety  as  well  as  burglary  insurance  business,  and  he  believes  it  un- 
safe for  company  to  carry  on  two  kinds  of  business. 

Syl.  5  (IX,  787).     Necessity  of  land  for  corporate  business. 

Approved  in  Watkins  v.  Iowa  Cent.  Ry.  Co.,  123  Iowa,  400,  98  N. 
W.  914,  reaffirming  rule;  Iowa  etc.  Min.  Co.  v.  United  States  etc. 
Guaranty  Co.,  146  Fed.  440,  where  foreign  corporation  was  acting 
as  corporation  in  Iowa  at  time  it  made  contract,  it  is  no  defense  to 
action  thereon  that  it  has  not  complied  with  Iowa  laws  relating  to 
foreign  corporations. 

Distinguished  in  Myatt  v.  Ponca  City  Land  etc.  Co.,  14  Okl.  211, 
213,  78  Pac.  191,  192,  68  L.  R.  A.  810,  where,  in  action  by  foreign 
corporation,  it  is  attempting  to  acquire  title  to  land  vested  in  in- 
dividual, latter  may,  under  Oklahoma  statute,  deny  corporate  capac- 
ity as  defense. 

(IX,  785.)  Miscellaneous.  Cited  in  Sioux  City  v.  Chicago  etc.  Ry. 
Co.,  129  Iowa,  704,  106  N.  W.  187,  title  to  reclaimed  land  goes  with 
fee  to  land  to  which  it  is  annexed. 

100  U.  S.  61-71,  25  L.  503,  AMERICAN  EMIGRANT  CO.  v.  COUJN'Ti' 
OP  ADAMS. 

Syl.  3   (IX,  789).     Grant  by  state  of  swamp  lands. 

Approved  in  State  v,  Bryan,  50  Fla.  373,  39  So.  954.  Laws  1905, 
c.  5384,  does  not  conflict  with  Act  Cong.  1862,  c.  130,  donating  to 
state  fund  for  establishment  of  college,  because  of  provision  of  c. 
5384,  relating  to  teaching  of  military  tactics. 

100  U.  S.  7S-S1,  25  L.  550,  KANSAS  PACIFIC  RY.  CO.  v.  TWOM- 
BLY. 

Syl.   3    (IX,  781).     Repeal  of   statute   pending   appeal. 

Cited  in  Northern  Pac.  Ry.  Co.  v.  Ely,  197  U.  S.  8,  49  L.  642,  25 
Sup.  Ct.  302,  arguendo. 

100  U.  S.  82-99,  25  L.  550,  TRADEMARK  CASES. 

Syl.   1    (IX,   792).     Property  rights  in   trademarks. 

Approved  in  Baker  v.  Puritan  Pure  Food  Co.,  139  Fed.  681,  en- 
joining infringement  of  trademark  where  infringing  picture  is  not 
close  imitation  but  merely  of  same  generic  character;  Woodcock  v. 
Guy,  33  Wash.  239,  74  Pac.  359,  where,  in  suit  to  restrain  infringe- 
ment of  nonregistered  trademark,   comi)laint  simply   asked  protectioa 


100  U.  S.  100-104  Notes  on  U.  S.  Eeports.  938 

in  exclusive  use  of  word  and  failed  to  charge  that  defendant  had 
simulated  plaintiff's  labels  so  as  to  deceive  public  or  that  use  of 
word  was  fraudulent,  it  is  insufficient. 

Syl.  3  (IX,  793).     Commerce — Congressional  law  must  regulate. 

Approved  in  Howard  v.  Illinois  Cent.  E.  Co.,  148  Fed.  1004,  and 
Brooks  V.  Southern  Pac.  Co.,  148  Fed.  992,  994,  both  holding  void 
employer's  liability  act  of  1906;  United  States  v.  Scott,  148  Fed.  433, 
435,  holding  void  act  of  1898,  prohibiting  interstate  carriers  from  dis- 
criminating against   union  labor   employees. 

Syl.  4  (IX,  793).     Statutes  valid  in  part. 

Approved  in  United  States  v.  Ju  Toy,  198  U.  S.  262,  49  L.  1044, 
25  Sup.  Ct.  644,  decision  of  Secretary  of  Commerce  affirming  denial 
of  immigration  officers  of  right  of  Chinese  to  enter  is  conclusive  on 
habeas  corpus,  though  citizenship  is  claimed  as  right  to  enter;  Brooks 
v.  Southern  Pac.  Co.,  148  Fed.  994,  995,  holding  void  employer's  liability 
act  of  1906;  United  States  v.  Scott,  148  Fed.  436,  holding  void  act 
of  1898,  prohibiting  interstate  carriers  from  discriminating  against 
union  labor  employees;  Cella  Com.  Co.  v.  Bohlinger,  147  Fed.  423,  424, 
holding  void  Arkansas  act  of  1901,  authorizing  personal  judgment 
against  foreign  corporation  on  cause  of  action  in  favor  of  resident  on 
service  on  state  auditor;  McDonald  v.  Southern  Exp.  Co.,  134  Fed.  288, 
holding  void  S.  C.  act  of  1904,  prohibiting  shipment  of  shad  outside  of 
state. 

Syl.  5   (IX,  794).     Commerce — Protection  of  trademarks. 

Approved  in  United  States  v.  Scott,  148  Fed.  433,  holding  void  act 
of  1898,  prohibiting  interstate  carriers  from  discriminating  against 
union  labor  employees;  Selehow  v.  Chaffee  etc.  Mfg.  Co.,  132  Fed.  998, 
registration  under  act  of  1870,  of  word  "Parcheesi, "  for  Indian  game, 
is  good  only  as  notice  of  claim  to  word ;  Leschen  etc.  Rope  Co.  v. 
Broderick  etc.  Eope  Co.,  201  U.  S.  169,  50  L.  711,  26  Sup.  Ct.  425, 
arguendo. 

(IX,  792.)  Miscellaneous.  Cited  in  Smiley  v.  Kansas,  196  U.  S. 
455,  49  L.  550,  25  Sup.  Ct.  289. 

100  U.  S.  100-104,  25  L.  569,  HURT  v.  HOLLIXGSWORTH. 

Syl.  1  (IX,  794).     Blending  of  legal  and  equitable  remedies. 

Approved  in  Union  Stockyards  Co.  v.  Nashville  Pack.  Co.,  140  Fed. 
706,  where  case  removed  from  state  court,  which  could  grant  legal  or 
equitable  relief,  and  plaintiff  electing  to  proceed  in  equity  makes  no 
case  for  equitable  relief,  federal  court  cannot  award  damages  at  law; 
Hatcher  v.  Hendrie  etc.  Supply  Co.,  133  Fed.  271,  68  C.  C.  A.  19, 
where  action  to  enforce  mechanic 's  lien  and  to  recover  debt  which  it 
secures,  in  which  plaintiff  also  obtained  and  served  attachment,  which 
was  removed  and  proceeded  in  federal  court  on  original  pleadings  as 
equity  suit,  money  judgment  is  not  collaterally  attackable;  Loekman  v. 
Lang,  132  Fed.  3,  where,  in  proceedings  by  appeal  and  by  writ  of  error 


939  Notes  on  U.  S.  Reports.  100  U.  S.  104  133 

to  review  same  rulings,  errors  are  same  in  both  proceedings,   filing  of 
single  assignment  of  errors  is  sufficient. 

(IX,  794.)  Miscellaneous.  Cited  in  Duncan  v.  Ferguson-M 'Kinney 
Dry  Goods  Co.,  150  Fed.  272,  determining  what  constitutes  abandonment 
of  homestead. 

100  U.  S.  104-110,  25  L.  527,  KICKER  v.  POWELL. 

Syl.  1   (IX,  795).     Bill  of  review — Newly  discovered  evidence. 

Approved  in  Safe  Deposit  etc.  Co.  v.  Gittings,  102  Md.  463,  62  Atl. 
1033,  4  L.  R.  A.  (N.  S.)  865,  applying  rule  where  wife's  executor  filed 
bill  for  accounting  for  property  transferred  to  husband  and  he  claimed 
it  was  gift  and  decree  rendered  for  executor. 

Syl.  3  (IX,  796).    Bill  of  review — Performance  of  decree. 

Approved  in  Westinghouse  Electric  etc.  Co.  v.  Stanley  Inst.  Co.,  138 
Fed.  826,  where  it  is  claimed  that  patent  in  suit  expired  pending  appeal 
because  of  expiration  of  foreign  patent  for  same  invention,  defendant, 
failing  to  present  facts  relating  thereto  before  hearing  on  merits  in 
appellate  court,  denied  leave  to  file  supplemental  bill  in  nature  of  bill 
of   review   to   present   question   after   determination   on   merits. 

100  U.  S.   110-112,  25  L.  547,  GLENDALE   ELASTIC  FABRICS  CO. 
v.  SMITH. 

Syl.  1   (IX,  796).     Expiration  of  patent  pending  infriiigomont  suit. 

Ap])roved  in  Western  Coal  etc.  Co.  v.  Petty,  132  Fed.  606,  judgment 
of  dismissal  denying  right  to  costs  in  action  at  law  is  reviewable  on 
error. 

Distinguished  in  Nutter  v.  Brown,  58  W.  Va.  240,  52  S.  E.  90,  1  L. 
R.  A.  (N.  S.)  1083,  decree  allowing  expenses  and  compensation  of  re- 
ceiver is  appealable. 

100  U.  S.  113-119,  25  L.  587,  LANSDALE  v.  DANIELS. 

Syl.  1   (IX,  797).     Settler's  declaration  before  survey  returned. 

Approved  in  Eastern  Oregon  Land  Co.  v.  Brosnan,  147  Fed.  810,  811, 
where  state  aid  grant  excepted  lands  reserved,  complaint  in  action  by 
one  claiming  under  grant  to  recover  lands  subsequently  entered  by  and 
patented  to  defendant  under  land  laws  must  affirmatively  show  that  at 
time  grant  became  fixed  in  place  land  was  not  within  exception;  Russian- 
American  Packing  Co.  v.  United  States,  199  U.  S.  572,  50  L.  315,  26 
Sup.  Ct.  157,  arguendo. 

100  IT.  S.  124-138,  25  L.  554,  HATCH  v.  STANDARD  OIL  CO. 
Syl.  4  (IX,  799).  Sales — Presumption  as  to  immediate  delivery. 
Approved  in  Mason  v.  Lievre,  145  Cal.  522,  78  Pac.  1043,  where 
vendor  complied  with  his  part  of  agreement  and  it  only  remained  for 
vendee  to  designate  mode  of  transfer  of  stock  sold  and  stock  tendered 
within  reasonable  time,  vendee  could  not  revoke  contract  on  ground  that 
stock  did  not  accompany  draft  for  purchase  money. 


100  U.  S.  147-208  Notes  on  U.  S.  Eeports.  940 

Syl.  5  (IX,  799).     Sales— Place  of  delivery. 

Approved  in  Salmon  v.  Helena  Box  Co.,  147  Fed.  411,  following  rule. 

100  U.  S.  147-148,  25  L.  591,  BALLARD  PAVING  CO.  v.  MULFORD. 

Syl.  2   (IX,  802).     Uniting  interest  to  give  jurisdiction. 

Approved  in  People's  Nat.  Bank  v.  Saville,  201  U.  S.  641,  50  L.  901, 
26  Sup.  Ct.  760,  following  rule. 

100    U.    S.    149-153,    25   L.    573,    CLARK   v.    FREEDMAN'S    SAV.    & 
TRUST  CO. 

Syl.  1   (IX,  802).     Foreclosure  sale  to  officer  of  corporation. 

See  103  Am.  St.  Rep.  57,  note. 

100  U.  S.   153-157,  25   L.   591,  HINCKLEY  v.   GILMAN   ETC.   E.   R. 
CO. 

Syl.  4  (IX,  803).     Receiver  chargeable  vrith  interest. 

Approved  in  Beugnot  v.  Tremoulet,  111  La.  18,  35  So.  368,  one  in- 
trusted by  mother  of  minor  with  interests  and  property  of  minor,  who 
confuses  with  own  funds  of  minor  in  local  banks,  checking  against  same 
at  will,  is  chargeable  with  interest. 

100  U.  S.  158-195,  25  L.   632,  DOW  v.  JOHNSON. 

Syl.  2  (IX,  803).    Jurisdiction  over  offenses  in  enemy's  country. 

Approved  in  Hamilton  v.  McClaughry,  136  Fed.  449,  Boxer  uprising 
in  China  in  1900  constituted  time  of  war  within  fifty-eighth  article  of 
war  relating  to  court-martials. 

100  U.  S.  195-208,  25  L.  621,  NATIONAL  SAVINGS  BANK  v.  WARD. 

Syl.  5    (IX,  805).     Liability  of  attorney  to  third  party. 

Approved  in  W^estern  Union  Tel.  Co.  v.  Schriver,  141  Fed.  542,  un- 
disclosed jDrincipal  of  addressee  of  message  cannot  recover  damages  of 
telegraph  company  for  negligence  of  operator  in  sending  unauthorized 
message;  Galbraith  v.  Illinois  Steel  Co.,  133  Fed.  487,  2  L.  R.  A.  (N. 
S.)  799,  66  C.  C.  A.  359,  holding  owner  of  building  cannot  recover  of 
subcontractor  for  negligent  construction;  Southern  Oil  Co.  v.  Church, 
32  Tex.  Civ.  327,  74  S.  W.  798,  where  defendant  furnished  independent 
contractor  derrick  with  which  to  do  work,  defendant  not  liable  to  con- 
tractor's  servant  for  injuries  caused  by  defect  in  derrick.  See  100  Am. 
St.  Rep.  203,  note. 

Syl.  6  (IX,  806).     Evidence  of  usage. 

Approved  in  Lillard  v.  Kentucky  Distilleries  etc.  Co.,  134  Fed.  182, 
67  C.  C.  A.  74,  evidence  of  custom  is  inadmissible  to  show  contract  to 
deliver  distillery  slop  at  feeding  lot  supplied  by  distiller  contemplated 
lot  should  have  pens  equipped  with  pipes  and  troughs. 


941  Notes  on  U.  S.  Reports.  100  U.  S.  213-226 

100  U.  S.  213-226,  25  L.  612,  HOUGH  v.  TEXAS  &  PACIFIC  RAIL- 
WAY CO. 

Syl.  1   (IX,  807).     Injuries  caused  by  fellow-servant. 

Approved  in  Schwarzsehild  v.  Weeks,  72  Kan.  195,  83  Pac.  408,  4  L. 
R.  A,  (N.  S.)  515,  holding  packing-house  owner  liable  for  injuries  to 
employee  caused  by  negligent  manipulation  of  beef  hoist  by  inex- 
perienced hand;  Neeley  v.  Southwestern  etc.  Oil  Co.,  13  Okl.  373,  75 
Pac.  543,  64  L.  R.  A.  145,  applying  rule  where  laborer  employed  in 
cotton-seed  oil  factory  injured  by  defects  in  belt;  Virginia  Portland 
Cement  Co.  v.  Luck,  103  Va.  445,  49  S.  E.  583,  determining  liability  of 
master  where  servant  injured  by  foot  passing  into  opening  in  floor  in 
which  he  had  laid  board  which  fitted  opening;  Fulton  v.  Crosby-Beckley 
Co.,  57  W.  Va.  95,  49  S.  E.  1014,  applying  rule  where  railroad  employee 
injured  thi'ough  defects  in  bridge;  Richards  v.  Riverside  Ironworks, 
56  W.  Va.  524,  49  S.  E.  442,  holding  master  liable  for  injuries  caused 
by  defects  in  scaffolding. 

Syl.  2   (IX,  808).     Care  required  of  master — Suitable  machincrv. 

Approved  in  Shandrew  v.  Chicago  etc.  Ry.  Co.,  142  Fed.  323,  upholding 
instruction  that  railroad  not  liable  for  injuries  caused  by  bursting  of 
defective  air-brake  hose,  unless  it  failed  to  exercise  ordinary  care  to 
jirovide  proper  hose  and  keep  it  in  good  condition ;  Southern  Pac.  Co.  v. 
Hetzei.  135  Fed.  284,  68  C.  C.  A.  26,  determining  degree  of  care  re- 
quired of  railroad  in  selecting  engineer  and  in  supervising  his  subsequent 
conduct;  Hawley  v.  Chicago  etc.  Ry.  Co.,  133  Fed.  151,  66  C.  C.  A.  216. 
holding  switchman  killed  by  roof  projecting  over  yard  tracks  while  set- 
ting brakes  on  car  did  not  assume  risk ;  Rinciotti  v.  O  'Brien  Contracting 
Co.,  77  Conn.  620,  60  Atl.  116,  69  L.  R.  A.  936,  where  master  furnished 
servants  with  derrick  to  facilitate  work,  he  is  bound  to  provide  and 
maintain  reasonably  safe  one;  Johnson  v.  Union  Pac.  Coal  Co.,  28  Utah, 
(i4,  76  Pac.  1095,  67  L.  R.  A.  506,  determining  master 's  liability  for 
injuries  to  servant  while  working  in  mine  shaft  by  slipping  of  rail  from 
top  of  car  on  which  rails  being  conveyed;  dissenting  opinion  in  Northern 
Pac.  Ry.  Co.  v.  Dixon,  194  U.  S.  351,  48  L.  1012,  24  Sup.  Ct.  683, 
majority  holding  negligence  of  local  railroad  telegraph  operator  in 
reporting  to  train  despatcher  movement  of  trains  past  station,  result- 
ing in  death  of  fireman,  is  negligence  of  fellow-servant;  dissenting 
opinion  in  The  Tresco,  134  Fed.  823,  67  C.  C.  A.  465,  majority  holding 
where  stevedore  injured  by  pulling  out  of  splicing  of  cable  and  be- 
fore unloading  begun  only  visual  inspection  made  and  it  appeared 
that  if  tar  twine  covering  removed,  defectiveness  of  splice  would 
have  been  known,  ship  guilty  of  negligence.  See  98  Am.  St.  Rep.  291, 
301,  note. 

Distinguished  in  Floyd  v.  Colorado  etc.  Iron  Co.,  18  Colo.  App. 
156,  70  Pac.  453,  where  superintendent  told  plaintiff  he  would  send 
man  with  block  and  tackle  which  plaintiff  asked  for  to  replace  heavy 
machine  and  ordered  him  to  assist  man,  and   when  latter  arrived  he 


100  U.  S.  213-226  Notes  on  U.  S.  Ecports.  942 

said  plaintiff  could   do   work   alone,   plaintiff   assumed   risk  by   doing 
work  without  tackle. 

Syl.  3   (IX,  811).     Servant  assumes  risks  of  employment. 

Approved  in  Chambers  v.  American  Tin  Plate  Co.,  129  Fed.  564, 
64  C.  C.  A.  129,  where  defendant  employed  boss  carpenter  and  his 
servants  to  build  scaffolding  for  bricklayers  and  one  of  latter  in- 
jured by  reason  of  defects  in  scaffolding,  defendant  liable;  Tanner 
V.  Hitch  Lumber  Co.,  140  N.  C.  479,  53  S.  E.  288,  where  master  under- 
took to  transport  laborers  to  and  from  quarters  on  log  cars,  negligent 
act  of  servant  in  loading  cars  resulting  in  injury  to  laborer  makes 
master  liable. 

Syl.  5  (IX,  812).     Who  are  fellow-servants. 

Approved  in  Merrill  v.  Oregon  Short  Line  E.  Co.,  29  Utah,  278, 
279,  110  Am.  St.  Eep.  695,  81  Pac.  88,  holding  railroad  liable  for 
death  of  car-repairer  caused  by  kicking  string  of  cars  against  car 
between  which  repairer  working;  dissenting  opinion  in  Northern 
Pac.  Ey.  Co.  v.  Dixon,  194  U.  S.  353,  48  L.  1013,  24  Sup.  Ct.  683, 
majority  holding  negligence  of  local  railway  telegraph  operator  in 
reporting  to  train  despatcher  movement  of  trains  past  station,  re- 
sulting in  death  of  fireman,  is  negligence  of  fellow-servant. 

Syl.  6  (IX,  814).  Contributory  negligence — Complaint  of  servant  of 
defects. 

Approved  in  Mueller  v.  La  Prelle  Shoe  Co.,  109  Mo.  App.  518,  84 
S.  W.  1014,  and  Dunkerly  v.  Webendorfer  Mach.  Co.,  71  N.  J.  L.  62, 
58  Atl.  94,  both  following  rule;  Baker  v.  Philadelphia  etc.  Ey.  Co.,  149 
Fed.  887,  in  action  for  death  of  railroad  engineer  burden  is  on  de- 
fendant to  show  deceased  was  negligent  and  that  negligence  contributed 
to  injury;  Crookston  Lumber  Co.  v.  Boutin,  149  Fed.  683,  where  saw- 
mill employee  notified  employer  of  defective  condition  of  log  carriage 
and  latter  promised  to  repair  it,  former  did  not  assume  risks  by  re- 
maining at  work;  Armour  v.  Carlas,  142  Fed.  722,  upholding  refusal 
to  dismiss  action  where  plaintiff  started  to  drive  carriage  across  street 
having  twenty-eight  foot  driveway  in  front  of  defendant's  wagon,  which 
struck  carriage;  Burch  v.  Southern  Pac.  Co.,  140  Fed.  271,  complaint 
in  action  by  servant  for  injury  caused  by  defective  appliance  is  not 
demurrable  because  in  alleging  promise  by  master  to  repair  no  definite 
time  stated  within  which  defendant  promised  to  repair;  Cincinnati  etc. 
Ey.  Co.  V.  Eobertson,  139  Fed.  523,  524,  applying  rule  where  locomotive 
engineer  complained  of  absence  of  shields  about  oil  tube  and  foreman 
promised  to  repair;  Anderson  v.  Seropian,  147  Cal.  213,  81  Pac.  525, 
applying  rule  where  accident  happened  on  same  day  promise  to  repair 
was  made;  Foster  v.  Chicago  etc.  Ey.  Co.,  127  Iowa,  89,  102  N.  W. 
424,  applying  rule  where  foreman  promised  section-hand  to  repair 
brakes  on  handcar;  Atchison  etc.  Ey.  Co.  v.  Sledge,  68  Kan.  326,  74 
Pac.  1113,  ap])lying  rule  where  switchman  injured  through  defective 
hand   rail  on  engine,   which   master  mechanic   had   promised   to   repair; 


943  Notes  on  U.  S.  Reports.  100  U.  S.  22G-250 

Maryland  Steel  Co.  v.  Engleman,  101  Md.  G84,  61  Atl.  317,  where  servant 
requested  foreman  to  furnish  new  belt  for  machine  because  of  defects 
in  old  belt,  and  latter  promised  on  two  occasions  to  do  so,  servant  not 
contributorily  neglif^^cnt  for  remaining  at  work;  Fouts  v.  Swift,  113  Mo. 
App.  532,  88  S.  W.  168,  applying  rule  where  plaintiff  warned  defend- 
ant's foreman  of  danger  of  unprotected  electric  fan  and  received  assur- 
ance that  he  would  attend  to  it;  Dowd  v.  Erie  R.  R.  Co.,  70  N.  J.  L. 
455,  57  Atl.  250,  whether  lapse  of  sixteen  days  after  promise  to  repair 
defects  is  reasonable  time  is  for  jury;  Virginia  etc.  Wheel  Co.  v.  Harris, 
103  Va.  713,  49  S.  E.  993,  upholding  sufficiency  of  declaration  for  in- 
juries charging  defendant  informed  of  defective  condition  of  appliance 
and  promised  to  repair  it  but  requested  i)laintiff  to  continue  work,  and 
failed  to  fix  it;  Heathcock  v.  Milwaukee  etc.  Min.  Co.,  128  Wis.  54, 
107  N.  W.  466,  where  employee  working  around  mining  shaft  threatened 
to  quit  unless  mouth  of  shaft  guarded  but  after  threat  continued  to 
work  for  seven  days_during  which  no  steps  taken  to  guard  shaft,  he 
assumed  risk.     See  98  Am.  St.  Rep.  315,  note. 

Distinguished  in  Bcgenish  v.  Gates,  2  Alaska,  514,  515,  where  bucket- 
man  in  mine  notified  foreman  of  defect  in  hoisting  apparatus  but  con- 
tinued to  work,  and  instead  of  stopping  engine  to  fix  rope  attempted  to 
fix  it  while  running,  and  hand  caugiit,  he  was  negligent;  Neeley  v. 
Southwestern  etc.  Oil  Co.,  13  Okl.  380,  75  Pae.  545,  64  L.  R.  A.  145, 
where  employer,  after  promise  to  repair,  revokes  promise,  employee  not 
warranted  in  continuing  service. 

Syl.  7   (IX,  817).     Following  state  decisions. 

Approved  in  Yeates  v.  Illinois  Central  R.  R.  Co.,  137  Fed.  945,  lessor 
of  railroad  track  is  not  liable  for  negligence  of  lessee  in  operating  trains 
on  such  tracks. 

100  U,  S.  226-234,  25  L.  577,  CRAIG  v.  SMITH. 

Syl.  2  (IX,  818).    Bill  of   review — Newly   discovered   evidence. 

Approved  in  Safe  Deposit  etc.  Co.  v.  Gittings,  102  Md.  464,  62  Atl. 
1033,  4  L.  R.  A.  (N.  S.)  865,  where  wife's  executor  filed  bill  for  account- 
ing for  property  transferred  to  husband  and  he  defended  on  ground  that 
it  was  gift,  and  decree  rendered  for  executor,  it  was  discretionary  to 
refuse  leave  to  file  bill  of  review  on  ground  of  newly  discovered  evidence. 

100  U.  S.  239-250,  25  L.  580,  GATES  v.  NATIONAL  BANK. 

Syl.  2   (IX,  818).     Liberal  construction  of  statutes. 

Approved  in  United  States  v.  Jackson,  143  Fed.  787,  act  of  June  21, 
1902,  relating  to  good  time  credits,  does  not  apply  to  prisoners  sen- 
tenced before  it  took  effect. 

Syl.  3   (IX,  819).  ,  Following  state  decisions — Commercial  law. 

Appro.ved  in  Birket  v.  Elward,  68  Kan.  303,  74  Pac.  1102,  64  L.  R. 
A.  568,  indorsee  of  note  taken  as  collateral  security  for  pre-existing 
debt  is  holder  for  value  and  protected  against  claim  of  payment  made 
to  original  payee. 


100  U.  S.  251-302  Notes  on  U.  S.  Eeports,  944 

Syl.  4  (IX,  820).     Transference  of  note  as  security. 

Approved  in  Tollman  v.  Quincy,  129  Fed.  975,  where  defendant's  note 
transferred  to  plaintiff  before  maturity  in  settlement  of  pending  suit, 
it  is  no  defense  that  note  was  for  accommodation  or  that  it  had  been 
diverted. 

100  U.  S.  251-257,  25  L.  626,  TKENOUTH  v.  SAN  FRANCISCO. 

Syl.  3   (IX,  822).     Trespassers  in  possession — Pueblo  lands. 

Approved  in  Bowden  v.  San  Francisco,  199  U.  S.  600,  50  L.  328,  26 
Sup.  Ct.  748,  following  rule. 

Syl.  4  (IX,  822).  No  pre-emption  founded  on  trespass. 
Approved  in  Clipper  Min.  Co.  v.  Eli  Min.  etc.  Co.,  194  U.  S.  230,  231, 
48  L.  951,  952,  24  Sup.  Ct.  632,  entry  on  prior  valid  placer  location 
for  purpose  of  prospecting  for  unknown  lodes,  when  made  against  will 
of  placer  locators,  initiates  no  title  to  lode  claims  located  within 
boundaries  of  placer  claim;  Smith  v.  Love,  49 'Fla.  242,  38  So.  380, 
holding  plaintiff  trustee  holding  legal  title  to  land  in  controversy  in 
trust  for  defendant. 

Syl.  5   (IX,  823).     Pre-emption  pending  confirmation  Mexican  grant. 

Approved  in  Wallace  v.  Adams,  143  Fed.  724,  act  of  1902,  creating 
citizenship  court  empowered  to  review  final  judgments  of  United  States 
courts  under  29  Stat.  339,  which  had  been  affirmed  by  supreme  court, 
was  valid  as  against  successful  litigants  who  had  not  procured  allotments 
prior  to  its  passage. 

100  U.  S.  257-302,  25  L.  648,  TENNESSEE  v.  DAVIS. 

Syl.   1    (IX,  823).     Removal — Petition  showing  federal  question. 

Approved  in  West  Virginia  v.  Laing,  133  Fed.  889,  891,  66  C.  C.  A. 
617,  upholding  power  of  federal  court  to  discharge  on  habeas  corpus 
member  of  marshal's  posse  indicted  for  killing  man  sought  to  be  ar- 
rested on  federal  warrant;  Virginia  v.  Felts,  133  Fed.  89,  96,  reciting 
mode  of  putting  in  issue  truth  of  allegations  in   removal  petition. 

Syl.  2   (IX,  823).     Removals — Prosecutions  against  federal  officers. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  475,  upholding  removal 
where  one  accused  of  murder  in  state  court  had  been  thrice  convicted 
and  each  conviction  reversed,  and  objections  to  rulings  refusing  testi- 
mony to  show  discrimination  in  selection  of  jurors  overruled,  and  under 
state  law  such  rulings  not  reviewable. 

Syl.  3   (IX,  824).     Removal — When  federal  question  arises. 

Approved  in  Ex  parte  Riggins,  134  Fed.  422,  member  of  mob  which 
takes  negro  charged  with  crime  from  sheriff  and  lynch  him  is  indictable 
for  conspiracy  under  Rev.  St.,  §§  5508,  5509;  Anthony  v.  Burrow,  129 
Fed.  787,  denying  jurisdiction  over  question  as  to  whether  county  is 
lawfully  included  in  congressional  district  where  it  was  placed  by  act 
of  state  legislature. 


945  Notes  on  U.  S.  Reports.  100  U.  S.  303-312 

Syl.  5   (IX,  825).     Removal  of  prosecution  against  federal  officer. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  454,  455,  upholding  re- 
moval where  one  accused  of  murder  in  state  court  had  been  thrice  con- 
victed and  each  conviction  reversed  and  objections  to  rulings  refusing 
testimony  to  show  discrimination  in  selection  of  jurors  overruled,  and 
imder  state  law  such  rulings  not  reviewable. 

(IX,  823.)  Miscellaneous.  Cited  in  Trafton  v.  United  States,  147 
Fed.  514,  quaere,  whether  federal  courts  will  recognize  state  criminal 
procedure  statute  passed  since  federal  judiciary  act;  Virginia  v.  Felts, 
133  Fed.  91,  cited  to  dissenting  opinion. 

100  U.  S.  303-312,  25  L.  664,  STAL'DER  v.  WEST  VIRGINIA. 

Syl.  1   (IX,  826),     Civil  rights— Rights  of  negroes. 

Approved  in  Ex  parte  Riggins,  134  Fed.  422,  member  of  mob  which 
takes  negro  charged  with  crime  from  sheriff  and  lynches  him  is  indict- 
able for  consjuraey  under  Rev.  St.,  §§  5508,  5509;  Georgia  K.  R.  etc. 
Co.  V.  Wright,  125  Ga.  603,  54  S.  E.  58,  failure  of  legislature  to  impose 
tax  on  shares  of  domestic  corporations  where  property  of  such  corpora- 
lions  is  taxed  in  hands  of  company,  while  imposing  tax  on  shares  in 
foreign  corporations,  is  not  denial  of  equal  protection  as  to  owners  of 
shares  in  foreign  corporations. 

Syl.  2  (IX,  826).    Exclusion  of  negroes  from  juries. 

Approved  in  Martin  v.  Texas,  200  U.  S.  319,  50  L.  498,  26  Sup.  Ct. 
338,  discrimination  against  negroes  because  of  race  in  selection  of 
jurors  not  shown  by  verified  motions  to  quash  indictment  and  jury 
]»anel  where  no  evidence  offered  to  establish  facts  stated  in  motion; 
Kentucky  v.  Powers,  139  Fed.  462,  480,  upholding  removal  where  one 
accused  of  murder  in  state  court  had  been  thrice  convicted  and  each 
conviction  reversed  and  objections  to  rulings  refusing  testimony  to  show 
discrimination  in  selection  of  jurors  overruled,  and  under  state  law  such 
rulings  not  reviewable;  Ex  parte  Powers,  129  Fed.  990,  arguendo. 

Syl.  3  (IX,  827).  Fourteenth  amendment — Discriminations  against 
negroes. 

Approved  in  Pope  v.  Williams,  98  Md.  71,  103  Am.  St.  Rep.  379,  56 
Atl.  545,  66  L.  R.  A.  398,  upholding  act  of  1902,  prohibiting  person 
coming  from  another  state  from  registering  as  voter  until  one  year 
after  declaration  of  intention  made  by  record  in  county  clerk's  office; 
State  V.  Weber,  96  Minn.  430,  105  N.  W.  493,  upholding  Const.,  art.  7, 
§  1,  limiting  right  of  suffrage,  as  respects  naturalized  citizens,  to  such 
as  are  admitted  to  citizenship  three  months  prior  to  election  at  which 
they  tender  vote. 

•Syl.  4  (IX,  828).     Protection  of  constitutional  rights. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  27,  50  L.  645,  26  Sup.  Ct. 

387,   denial  of   federal  equal  civil  rights  to  accused,  in   summoning   or 

impaneling  jurors,   does   not  authorize   removal   of   criminal   prosecution 

under  Rev.  St.,  §   641;   New  Jersey  v.  Corrigan,  139  Fed.  761,  765,  re- 

60 


SOO  U.  S.  313-338  Notes  on  U.  S.  Keports.  946 

manding  case  where  New  Jersey  statute  relative  to  qualifications  of 
grand  jurors  did  not  deny  equal  civil  rights;  Kentucky  v.  Powers,  139 
Fed.  454,  456,  474,  486,  994,  upholding  removal  where  one  accused  of 
murder  in  state  court  had  been  thrice  convicted  and  each  conviction 
reversed,  and  objections  to  rulings  refusing  testimony  to  show  dis- 
crimination in  selection  of  jurors  overruled,  and  under  state  law  such 
rulings  not  reviewable;  Scott  v.  Kinney,  137  Fed.  1011,  where  failure 
to  obtain  trial  of  action  in  state  court  resulted  from  failure  to  secure 
attorney  or  because  opponent  secured  continuances  of  trial  against  ob- 
jections, cause  was  not  removable  under  Kev.   St.,   §   641. 

(IX,  826).  Miscellaneous.  Cited  in  Flood  v.  News  &  Courier  Co.,  71 
S.  C.  117,  50  S.  E.  639,  holding  it  libelous  per  se  to  publish  of  white  man 
that  he  is  colored. 

100  U.  S.  313-338,  25  L.  667,  VIRGINIA  v.  RIVES. 

Syl.  2   (IX,   829).     Fourteenth  amendment — Discriminations. 

Approved  in  Iowa  etc.  Ins.  Assn.  v.  Gilbertson,  129  Iowa,  669,  106 
N.  W.  157,  Rev.  St.  U.  S.,  §  1977,  does  not  affect  validity  of  Code  Supp. 
1902,  §  1333d,  requiring  insurance  companies,  except  mutuals,  not  organ- 
ized for  profit  to  pay  tax  of  percentage  of  gross  receipts. 

Syl.  3  (IX,  830).     Fourteenth  amendment  refers  to  state  action. 

Approved  in  Moyer  v.  Peabody,  148  Fed.  874,  federal  court  has  no 
jurisdiction  over  action  against  state  officers  for  damages  done  through 
use  of  militia  called  out  by  governor  to  suppress  insurrection  where  power 
not  alleged  to  have  been  wantonly  abused;  Kentucky  v.  Powers,  139 
Fed.  477,  478,  479,  upholding  removal  of  criminal  case  where  accused 
discriminated  against  in  selection  of  jury;  Glucose  Ref.  Co.  v.  Chicago, 
138  Fed.  211,  federal  jurisdiction  in  suit  to  enjoin  enforcement  of  city 
ordinance  not  predieable  on  allegation  that  in  passing  ordinance  city 
exceeded  charter  powers;  St.  Louis  etc.  Ry.  Co.  v.  Davis,  132  Fed.  637, 
denying  federal  jurisdiction  over  suit  to  enjoin  state  board  from 
certifying  assessment  of  railroad  property  for  taxation  at  higher  per- 
centage of  actual  value  than  property  of  other  classes,  contrary  to  state 
law. 

Syl.  4  (IX,  830).     Equal  rights — Removal  of  prosecutions. 

Approved  in  Kentucky  v.  Powers,  201  U,  S.  28,  50  L.  646,  26  Sup. 
Ct.  387,  denial,  in  summoning  or  impaneling  jurors,  of  federal  civil 
rights,  does  not,  unless  authorized  by  state  law,  give  right  to  remove 
criminal  prosecution  to  federal  court  under  Rev.  St.,  §  641;  Barney  v. 
New  York,  193  U.  S.  438,  48  L.  740,  24  Sup.  Ct.  502,  averment  in  bill 
to  enjoin  construction  of  railroad  tunnel  under  street  that  construction 
will  deprive  abutting  owner  of  property  without  due  process  does  not 
give  federal  jurisdiction  where  bill  proceeds  on  theory  that  action  sought 
to  be  enjoined  was  forbidden  by  state  law;  New  Jersey  v.  Corrigan,  139 
Fed.  761,  construing  New  Jersey  statute  relative  to  qualifications  of  grand 
jurors;  Kentucky  v.  Powers,  139  Fed.  454,  455,  481,  483,  485,  upholding 
federal  jurisdiction  on  removal  where  one  indicted  in  state  court  for  miir- 


947  Notes  on  U.  S.  Ecports.  100  U.  S.  330-370 

«ler  discriminated  against  in  selection  of  jury;  Scott  v.  Kinney,  137  Fed. 
1011,  where  failure  to  obtain  trial  of  action  in  state  court  resulted  from 
failure  to  secure  attorney  or  because  opponent  secured  continuances  of 
trial  against  objection,  cause  not  removable  under  Eev.  St.,  §  641. 

Syl.   5   (IX,  831).     Kemoval   petition — Denial  of  equal  rights. 
Approved  in  Kentucky  v.  Powers,  139  Fed.  480,  upholding  removal  of 
criminal  case  where  accused  discriminated  against  in  selection  of  jury. 

Syl.  6  (IX,  831).     Removal — Exclusion  of  negro  jurors. 

Approved  in  Georgia  R.  R.  etc.  Co.  v.  Wright,  125  Ga.  603,  54  S.  E. 
58,  failure  of  legislature  to  impose  tax  on  shares  of  domestic  corpora- 
tion where  property  of  such  corporations  is  taxed  in  hands  of  company, 
while  imposing  tax  on  shares  in  foreign  corporations,  is  not  denial  of 
equal  protection  as  to  owners  of  shares  in  foreign  corporation. 

Syl.  7  (IX,  831).     Negro  defendant — Trial  by  negro  jurors. 

Approved  in  Martin  v.  Texas,  200  U.  S.  321,  50  L.  499,  26  Sup.  Ct. 
338,  discrimination  against  negroes  because  of  race  in  selection  of 
jurors  not  shown  by  verified  motions  to  quash  indictment  and  jury 
panel,  charging  such  discrimination,  where  no  evidence  offered  to  establish 
facts  alleged;  Kentucky  v.  Powers,  139  Fed.  463,  upholding  removal  of 
criminal  case  where  accused  discriminated  against  in  selection  of  jury; 

Syl.  8   (IX,  831).     Mandamus  to  control  judicial  discretion. 
See  98   Am.  St.   Rep.   890,  note. 

Syl.  9    (IX,  831).     Mandamus  where   discretion  abused. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  493,  upholding  removal  of 
criminal  case  where  accused  discriminated  against  in  selection  of  jury; 
Barber  Asphalt  Pav.  Co.  v.  Morris,  132  Fed.  954,  67  L.  R.  A.  761,  6(3 
C.  C.  A.  55,  granting  mandamus  to  compel  circuit  judge  to  vacate  order 
staying  action  in  circuit  court  on  claim  against  city  pending  appeals  to 
state  court;   In  re  Dowd,  133  Fed.  751,  arguendo. 

Distinguished  in  Smith  v.  Connor,  98  Tex.  438,  84  S.  W.  817,  refusing 
mandamus  to  require  justices  of  court  of  civil  appeals  to  certify  for 
decision  question  decided  by  that  court. 

(IX,  828.)  Miscellaneous.  Cited  in  Cassett  v.  Mitchell  Coal  &  Coke 
Co.,  150  Fed.  40;  Gay  v.  Thomas,  5  Okl.  27,  46  Pae.  586,  equal  protection 
does  not  make  necessary  same  local  regulations. 

100  U.  S.  339-370,  25  L.  667,  EX  PARTE  VIRGINIA. 

Syl.  2   (IX,  832).     Habeas  corpus — Inquiry  into  judgment. 

Approved  in  Jamison  v.  Wimbish,  130  Fed.  361,  granting  habeas 
corpus  where  one  sentenced  by  police  judge  for  petty  offense  to  seven 
months  on  chain-gang,  where  he  was  put  in  stripes  and  made  to  wear 
Lroas. 


100  U.  S.  339-370  Notes  on  U.  S.  Eeporls.  94a 

Syl.  3  (IX,  833).     Equal  rights  to  negroes. 

Approved  in  Ex  parte  Eiggins,  134  Fed.  406,  member  of  mob  ■which 
takes  negro  charged  with  crime  from  sheriff  and  lynches  him  is  indictable 
for  conspiracy  under  Eev.  St.,   §§  5508,  5509. 

Syl.    4    (IX,    834).     Officer    violating    fourteenth    amendment. 

Approved  in  Douglas,  Park  Jockey  Club  v.  Grainger,  146  Fed.  417, 
upholding  jurisdiction  over  suit  to  enjoin  state  officers  enforcing  Ken- 
tucky act  of  1906,  regulating  racing,  on  ground  that  their  action  violates 
property  rights  under  federal  constitution;  Ex  parte  Eiggins,  134  Fed. 
409,  420,  member  of  mob  which  takes  negro  charged  with  crime  from 
sheriff  and  lynches  him  is  indictable  for  conspiracy  under  Eev.  St.,  §§ 
5508,  5509;  Georgia  E.  E.  etc.  Co.  v.  Wright,  125  Ga.  603,  54  S.  E.  58, 
failure  of  legislature  to  impose  tax  on  shares  of  domestic  corporation, 
v,'here  property  of  such  corporations  is  taxed  in  hands  of  company  while 
imposing  tax  on  shares  in  foreign  corporation,  is  not  denial  of  equal  pro- 
tection as  to  owners  of  shares  in  foreign  corporations;  McKinster  v. 
Sager,  163  Ind.  680,  106  Am.  St.  Eep.  268,  72  N.  E.  858,  68  L.  E.  A. 
273;  and  Sellers  v.  Hayes,  163  Ind.  434,  72  N.  E.  123,  both  holding 
void  statute  declaring  sales  of  stock  of  merchandise  otherwise  than  in 
course  of  trade  void  as  to  creditors  having  purchase  money  claim,  unless 
certain  conditions  observed;  State  ex  rel.  Galle  v.  New  Orleans,  113 
La.  377,  36  So.  1001,  67  L.  E.  A.  70,  under  New  Orleans  charter  giving 
council  discretion  with  respect  to  granting  barroom  licenses,  council 
cannot  arbitrarily  refuse  license. 

Distinguished  in  Owensboro  Waterworks  Co.  v.  Owensboro,  200  U.  S. 
45,  50  L.  364,  26  Sup.  Ct.  249,  denying  federal  jurisdiction  over  suit 
to  enjoin  threatened  diversion  by  city  of  funds  which  it  had  collected  for 
specified  object,  on  theory  that  failure  of  duty  on  part  of  city  will  in- 
crease taxation;  Barney  v.  New  York,  193  U.  S.  440,  48  L.  741,  24 
Sup.  Ct.  502,  averment  in  bill  to  enjoin  construction  of  railroad  tunnel 
under  city  street  that  abutting  owner  is  deprived  of  prop)erty  without 
due  process  does  not  give  federal  court  jurisdiction  where  bill  proceeds 
on  theory  that  action  sought  to  be  enjoined,  was  forbidden  by  state  law; 
St.  Louis  etc.  Ey.  Co.  v.  Davis,  132  Fed.  635,  638,  denying  federal  juris- 
diction over  suit  to  enjoin  state  board  from  certifying  assessment  of 
railroad  property  for  taxation  at  higher  percentage  of  actual  value  than 
other  classes  of  property,  contrary  to  state  law. 

Syl.  6  (IX,  835).     Eace  discrimination  in  juries. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  454,  upholding  removal  of 
prosecution  where  accused  discriminated  against  in  selection  of  jurors. 

Syl.  7  (IX,  835).     Fourteenth  amendment — Civil  rights. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  455,  upholding  removal 
of  criminal  prosecution  where  accused  discriminated  against  in  selec- 
tion of  jurors. 

(IX,  832.)  Miscellaneous.  Cited  in  Gay  v.  Thomas,  5  Okl.  27,  46 
Pac.  586,  equal  protection  does  not  make  necessary  same  local  regula- 


949  Notes  on  U.  S.  Reports.  100  U.  S.  371-422 

tions;  O'Neil  v.  State,  115  Tenn.  444,  90  S.  W.  632,  upholding  Acts 
1901,  p.  115,  prohibiting  practice  of  medicine  without   license. 

100  U.  S.  371-399,  25  L.  717,  EX  PARTE  SIEBOLD. 

Syl.  1  (IX,  836).     Habeas  corpus — Conviction  under  void  act. 

Approved  in  Jamison  v.  Wimbish,  130  Fed.  361,  granting  habeas 
corpus  where  one  sentenced  by  police  judge  for  petty  offense  to  seven 
months  in  chain  gang  where  he  was  compelled  to  wear  stripes  and  leg 
irons. 

Syl.  2  (IX,  837).     Habeas  corpus — Sentence  by  inferior  court. 

Approved  in  Ex  parte  Moran,  144  Fed.  601,  upholding  jurisdieticn 
of  circuit  court  of  appeals  to  inquire  into  power  of  Oklahoma  court 
to  imprison  one  convicted  of  capital  crime. 

Syl.  3  (IX,  837).     Habeas  corpus  not  writ  of  error. 

Approved  in  Ex  parte  Moran,  144  Fed.  604,  denying  right  to  review 
on  habeas  corpus  validity  of  selection  of  grand  jurors  by  territorial 
court. 

Syl.  4  (IX,  838).     Habeas  corpus — Want  of  jurisdiction. 

Approved  in  Ex  parte  Robinson,  144  Fed.  836,  where  circuit  court 
had  no  jurisdiction  of  subject  matter  of  suit,  adjudication  that  one 
was  guilty  of  contempt  in  violating  injunction  issued  therein  is  at- 
tackable on  habeas  corpus;  In  re  Burkell,  2  Alaska,  109,  habeas  corpus 
does  not  lie  where  justice  of  peace  added  "at  hard  labor"  to  penalty, 
where  hard  labor  not  in  fact  being  imposed. 

Syl.  5  (IX,  838).     Habeas  corpus — Review  of  jurisdiction. 

Approved  in  dissenting  opinion  in  Rush  v.  Buckley,  100  Me.  338, 
61  Atl.  781,  70  L.  R.  A.  464,  majority  holding  judge  issuing  warrant 
and  officer  serving  same  not  liable  civilly,  though  ordinance  under 
which  arrest  made  was  invalid. 

Syl.  10   (IX,  840).     Act  offense  against  state  and  government. 

Approved  in  Ex  parte  Riggins,  134  Fed.  411,  member  of  mob  which 
took  negro  accused  of  crime  from  sheriff  and  lynched  him  may  be 
indicted  for  conspiracy  under  Rev.  St.,  §§  5508,  5509. 

(IX,   836.)     Miscellaneous.     Cited   in   Hooks   v.   Aldridge,   145   Fed. 

S70. 

100  U.  S.  399-422,  25  L.  715,  EX  PARTE  CLARKE. 

(IX,  842.)  Miscellaneous.  Cited  in  Cuyler  v.  Atlantic  &  IST.  C.  R. 
Co.,  131  Fed.  99,  releasing  on  habeas  corpus  publisher  of  newspaper 
committed  for  contempt  of  federal  court  consisting  of  editorial  crit- 
icising official  conduct  and  integrity  of  court. 


100  U.  S.  434-482  Notes  on  U.  S.  Eeports.  950 

100  U.  S.  434-444,  25  L.  743,  GUY  v.  BALTIMORE. 

Syl.  1  (IX,  84G).     Imposing  burdens  on  intergtate  commerce. 

Approved  in  In  re  Sydow,  4  Ariz.  210,  36  Pac.  215,  holding  valid 
Eev.  St.,  tit.  42,  par.  2239,  §  9,  requiring  dealers  in  mercliandise, 
except  agricultural  products  of  territory,  except  when  sold  by  pro- 
ducer, to  pay  license  tax;  Commonwealth  v.  Caldwell,  190  Mass.  356, 
Cj7,  76  N.  E.  955,  holding  void  Rev.  Laws,  c.  65,  §§  15,  16,  per- 
mitting sales  by  peddlers  of  agricultural  products  of  United  States 
v.ithout  license,  but  forbidding  unlicensed  sales  of  agricultural  pro- 
ducts  of   other   countries. 

100  U.  S.  446-456,  25  L.  695,  CASE  v.  CITIZEN'S  BANK. 

Syl.  2  (IX,  848).     Acts  of  bank  cashier — Scope  of  authority. 

Approved  in  Goshorn  v.  People's  Nat.  Bank,  32  Ind.  App.  432,  102 
Am.  St.  Rep.  248,  69  N.  E.  186,  where  depositor  gave  bank  cashier 
check  with  instructions  to  remit  amount  thereof  to  trust  company  for 
deposit,  bank  is  liable  for  cashier's  misappropriation  of  fund. 

100  U.  S.  457-482,  25  L.  593,  REMOVAL  CASES. 

Syl.  1  (IX,  849).     Removal — Diverse  citizenship. 

Approved  in  Sweeney  v.  Carter  Oil  Co.,  199  U.  S.  258,  50  L.  181, 
26  Sup.  Ct.  55,  two  citizens  of  different  state  may  sue  citizen  of  third 
r'ate  in  circuit  court  for  district  of  latter 's  residence;  Dawson  v. 
Columbia  Avenue  etc.  Trust  Co.,  197  U.  S.  181,  49  L.  716,  25  Sup.  Ct. 
420,  denying  federal  jurisdiction  over  suit  against  city  by  mortgagee 
of  waterworks  to  enforce  city's  contract  with  waterworks,  where  no 
diversity  of  citizenship  exists  between  city  and  waterworks;  Johnston 
etc.  Switch  Co.  v.  Buda  etc.  Mfg.  Co.,  148  Fed.  883,  suit  between 
corporations  of  different  states  is  removable  though  corporation  and 
individuals  who  are  citizens  of  same  state  as  complainant  are  joined 
as  defendants  with  moving  corporation,  and  second  corporation  is  mere 
stakeholder  and  individuals  are  its  officers;  Lucas  v.  Milliken,  139 
Fed.  828,  in  suit  by  stockholder  against  corporation  and  other  stock- 
holders to  prevent  deal  by  latter  to  control  corporation,  to  cancel  cor- 
poration's contract  and  substitute  another  by  which  conspirators 
would  profit,  corporation  aligned  with  complainant  for  removal  pur- 
poses in  accordance  with  interest  shown  by  bill;  Boatmen's  Bank  v. 
Fritzlen,  135  Fed.  658,  68  C.  C.  A.  288,  determining  jurisdiction  over 
controversy  over  foreclosure  of  mortgages;  Groel  v.  United  Elec.  Co., 
132  Fed.  254,  257,  261,  in  equity  suit  by  stockholder  in  own  name 
on  right  of  action  in  corporation,  latter  aligned  with  defendants 
whenever  officers  shown  to  be  opposed  to  object  sought  by  com- 
plaining stockholder,  and  when  opposition  not  shown  it  is  aligned  with 
complainant;  Laden  v.  Meek,  130  Fed.  879,  65  C.  C.  A.  361,  removal 
petition  alleging  merely  that  certain  petitioners  are  residents  of 
state  other  than  that  of  which  plaintiff  is  citizen,  and  that  none  of 


951  Note«  on  U.  S.  Reports,  100  U.  S.  483-401 

petitioners   are   residents   and   citizens   of   same    state    as   plaintiff,   is 
insufficient. 

Syl.   4    (IX,   852).     Removal   bond — Discretion   to   accept. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Langley,  145  Fed.  420,  where 
proper  petition  and  bond  for  removal  filed  in  time  with  clerk  of 
state  court  and  certified  copy  of  record  filed  in  federal  court,  latter 
acquires  jurisdiction  without  order  of  state  court  transferring  cause. 

Syl.   6    (IX,   853).     No   removal   after   trial   begun. 

Approved  in  Atlanta  etc.  Ry.  Co.  v.  Southern  Ry.  Co.,  131  Fed. 
661,  G6  C.  C.  A.  601,  granting  removal  though  defendant  in  state 
court  filed  answer  and  motion  for  dissolution  of  ex  parte  restraining 
order,  which  motion  judge  heard  in  chambers  on  ex  parte  affidavits. 

Syl.   7    (IX,   853).     Removal — Cause   must   appear  to   state   court. 

Approved  in  Illinois  Central  Ry.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W. 
486,  fol!ov,'ing  rule;  Corporation  Commission  v.  Southern  Ry.  Co.,  135 
N.  C.  81,  47  S.  E.  232,  removal  petition  alleging  that  proceeding  be- 
fore corporation  commission  to  compel  railroad  to  deliver  coal  cars 
to  siding  was  of  civil  nature  to  assert  right  of  commission  to  compel 
delivery  of  interstate  shipments,  and  that  matter  in  controversy  ex- 
ceeded  sum   of   $2,000,   is  insufficient. 

Syl.  9  (IX,  855).     Removal— Time  to  file  transcript. 

Approved  in  Groton  Bridge  etc.  Co.  v.  American  Bridge  Co.,  137 
Fed.  290,  under  Removal  Act  of  1888,  §  3,  it  is  sufficient  if  petition 
is  presented  to  judge  in  chambers,  with  bond,  and  after  approval  of 
bond,  petition  and  bond  are  filed  with  clerk  of  court  of  county  where 
venue  laid. 

Syl.  11  (IX,  856).     Equitable  assignments — Payment  out  of  fund. 

Approved  in  Johnston  v.  Huff,  133  Fed.  706,  66  C.  C.  A.  534,  where 
contractor  to  feed  track  gang  agreed  with  supply  house,  whereby  it  was 
to  give  him  credit,  and  he  gave  it  order  on  railroad  for  sums  due  him, 
an  order  not  presented  till  day  prior  to  voluntary  bankruptcy,  was  pref- 
erence. % 

100  U.  S.  483-491,  25  L.  628,  HAUEXSTEIX  v.  LTXHAM 

Syl.  1   (IX,  856).     Xaturalization — Presumptions. 

Approved  in  Ehrlich  v.  Weber,  114  Tenn.  717,  88  S.  W.  189,  one  born 
in  foreign  country,  is  presumed  to  be  alien  though  he  has  long  resided 
here. 

Syl.  6   (IX,  857).     Treaties  liberally  construed. 

Approved  in  In  re  Wyman,  191  Mass.  278,  77  X.  E.  380,  under 
Russian  treaty  of  1832,  on  death  of  Russian  subject  intestate,  Russian 
vice-consul  entitled  ^o  letters  in  preference  to  public  administrator. 


100  U.  S.  491-514  Notes  on  U.  S.  Eepoits.  952 

Syl.  7   (IX,  857).     Treaty  rights  superior  to  statutes. 

Approved  in  Dockstader  v.  Kershaw,  4  Penne.  (Del.)  400,  55  Atl. 
341,  Kev.  Code  1852,  as  amended  1893,  c.  81,  §  1,  permitting  alien 
kindred  to  take  lands  under  intestate  laws  only  when  residents  of 
state  at  time  of  death  of  intestate,  violates  British  treaty  of  1900; 
In  re  Wyman,  191  Mass.  279,  77  N.  E.  380,  under  Eussian  treaty  of 
?832,  on  death  of  Eussian  subject  intestate  Eussian  vice-consul  enti- 
tled to  letters  in  preference  to  public  administrator;  Ehrlich  v. 
Weber,  114  Tenn.  726,  88  S.  "W.  192,  where  complainant  based  claim 
on  provisions  of  treaty,  not  necessary  to  make  formal  claim  of  rights 
under  treaty. 

100  U.  S.  491-499,  25  L.  558,  KIETLAND  v.  HOTCITKISS. 

Syl.  1  (IX,  858).     Federal  jurisdiction — State  taxation. 

Approved  in  St.  Louis  etc.  Ey.  Co.  v.  Davis,  132  Fed.  G34,  denying 
federal  jurisdiction  to  enjoin  state  board  from  certifying  assessment 
of  railroad  property  at  higher  percentage  of  actual  value  than  prop- 
erty of   other  classes   is  assessed,   contrary   to   state   law. 

Syl.  2   (IX,  858).     Taxation  of  debt— Situs. 

Approved  in  Gilbertson  v.  Oliver,  129  Iowa,  571,  105  N.  W.  1003, 
indebtedness  to  nonresident  having  no  agent  in  state,  she  having 
evidence  of  debt,  is  not  liable  to  inheritance  tax. 

Syl.  3   (IX,  859).     State  tax  of  debts  due  by  nonresidents. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  205, 
50  L.  154,  26  Sup.  Ct.  36,  due  process  of  law  is  denied  Kentucky 
railroad  by  tax  under  Kentucky  statute  on  its  rolling  stock  perma- 
nently located  in  other  states  and  employed  there  in  its  business; 
Goodsite  v.  Lane,  139  Fed.  594,  under  Ohio  act  of  1890,  taxing  all 
property  in  state  and  all  moneys  and  credits  owned  by  residents, 
where  trust  estate  and  beneficiaries  are  outside  state,  and  trustee  did 
not  act  such  in  Ohio,  though  he  resided  there,  estate  not  taxable; 
Kingsley  v.  Merrill,  122  Wis.  201,  99  N.  W.  1049,  67  L.  K.  A.  200, 
upholding  Eev.  St.  1898,  §  1036,  making  debts  due  from  solvent 
debtors  subject  to  taxation. 

100  U.  S.  500-507,  25  L.  763,  PAEISH  v.  UNITED  STATES. 

Syl.  2   (IX,  860).     Damages  for  breach  of  contract. 

Approved  in  Choctaw  etc.  E.  E.  Co.  v.  Jacobs,  15  Okl.  500,  82 
Pac.  504,  determining  damages  in  action  against  railroad  for  delay  in 
delivering  freight;  Tootle  v.  Kent,  12  Okl.  691,  73  Pac.  315,  deter- 
mining damages  to  merchant  for  wrongful  acts  of  partner  directly 
causing  closing  of  store  by  virtue  of  fraudulent  chattel  mortgage. 

100  U.  S.  508-514,  25  L.  631,  UNITED  STATES  v.  BOWEN. 

Syl.   2    (IX,   860).     Construction   of   Eevised   Statutes. 

Approved  in  Benson  v.  Henkel.  198  U.  S.  13,  49  L.  923,  25  Sup.  Ct. 
569,   District   of   Columbia   is   district   of   United   States   within   Eev. 


953  Notes  on  U.  S.  Ecpoits.  100  U.  S.  514-535 

St.,  §  1014,  authorizing  removal  for  trial  of  person  charged  with 
ofFcnse  against  United  States  to  federal  district  where  trial  to  be 
had;  United  States  v.  Raisch,  144  Fed.  490,  Rev.  St.,  §  5424,  prohibits 
felonious  making  of  certificate  of  naturalization  by  person  other  than 
person  applying  to  be  admitted  a^  citizen  or  appearing  as  witness  for 
such  person;  Schmidt  v.  United  States,  133  Fed.  261,  66  C.  C.  A. 
389,  one  knowingly  swearing  falsely  to  material  fact  in  naturalization 
proceedings  in  state  court  may  be  indicted  and  punished  for  perjury 
in  federal  court,  under  32  Stat.  1222,  §  39;  United  States  v.  i''ork, 
131  Fed.  328,  Rev.  St.,  §  5424,  did  not  include  uttering  of  forged 
naturalization  certificate  by  person  other  than  one  applying  therefor 
or  appearing  as  witness  for  person  so  applying;  Holland  v.  Webster, 
43  Fla.  91,  29  So.  627,  under  Rev.  St.,  §§  1279,  1462,  supreme  court 
must  entertain  motion  to  quash  appeal  taken  merely  for  delay,  though 
case  not  reached  for  final  hearing  on  docket;  Trustees  of  American 
Bank  v.  McComb,  105  Va.  478,  54  S.  E.  16,  under  Acts  1897-98,  pp. 
896,  910,  c.  860,  trustee  under  deed  of  trust  for  creditors  is  holder 
in  due  course. 

Distinguished  in  Clagett  v.  Duluth  Township,  143  Fed.  826,  Minn. 
Gen.  St.  1878,  preparation  and  publication  of  which  authorized  by 
legislature,  and  which  was  made  competent  evidence  of  laws  of 
state,  being  private  compilation,  when  verity  thereof  is  questioned, 
court   looks  to   original  enactments. 

]00  U.  S.  514-535,  25  L.  699,  MOUNT  PLEASANT  v.  BECK  WITH. 

Syl.  1  (IX,  862).     Modification  of  municipality's  powers. 

Approved  in  Worcester  v.  Worcester  etc.  St.  Ry.  Co.,  196  U.  S. 
550,  49  L.  596,  25  Sup.  Ct.  327,  city  cannot  invoke  federal  constitu- 
tion contract  clause  against  abrogation  by  state  law,  with  consent  of 
railroad,  of  provisions  of  contract  between  company  and  city  with 
reference  to  paving  of  streets;  Folsom  v.  Greenwood  Co.,  137  Fed. 
450,  69  C.  C.  A.  473,  where  statute  incorporated  township  to  enable 
people  to  issue  railroad  aid  bonds,  and  provided  that  county  auditor 
and  treasurer  should  assess  taxes  to  pay  bonds,  state  could  not  de- 
prive bondholder  of  such  remedy  unless  equally  efficacious  remedies 
substituted;  Ex  parte  Folsom,  131  Fed.  504,  where  S.  C.  act  1882, 
chartering  railroad  authorized  townships  to  issue  aid  bonds  and  au- 
thorized county  auditor  and  treasurer  to  assess  and  collect  taxes  to 
pay  bonds,  constitutional  amendment  abolishing  corporate  existence 
of  townships  which  had  issued  bonds  was  void;  Chicago  v.  Cicero, 
210  111.  294,  71  N.  E.  358,  upholding  Laws  1903,  p.  113,  §  1,  enlarging 
corporate  limits  of  sanitary  district  created  by  Hurd's  Rev.  St. 
1901,  p.  347,  §  26;  Attorney  General  v.  Springwells  Tp.,  143  Mich. 
534,  107  N.  W.  91,  upholding  Loc.  Acts  1905,  p.  1068,  No.  627,  pro- 
viding for  annexation  of  territory  ta  Detroit;  Van  Cleve  v.  Passaic 
Valley  Sewerage  Commrs.,  71  N.  J.  L.  198,  58  Atl.  577,  upholding 
act  of  1903  to  relieve  from  pollution  streams  within  Passaic  Valley 


100  U.  S.  514-535  Notes  on  U.  S.  Reports,  954 

sewerage  district;  In  re  School  Committee,  26  R.  I.  166,  58  Atl.  628, 
Pub.  Laws  1903,  p.  33,  c.  1101,  abolishing  school  districts  and  vesting 
property  thereof  in  towns,  does  not  violate  contract  clause  of  con- 
stitution; Lincoln  Co.  v.  Brock,  37  Wash.  17,  79  Pac.  478,  county 
is  municipal  corporation  within  Const.,  art.  1,  §  16,  prohibiting  appro- 
priation of  right  of  way  for  use  of  corporation,  other  than  municipal, 
until   compensation   made.     See  97  Am.   St.   Rep.   349,  note. 

Distinguished  in  Polsom  v.  Greenwood  Co.,  130  Fed.  733,  county 
which  can  levy  taxes  only  for  specified  purposes  is  not  liable  for 
bonds  issued  before  county  created  by  township  which  was  at  time 
body  corporate  of  another  county,  but  which,  since  its  annexation 
to  new  county,  has  been  dissolved. 

Syl.  4   (IX,  863).     Division  of  municipalities — Debts. 

Approved  in  Graham  v.  Folsom,  200  U.  S.  253,  50  L.  469,  26  Sup. 
Ct.  245,  county  auditors  and  treasurers  who  are  instruments  employed 
by  legislature  to  assess  and  collect  taxes  may  be  compelled  by  man- 
damus to  levy  tax  to  pay  judgment  on  township  bonds  whose  cor- 
porate existence  abolished;  Gamble  v.  Rural  Independent  School  Dist.; 
146  Fed.  119,  120,  under  Iowa  Code  1873,  §  1715,  providing  for  division 
of  assets  and  liabilities  on  division  of  school  district,  suit  by  bond- 
holder of  district  which  has  ceased  to  exist  by  reason  of  division  of 
territory  into  new  districts,  to  enforce  payments  by  new  districts,  is 
within  federal  equity  jurisdiction;  Planters'  etc.  Bank  v.  Huiett  Tp., 
132  Fed.  628,  fact  that  township  after  it  issued  bonds  was  transferred 
from  old  county  and  included  in  new  county  does  not  affect  liability 
of  people  or  property  therein  for  payment  of  bonds;  Taylor  v.  Pine 
Grove  Tp.,  132  Fed.  567,  where,  after  issuance  of  bonds  by  town- 
ship, all  but  small  part  of  it  included  in  new  county,  and  its  boun 
daries  changed  so  as  to  include  new  territory,  all  territory  and  proj)- 
erty  therein  became  liable  for  bonds;  Pepin  Tp.  v.  Sage,  ]29  Fed. 
659,  64  C.  C.  A.  169,  applying  rule  where  special  act  creating  village 
repealed;  Shoshone  County  v.  Thompson,  11  Idaho,  143,  81  Pac.  76, 
under  act  of  1903,  annexing  portion  of  Shoshone  county  to  Nez 
Perce  county,  tax  sale  certificates  and  tax  deeds  and  property  acquired 
tliereunder,  as  well  as  delinquent  taxes,  belong  to  former  county; 
Commrs.  Greer  Co.  v.  Clarke,  12  Okl.  211,  70  Pac.  211,  holding  Greer 
county,  Oklahoma,  liable  for  debts  of  territory  formerly  known  as 
Greer  county,  Texas,  which  territory  was  decided  to  be  in  Oklahoma; 
School  Dist.  No.  76  v.  Capitol  Nat.  Bank,  7  Okl.  50,  54  Pac.  311, 
holder  of  school  warrants  drawn  by  county  clerk  on  county  treasurer 
under  school  law  of  1890,  to  be  paid  out  unappropriated  moneys 
of  separate  school  fund,  cannot  sue  township  or  school  districts  cre- 
ated out  of  township;  City  of  Guthrie  v.  Wylie,  6  Okl.  66,  55  Pac. 
105,  provisional  city  of  Guthrie  not  being  de  facto  municipality,  its 
successors  are  not  liable  on  its  contracts;  City  of  Guthrie  v.  Territory, 
1  Okl.  202,  31  Pac.  194,  11  L.  R.  A.  418,  fact  that  village  corporation 


9o5  Notes  on  U.  S.  Reports.  100  U.  S.  539-563 

Las  clianged  into  city  since  liability  of  village  for  debts  of  provisional 
organization  fixed  by  legislation  does  not  relieve  city  from  liability 
for  debts. 

Distinguished  in  Wichman  v.  Placerville,  147  Cal.  164,  81  Pac. 
5.38,  where  city  authorized  by  special  statute  to  issue  bonds  for  relief 
of  fire  department,  and  its  former  charter  repealed  and  new  charter 
adopted  containing  no  such  authority,  subsequent  issue  of  bonds  under 
old  act  was  void. 

100  U.  S.  5.39-547,  25  L.  705,  PEOPLE  v.  WEAVER. 

Syl.  2   (IX,  865).     State  tax  on  national  bank  shares. 

Approved  in  Douglas  Park  Jockey  Club  v.  Grainger,  146  Fed.  417, 
holding  valid  Kentucky  act  of  1906,  regulating  racing;  Consolidated 
Gas  Co.  V.  Mayor  etc.  of  Baltimore,  101  Md.  558,  109  Am.  St.  Rep. 
598,  Gl  Atl.  538,  1  L.  R.  A.  (N.  S.)  263,  holding  void  assessment  of 
street  easements  of  gas  company  arbitrarily  fixed  at  sum  nearly 
million  dollars  in  excess  of  corporation's  capital  stock,  and  same 
afterward  reduced  by  deduction  of  inflated  valuation  of  corporation's 
])crsonalty  and  residuum  divided  by  two;  Ankcny  v.  Blakley,  44  Or. 
86,  74  Pac.  488,  holding  assessment  of  national  bank  stock  not  so 
excessive  as  compared  with  assessment  on  other  moneyed  capital  as 
to  amount  to  discrimination;  dissenting  opinion  in  Kingsley  v.  Mer- 
rill, 122  Wis.  205,  99  N.  W.  1050,  67  L.  R.  A.  200,  majority  upholding 
Rev.  St.  1898,  §  1036,  taxing  debts  due  from  solvent  debtors. 

Distinguished  in  dissenting  opinion  in  San  Francisco  Nat.  Bank  v. 
Dodge,  197  U.  S.  Ill,  113,  49  L.  687,  688,  25  Sup.  Ct.  384,  majority 
holding  discrimination  against  national  banks  and  in  favor  of  state 
l)anks,  results  from  taxation  of  national  bank  shares,  under  Cal.  Pol. 
<'ode,  §§  3608-3610,  at  market  value,  while  franchises  not  included 
in  taxing  state  bank's  property. 

(IX,  865.)  Miscellaneous.  Cited  in  Delaware  etc.  R.  R.  Co.  v. 
Pennsylvania,  198  U.  S.  352,  49  L.  1081,  25  Sup.  Ct.  669,  supreme 
court  is  concluded  by  state  court's  construction  of  state  statute. 

100  U.  S.  548-563,  25   L.   710,  NEWTON  v.  MAHONING  CO.   COM- 
MISSIONERS. 

Syl.  1  (IX,  869).     Legislature  may  abolish  office. 

Approved  in  McGoveru  v.  Mitchell,  78  Conn.  553,  63  Atl.  439, 
upholding  act  of  1905,  increasing  salaries  of  judges  of  supreme  court 
of  errors  and  of  superior  court,  act  to  take  effect  from  its  passage; 
Mial  V.  Ellington,  134  N.  C.  142,  46  S.  E.  964,  65  L.  R.  A.  697,  hold- 
ing road  supervisor  appointed  for  definite  term  under  act  of  legis- 
lature deprived  of  office  by  subsequent  statute  abolishing  ofllce; 
dissenting  opinion  in  Territory  v.  Albright,  12  N.  M.  318,  78  Pac. 
212,  majority  holding  assessor  appointed  pursuant  to  amendment  of 
1903  to  Bernadillo  county  division  act,  prior  to  division  act  taking 
effect,  not  entitled  to  office. 


100  U.  S.  564-584  Notes  on  U.  S.  Eeports.  956 

Syl.   2    (IX,   869).     Contracts — Laws   regulating   government. 

Approved  in  Mial  v.  Ellington,  134  N.  C.  165,  46  S.  E.  972,  65 
L.  E.  A.  697,  holding  road  supervisor  appointed  for  definite  term 
under  statute  deprived  of  oflBlee  by  subsequent  statute  abolishing  office; 
State  v.  Irvine,  14  Wyo.  387,  84  Pac.  106,  where  state  passed  act 
creating  agricultural  college,  which  was  public  corporation,  fact 
that  property  devised  in  trust  for  its  benefit  did  not  preclude  repeal 
of  incorporating  act. 

Syl.  3   (IX,  870).     Prior  cannot  bind  later  legislature. 

Approved  in  Lang  v.  Lutz,  180  N.  Y.  259,  73  N.  E.  26,  where  debt 
of  corporation  was  created  in  1900,  right  of  creditor  to  enforce  stock- 
holder's liability  in  1902,  given  by  Laws  1892,  p.  1841,  c.  688,  was 
governed  by  such  act,  and  not  by  Laws  1901,  p.  971,  c.  354;  State 
V.  Irvine,  14  Wyo.  375^  84  Pac.  101,  Wyoming  Agricultural  College 
incorporated  by  act  of  1891  was  public  corporation  whose  charter 
state  could  repeal  by  subsequent  statute. 

Syl.  4  (IX,  870).     State  contracts — Nothing  conceded. 

Approved  in  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  35,  50 
L.  359,  26  Sup.  Ct.  224,  municipal  grant  of  waterworks  franchise  does 
not  impliedly  devest  municipality  of  power  to  construct  own  water- 
works; Story  V.  Woolverton,  31  Mont.  354,  78  Pac.  590,  act  of  Con- 
gress of  1891,  granting  Montana  one  section  of  land  of  former 
military  reservation  to  be  selected  "so  as  to  embrace  buildings  and 
improvements  thereon,"  did  not  grant  use  of  water  of  stream  from 
which  government  had  taken  water  by  means  of  ditch  across  other  lands 
to  lands  granted. 

(IX,  869.)  Miscellaneous.  Cited  in  Humphrey  v.  Humphrey,  115 
Mo.  App.  363,  91  S.  W.  405,  determining  domicile  of  party  to  divorce. 

100  U.  S.  564-571,  25  L.  735,  MEEKS  v.  OLPHERTS. 

Syl.    2    (IX,    871).     Limitations   against   cestui. 

See  104  Am.  St.  Eep.  751,  note. 

Syl.  3   (IX,  871).     Limitation  against  administrator  bars  heir. 

Approved  in  Williamson  v.  Beardsley,  137  Fed.  471,  69  C.  C.  A. 
615,  three  year  limitation  prescribed  by  Utah  Eev.  St.  1898,  §  2870, 
within  which  action  may  be  brought  by  one  claiming  under  decedent 
to  set  aside  probate  sale,  runs  during  minority  of  complainant. 

100  U.  S.  578-584,  25  L.  618,  DICKERSON  v.  COLGROVE. 

Syl.  1   (IX,  872).     Estoppel  by  conduct  or  words. 

Approved  in  Cheatham  v.  Edgefield  Mfg.  Co.,  131  Fed.  120,  fol- 
lowing rule;  Marine  Iron  Works  v.  Wiess,  148  Fed.  154,  155,  deter- 
minino-  extent  of  estoppel  where  plaintiff  for  whom  defendant  con- 
tracted to  build  boat  of  specified  draft  was  present  during  building 
and  obtained  knowledge  that  boat  would  exceed  draft,   but   did   not 


957  Notes  on   U.  S.  Ptcpurts.  100  U.  S.  605-613 

announce  intention  to  reject  boat,  but  made  suggestions  as  to  con- 
struction; Anderson  v.  Messingcr,  146  Fed.  948,  determining  effect 
of  estoppel  on  void  acts  of  trustee;  "Wiser  v.  Lawler,  7  Ariz.  185,  62 
Pac.  701,  holding  where  defendant  contracted  for  sale  of  mine  in 
installments,  reserving  title  until  full  payment,  and  purchasers  as- 
signrd  interest  to  corporation  which  defaulted  in  installment,  de- 
fondant  not  estopped  to  assert  title  by  becoming  party  to  fraud- 
ulent prospectus  issued  by  company;  Dover  v.  Pittsburg  Oil  Co., 
143  Cal.  505,  77  Pac.  406,  where  owner  of  stock  certificates  ratified 
indorsement  thereof  in  his  name  by  ostensible  agent  and  informed 
corporation  secretary  indorsement  was  all  right,  he  is  estopped  to  deny 
agency  as  against  bona  fide  transferees  for  value;  Holt  v.  King,  54 
W.  Va.  447,  47  S.  E.  305,  where  holder  of  vendor's  lien  of  land  sold 
for  taxes  proposed  to  redeem,  and  purchaser  played  subsequent  lienor 
and  vendor's  lienor  against  each  other,  and  purchaser  secretly  sells 
sheriff's  certificate  to  subsequent  lienor,  latter  enjoined  from  obtain- 
ing  deed. 

Syl.  2   (IX,  874).     Estoppel  in  pais  aa  defense  at  law. 

Approved  in  Campbell  v.  Golden  Cycle  Min.  Co.,  141  Fed.  016, 
estoppel  in  pais  forms  no  basis  for  prohibition  of  actions  of  ejectment 
and  conversion;  South  Pcnn.  Oil  Co.  v.  Calf  Creek  Oil  etc.  Co.,  Iw 
Fed.  514,  where  actions  by  owner  of  land  and  lessee  pending  against 
defendant  for  taking  oil  from  land  and  rights  of  plaintiffs  under 
lease  as  between  themselves  are  indefinite,  and  defense  to  both  actions 
is  estoppel  in  pais,  equity  has  jurisdiction  over  action  by  defendant 
against  both  defendants  to  determine  entire  controversy;  Anglo- 
American  Land  etc.  Co.  v.  Lombard,  132  Fed.  733,  68  C.  C.  A.  89, 
in  federal  action  at  law  to  enforce  stockholder's  liability,  defendant 
cannot  set  off  indebtedness  from  corporation  to  him;  Hoge  v.  Fidelity 
Loan  &  Trust  Co.,  103  Va.  11,  48  S.  E.  495,  applying  rule  in  suit  to 
enjoin  judgment  at  law. 

Syl.  3   (IX,  874).     Ejectment  on  title   by  estoppel. 

Approved  in  Linton  v.  Heye,  69  Neb.  455,  111  Am.  St.  Rep.  559, 
95  N.  W.  1041,  statute  of  limitations  respecting  actions  for  recovery 
of  realty  does  not  deprive  owner  of  property  without  due  process  of 
law;  Wilson  v.  Braden,  56  W.  Va.  376,  107  Am.  St.  Rep.  930,  49  S.  E. 
411,  determining  whether  party  had  had  open,  adverse,  continuous, 
and  exclusive  possession  under  color  of  title  for  statutory  period. 

Syl.  4  (IX,  875).     Quitclaim  grantee — Bona  fide  purchaser. 

Approved  in  Whitney  v.  Dewey,  10  Idaho,  657,  80  Pac.  1123,  69 
L.  R.  A.   572,  following  rule. 

100  IT.  S.  605-613,  25  L.  892,  SHAW  v.  LITTLE  ROCK  ETC.  E.  E. 
CO. 

Syl.   1    (IX,  877).     Mortgage  trustee  represents  bondholders. 

Approved  in  National  Salt  Co.  v.  Ingraham,  143  Fed.  810,  dcter- 
miuin"  effect   of  judgment  against  trustee  as  against  holder  of   cer- 


100  U.  S.  617-620  Notes  on  U.  S.  Eeports.  958 

tificate  of  indebtedness;  In  re  Kenney  Co.,  136  Fed.  453,  where  cred- 
itors of  bankrupt,  prior  to  bankruptcy,  assigned  claims  to  committee 
in  trust  to  buy  bankrupt's  property  and  sell  same  for  their  benefit, 
they  could  not  prove  equitable  interest  as  claims  against  bankrupt 
estate;  Industrial  etc.  Trust  v.  Tod,  180  N.  Y.  226,  73  N.  E.  10, 
■where  bondholders  of  insolvent  railroad  created  reorganization  com- 
mittee, which  was  to  adopt  reorganization  plan,  and  whose  construc- 
tion of  reorganization  was  to  be  final,  bondholder  deprived  of  right 
to  withdraw  bonds  by  construction  of  committee  could  recover  dam- 
ages of  committee;  Virginia  etc.  Power  Co.  v.  Fisher,  104  Va.  135, 
136,  51  S-  E.  203,  denying  right  to  stockholders  to  sue  for  appoint- 
ment of  receiver  where  one  person  controlled  majority  of  stock  and 
elected  his  own  directors,  who  colluded  with  him  in  spoliation  of  cor- 
poration 's  property. 

Syl.  3   (IX,  878).     Majority  bondholders  govern. 

Approved  in  Bowling  Green  Trust  Co.  v.  Virginia  etc.  E.  Co.,  132 
Fed.  924,  refusing  individual  holders  of  minority  of  railroad  bonds 
to  intervene  in  foreclosure  to  displacement  of  trustee  who  has  sued 
on  request  of  majority,  where  only  objection  is  that  trusvee  is  un- 
suitable to  conduct  suit  because  certain  directors  are  bondholders. 

Syl.  4   (IX,  878).     Eailroad  mortgages — Loan  to  complete  road. 

Distinguished  in  Cochran  v.  Pittsburg  etc.  E.  Co.,  150  Fed.  682. 
upholding  right  of  bondholder  to  foreclose  where  request  to  trustee 
by  majority  bondholders  is  impossible,  and  trustee  is  antagonistic  to 
foreclosure  by  reason  of  interest  in  second  morigage. 

100  U.  S.  617-620,  25  L.  769,  KIDD  v.  JOHNSON. 

Syl.  1  (IX,  879).     Trademark  not  salable. 

Approved  in  Bulte  v.  Igleheart  Bros.,  137  Fed.  499,  70  C.  C.  A. 
76,  assignment  of  flour  trademark,  disassociated  from  business  in 
which  it  was  used,  is  void. 

Syl.  8   (IX,  879).     Sale  of  trademark  with  business. 

Approved  in  Lea  v.  New  Home  etc.  Mach.  Co.,  139  Fed.  734,  con- 
tract purporting  to  license  use  of  trade  name  for  sewing-machine, 
being  void,  will  not  support  action  for  reserved  royalties  where  only 
thing  granted  is  right  to  sell  machines  made  by  defendant,  with  wliieh 
plaintiff  has  had  no  connection;  Griggs  v.  Erie  Preserving  Co.,  131 
Fed.  362,  construing  instrument  as  assignment  of  exclusive  owner- 
ship and  goodwill  in  trademarks  in  certain  states,  so  as  to  entitle 
assignee  to  enjoin  infringement;  Falk  v.  American  etc.  Trading  Co.. 
180  N.  Y.  450,  105  Am.  St.  Eep.  778,  73  N.  E.  240,  where  owner  of 
trademark  used  to  distinguish  one  cigar  from  another  transferred  it 
detached  from  business  in  which  it  had  been  used,  transferee  cannot 
enjoin  its  use  by  another. 


959  Notes  on  U.  S.  Reports.  100  U.  S.  G21C'J3 

100  U.  S.  C21-fi29,  25  L.  C07,  WILLS  v.  EUSSELL. 

Syl.   3    (IX,  881).     Latitiule   in   cross-examination. 

Approved  in  dissenting  opinion  in  Resurrection  Gold  Min.  Co.  v. 
Fortune  Gold  Min.  Co.,  129  Fed.  682,  688,  64  C.  C.  A.  180,  majority 
holding  it  reversible  error  to  restrict  cross-examination  because  cross- 
examiner  could  call  witness  or  other  witnesses  to  prove  facts  he  seeks; 
Ballict  V.  United  States,  129  Fed.  696,  64  C.  C.  A.  201,  arguendo. 

100  U.  S.  630-643,  25  L.  713,  NATIONAL  SAVING  BANK  v.  CRESS- 
WELL. 

Syl.  1   (IX,  881).     Sale  of  encumbered  property — Priorities. 

Approved  in  Neely  v.  Williams,  149  Fed.  64,  where  owner  of  sep- 
arate tracts  devised  thorn  together,  charged  with  annuities,  and 
devisee  sold  them  to  different  purchasers  by  warranty  deeds,  last 
grantee  who  had  procured  release  of  annuities  could  not  enforce 
contribution  from  prior  purchasers,  but  could  deduct  entire  expendi- 
ture  from   deferred   purchase   money   payment   due   grantor. 

100  U.  S.  671,  672,  25  L.  738,  BURNS  v.  MEYER. 

Syl.  1   (IX,  884).     Infringement  of  patent. 

Cited  in  Columbus  Chain  Co.  v.  Standard  Chain  Co.,  148  Fed.  625, 
arguendo. 

100  U.  S.  676-679,  25  L.  754,  HOWE  MACHINE  CO.  v.  GAGE. 

Syl.    1    (IX,   884).     Peddler's   license — Commerce. 

Approved  in  Bacon  v.  Locke,  42  Wash.  217,  219,  83  Pac.  722, 
holding  void  Laws  1905,  pp.  372,  373,  imposing  license  tax  on  peddlers 
by   sample   after  shipment   to   state. 

Syl.  2    (IX,  886).     Peddler's  license. 

Approved  in  Kehrer  v.  Stewart,  197  U.  S.  66,  49  L,  667,  25  Sup. 
Ct.  403,  upholding  Georgia  act  of  1900,  imposing  tax  on  resident  man- 
agers of  nonresident  meat-packers;  Bacon  v.  Locke,  42  Wash.  218,  S3 
Pac.  722,  holding  void  Laws  1905,  pp.  372,  373,  imposing  license  tax  on 
peddlers  by  sample  after  shipment  to  state. 

Distinguished  in  W^rought  Iron  Range  Co.  v.  Campen,  135  N.  C. 
523,  47  S.  E.  664,  holding  void  Revenue  Act  1903,  §  36,  imposing 
license  tax  on  stove  peddlers,  in  so  far  as  applied  to  sales  by  sample 
of  goods  made  in  another  state  and  delivered  in  original  package. 

100  U.  S.  686-693,  25  L.  766,  FIRST  NATIONAL  BANK  v.  BURK- 
HARDT. 

Syl.  2   (IX,  888).     Checks  received  as  deposits. 

Approved  in  Talbott  v.  Metropolitan  Life  Ins.  Co.,  142  Fed.  699, 
where  general  agent  authorized  to  accept  renewal  premiums  within 
thirty  days  after  due,  sent  bill  to  bank,  and  insured  gave  bank 
draft  on  third  party,  which  gave   him  receipted  bill,  and  drew  own 


100  U.  S.  603-699  Notes  on  U.  S.  Eeports.  960 

draft  in  favor  of  agent,  but  insured's  draft  dishonored,  question  of 
payment  O'f  premium  was  for  jury;  Parkes  v.  Bryant,  142  Ala.  629, 
38  So.  181,  in  action  on  bond  of  receiver  in  chancery  for  moneys 
received  by  him,  plea  that  money  received  by  predecessor  who  gave 
him  check  for  it,  which  he  deposited  in  bank  as  register  and  bank 
failed,  is  insufficient;  National  Bank  of  N,  J.  v.  Berrall,  70  N.  J.  L. 
760,  103  Am.  St.  Eep.  821,  58  Atl.  190,  66  L.  E.  A.  599,  where  payee 
of  check  indorsed  it  generally  and  deposited  it  in  his  bank,  which 
forwarded  it  to  drawee  bank  for  collection,  and  latter  paid  it  by 
mistake,  drawee  bank  cannot  recover  of  payee;  Winfield  Nat.  Bank 
V.  McV\'illiams,  9  Okl.  509,  60  Pac.  233,  where  bank  receives  from 
correspondent  a  check  indorsed  in  blank,  and  permits  existing  indebt- 
edness to  remain  unpaid  by  reason  thereof,  it  is  entitled  to  pro- 
ceeds against  real  owner,  though  check  not  actually  collected  until 
after  failure   of  transmitting  bank. 

Syl.  5   (IX,  889).     Usage  does  not  make  contract. 

Approved  in  Moore  v.  United  States,  196  U.  S.  166,  49  L.  433,  25 
Sup.  Ct.  202,  custom  existing  in  San  Francisco  between  shippers  and 
sliip  owners  requiring  consignee  to  designate  berth  for  discharge  of 
cargo  does  not  prevail  over  contract  to  deliver  coal  on  wharf  to 
quartermaster  at  Honolulu,  where  different  custom  prevails;  Lillard 
v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  174,  67  C.  C.  A.  74,  admitting 
evidence  of  custom  to  show  contract  to  deliver  distillery  slop  at 
cattle-feeding  lot  supplied  by  distiller  contemplated  lot  should  be  sup- 
plied by  distillery  with  pens  equipped  with  pipes  and  troughs; 
McSherry  v.  Blanchfield,  68  Kan.  312,  75  Pac.  122,  refusing  evidence 
of  custom  among  elevator-men,  in  suit  for  its  value,  by  owner  of 
wheat  deposited  in  warehouse  under  express  contract,  which  ware- 
housemen  sold. 

100  U.  S.  693-699,  25  L.  761,  MANNING  v.  JOHN  HANCOCK  MUT. 
LIFE  INS.   CO. 

Syl.  3   (IX,  8S9).     Evidence — Presumptions  of  fact. 

Approved  in  Vernon  v.  United  States,  146  Fed.  125,  holding  circum- 
stantial evidence  herein  insufficient  in  prosecution  for  bribery  of  gov- 
ernment official,  to  warrant  finding  that  defendant  promised  or  gave 
niouey  to  officer  to  influence  official  action;  United  States  etc.  Guaranty 
Co.  V.  Des  Moines  Nat.  Bank,  145  Fed.  279,  applying  rule  an  action  on 
indemnity  bond  of  bank  teller;  Fidelity  &  Casualty  ^Co.  v.  Bank  of 
Timmonsville,  139  Fed.  105,  where  cashier's  bond  given  March  7,  1901, 
only  covered  acts  committed  during  its  currency  and  within  twelve 
months  prior  to  discovery  of  default,  it  did  not  cover  larceny  of  coin  de- 
posite(f  May  19,  1900,  but  not  found  in  bank's  vault  on  his  absconding 
in  August,  1901;  State  v.  Kelly,  77  Conn.  271,  58  Atl.  707,  where  defend- 
ant accused  of  poisoning  wife  and  clainied  suicide,  evidence  that  at  times 
wife  seemed  despondent  and  said  she  had  stomach  trouble  and  had  no  de- 


961  Kotes  ou  U.  JS.  Keporta.  101  U.  S.   lG-33 

sire  to  live  is  too  remote;  Young  v.  Montgomery,  161  Ind.  70,  67  N.  E. 
685,  applying  rule  in  wiU  contest  to  evidence  of  undue  influence. 

Distinguished  in  Western  Travelers'  Ace.  Assn.  v.  Holbrook,  65  Neb. 
472,  91  N.  W.  277,  where  circumstantial  evidence  shows  that  one  has  been 
injured  by  fall  from  dangerous  height,  it  is  presumed  that  fall  was 
accidental. 

100  U.  S.  699-704,  25  L.  750,  FIRST  NATIONAL  BANK  v.  GRAHAM. 

Syl.  2  (IX,  889).     Corporation's  torts— Ultra  Vires. 

Approved  in  Stewart  v,  Wright,  147  Fed.  327,  328,  permitting  recovery 
from  bank  of  money  lost  on  fake  footrace  by  one  given  double  cross 
where  bank  officials,  knowing  of  fraud,  recommended  fakir  as  man  of 
standing;  Johnston  etc.  Hat  Co.  v.  National  Bank,  4  Okl.  26,  44 
Pac.  194,  holding  bank  liable  for  fraudulent  acts  of  manager  in  entering 
into  conspiracy  whereby  fraudulent  chattel  mortgage  made  to  bank  by 
mercantile  firm;  Metropolitan  Stock  Exchange  v.  Lyndonville  Nat.  Bank, 
76  Vt.  308,  57  Atl.  102,  in  action  against  national  bank  for  breach  of 
contract,  plea  that  defendant  was  national  bank  and  had  no  authority 
to    carry   out    contract   is   good. 

Syl.  3  (IX,  891).     National  Bank  failure — Special  deposits. 

Approved  in  Hobbs  v.  Boatright,  195  Mo.  729,  93  S.  W.  940,  where 
bank  cashier  assisted  conspirators  in  defrauding  stranger  by  fake  foot- 
race by  permitting  use  of  bank  for  transferance  of  money,  bank  and 
cashier  are  liable  to  stranger. 


CI  UNITED  STATES. 


101  U.  S.  16-22,  25  L.  980,  BOWDITCH  v.  BOSTON. 

Syl.   1    (IX,   895).     Direction   of   verdict. 

Approved  in  Parks  v.  Southern  Ry.  Co.,  143  Fed.  277,  after  plaintiff's 
evidence  introduced,  court  may  den}'  plaintiff  motion  to  take  nonsuit  and 
direct  verdict  for  defendant;  Guuu  v.  Union  R.  R.  Co.,  27  R.  I.  327,  62 
Atl.  121,  upholding  Gen.  Laws,  1896,  c.  251,  §  11,  authorizing  supreme 
court  to  direct  judgment  without  further  jury  trial. 

Syl.  2   (IX,  895).     Destruction  of  property  to  check  fire. 

Approved  in  Mover  v.  Peabody,  148  Fed.  876,  where  governor  declares 
state  of  insurrection  and  calls  out  militia  to  restore  order,  officers  thereof 
arresting  one  for  taking  part  in  insurrection  are  not  civilly  liable  for 
unintentional  error. 

101  U.  S.  22-33,  25  L.  989.  MISSOURI  v.  LEWIS. 

Svl.  1   (IX,  896).     Equal  protection — Fourteenth  amendment. 

Approved  in  McKinster  v.  Sager,  163  Ind.  681,  106  Am.  St.  Hep.  26S, 
72  N,  E.  858,  68  L.  K.  A.  273,  holding  void  act  of  1903,  making  suics  by 
61 


101  U.  S.  22-33  Notes  on  U.  S.  Eeports.  962 

merchant  of  any  of  stock,  save  in  usual  course  of  trade,  void  as  to  certain 
creditors,  unless  certain  conditions  complied  with ;  Sellers  v.  Hayes,  163 
Ind.  435,  72  N.  E.  124,  holding  void  act  of  1901,  declaring  void  as 
against  creditors  sales  of  portion  of  stock  of  merchandise  otherwise 
than  in  ordinary  course  of  trade  unless  certain  conditions  observed; 
People  V.  Shuler,  136  Mich.  165,  98  N.  W.  988,  and  People  v.  Eobinson, 
135  Mich.  513,  98  N.  W.  12,  both  upholding  act  of  1899,  requiring 
druggists  in  local  option  counties  to  file  with  prosecuting  attorney  sworn 
report  of  liquors  sold;  dissenting  opinion  in  Wright  v.  Hart,  182  N.  Y. 
358,  75  N.  E.  414,  2  L.  R.  A.  (N.  S.)  338,  majority  holding  void  act 
of  1902,  making  void  as  to  creditors  sales  of  stock  of  merchandise  in 
bulk  without  complying  with  certain  conditions. 

Syl.  2   (IX,  897).     Equal  protection — Judicial  procedure. 

Approved  in  Gardner  v.  Michigan,  199  U.  S.  333,  50  L.  217,  26  Sup. 
Ct.  106,  Mich.  Pub.  Acts  1893,  p.  337,  as  amended  in  1895,  providing  that 
jury  lists  be  made  up  by  jury  commissioners  appointed  by  governor, 
does  not  deny  equal  protection  to  litigants  of  Wayne  county;  Cincin- 
nati Street  R.  Co.  v.  Snell,  193  U.  S.  36,  48  L.  607,  24  Sup. 
Ct.  319,  upholding  Ohio  Rev.  St.,  §  5030,  providing  for  change  of 
venue  for  local  prejudice  where  opposite  party  is  corporation  with  more 
than  fifty  stockholders,  though  corporation  denied  privilege;  In  re 
Finley,  1  Cal.  App,  210,  81  Pac.  1046,  upholding  Penal  Code,  §  246,  im- 
posing death  penalty  on  life  termer  in  state  prison,  who,  with  malice 
aforethought,   commits   assault   with    deadly   weapon. 

Svl.  3   (IX,  897).     Fourteenth  amendment — Local  self-government. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  879,  Laws  Wis. 
1905,  p.  37,  c.  19,  as  amended,  creating  grain,  commission  and  pro- 
viding for  inspection  and  grading  of  grain  at  Superior  does  not  deny 
equal  protection  of  laws. 

Syl.  4   (IX,  898).     Fourteenth  amendment — Different  remedies. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  490,  upholding  Kentucky 
statute  providing  that  court  of  appeals  cannot  review  challenges  to  juries 
in  criminal  cases ;  State  v.  Jack,  69  Kan.  393,  76  Pac.  913,  1  L.  R.  A. 
(N.  S.)  167,  upholding  Laws  1897,  c.  265,  p.  481,  known  as  anti-trust 
act;  White  v.  Bracelin,  144  Mich.  335,  107  N.  W.  1056,  upholding  act  of 
1905,  making  "it  penal  offense  to  keep  saloon  within  one  hundred  rods 
of  any  public  school  in  certain  county;  State  v.  Marciniak,  97  Minn.  360, 
105  N.  W.  967,  upholding  municipal  court  act  conferring  jurisdiction  on 
such  court  to  hear  violations  of  city  ordinances  without  jury  trial; 
State  V.  Tower,  185  Mo.  95,  84  S.  W.  13,  68  L.  R.  A.  402,  upholding 
act  of  1901,  making  emission  of  dense  smoke  in  cities  which  now  have, 
or  may  hereafter  have,  hundred  thousand  population,  a  nuisance;  Gay  v. 
Thomas,  5  Okl.  27,  46  Pac.  586,  upholding  act  of  1895,  providing  that 
where  personal  property  is  situated  in  unorganized  district,  it  shall  be 
taxed  in  county  to  which  such  district  is  attached  for  judicial  purposes; 
Gunn  V.  Union  R.  R.  Co.,  27  R.  I.  323,  62  Atl.  119,  upholding  Gen.  Laws 
1896,  c.  251,  §  11,  authorizing  supreme  court  to  direct  judgment  without 


•iGS  Notes  on  U.  S.  Eeports.  101  U.  S.  34-67 

further  jury  trial;  dissenting  o]jinion  in  People  v.  Johnson,  34  Colo.  176, 
86  Pac.  243,  majority  holding,  void  provisions  of  Denver  charter  of  1904, 
increasing  number  of  judges  of  county  court  to  two,  and  changing  time 
of  election  of  certain  officers  who  are  state  officers;  dissenting  opinion  in 
State  V.  Barrett,  138  N.  C.  649,  50  S.  E.  512,  majority  upholding  act 
of  1903,  making  it  unlawful  for  others  than  licensed  retailers  to  sell 
or  keep  for  sale  in  certain  county  any  liquors,  and  making  possession  by 
anyone  of  more  than  one  quart  prima  facie  evidence  of  his  keeping  it  for 
sale. 

101  U.  S.  34-37,  25  L.  948,  ARTHUR  v.  DODGE. 

(IX,  899.)  Miscellaneous.  Cited  in  Benson  v.  Henkel,  198  U.  S.  U, 
49  L.  923,  25  Sup.  Ct.  569,  District  of  Columbia  is  district  of  United 
States  within  Rev.  St.,  §  1014,  relating  to  removal  for  trial  of  person 
charged  with  offense  against  government  to  federal  district  where  trial 
to  be  had. 

101  U.  S.  43-51,  25  L.  822,  FIRST  NATIONAL  BANK  v.  HALL. 

Syl.  1  (IX,  900).     Misunderstanding  as  to  terms  of  contract. 

Approved  in  Abbott  v.  Flint,  78  Vt.  278,  62  Atl.  721,  reforming  deed 
where  grantor  and  grantee  supposed,  when  deed  executed  and  for  several 
years  thereafter,  that  it  included  other  tract. 

Syl.  2   (IX,  900).     Contract  uncertain  in  part. 

Distinguished  in  Kelley  Maus  &  Co.  v.  Sibley,  137  Fed.  588,  69  C.  C. 
A.  674,  construing  contract  for  sale  of  bolts  as  several  as  to  each 
character  of  bolts. 

Syl.  3   (IX,  900).     Acceptance  variant  from  offer. 

Approved  in  Four  Oil  Co.  v.  United  Oil  Producers,  145  Cal.  625,  79 
Pac.  367,  68  L.  R.  A.  226,  where  one  offers  to  sell  crude  oil  of  fifteen 
degrees,  acceptance  of  offer  on  condition  that  oil  be  of  fifteen  degrees 
at  sixty  degrees  temperature  is  not  acceptance  of  offer. 

101  U.  S.  51-67,  25  L.  993,  AMOSIvEAG  MANUFACTURING  CO.   v. 
TRAINER. 

Syl.  1    (IX,  901).     Adoption  of  trademark. 

Approved  in  Galena  etc.  Oil  Co.  v.  Fuller,  142  Fed.  1007,  oil  trademark 
consisting  of  five-pointed  star,  with  word  ' '  Galena ' '  above  and  word 
"Oil"  below,  and  letter  "G, "  in  center,  not  infringed  by  six-pointed 
star  made  by  imposing  one  triangle  on  another  and  having  words  ' '  Extra 
Star." 

Syl.   3    (IX,   902).     Generic   name   not  subject  of   trademark. 

Approved  in  Dennisou  Mfg.  Co.  v.  Scliarf  etc.  Label  &  Box  Co.,  135 
Fed.  628,  634,  68  C.  C.  A.  263,  series  of  numbers  used  by  label  man- 
ufacturer in  catalogues  and  in  connection  with  firm  name  on  labeJ 
boxes  to  designate  style  of  labels  are  not  good  trademark. 


101  U.  S.  68-87  Notes  on  U.  S.  Reports,  964 

Syl.  4   (IX,  903).     Figures  or  letters  as  trademark. 
Approved  in  Buzby  v.  Davis,  150  Fed.  278,  enjoining  use  of  symbol  of 
keystone  of  arch  as  trademark  for  oil. 

Syl.  5   (IX,  903).     Trademark — Similarity  not  deceptive. 

Approved  in  W.  R.  Lynn  Shoe  Co.  v.  Auburn-Lynn  Shoe  Co.,  100  Me. 
474,  62  Atl.  504,  holding  shoe  trademark,  ' '  Auburn-Lynn, ' '  infringed  by 
mark   using   name   "Auburn-Lynn   Shoe   Co." 

101  U.  S.  68-71,  25  L,  876,  CENTRAL  TRUST  CO.  v.  FIRST  NA- 
TIONAL BANK. 

Syl.  4  (IX,  905).     Notes — Rights  of  assignee. 

Approved  in  Tyson  v.  Joyner,  139  N.  C.  72,  51  S.  E.  804,  where  in 
action  on  note,  assignment  to  plaintiff  is  in  issue,  admission  of  note 
with  indorsement  thereon,  vyithout  proof  of  signature  of  indorser,  is  in- 
sufficient to  show  plaintiff  is  legal  holder,  so  as  to  cut  off  defenses  avail- 
able against  indorser. 

101  U.  S.  71-87,  25  L.  950,  THOMAS  v.  WEST  JERSEY  RY.  CO. 

Syl.  1  (IX,  905).     Railroads — Sale  or  lease  of  road. 

See    103   Am.   St.   Rep.   552,   556,   note. 

Syl.  2   (IX,  90G).     Corporations — Charter  measure  of  powers. 

Approved  in  Quinby  v.  Consumer's  Gas  Trust  Co.,  140  Fed.  364,  cor- 
poration organized  to  supply  natural  gas  to  consumers  cannot  make 
agreement  in  franchise  contract  with  city  giving  city  option  to  purchase 
all  its  property;  Renfrow  v.  Grimes,  6  Okl.  613,  52  Pac.  391,  board  for 
leasing  school  lands  cannot  accept  application  for  lease  for  longer  term 
than  three  years  and  compel  applicant  to  comply  with  terms  thereof. 

Syl.  3   (IX,  908),     Ultra  vires  act — Assent  of  stockholders. 

Approved  in  Anglo-American*  Land  Co.  v.  Lombard,  132  Fed.  737,  743, 
68  C.  C.  A.  89,  under  Rev.  St.  Mo.,  1889,  §  2839,  subd.  9,  trust  company 
cannot  purchase  all  stock  of  another  corporation  for  purpose  of  con- 
trolling its  management. 

Syl.  4  (IX,  908).     Railroads — Alienation  of  road  or  franchise. 

Approved  in  Arkansas  v.  Choctaw  etc.  R.  Co.,  134  Fed.  108,  denying 
removal  of  suit  involving  right  of  corporation  to  purchase  property  and 
franchises  of  another;  Pittsburg  etc.  Ry.  Co.  v.  Dodd,  115  Ky.  211,  72 
S.  W.  833,  conveyance,  by  company  chartered  to  build  and  operate 
bridge,  of  approach  thereto,  is  void;  Muntz  v.  Algiers  etc.  Ry.  Co.,  Ill 
La.  428,  100  Am.  St.  Rep.  495,  35  So.  627,  64  L.  R.  A.  222,  railroad  is 
liable  for  personal  injuries  caused  by  negligent  operation  of  cars  on  road 
by  its  lessee;  Arrison  v.  Company  D,  12  N.  D.  559,  97  N.  W.  85, 
corporation  organized  ULider  statute  permitting  members  of  national 
guard  to  incorporate  for  erection  of  armory,  is  private  corporation,  whose 
property  is  subject  to  mechanic's  lien;  Enid  Right  of  Way  etc.  Co.  v.  Lile, 
15  Okl.  321  82  Pac.  811,  holding  agreement  by  railroad  to  locate  depot  at 
certain  place  is  void;  Matthews  v.  Seaboard  etc.  Ry.,  67  S.  C.  505,  46  S. 


965  Notes  on  U.  S.  Reports.  101  U.  S.  87-97 

E.  336,  65  L.  R.  A.  286,  holding  railroad  liable  for  injuries  to  one  using 
path  over  right  of  way  in  ignorance  of  dangers,  where  railroad  had  long 
acquiesced  in  use  of  path;  Weed  v.  Gainesville  R.  R.  Co.,  119  Ga.  596,  46 
S.  E.  894,  arguendo.     See  103  Am.   St.  Rep.  555,  note. 

Distinguished  iu  dissenting  opinion  in  Enid  Right  of  "Way  etc.  Co.  v. 
Lile,  15  Okl.  338,  82  Pac.  816,  majority  holding  void  agreement  by  rail- 
road to  locate  depot  at  certain  place. 

Syl.  6  (IX,  911).     Executed  invalid  contract.  '     ' 

Approved  in  United  States  Savings  &  L.  Co.  v.  Convent  of  St.  Rose, 
133  Fed.  358,  where  benevolent  corporation  authorized  to  hold  stock  iu 
other  corporation  subscribed  for  building  and  loan  association 's  stock, 
from  which  it  borrowed  money,  and  paid  dues  and  interests,  it  is 
estopped  to  plead  ultra  vires  against  enforcement  of  contract. 

Syl.  7  (IX,  911).     Ultra  vires  contract  partly  performed. 

Approved  in  Stealey  v.  Kansas  City,  179  Mo.  408,  78  S.  W.  601,  where, 
at  time  ordinance,  directing  construction  of  sidewalks  along  street 
passed,  street  was  not  within  city  limits,  construction  of  sidewalk  did 
not  estop  city  from  pleading  that  it  was  not  liable  for  injuries  by  defects 
because  it  was  not  required  to  repair  same. 

Syl.  8  (IX,  912).     Railroad  must  rescind  ultra  vires  contract. 

Approved  in  Western  Maryland  R.  R.  Co.  v.  Blue  Ridge  Hotel  Co., 
102  Md.  332,  111  Am.  St.  Rep.  373,  62  Atl.  355,  3  L.  R.  A.  (N.  S.)  887, 
where  railroad  made  ultra  vires,  contract  by  which  it  guaranteed  interest 
on  bonds  of  hotel  company  and  received  no  direct  benefit  from  it,  it  is 
not  estoppel  to  plead  ultra  vires. 

101  U.  S.  87-92,  25  L.  878,  EMPIRE  v.  DARLINGTON. 
Syl.  2   (IX,  914).     Consolidation  of  corporations. 
Distinguished  in  Jones  v.  Missouri-Edison  Electric  Co.,  144  Fed.  775, 
reversing  135  Fed.  157,  and   upholding  minority  stockholder's  right  to 
avoid  consolidation  of  corporations  procured  by  fraud. 

101  U.  S.  93-97,  25  L.  794,  BAST  v.  FIRST  NATIONAL  BANK. 

Syl.  5    (IX,  915).     Parol  to  vary  writing. 

Approved  in  North  American  Transportation  etc.  Co.  v.  Samuels,  146 
Fed.  52,  admitting  parol  explanation  to  show  particular  kind  and  quality 
of  goods  sold  under  written  contract  where  writing  silent  with  respect 
thereto;  Farnham  Co.  v.  Southeastern  Const.  Co.,  144  Fed.  990,  in  action 
at  law  on  written  contract,  affidavit  of  defense  setting  out  contem- 
poraneous verbal  agreement,  adding  term  to  contract  and  alleging  its 
breach  by  plaintiff,  states  no  defense ;  Anthony  v.  Rockefeller,  102  Mo. 
App.  331,  76  S.  W.  492,  refusing  to  reform  deed  so  as  to  except  from 
covenants  grantees'  right  to  possession  till  certain  date,  together  with 
right  to  improvements  which  tenants  entitled  to  remove  on  ground  that 
tenants'  rights  known  to  grantee  prior  to  delivery  of  deed  and  that 
deed  delivered  on  condition  it  would  be  subject  to  such  rights. 


101  U.  S.  99-135  Notes  on  U.  S.  Eeports.  966 

101  U.  S.  99-107,  25  L.  841,  BAKER  v.  SELDEN. 

Syl.  4   (IX,  916).     Copyrigltt  of  Ulustrated  book. 

Approved  in  Burk  v.  Johnson,  146  Fed.  213,  copyright  of  pamphlet 
containing  articles  of  association  and  by-laws  of  mutual  burial  associa- 
tion, does  not  confer  on  owner  exclusive  right  to  organize  associations 
under  plan  described. 

101  U.  S.  108-112,  25  L.  899,  MEGUIRE  v.  CORWINE. 

Syl.  2  (IX,  917).     Elegal  contract  not  actionable. 

Approved  in  Young  v.  City  of  Mankato,  97  Minn.  7,  105  N.  W.  970,  3 
L.  R.  A.  (N.  S)  849,  freeholders  appointed  to  draft  city  charter  cannot 
employ  and  agree  to  pay  one  of  them  as  attorney  for  board;  Bass  v. 
Smith,  12  Okl.  488,  71  Pac.  628,  refusing  to  compel  conveyance  of  land 
under  contract  whereby  plaintiff  was  to  support  party  for  life  if  he 
would  enter  land  under  homestead  laws  and  convey  it  to  plaintiff;  Garst 
V.  Love,  6  Okl.  55,  55  Pac.  22,  in  suit  for  pasturage  of  cattle  on  plain- 
tiff's inclosed  lands,  answer  alleging  laud  inclosed  is  government  land 
which  plaintiff  has  unlawfully  inclosed  for  rent  states  valid  defense. 

101  U.  S.  112-119,  25  L.  782,  WASHINGTON  MARKET  CO.  v.  HOFF- 
MAN. 

Syl.  3   (IX,  919).     Statutory  construction— Literal  interpretation. 

Approved  in  Mottley  v.  Louisville  etc.  R.  Co.,  150  Fed.  411,  act  of 
1006,  prohibiting  free  passes  by  interstate  carriers  does  not  invalidate 
contract  made  in  1871,  whereby  interstate  carrier  agreed  to  issue  life 
pass  in  consideration  of  release  of  damages. 

101  U.  S.  129-135,  25  L.  1046,  FIRST  NATIONAL  BANK  v.  COUNTY 
OF  YANKTON. 

Syl.  2   (IX,  920).     Organic  law  governs  territory. 

Ap])roved  in  Allen  v.  Reed,  10  Okl.  Ill,  60  Pac,  784,  holding  void 
Stat.  1893,  c.  23,  relating  to  change  of  county  seats ;  Kneeland  v.  Korter, 
40  Wash.  363,  82  Pac.  609,  1  L.  R.  A.  (N.  S.)  745,  Congress  had  power 
to  grant  tide  lands  between  high  and  low  water  mark  in  Washington  Ter- 
ritory. 

Syl.  3  (IX,  921).    Congressional  change  of  territorial  statutes. 

Approved  in  United  States  v.  Winans,  198  U.  S.  383,  49  L.  1093,  25 
Sup.  Ct.  662,  fishing  rights  in  Columbia  river  secured  to  Yakima  Indians 
by  treaty  of  1859,  which  provided  for  extinguishment  of  Indian  title 
to  lands  occupied  by  them,  are  not  subordinate  to  powers  acquired  by 
state  of  W'ashington  in  tide  lands  on  its  admission;  Brown  v.  United 
States,  146  Fed.  977,  larceny  on  Indian  reservation  in  Oklahoma  Territory 
by  one  not  an  Indian  is  crime  against  Uniteil  States  within  jurisdictioa 
of  territorial  district  courts  exercising  federal  jurisdiction. 


967  Notes  on  U.  S.  Eeports.  101  U.  S.  135-143 

101  U.  S.  135-143,  25  L.  807,  WOOD  v.  CARPENTER. 

Syl.    2    (IX,    922).     Limitation    statutes    favored. 

Approved  in  Louisville  etc.  R.  R.  Co.  v.  Hall,  115  Ky.  576,  74  S.  W. 
282,  holding  error  to  refuse  filing  of  amended  answer  pleading  limita- 
tions where  offered  before  reply;  Thomas  v.  Price,  33  Wash.  462,  99  Am. 
St.  Rep.  961,  74  Pac.  504,  where  in  action  on  note  defendant  counter- 
claimed  on  note  made  by  plaintiff,  not  error  to  permit  amendment  of 
reply  by  pleading  limitations  to    note   counterclaimed. 

Syl.  3  (IX,  923).     Suspension  of  limitations — Concealment  of  liability. 

Approved  in  Williams  v.  Neely,  134  Fed.  13,  69  L.  R.  A.  232,  67  C.  C. 
A.  171,  it  is  not  laches  for  one  having  equitable  defense  to  note  on 
which  litigation  is  pending  to  wait  tiU  affirmative  action  at  law  on  de- 
fense is  barred  and  until  equitable  defense  is  rejected  in  action  on  note 
before  seeking  to  enjoin  prosecution  of  latter  action  till  defense  allowed; 
Lyneliburg  Cotton  Mill  Co.  v.  Travelers'  Ins.  Co.,  140  Fed.  726,  arguendo. 

Syl.  7   (IX,  923).     Limitations — Concealment  of  fraud — Diligence. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  393,  right 
of  United  States  to  require  removal  of  bridge  as  obstruction  to  naviga- 
tion not  affected  by  fact  that  government  made  no  objection  when 
bridge  built;  Williamson  v.  Beardsley,  137  Fed.  470,  69  C.  C.  A.  615,  suit 
to  set  aside  executor 's  deed  nearly  eighteen  years  after  probate  of 
will,  over  five  years  after  entry  of  orders  of  sale,  is  barred  by  laches 
where  grounds  of  attack  were  defects  in  proceedings  apparent  of  record; 
Kansas  City  etc.  Ry.  Co.  v.  Stevenson,  135  Fed.  558,  where  defendant  on 
resigning- presidency  of  railroad  retained  t'itle  to  property  in  another  state 
donated  to  aid  extension  of  road,  nine  years'  delay  in  suing  to  establish 
trust  is  fatal;  Burnes  v.  Burnes,  132  Fed.  495,  refusing  to  set  aside,  after 
lapse  of  twelve  years,  agreement  for  diversion  of  stock  as  family  settle- 
ment, where  surviving  partner  threatened  to  administer  estate  as  sur- 
viving partner  unless  corporation  formed  and  stock  divided  between  heirs; 
German  Sav.  Bank  v.  Des  Moines  Nat.  Bank.  122  Iowa,  745,  98  N.  W. 
609,  where  bank  cashier  executed  notes  to  bank  in  individual  capacity 
and  as  treasurer  of  a  company  directly  to  third  person  with  bank's 
guaranty  and  bank  took  them  up' before  maturity,  it  cannot  recover 
amount  paid  after  four  years'  delay;  Davis  v.  Boyett,  120  Ga.  651,  48  S. 
E.  186,  father's  action  for  seduction  of  daughter  arises  when  act  of 
seduction  is  complete,  not  when  he  discovers  daughter  has  been  seduced; 
Bartleson  v.  Vanderhoff,  96  Minn.  187,  104  N.  W.  821,  owner  of  land 
which  agent  sold  cannot  recover  damages  of  agent  for  fraud,  where 
owner,  knowing  of  resale  by  vendee  and  suspecting  agent  of  connivance 
in  resale,  refuses,  while  contract  is  executory,  to  avail  himself  of  means 
of  ascertaining  truth;  Kansas  Moline  Plow  Co.  v.  Sherman,  3  Okl.  214,  41 
Pac.  626,  32  L.  R.  A.  33,  applying  principle  in.  holding  conveyance 
fraudulent  as  to  executors. 


101  U.  S.  143-164  Notes  on  U.  S.  Reports.  968 

Syl.  8  (IXj  925).  Limitations — Allegations  aa  to  concealment  of 
fraud. 

Approved  in  Kramer  v.  Gille,  140  Fed.  683,  reaffirming  rule ;  Stanwood 
V.  Wishard,  134  Fed.  963,  suit  in  equity  by  clients  against  attorney  for 
declaration  of  trust  in  property  purchased  by  defendant  while  acting 
in  their  behalf  not  barred  by  six  years '  delay,  where  complainants  resided 
at  distance  and  had  no  knowledge  of  transaction;  Thornton  v.  Mayor  etc. 
of  Natchez,  129  Fed.  87,  63  C.  C.  A.  526,  where  land  conveyed  to  city 
for  cemetery  purposes,  eleven  years'  delay  in  suing  for  recovery  of  land 
after  removal  of  bodies  and  improving  land  for  park  is  fatal;  Ryan  v. 
Woodin,  9  Idaho,  531,  75  Pac.  262,  applying  rule  in  action  to  set  aside 
judgment  and  sheriff's  deed  based  thereon  brought  after  five  years  from 
execution  of  deed;  Succession  of  Dauphin  (Choppin  v.  Dauphin),  112 
La.  139,  140,  36  So.  300,  mere  general  allegation  in  petition,  to  annul 
judgment  for  fraud  that  discovery  made  within  year  is  insufficient. 

101  U.  S.  143-148,  25  L.  901,  PELTON  v.  COMMERCIAL  NATIONAL 
BANK. 

Syl.  1   (IX,  926).     Validity  of  state  statute  for  state  courts. 

Approved  in  Kane  v.  Erie  R.  Co.,  133  Fed.  683,  67  C.  C.  A.  653,  68 
L.  R.  A.  788,  determining  validity  of  87  Ohio  Laws,  p.  150,  §  3,  relating 
to  liability  of  railroads  for  injuries  caused  by  negligence  of  fellow- 
servants. 

Syl.  2  (IX,  927).     State  tax  on  national  bank  shares. 

Approved  in  Ankeny  v.  Blakley,  44  Or.  86,  74  Pac.  488,  holding  assess- 
ment of  national  bank  stock  not  so  excessive  as  to  be  discriminatory 
when  compared  with  assessment  of  other  moneyed  capital. 

Distinguished  in  dissenting  opinion  in  San  Francisco  Nat.  Bank  v. 
Dodge,  197  U.  S.  112,  113,  49  L.  687,  688,  25  Sup.  Ct.  384,  majority 
holding  discrimination  against  national  banks  results  from  taxation  of 
national  bank  shares  under  Cal.  Pol.  Code,  §§  3608-3610,  at  market  value, 
though  franchise  value  not  considered  in  assessment  state  banks '  property. 

Syl.  3  (IX,  928).    Restraining  tax  on  bank  shares. 

Approved  in  Bardrick  v.  Dillon,  7  Okl.  552,  54  Pac.  790,  enjoining, 
as  to  excess,  tax  levied  in  excess  of  true  value  of  property  where  amount 
due  on  true  cash  valuation  is  tendered  before  suit. 

Distinguished  in  Chicago  etc.  Ry.  Co.  v.  State,  128  Wis.  626,  108 
N.  W.  575,  unintentional  omissions  in  assessing  property  for  taxation 
referable   to   mere   error   of  judgment   do   not   invalidate   tax. 

101  U.  S.  153-164,  25  L.  903,  CUMMINGS  v.  MERCHANTS'  NA- 
TIONAL BANK. 

Syl.  3  (IX,  929).     Equity — Adequate  law  remedy. 

Approved  in  Gray  v.  Stiles,  6  Okl.  470,  49  Pac.  1088,  injunction  lies 
against  county  treasurer  to  enjoin  issuance  of  warrant  to  sheiili"  to 
enforce  collection  of  taxes  claimed  to  be  illegally  levied. 


969  Notes  on  U.  S.  Reports.  101  U.  S.  153-164 

Syl.  4  (IX,  930).     Federal  equity— State  statutes. 

Approved  in  Ames  Realty  Co.  v.  Big  Indian  Min.  Co.,  146  Fed.  173, 
175,  enforcing  remedy  given  by  Mont.  Civ.  Code,  §  1891,  providing  that 
in  actions  over  water  rights  plaintiff  may  join  all  persons  diverting 
water  from  same  source  and  court  may  in  one  judgment  settle  all  rights; 
Frank  v.  Butler  County,  139  Fed.  126,  where  mandamus  recognized  by 
state  law  for  review  of  action  of  state  auditor  in  refusing  to  register 
county  aid  bonds,  remedy  available  to  nonresident  suing  in  federal  court; 
Humes  v.  City  of  Little  Rock,  138  Fed.  933,  enforcing  Arkansas  statute 
authorizing  injunction  against  unauthorized  assessments  and  taxes  by 
municipalities  or  local  tribunals,  boards  or  officers;  Barber  Asphalt  Pav. 
Co.  v.  Morris,  132  Fed.  949,  67  L.  R.  A.  761,  66  C.  C.  A.  55,.  upholding 
federal  jurisdiction  over  action  on  claim  against  Duluth,  without  pre- 
senting same  to  council,  though  charter  provides  for  appeals  from  actions 
on  claims  to  St.  Louis  court  and  prohibits  payment  of  claims  pending 
such  appeals. 

Syl.  5   (IX,  931).     Enforcing  state  equitable  remedy. 

Approved  in  Mathews  Slate  Co.  v.  Mathews,  148  Fed.  494,  denying 
federal  jurisdiction  over  suit  under  Rev.  Laws  Mass.  c.  159,  §  3,  cl.  7, 
giving  supreme  and  superior  courts  jurisdiction  in  equity  of  suits  by 
creditors  to  apply  in  payment  of  debt  property  of  debtor  which  cannot 
be  attached  or  taken  on  execution  in  action  at  law;  McKnight  v.  Dmiley, 
148  Fed.  206,  upholding  suit,  under  Rev.  St.  Ohio  190(),  §  58-18.  to 
restrain  collection  of  taxes  on  credits,  where  question  at  issue  is  as  to 
legality  of  tax,  complainant  claiming  not  to  have  been  resident  of 
county. 

Syl.  6  (IX,  931).     Injunction  against  discrimination  in  taxation. 

Approved  in  San  Francisco  Nat.  Bank  v.  Dodge,  197  L^.  S.  75,  49  L. 
672,  25  Sup.  Ct.  384,  national  banks  discriminated  by  assessment  of 
national  bank  shares  under  Cal.  Pol.  Code,  §§  3608-3610,  at  market 
value;  Southern  Ry.  Co.  v.  Greensboro  Ice  etc.  Co.,  134  Fed.  93,  up- 
holding federal  jurisdiction  to  enjoin  enforcement  of  order  of  state 
corporation  commission  alleged  to  interfere  with  interstate  commerce. 

Distinguished  in  dissenting  opinion  in  San  Francisco  Nat.  Bank  v. 
Dodge,  197  U.  S.  112,  113,  49  L.  687,  688,  25  Sup.  Ct.  384,  majority 
holding  discrimination  against  national  banks  results  from  taxation  of 
national  bank  shares  under  Cal.  Pol.  Code,  §§  3608-3610,  at  market 
value,  though  franchise  value  not  considered  in  assessment  of  state 
banks'  property. 

Syl.  9  (IX,  933).     Statutes— Unfaithful  administration. 

Approved  in  Michigan  etc.  R.  R.  Co.  v.  Powers,  201  U.  S.  301,  50  L. 
765,  26  Sup.  Ct.  466,  affirming  Michigan  R.  R.  Tax  Cases,  138  Fed.  242, 
and  upholding  Mich.  Pub.  Acts  1901,  Act  No.  173,  authorizing  taxation 
of  railroad  property  at  average  rate  of  taxation  imposed  on  other 
property. 


101  U.  S.  164-196  Notes  on  U.  S.  Keports.  970 

Syl.  11  (IX,  933).    Enjoining  illegal  tax  as  to  excess. 

Approved  in  Bardrick  v,  Dillon,  7  Okl.  552,  54  Pac,  790,  enjoining, 
as  to  excess,  tax  levied  in  excess  of  true  value  of  property  where  amount 
due  on  true  cash  valuation  is  tendered  before  suit. 

101  U.  S.  164-169,  25  L.  860,  UNITED  STATES  v.  LAWSON. 

Syl.  4  (IX,  934).     Voluntary  payments — Protest. 

Approved  in  State  v.  Murphy,  128  Wis.  212,  107  N.  W.  474,  determin- 
ing right  to  plead  immunity  from  prosecution  when  one  has  testified 
before  grand  jury. 

101  U.  S.  170-174,  25  L.  862,  UNITED  STATES  v.  ELLSWORTH. 

Syl.  2  (IX,  934).     Voluntary  payments. 

Approved  in  State  v.  Murphy,  128  Wis.  212,  107  N.  W.  474.  determining 
right  to  plead  immunity  from  prosecution  where  one  has  testified  before 
grand  jury. 

101  U.  S.  174-181,  25  L.  1048,  WRIGHT  v.  BLAKESLEE. 

Syl.  3   (IX,  935).     Succession  tax — Penalty  exclusive. 

Approved  in  Schafer  v.  Craft,  144  Fed.  909,  Rev.  St.,  §  3176,  is  not 
applicable  to  collection  of  special  taxes  imposed  by  oleomargarine  act  of 
1886,  and  fifty  per  cent  penalty  against  dealer  not  paying  special  tal 
is  unwarranted. 

Syl.  4  (IX,  935).     Recovery  of  illegal  tax — Protest. 

Approved  in  Kahn  v.  Herold,  147  Fed.  580,  where,  at  time  executor 
paid  revenue  inheritance  tax  on  life  estate  under  protest,  he  did  not 
know  life  tenant  had  died,  payment  not  voluntary. 

101  U.  S.  181-184,  25  L.  907,  PEOPLE'S  BANK  v.  NATIONAL  BANK. 

Syl.  5  (IX,  936).     Note  guaranteed  by  bank  officer — Ratification. 

Approved  in  German  Sav.  Bank  v.  Des  Moines  Nat.  Bank,  122  Iowa, 
741,  98  N.  W.  608,  where  notes  given  to  bank  by  cashier  in  his  individual 
capacity  and  as  treasurer  of  a  company  were  sold  by  cashier,  and  pro- 
fceds  retained  by  bank,  it  ratified  cashier's  acts. 

101  U.  S.  184-187,  25  L.  838,  AYERS  v.  CHICAGO. 

Syl.  3   (IX,  937).     Removal — Separable  controversy. 

Distinguished  in  Boatmen's  Bank  v.  Fritzleu,  135  Fed.  661,  662,  68  C. 
C.  A.  288,  upholding  removal  on  ground  of  separable  controversy. 

101  U.  S.  188-196,  25  L.  786,  STEAM  ENGINE  CO.  v.  HUBBARD. 

Syl.  1    (IX,  938).     Statutes — Annual  statements  by  corporate  officers. 

Distinguished  in  Starkweather  v.  Brown,  25  R.  I.  148,  55  Atl.  203, 
stockholders  in  manufacturing  corporation  having  no  factory  in  state 
are  liable  under  stockholder's  liability  imposed  by  Pub.  St.,  c.  155,  for 
failure  to  file  returns  as  required  by  §  11. 


971  Notes  on  U.  S.  Eeports.  101  U.  S.  205-218 

101  IT.  S.  205-215,  25  L.  885,  HATCH  v.  DANA. 

Syl.  3  (IX,  940).     Creditor's  bill — Unpaid  stock  subscription. 

Distinguished  in  Turner  v.  Fidelity  Loan  Concern,  2  CaL  App.  140, 
83  Pac.  69,  creditor  of  corporation  cannot  sue  stockholder  on  subscription 
without  making  all  stockholders  parties  or  excusing  absence  of  missing 
onos;  Turner  v.  Fidelity  Loan  Concern,  2  Cal.  App.  138,  83  Pac.  69, 
creditors  of  corporation  may  sue  stockholder  directly  for  statutory  pro- 
portion of  corporate  debts  only,  but  cannot  enforce  subscription  liability 
otherwise  than  by  suit  against  corporation.  ' 

Syl.  7  (IX,  941).     Enforcement  of  unpaid  stock  subscription — Calls. 

Approved  in  Meyer  v.  Ruby-Trust  Min.  etc.  Co.,  192  Mo.  186,  90  S.  W. 
826,  in  action  by  creditor  to  enforce  unpaid  stock  subscrijitions,  it  is 
immaterial  that  some  of  original  defendants  died  pendente  lite  and  that 
suit  has  not  been  revived  against  them ;  Chilberg  v.  Silbcnbaum,  41  Wash. 
660,  84  Pac.  599,  right  of  action  by  creditor  of  corporation  to  enforce 
unpaid  stock  subscri])tions  accrues  on  its  insolvency,  and  when  it  disposes 
of  all  assets,  and  no  judgment  against  corporation  is  necessary. 

Syl.  9   (IX,  941).     Creditor's  bill  by  corporation's  judgment  creditor. 

Approved  in  Jahn  v.  Champagne  Lumber  Co.,  147  Fed.  633,  bill  by 
judgment  creditor  of  dissolved  corporation  on  behalf  of  himself  and 
oMier  creditors,  against  stockholders  vv-hom  it  seeks  to  hold  as  trustees 
of  property,  is  not  multifarious  because  it  also  prays  accounting  of 
amount  due  on  stock  subscriptions;  Turner  v.  Fidelity  Loan  Concern, 
2  Cal.  App.  140,  83  Pac.  69,  creditor  of  corporation  cannot  sue  stock- 
liolder  on  subscription  without  making  all  stockholders  parties  or  ex- 
cusing  absence   of  missing   ones. 

101  U.  S.  216-218,  25  L.  864,  TERRY  v.  LITTLE. 

Syl.  1    (IX,  943).     Stockholders'  liability  purely  statutory. 

Approved  in  Abbott  v.  Goodall,  100  Me.  234,  00  Atl.  1032,  creditors  of 
insolvent  Colorado  corporation  cannot  maintain  equity  suit  on  behalf  of 
themselves  and  other  creditors  against  Maine  stockholders  alone  to 
enforce  double  liability  under  Colorado  act  of  18S5. 

Syl.    2    (IX,   943).     Enforcement    of   bank   stockholders'   liability. 

Approved  in  Miller  v.  Clifford,  133  Fed.  886,  67  C.  C.  A.  52,  in 
equity  suit  on  behalf  of  all  creditors  of  insolvent  bank  in  Colorado 
against  several  stockholders  to  enforce  double  liability  under  Colo- 
rado statute,  requiring  them  to  pay  full  amount  of  liability  to  be 
applied  pro  rata  to  debts,  there  is  no  separable  controversy  as  to 
any  single  defendant;  Clark  v.  Knowles,  187  Mass.  38,  105  Am.  St. 
Rep.  376,  72  N.  E.  353,  suit  in  equity  by  creditors  of  Colorado  cor- 
poration on  behalf  of  themselves  and  others  to  enforce  Massachusetts 
stockholders'  double  liability  under  Colorado  act  of  1885,  is  not 
maintainable;  Hazlett  v.  Woodhead,  27  R.  I.  511,  63  Atl.  954,  under 
Nebraska  Const.  1875,  art.  lib,  §  7,  receiver  of  Nebraska  bank  must 
include  nonresident  stockholders  in  equity  suit  in  Nebraska  to  deter- 


101  U.  S.  225-247  Notes  on  U.  S.  Reports,  972 

mine  stockholders'  liability;  Miller  v.  Smith,  26  R.  I.  149,  150,  151, 
58  Atl.  635,  636,  66  L.  R.  A.  473,  refusing  to  entertain  suit  in  equity 
by  creditors  of  Colorado  corporation  in  behalf  of  themselves  and  other 
creditors  to  enforce  double  stockholders'  liability  under  Colorado 
statute;  Harrison  v.  Remington  Paper  Co.,  140  Fed.  388,  arguendo. 

101  U.  S.  225-231,  25  L.  908,  JONES  v.  CLIFTON. 

Syl.   1    (IX,  945).     Gift  to  wife— Claims   of  creditors. 

Approved  in  Savage  v.  Savage,  141  Fed.  350,  following  rule;  Aldous 
V.  Olverson,  17  S.  D.  200,  95  N.  W.  920,  conveyance  of  property  by 
husband  to  wife,  duly  recorded  and  not  made  with  intent  to  defraud 
subsequent  creditors,  cannot  be  complained  of  by  them  irrespective 
of  intent  as  to  existing  creditors. 

Syl.  2  (IX,  945),     Deed  to  wife  without  trustee. 
Approved  in  Luhrs  v.  Hancock,  6  Ariz.  345,  57  Pae.  606,  upholding 
deed  from  wife  to  husband. 

101  U.  S.  231-239,  25  L.  797,  MAY  v.  SLOAN, 

Syl.  3   (IX,  946).     Statute  of  frauds — Denial  of  parol  agreement. 

Distinguished  in  Graham  v.  Heinrich,  13  Okl.  120,  74  Pac.  331, 
where  one  sets  up  contract  as  legal  and  prays  relief  from  stipula- 
tions thereof,  and  answer  and  cross-petition  pray  enforcement  thereof, 
and  specific  performance  granted,  it  is  too  late  after  appeal  for  plain- 
tiff to  elect  to  declare  contract  void  within  statute  of  frauds. 

Syl.  4   (IX,  946).     "Trade"  includes  commerce. 

Approved  in  Pocono  etc.  Ice  Co.  v.  American  Ice  Co.,  214  Pa.  St. 
647,  64  Atl.  400,  corporation  created  to  erect  dam  and  cut,  store  and 
sell  ice  is  trading  corporation  within  act  of  1881,  authorizing  trading 
corporations  to  wind  up  affairs  on  expiration  of  charter. 

101  U.  S.  240-247,  25  L,  850,  BANK  OF  AMERICA  v.  BANKS. 

Syl.  4  (IX,  947).     Estoppel  of  married  woman  by  contract. 

Approved  in  Burns  v.  Cooper,  140  Fed.  286,  covenants  of  married 
woman  in  joint  mortgage  with  husband  binding  after-acquired  prop- 
erty do  not  estop  her  from  claiming  interest  in  property  described 
in  mortgage  acquired  after  mortgage  freed  from  its  lieu. 

Syl.  5   (IX,  947).     Recitals  in  collateral  writings  as  estoppel. 

Approved  in  Summerfield  v.  White,  54  W.  Va.  317,  46  S.  E.  157, 
recitals  of  description  in  deed  did  not  estop  grantor  from  showing 
corner  mentioned  therein  is  not  certain  rock  claimed  by  opponent. 

Syl.  6   (IX,  947).     Estoppel  by  deed. 

Approved  in  In  re  Salmon,  143  Fed.  402,  Missouri  act  of  1897, 
relating  to  liquidation  of  banks  was  insolvent  law  suspended  by  bank- 
ruptcy   act    of    1898,    and    participation    by    creditors    in    proceedings 


973  Notes  on  U.  S.  Reports.  101  U.  S.  247-273 

thereunder  did  not   estop  them  from  instituting  bankruptcy  proceed- 
ings against  debtors. 

101  U.  S.  247-256,  25  L.  826,  WATT  v.  STARKE. 

Syl.  1   (IX,  948).     Equity — Bill  of  exceptions — Feigned  issue. 

Approved  in  In  re  Neasmith,  147  Fed.  163,  where  issues  in  bank- 
ruptcy proceedings  submitted  to  jury  independent  of  Bankr.  Act, 
§  19a,  bill  of  exceptions  is  of  no  value. 

101  U.  S.  256-260,  25  L.  865,  LEGGETT  v.  AVERY. 

Syl.   4    (IX,   949).     Patents— Disclaimer. 

Approved  in  Wclsback  Light  Co.  v.  Cremo  etc.  Light  Co.,  145  Fed. 
524,  construing  Heald  patent  No.  423,317,  for  appliance  for  use  with 
gas  lamps;  Victor  Talking  Mach.  Co.  v.  American  Graphophone  Co., 
145  Fed.  191,  construing  Berliner  patent  No.  548,623,  for  duplicate 
sound  records;  Rembert  etc.  Compress  Co.  v.  American  Cotton  Co., 
129  Fed.  369,  64  C.  C.  A.  25,  limiting  Rembert  patent  No.  441,022, 
for  method  of  baling  cotton,  and  holding  it  not  infringed  by  machine 
of  Graves  patent  No.  473,144. 

101  U.  S.  260-263,  25  L.  910,  SIMMONS  v.  WAGNER. 

Syl.  4   (IX,   951).     Law  certificate — Right   to   patent. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S. 
335,  50  L.  505,  26  Sup.  Ct.  282,  purchaser  from  patentees  for  value 
and  without  notice  of  entryman's  fraud  is  entitled  to  protection  as 
bona  fide  purchaser,  though  he  acquired  interest  in  lands  under  con- 
tract for  sale  of  standing  timber  before  patents  issued. 

101  U.  S.  263-273,  25  L.  809,  WEST  v.  SMITH. 

Syl.  5  (IX,  952).     Parol  to  vary  writing. 

Approved  in  Barcus  v.  Gates,  130  Fed.  367,  where  written  contract 
for  employment  of  attorney  on  contingency  is  uncertain  as  to  char- 
acter of  services  or  manner  of  payment,  parol  evidence  is  admissible 
to  show  surrounding  circumstances  and  situation  of  parties  and  nature 
of  litigation. 

Syl.   6    (IX,   952).     Oflfers   of   compromise   as   evidence. 

Approved  in  dissenting  opinion  in  Misner  v.  Strong,  181  N.  Y.  177, 
73  N.  E.  970,  in  suit  to  establish  ownership  in  undivided  interest  in 
ship  and  for  accounting  of  earnings,  admission  of  evidence  that  one 
of  defendants  had  oifered  compromise  is  not  reversible  error  where  de- 
fendant testified  to  same  effect. 

Distinguished  in  Chesapeake  etc.  Ry.  Co.  v.  Stock,  104  Va.  102,  51 
S.  E.  163,  admitting  offer  of  compromise  by  railroad  in  action  for 
loss  of  goods  in  transit  where  offer  not  made  with  caution  that  it  is 
confidential  and  without  prejudice. 


101  U.  S.  274-300  Notes  on  U.  S.  Eeports.  974 

101  U.  S.  274-277,  25  L.  790,  BRODEE  v.  NATOMA  WATEE  &  MIN. 
CO. 

Syl.  2  (IX,  953).     Irrigation  of  arid  lands. 

Approved  in  Hoge  v.  Eaton,  135  Fed.  414,  appropriation  of  water 
in  Wyoming  from  stream  which  rises  in  Colorado  for  irrigating  lands 
in  Wyoming  is  valid  as  against  subsequent  appropriation  in  Colorado 
from  same  stream  for  irrigating  lands  in  Colorado;  Boise  Irr.  etc.  Co. 
V.  Stewart,  10  Idaho,  50,  77  Pac.  28,  Water  Appropriation  act  of 
1903,  §§  4,  5,  is  not  void  as  vesting  judicial  power  in  state  engineer; 
-Meng  V.  Coffee,  67  Neb.  518,  108  Am.  St.  Eep.  712,  93  N.  W.  719, 
appropriation  of  water  by  squatter's  rights  does  not,  by  virtue  ot 
llev.  St.  U.  S.,  §  2339,  give  appropriator  for  period  less  than  ten 
years  exclusive  right,  as  against  other  settlers  on  same  stream; 
Crawford  Co.  v.  Hathaway,  67  Neb.  359,  108  Am.  St.  Rep.  675,  9;; 
N.  W.  792,  under  irrigation  act  of  1895,  riparian  owner  whose  prop- 
erty rights  are  impaired  is  entitled  to  compensation  for  injuries  actu- 
ally sustained;  Willey  v.  Decker,  11  Wyo.  521,  100  Am.  St.  Rep.  939, 
73  Pac.  217,  discussing  effect  of  subsequent  legislation  on  right  of 
prior  appropriation  of  water;  Morris  v.  Bean,  146  Fed.  427,  arguendo. 

101   U.   S.  285-289,  25  L.   785,  JEFFREY  v.   MORAN. 

Syl.  3   (IX,  956).     Judgment  for  tort  as  prior  lien. 

Approved  in  Julian  v.  Central  Trust  Co.,  193  U.  S.  109,  48  L.  63S. 
24  Sup.  Ct.  399,  applying  rule  under  N.  C.  Code,  §  1255,  making  liens 
for  judgments  for  torts  superior  to  mortgages  of  corporations. 

101  U.  S.  289-300,  25  L.  932,  PACIFIC  R.  R.  CO.  v.  KETCHUM. 

Syl.  2   (IX,  956).     Attorney's  authority  to  bind  client. 

Approved  in  Harniska  v.  Dolph,  133  Fed.  160,  66  C.  C.  A.  224, 
where  attorney  for  defendant  admitted  in  open  court  at  trial  that 
defendant  could  not  sustain  defense  and  that  plaintiff  entitled  to 
relief,  and  consented  to  judgment  for  latter,  authority  presumed. 

Syl.   3    (IX,   957).     Remedy  for   attorney's   fraud. 

Approved  in  Nelson  v.  Meehan,  2  Alaska,  490,  where  judgment  ob- 
tained by  fraud  and  perjury  was  affirmed  on  appeal,  and  pending 
disposition  of  case  in  district  court  defendants,  by  motion  and  affi- 
davit, disclosed  fraud,  court  could  vacate  judgment. 

Syl.  8  (IX,  957).     Diverse  citizenship — Arrangement  of  parties. 

Approved  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  658,  68  C.  C.  A. 
2S8,  following  rule;  dissenting  opinion  in  German  Sav.  &  Loan  Soc. 
V.  Tull,  136  Fed.  11,  69  C.  C.  A.  1,  majority  upholding  federal  juris- 
diction over  partition  suit,  though  questions  may  arise  between 
y)laintiffs  who  are  citizens  of  same  state,  where  bill  does  not  disclose 
controversy  rendering  re-alignment  of  parties   necessary. 

(IX,  956.)  Miscellaneous.  Cited  in  Weed  v.  Gainesville  R.  R.  Co., 
119  Ga.  596,  46  S.  E.  894. 


975  Notes  on  U.  S.  Reports.  101  U.  S.  306-341 

101  U.  S.  30G-319,  23  L.  999,  KETCHUM  v.  ST.  LOUIS. 

Syl.   1    (IX,  959).     Lien — Fund  set  apart  for  creditor. 

Approved  in  In  re  Porterfield,  138  Fed.  196,  upholding  validity  of 
lien  where  bankrupt  indebted  to  wife  for  money  loaned  agreed  by 
parol  to  execute  trust  deed  to  secure  debt,  and  within  four  months 
of  bankruptcy  executed  second  deed  of  trust  in  consideration  of  her 
surrendering  dower  right  in  land,  and  on  condition  that  debt  be 
secured  by  such  second  deed. 

Syl.  4  (IX,  959).     Equity — Enforcement  of  liens. 

Approved  in  Union  Trust  Co.  v.  Bulkeley,  150  Fed.  513,  parol 
assignment  of  accounts  and  bills  receivable  which  should  be  acquired 
to  secure  one  becoming  indorser  to  enable  assignor  to  raise  money 
for  business  creates  valid  lien  against  assignor's  bankruptcy  trustee; 
Wilder  v.  Watts,  138  Fed.  432,  where  bankrupt,  prior  to  insolvency, 
arranged  to  borrow  money  to  buy  goods  and  assign  insurance  to 
h'lidcrs  as  security,  there  was  equitable  assignment  of  policies,  though 
not  delivered  when  issued  nor  actually  assigned  till  after  loss  and 
insolvency. 

101  U.  S.  320-332,  25  L.  955,  SMITH  v.  AYER. 

Syl.   2   (IX,  960).     Knowledge  of  attorney  is  client's. 

Approved  in  In  re  Pease,  129  Fed.  455,  where  trust  company  through 
its  attorney,  who  was  also  attorney  for  creditors  of  merchant,  made 
loan  with  which  certain  creditors  paid  in  full  and  took  chattel  mort- 
gage, under  which  stock  sold  next  day,  mortgage  was  void  under 
Bankr.  Act,  §  67e. 

101  U.  S.  332-337,  25  L.  1024,  UNION  WATER  METER  CO.  v.  DES- 
PER. 

Syl.  1   (IX,  962).     Patent  for  combination — Infringement. 

Approved  in  Conroy  v.  Penn  Elec.  &  Mfg.  Co.,  146  Fed.  752,  hold- 
ing Wright  &  Curry  patent  No.  631,033,  for  mirror,  infringed  by  Con- 
roy mirror;  Brookfield  v.  Elmer  Glass  Wks.,  132  Fed.  313,  Kribs  pat- 
ent No.  542,565,  for  improvement  in  presses  for  making  glass  screw 
insulators,  not  infringed  by  machine  of  Duffield  patent  No.  723,589. 

Syl.  3  (IX,  962).     Patent  for  combination — Equivalent. 

Approved  in  National  Cash  Register  Co.  v.  Union  Comp.  Mach.  Co., 
143  Fed.  344,  construing  Kock  cash  register  patent  No.  398,625;  Levy 
V.  Harris,  130  Fed.  715,  65  C.  C.  A.  113,  Levy  patent  No.  664,564,  for 
feather  quill  grinding  machine  not  infringed. 

101  U.  S.  337-341,  25  L.  960,  MEMPHIS  ETC.  R.  R.  CO.  v.  TEN- 
NESSEE. 

Syl.   1   (IX,  963).     Suability  of  state. 

Approved  in  Hollister  v.  State,  9  Idaho,  13.  71  Pac.  542,  Sess.  Laws 
1899,  p.  381,  §  13,  authorizes  suit  against  state  for  conaemuation  of 
state  lauds  for  public   use. 


101  U.  S.  341-369  Notes  on  U.  S.  Eeports.  976 

Syl.  2   (IX,  963).     Obligation  of  contract— Suability  of  state. 

Approved  in  In  re  Hoople,  179  N.  Y.  312,  72  N.  E.  230,  right  to 
refund  amount  of  transfer  tax  illegally  assessed  given  by  Laws 
1896,  p.  871,  c.  908,  §  225,  as  amended  in  1900,  is  barred  if  at  time 
demand  for  refund  made  action  for  same  would  be  barred  as  between 
private  parties. 

101  U.  S.  341-346,  25  L.  1010,  LANGFORD  v.  UNITED  STATES. 

Syl.  3  (IX,  964).     Use  and  occupation  by  government. 

Approved  in  O'Reilly  De  Camara  v.  Brooke,  135  Fed.  390,  holding 
American  military  governor  of  Cuba  liable  for  depriving  Spanish 
citizen  of  his  property  without  compensation;  Christie-Street  Cora.  Co. 
V.  United  States,  129  Fed.  508,  denying  federal  jurisdiction  over  peti- 
tion alleging  that  tax  sought  to  be  recovered  was  exacted  by  threats 
and  paid  under  duress. 

Distinguished  in  Christie  Street  Com.  Co.  v.  United  States,  136  Fed. 
329,  69  C.  C.  A.  464,  claim  to  recover  internal  revenue  taxes  il- 
legally exacted  may  be  enforced  by  action  directly  against  United 
States. 

101  U.  S.  352-362,  25  L.  888,  AMERICAN  ETC.  CHRISTIAN  UNION 
V.  YOUNT. 

Syl.  1  (IX,  905).     Holding  land  by  foreign  corporation. 

Approved  in  Julian  v.  Central  Trust  Co.,  193  U.  S.  107,  48  L.  637, 
24  Sup.  Ct.  399,  property  of  North  Carolina  railroad  covered  by 
mortgage  is  not  liable  for  debts  accruing  after  foreclosure  sale  to 
nonresident  company  because  of  failure  of  latter  to  become  domestic 
corporation  as  provided  by  N.  C.  Code,  §§  697,  698,  1036,  2005;  Suc- 
cession of  Hasling,  114  La.  296,  38  So.  174,  validity  of  will  made  in 
Louisiana  bequeathing  land  in  Mississippi  depends  on  law  of  Mis- 
sissippi. 

Syl.  2   (IX,  965).     Exercise  of  powers  by  foreign  corporation. 

Approved  in  Swing  v.  Weston  Lumber  Co.,  140  Mich.  350,  103  N. 
W.  818,  mutual  insurance  contract  on  property  in  state  between  resi- 
dent and  foreign  corporation  which  had  not  complied  with  state  laws, 
marie  through  agent  who  had  placed  part  of  insurance  with  agent 
outside  of  state  who  wrote  policy  in  question,  cannot  be  made  basis 
of  assessment  by  company's  trustee   against  insured. 

101  U.  S.  362-369,  25  L.  813,  KAIN  v.  GIBBONEY. 

Syl.  2   (IX,  967).     Charitable  bequests — Certainty  of  objects. 

Approved  in  Miller  v.  Ahrens,  150  Fed.  657,  trust  created  by  will 
for  benefit  of  foreign  religious  corporation  involving  devise  of  land 
in  West  Virginia  is  void;  dissenting  opinion  in  Danforth  v.  Oshkosh, 
119  Wis.  290,  97  N.  W.  268,  majority  holding  where  land  devised  to 
trustees  to  be  conveyed  to  city  for  purpose  of  constructing  and  main- 


977  Notes  on  U.  S.  Keports  101  U.  S.  370-397 

taining  public  library  thorcon,  on  c^ondition  that  deed  from  trustees 
should  contain  condition  that  title  should  revert  to  heirs  of  testator 
on  land  ceasing  to  be  used  for  library,  there  was  no  suspension  of 
power  of  alienation. 

101   U.  S.  370-383,  25  L.  855,  PHELPS  v.  HARRIS. 

Syl.  1   (IX,  967).     Quieting  title— Plaintiff 's  title. 

Approved  in  dissenting  opinion  in  Logan  v.  Ward,  58  "W.  Va.  378, 
52  S.  E.  402,  majority  holding  bill  to  remove  cloud  from  title  not 
maintainable  by  owner  of  land  in  actual  possession  where  land  en- 
tered on  by  adverse  claimant. 

Syl.  4  (IX,  968).     Power  to  sell  and  dispose — Partition. 

Approved  in  People  v.  Chicago,  216  111.  541,  75  N.  E.  239,  property 
received  in  exchange  for  property  granted  for  use  of  schools  and 
rents  of  property  so  received  are  not  taxable. 

101  U.  S.  384-391,  25  L.  982,  THE  SABINE. 

Syl.  2  (IX,  968).     Essentials  of  salvage  claim. 

Approved  in  Spaulding  v.  Alaska  Com.  Co.,  1  Alaska,  501,  where 
libelants  knowing  barges  had  been  ashore  by  wind  at  point  designated 
by  master,  reached  there  ahead  of  owner's  employees,  went  aboard 
dryshod  and  attached  line  on  shore,  they  are  not  entitled  to  salvage. 

Syl.  4  (IX,  969).     Salvage  suits  in  rem  or  in  personam. 

Approved  in  United  States  v.  Cornell  Steamboat  Co.,  202  U.  S.  193, 
50  L.  991,  26  Sup.  Ct.  648,  upholding  recovery  of  salvage  on  duties 
collected  by  government  on  cargo  afterward  saved  from  fire  while 
on  lighter  in  possession  of  custom  officials;  Silvey  v.  Tift,  123  Ga. 
808,  51  S.  E.  750,  1  L.  R.  A.  (N.  S.')  386,  where  petition  by  creditors 
in  involuntary  bankruptcy  alleged  preferential  transfer  to  creditor 
within  four  months  of  petition,  and  trustees  such  transferees  for  pref- 
erence after  adjudication,  adjudication  did  not  estop  defendants  from 
setting  up  rescission  of  sale  of  goods  to  bankrupt  prior  to  adjudica- 
tion on  ground  of  misrepresentation. 

Syl.  9   (IX,  969).     Nature  of  salvor's  remedy. 

Approved  in  Spaulding  v.  Alaska  Com.  Co.,  1  Alaska,  498,  salvor 
of  property  which  has  been  taken  from  his  possession  by  owner  may 
maintain  suit  in  personam  against  owner  for  salvage. 

101  U.  S.  392-397,  25  L.  1050,  WHITNEY  v.  WYMAN. 

Syl.  1  (IX,  970).     Agent's  liability — Contract  in  principal's  name. 

Approved   in   Triplett  v.   Jackson,   130   Iowa,   411,    106   N.   W.   955, 

where    agent    having   three    tracts   for   sale    on   commission    employed 

plaintiff   to    find   purchaser   for   two,   agreeing   to   pay   $150   therefor, 

and  plaintiff  found  purchaser   but   owner   refused   to   sell  unless  sale 

62 


101  U.  S.  403-407  Notes  on  U.  S.  Eeports.  978 

included  all  land,  and  agent  said  be  would  pay  plaintiff  to  find  such 
purchaser,  agent  liable  for  compensation  of  plaintiff  for  finding  pur- 
chaser; Hicks  V.  Kenan,  139  N.  C.  344,  51  S.  E.  943,  construing 
contract  made  by  agent  as  that  of  principal. 

Syl.  3  (IX,  970).  Katification  of  corporation's  contract. 
Approved  in  Tryber  v.  Girard  Creamery  etc.  Co.,  67  Ivan.  49.j,  73 
Pae.  85,  corporation  not  adopting  contracts  of  incorporators  not  Un- 
able therefor  merely  because  it  takes  title  to  and  enjoys  property  pro- 
duced under  such  contract  where  incorporators  acted  on  individual 
responsibility;  Tuttle  v.  Tuttle,  101  Me.  292,  64  Atl.  499,  corporation 
not  liable  for  services  performed  for  it  prior  to  incorporation  under 
contract  made  by  its  promoters  where  directors  did  not  ratify  con- 
tract; Esper  V.  Miller,  131  Mich.  339,  91  N.  W.  614,  where  corpora- 
tion promoters  who  contributed  money  to  form  corporation  and  were 
to  get  stock  in  exchange  agreed  with  realty  broker  that  if  he  got 
title  to  certain  land  they  would  take  it  from  him,  and  corporation 
took  assignment  of  option  from  him,  promoters  not  liable  on  contract; 
Chesapeake  etc.  Ky.  Co.  v.  Deepwatcr  Ry.  Co.,  57  W.  Va.  666,  50  S. 
E.  900,  determining  that  survey  of  route  ordered  by  railroad  stock- 
holders adopted  by  directors. 

Syl.  7   (IX,  971).     Agent's  liability — Principal  known. 

Approved  in  Hall's  Safe  Co.  v.  Herring  etc.  Safe  Co.,  146  Fed. 
40,  41,  contract  by  corporation  on  sale  of  its  business  and  goodwill 
that  it  will  not  compete  with  purchaser  does  not  individually  bind 
stockholder  and  officer  who  acted  for  corporation;  Kessel  v.  Austin 
Min.  Co.,  144  Fed.  861,  contract  purporting  in  its  body  to  be  that 
of  corporation  and  signed  by  one  as  its  manager,  he  having  author- 
ity to  do  so,  is  contract  of  corporation;  Frambach  v.  Frank,  33  Colo. 
.'532,  81  Pac.  248,  where  contract  provided  that  plaintiff  convey  to  de- 
fendant all  interest  in  mill  and  defendant  agreed  that  if,  acting  for 
himself  or  as  agent  for  certain  corporation,  he  purchased  mill  at  sale 
to  be  held  in  future,  he  would  pay  plaintiff  for  his  interest  if  pur- 
chase made  for  corporation,  obligation  was  that  of  corporation. 

101  U.  S.  403-407,  25  L.  866,  INTERNATIONAL  BANK  v.  SHER- 
MAN. 

Syl.  2  (IX,  972).     Bankruptcy — Vesting  of  title  in  assignee. 

Approved  in  Van  Kirk  v.  Vermont  Slate  Co.,  140  Fed.  45,  where 
bona  fide  assignee  of  insurance  policies  pledged  over  four  months 
prior  to  bankruptcy  assigned  policies  after  adjudication,  trustee 's 
rights  not  affected;  In  re  Shoesmith,  135  Fed.  688,  68  C.  C.  A.  322, 
where  bankruptcy  court  had  jurisdiction  of  parties  and  subject  mat- 
ter, court  may  permit  amendment  of  involuntary  petition  more  than 
four  months  after  last  fraudulent  transfer  alleged  as  act  of  bank- 
ruptcy; Moulton  V.  Coburn,  131  Fed.  204,  66  C.  C.  A.  90,  to  entitle 


079    ,  Notes  on  U.  S.  Eeports.  101  U.  S.  403-407 

less  than  three  creditors  to  maintain  petition  in  involuntary  bank 
ruptcy,  it  must  appear  that  there  were  less  than  twelve  creditors  at 
date  of  filing  petition. 

Syl.  5  (IX,  973).  Bankruptcy — Meddling  -with  property  after  peti- 
tion. 

Approved  in  In  re  Home  Discount  Co.,  147  Fed.  551,  where  creditor 
of  bankrupt  took  assignment  of  future  wages  to  secure  loan  and  took 
no  steps  to  get  wages  prior  to  adjudication  but  filed  notice  of  as- 
signment afterward,  referee  could  compel  lender  to  withdraw  notice 
of  assignment;  In  re  Billing,  145  Fed.  398,  notice  to  creditors  of  fil- 
ing petition  in  involuntary  bankruptcy  is  unnecessary;  State  Bank 
of  Chicago  v.  Cox,  143  Fed.  93,  bankruptcy  trustee  may  recover 
money  obtained  by  creditors  by  attachment  between  date  of  filing 
of  bankruptcy  petition  and  adjudication;  Williamson  v.  Goodfcllow- 
Brooks  Shoe  Co.,  141  Fed.  220,  upholding  malicious  prosecution  for 
institution  of  bankruptcy  proceedings  maliciously  and  without  prob- 
able cause,  though  not  accompanied  by  acttial  seizure  of  property; 
In  re  Benedict,  140  Fed.  60,  where  receiver  appointed  in  involuntary 
bankruptcy  proceedings,  district  court  of  another  district  in  which 
property  of  bankrupt  situated  may  appoint  ancillary  receiver;  In  re 
Granite  City  Bank,  137  Fed.  820,  70  C.  C.  A.  316.  bankruptcy  court 
may  direct  sale  of  property  of  bankrupt  which  is  outside  district; 
In  re  Mertens,  134  Fed.  105,  where  creditors  of  bankrupt  firm  held 
policy  on  life  of  one  of  members  as  security,  he  could  not  sell  same  to 
himself  at  pretended  auction  for  one-sixth  of  face  value,  after  petition 
in  bankruptcy  against  firm  and  before  adjudication;  In  re  Ducker, 
133  Fed.  775,  seller  of  merchandise  to  bankrupt  under  unrecorded 
conditional  sale  not  entitled  to  priority  against  subsequent  creditors 
without  notice  or  lien;  In  re  Smith,  132  Fed.  303,  goods  in  posses- 
sion of  retailer  for  resale  purchased  under  contract,  reserving  title 
in  seller  until  full  payment,  pass  to  bankruptcy  trustee;  In  re  JNIoody, 
131  Fed.  528,  upholding  jurisdiction  of  bankruptcy  court  to  take 
possession  by  receiver  of  property  alleged  to  have  been  fraudulently 
transferred  by  bankrupt  and  to  determine  ownership;  In  re  Mertens, 
131  Fed.  515,  where  bankrupt's  trustee  took  possession  of  property 
at  time  of  filing  petition  and  seller  of  property  to  bankrupt  did  not 
elect  to  rescind  for  fraud  until  after  bankruptcy  proceedings  started, 
trustee  not  liable  for  conversion  in  selling  goods  under  order  of 
court;  In  re  Tweed,  131  Fed.  358,  applying  rule  where  bankrupt 
held  property  under  conditional  contract  of  purchase,  conditions  of 
which  are  void  for  failure  to  comply  with  state  statutes;  French  v. 
White,  78  Vt.  95,  62  Atl.  36,  2  L.  E.  A.  (X.  S.)  804,  property  which 
vests  in  trustee  of  bankrupt  is  not  attachable  in  state  court;  Eng- 
lish V.  Eoss,  140  Fed.  635,  and  In  re  Porterfield,  138  Fed.  195,  both 
arguendo. 


101  U.  S.  407-452  Notes  on  U.  S.  Eeports.  9S0 

101  U.  S.  407-417,  25  L.  1015,  COUNTY  OF  LIVINGSTON  v.  DAE- 
LINGTON. 

Syl.  1   (IX,  973).     Invalidity  of  statute  must  be  clear. 

Approved  in  Ex  parte  Kair,  28  Nev.  146,  80  Pac.  466,  upholding 
act  of  1903,  imposing  penalty  on  person  working  more  than  eight 
Lours  a  day  in  mine,  smelter  or  ore-mill;  City  of  Guthrie  v.  Terri- 
tory, 1  Okl.  198,  31  Pac.  193,  11  L.  E.  A.  418,  upholding  power  of 
legislature  to  provide  for  payment  bj'^  village  corporation  which  suc- 
cDeds  provisional  city  government  of  debts  of  latter. 

101  U.  S.  417-426,  25  L.  1052,  MOHR  v.  MANIERRE, 
Syl.  3   (IX,  975).     Guardian's  sale — Collateral  attack. 
Approved  in  Threadgill  v.  Colcord,  16   Okl.  470,   85   Pac.   710,  pur- 
chaser  at   master's   sale   under   decree   in   suit   to   which   he   is   party 
cannot  collaterally  attack  decree  for  irregularities. 

Syl.  5  (IX,  976).     Notice  in  legal  proceedings. 

Approved  in  White  v.  Martin,  2  Alaska,  501,  upholding  notice  by 
publication  to  lunatic  who  wanders  avv-ay  of  time  and  place  of  hear- 
ing  application   for   guardianship, 

101  U.  S.  433-43S,  25  L.  937,  SOUTH  CAROLINA  v.  GAILLARD. 

Syl.  2  (IX,  977).     Repeal  of  special  statute  pending  suit. 

Approved  in  Scott  v.  Jenkins,  46  Fla.  529,  35  So.  105,  applying  rule 
to  foreclosure  where  pending  suit  one  of  defendants  died  and  ad- 
ministrator made  party  after  repeal  of  statute  making  realty  assets  in 
bands  of  administrator;  Terry  v.  McClung,  104  Va.  601,  52  S.  E.  356, 
where  no  final  order  establishing  road  applied  for  was  made  prior  to 
act  of  1888,  depriving  county  court  of  Highland  county  of  jurisdic- 
tion in  road  cases,  proceedings  lapsed. 

101  U.  S.  439-443,  25  L.  1055,  WHEELER  v.  INSURANCE  CO. 

Syl.  2  (IX,  978).     Mortgagee's  right  to  insurance  proceeds. 

Approved  in  Wilder  v.  Watts,  138  Fed.  431,  where  debtor  made 
equitable  assignment  of  policies  to  be  issued  as  security  for  loans 
but  failed  to  make  actual  assignment  of  policies  \intil  after  loss 
when  he  was  insolvent,  assignment  not  act  of  bankruptcy. 

101  U.  S.  443-452,  25  L.  1057,  BROOKS  v.  BURLINGTON  ETC.  RY. 
CO. 

Syl.  5  (IX,  980).     Mortgages — Lien  of  building  contractor. 

Approved  in  Hammond  v.  Darlington,  109  Mo.  App.  343,  84  S.  W. 
449,  one  purchasing  lease  of  land  on  which  buildings  are  in  course 
of  erection  for  lessee  is  chargeable  with  notice  that  mechanic's  lien 
may  be  asserted  for  labor  and  materials  entering  into  construc- 
tion. 


9S1  Notes  on  U.  S.  Reports.  101  U.  S.  465-479 

101  U.  S.  465-471,  25  L.  987,  SILLIMAN  v.  UNITED  STATES. 

Syl.  1  (IX,  982).     What  is  duress. 

Approved  in  Earle  v.  Berry,  27  R.  I.  229,  230,  61  Atl.  674,  mere 
threat  to  withhold  payment  of  debt  except  on  giving  of  receipt  that 
amount  paid  was  all  that  was  due  is  not  duress. 

101  U.  S.  473-479,  25  L.  800,  MARQUEZ  v.  PRISBIE. 

Syl.  2   (IX,  983).     Judicial  interference  with  land  office. 

Approved  in  Fitzgerald  v.  Keith,  5  Okl.  264,  48  Tac.  Ill,  and 
Adams  v.  Couch,  1  Okl.  34,  26  Pac.  1015,  both  following  rule;  Hum- 
bird  V.  Avery,  195  U.  S.  504,  49  L.  297,  25  Sup.  Ct.  1^3,  refusing,  in 
advance  of  final  action  of  Land  Department,  to  determine  rights  of 
grantees  from  Northern  Pacific  of  indemnity  lands  and  settlers;  Jones 
V.  Hoover,  144  Fed.  220,  upholding  equity  jurisdiction  to  review 
acts  of  Land  Department  in  construing  law  so  as  to  give  possession, 
where  possession  essential  to  complete  purchase  of  public  lands; 
Thompson  v.  Easier,  148  Cal.  649,  84  Pac.  102,  where  homestead  claim- 
ant brought  ejectment  against  mining  claimant,  who  made  location 
after  plaintiff  obtained  receiver's  certificate,  defendant  cannot  show 
jilaintiff  had  not  complied  with  requirements  of  residence  and  cultiva- 
tion; Le  Ferere  v.  Amonson,  11  Idaho,  47,  81  Pac.  72,  denying  juris- 
diction to  determine  whether  lands  are  mineral  or  not,  while  con- 
troversy i")ending  before  Land  Department;  Sims  v.  Morrison,  92  Minn, 
346,  100  N.  W.  90,  where  one  filed  homestead  entry  and  submitted 
final  proof  and  then  sold  all  standing  timber  to  plaintiff,  and  con- 
test filed  prior  to  final  proof  decided  against  contestant,  but  subse- 
quent to  contract  contest  amended  and  then  homesteader  relinquished 
entry  and  contestant  entered  land  under  timber  act,  plaintiff  cannot 
impress  land  with  trust;  Tiernan  v.  Miller,  69  Neb.  767,  96  N.  W.  662, 
party  entering  public  lands  as  homestead  cannot  be  enjoined  from 
exercising  right  of  possession  by  one  who,  without  right,  held  prior 
possession;  Wilbourne  v,  Baldwin,  5  Okl.  280,  47  Pac.  1050,  refusing 
to  enjoin  Indian  agent  from  ejecting  homesteader  from  Indian  lands; 
McDaid  v.  Territory,  1  Okl.  102,  30  Pac.  441,  under  Act  Cong.  May 
14,  1900,  relating  to  townsite  entries,  after  issuance  of  patent  to 
trustees,  no  appeal  lies  from  decision  of  trustees  awarding  land  to 
one  of  several  contestants;  Laramie  Nat.  Bank  v.  Steinhoff,  11  Wyo. 
307,  71  Pac.  994,  where  one  in  possession  of  land  under  certificate  of 
purchase  issued  by  Land  Department  sues  claimant  under  entry,  be- 
fore patent  issued,  to  determine  adverse  interests,  court  can  deter- 
mine right  to  possession  but  not  title;  dissenting  opinion  in  Sproat 
V.  Durland,  2  Okl.  52,  35  Pac.  888,  majority  holding  homestead  claim- 
ant may  be  enjoined  by  adverse  claimant  on  answer  and  cross-com- 
plaint from  interfering  with  possession,  and  injunction  may  be  given 
effect  of  writ  of  possession;  Thompson  v.  Ferry,  6  Ariz.  306,  56  Pac. 
743,  arguendo. 


101  U.  S.  473-479  Notes  on  U.  S.  Reports.  982 

Distinguished  in  Woodruff  v.  Wallace,  3  Old.  361,  365,  41  Pac.  359, 
361,  granting  injunction  to  give  possession  to  successful  claimaii;;  in 
contest  before  Land  Department. 

Syl.  3   (IX,  984).     Judicial  dealing  prior  to  patent. 

Approved  in  Eeaves  v.  Oliver,  3  Okl.  68,  41  Pac.  355,  and  Pappe 
V.  Trout,  3  Okl.  264,  41  Pac.  399,  both  following  rule;  Jones  v.  Hoover, 
144  Fed.  222,  upholding  equity  jurisdiction  to  review  acts  of  Land 
Department  in  construing  law  so  as  to  give  possession  where  posses- 
sion is  essential  to  complete  purchase  of  public  lands;  Heine  v.  Roth, 
2  Alaska,  423,  granting  injunction  to  j^revent  trespass  on  possessory 
rights  of  homesteader;  Shy  v.  Brockhause,  7  Okl.  39,  54  Pac.  307, 
town  lot  may,  before  legal  title  passes  from  government,  maintain 
ejectment  against  one  in  possession  as  his  tenant;  Barnes  v.  Newton, 
5  Okl.  432,  48  Pac.  192,  successful  party  in  Land  Department  con- 
test may  enjoin  adversary  from  interfering  with  possession  and  from 
further  occupancy  of  disputed  premises. 

Distinguished  in  dissenting  opinion  in  Barnes  v.  Newton,  5  Okl. 
463,  49  Pac.  1082,  majority  holding  successful  party  in  Land  De- 
partment contest  may  enjoin  opponent  from  interfering  with  pos- 
session and   from   further   occupancy   of   premises. 

Syl.  4  (IX,  984).     Conclusiveness  of  land  decisions. 

Approved  in  Woodruff  v.  Wallace,  3  Okl.  378,  41  Pac.  365,  follow- 
ing rule;  Le  Fevre  v.  Amonson,  11  Idaho,  48,  81  Pac.  72,  denying 
jurisdiction  to  determine  whether  or  not  lands  are  mineral,  while 
claims  are  pending  before  Land  Department;  Tieruan  v.  Miller,  69 
Neb.  768,  96  N.  W.  663,  homesteader  cannot  be  enjoined  from  exer- 
cising right  of  possession  by  one  who,  without  right,  held  prior  pos- 
session; Cagle  v.  Dunham,  14  Okl.  615,  78  Pac.  562,  refusing  to  set 
aside  Land  Department  decision  on  contest  for  perjury  comrait.ced 
before  department;  Oklahoma  City  v.  Hill  Bros.,  6  Okl.  129,  50  tac. 
247,  parties  entering  lands  in  violation  of  Act  Cong.,  March  2,  1889, 
and  occupied  lots  on  townsite  and  were  unlawfully  dispossessed  while 
in  occupancy  of  buildings  thereon  by  city  authorities  may  sue  for 
trespass;  Barnes  v.  Newton,  5  Okl.  431,  48  Pac.  192,  successful  party 
in  Land  Department  contest  may  enjoin  adversary  from  interfering 
with  possession  and  from  further  occupying  disputed  premises;  Cal- 
houn V.  Violet,  4  Okl.  325,  47  Pac.  481,  finding  of  Land  Department 
that  entryman  entered  and  settled  on  lauds  thrown  open  under  Act 
of  Cong.,  March  2,  1889,  during  inhibited  time,  is  conclusive. 

Syl.  5   (IX,  985).     Conclusiveness  of  land  decisions — Mixed  questions. 

Approved  in  Hartwell  v.  Havighorst,  196  U.  S.  635,  49  L.  629,  25  Sup. 
Ct.  793,  Estes  v.  Timmons,  12  Okl,  544,  73  Pac.  305,  and  Paine  v. 
Foster,  9  Okl.  226,  53  Pac.  113,  all  following  rule;  Bates  etc.  Co.  v. 
Payne,  194  U.  S.  109,  48  L.  895,  24  Sup.  Ct.  595,  refusing  to  enjoin 
postmaster    general    from    refusing    to    mail    as    second-class    matter 


9S3  Notes  on  U.  S.  Jicports.  101  U.  S.  479-514 

monthly  musical  publication,  each  issue  of  wliich  is  complete  in  itself 
and  treats  of  works  of  single  musician;  Cook  v.  McCord,  9  Okl.  211,  60 
Pac.  500,  applying  rule  to  decision  of  land  officers  on  question  as 
to  whether  or  not  lot  abandoned  by  claimant;  dissenting  opinion  in 
Paine  v.  Foster,  9  Okl.  2G2,  60  Pac.  25,  majority  refusing  to  review 
Land  Department's  decision  where  all  pleadings  and  evidence  be- 
fore department  and  record  shows  there  was  some  evidence  to  war- 
rant finding. 

Syl.  7  (IX,  986).  Specification  of  fraud — Relief  against  i)at- 
ent. 

Approved  in  Cella  v.  Brown,  144  Fed.  754,  mere  allegation  in  bill 
that  plan  of  reorganization  between  two  street  railways  was  fraudu- 
lently designed  presents  no  issuable  matter;  Le  Marchel  v.  Teegardon, 
133  Fed.  827,  applying  rule  where  patent  attacked  for  mistake  of  fact; 
Cummings  v.  McDermid,  4  Okl.  278,  44  Pac.  277,  applying  principle 
to  petition  to  set  aside  award  of  townsite  trustees;  Eed  Eiver  Fur- 
nace Co.  V.  Tennessee  etc.  R.  E.  Co.,  113  Tenn.  713,  87  S.  W.  1019, 
<lenying  sufficiency  of  allegations  of  bill  attacking  election  for  city 
railroad  aid  subscription  for  fraud  in  bribing  voters  and  permitting 
felons  to  vote. 

Distinguished  in  Downman  v.  Saunders,  3  Okl.  231,  41  Pac.  106,  peti- 
tion by  one  seeking  to  recover  townsite  lot  by  virtue  of  actual  oc- 
cupancy as  against  one  holding  probate  judge's  decree  need  not  al- 
lege fraud  in  making  award. 

101  U.  S.  479-494,  25  L.  939,  WOODBURY  PATENT  PLANING  MA- 
CHINE CO.  V.  KEITH. 

Syl.  2  (IX,  986).     Patents— Abandonment. 

Approved  in  Victor  Talking  Mach.  Co.  v.  American  Graph.  Co.,  140 
Fed.  SGG,  holding  Berliner  patent  No.  534,543,  for  improvements  in 
talking-machines,  not  abandoned. 

(IX,  986.)  Miscellaneous.  Cited  in  Weston  Electrical  Instr.  Co.  v. 
Empire  Electrical  etc.  Co.,  136  Fed.  599,  69  C.  C.  A.  329.  want  of 
authority  in  patent  commissioner  to  issue  patent  is  pleadable  as  de- 
fense to  infringement. 

101  U.  S.  494-503,  25  L.  1065.  BAKER  v.  HUMPHREY. 
Syl.  2  (IX,  987).     Quitclaim  grantee — Bona  fide  purchaser. 
Approved  in  Liiulblom  v.  Rocks,  146  Fed.   663,  following  rule. 

101  U.  S.  503-514,  25  L.  829,  Hx\LL  v.  EUSSELL. 

Syl.  5   (IX,  989).     Devise  of  settler's  interest. 

Approved  in  McCune  v.  Essig,  199  U.  S.  390,  50  L.  241,  26  Sup. 
Ct.  78,  doctrine  of  relation  not  invocable  to  confer  right  in  land 
under  operation  of  state  laws  on  daughter  of  deceased  homesteader 
against   widow    to    whom   patent    issued;    Cunningham    v.    Krutz,    41 


101  U.  S.  514-557  Notes  on  U.  S.  Reports.  984 

Wash.  197,  S3  Pac.  112,  where  husband  entered  land  as  homestead 
and  made  final  proof  and  obtained  patent,  wife  could  not  devise  un- 
divided half  of  land  in  fee. 

Distinguished  in  O'Connell  v.  Pinnacle  Gold  Mines  Co.,  131  Fed. 
108,  under  Eev.  St.,  §  2322,  on  death  of  mining  locator,  his  unpat- 
ented claims  passed  under  statute  to  administrator  and  not  to 
heirs. 

101  U.  S.  514-521,  25  L.  929,  VANCE  v.  BURBANK. 

Syl.  1  (IX,  989).     Conclusiveness  of  land  decisions. 

Approved  in  Paine  v.  Foster,  9  Okl.  227,  53  Pac.  113,  and  Adams 
V.  Couch,  1  Okl.  35,  26  Pac.  1015,  both  following  rule;  Estes  v.  Tim- 
mons,  199  U.  S.  396,  50  L.  244,  26  Sup.  Ct.  85,  perjury  on  hearing 
before  Land  Department  of  contest  over  entry  under  homestead  laws 
is  not  ground  for  equitable  relief  against  departmental  decision; 
Cook  V.  McCord,  9  Okl.  210,  60  Pac.  500,  applying  rule  to  question 
as  to  whether  or  not  town  lot  abandoned;  Thornton  v.  Peery,  7 
Okl.  447,  54  Pac.  651,  allegation  that  evidence  given  in  contest  be- 
fore Land  Department  does  not  prove  abandonment  is  insufficient  to 
warrant  review  in  equity. 

Syl.  2   (IX,  990).     Impeachment  of  land  decisions. 

Approved  in  Wabash  R.  R.  Co.  v.  Mirrielees,  182  Mo.  143,  81  S. 
W.  442,  refusing  to  set  aside  judgment  at  law  on  ground  that  suc- 
cessful party  therein  committed  perjury  at  trial;  Cummings  v.  Mc- 
Dermid,  4  Okl.  279,  44  Pac.  278,  holding  insufficient  allegations  of 
fraud  in  petition  to  set  aside  award  of  towusite  trustees. 

101  U.  S.  551-555,  25  L.  1026,  NONGUE  v.  CLAPP. 

Syl.  1   (IX,  994).     Annulling  state  judgments  for  fraud. 

Approved  in  Strand  v.  Griffith,  144  Fed.  831,  where,  in  state  fore- 
closure, decree  for  mortgagee  rendered  on  issue  as  to  false  repre- 
sentations of  persons  co-operating  with  mortgagee  in  selling  goods 
as  to  quality  and  value,  mortgagors  could  not  sue  in  federal  court 
to  set  aside  deficiency  judgment  recovered  in  state  court  on  ground 
of  undiseovery  of  fact  that  mortgagee  party  to  fraud. 

101  U.  S.  555-557,  25  L.  961,  DURANT  v.  ESSEX  CO. 
Syl.  2  (IX,  995).     Mandate  of  appellate  court. 

Approved  in  Taylor  v.  Colorado  Iron  Works,  33  Colo.  185,  80  Pac. 
130,  where  district  court  has  entered  judgment  as  directed  by  court 
of  appeals,  such  judgment  is  not  reviewable  by  supreme  court;  State 
V.  Sunapee  Dam  Co.,  72  N.  H.  115,  55  Atl.  900,  applying  principle 
where  court  divided  as  to  ordering  master  to  assess  damages  caused 
by  maintenance  of  dam  so  as  to  deprive  plaintiff  of  use  of  water; 
McClung  V,  Harris,  11  Okl.  65,  65  Pac.  942,  dismissing  appeal  from 


985  Notes  on  U.  S.  Eeports.  101  U.  S.  557-572 

decree   entered  by  district  court  in  accordance  with   mandate   of  ap- 
pellate court. 

101  U.  S.  557-567,  25  L.  892,  SHAW  v.  EAILROAD  CO. 
Syl.  3   (IX,  996).     Title— Sale  of  stolen  bill  of  lading. 
See  105  Am.  St.  Rep.  358,  note. 

Syl.  4  (IX,  996).     Transfer  of  bill  of  lading— Title  to  goods. 

Approved  in  General  Electric  Co.  v.  Southern  Ky.,  72  S.  C.  254, 
110  Am.  St.  Rep.  603,  51  S.  E.  696,  -w^cre  freight  shipped  unaer 
bill  of  lading  with  draft  attached  drawn  by  shipper  and  bill  of  lad- 
ing was  "to  order  of"  shipper,  "notify"  third  party,  carrier  could 
not  deliver  goods  to  such  party  without  surrender  of  bill;  Roy  v. 
Northern  Pac.  Ry.  Co.,  42  Wash.  576,  85  Pac.  54,  act  of  carrier's 
agent  in  delivering  bill  of  lading  for  goods  which  he  knew  were 
not  delivered  to  carrier  docs  not  bind  carrier  as  to  innocent  trans- 
feree. 

Syl.  5  (IX,  997).     Statutes  derogatory  of  common  law. 

Approved  in  Whitfield  v.  Aetna  Life  Ins.  Co.,  144  Fed.  360,  con- 
struing Rev.  St.  Mo.,  1899,  §  7896,  relating  to  defense  of  suicide  in 
actions  on  life  policies;  White  etc.  Pub.  Co.  v.  Apollo  Co.,  139  Fed. 
432,  copyright  of  printed  musical  composition  is  not  infringed  by 
perforated  record  for  use  with  machine  to  play  composition  on  musi- 
cal instrument;  United  Shoe  M.  Co.  v.  Duplessis  etc.  Shoe  Co.,  133 
Fed.  933,  under  Comp.  St.  1901,  p.  589,  suit  against  alien  for  in- 
fringement of  patent  may  be  brought  in  any  district  where  defend- 
ant found.     See  105  Am.  St.  Rep.  338,  note. 

Syl.  6   (IX,  998).     Purchaser  of  stolen  bill  of  lading. 
See  105  Am.  St.  Rep.  357,  note. 

101  U.  S.  567,  568,  25  L.  815,  MERCANTILE  NATIONAL  BANK  v. 
CARPENTER. 

Syl.  1  (IX,  998).     Demurrer  to  bill— Limitations. 

Approved  in  Thurmond  v.  Chesapeake  etc.  Ry.  Co.,  140  Fed.  699, 
following  rule. 

101  U.  S.  570-572,  25  L.  868,  BUTTERFIELD  v.  SMITH. 

Syl.  1  (IX,  999).  Conclusiveness  of  final  account  of  administra- 
tor. 

Approved  in  Whitney  v.  Wenman,  140  Fed.  960,  order  passing 
bankruptcy  receiver's  account,  in  which  he  has  credited  himself 
with  property  surrendered  to  third  persons  who  claim  same,  does  not 
bar  suit  by  trustee  to  recover  same. 


101  U.  S.  577-G09  Notes  on    U.  S.  Reports.  986 

101  U.  S.  577-590,  25  L.  9G3,  WALDEN  v.  SKINNEE. 

Syl. -3   (IX,  1000).     Eeformation   of  instruments — Mistake. 

Approved  in  Carrell  v.  McMurray,  13G  Fed.  670,  where  parties 
agreed  by  parol  to  exchange  farm  for  store,  and  farm  owner  was 
to  retain  possession  and  receive  rents  for  current  year,  but  scrivener 
failed  to  embody  reservation,  deed  reformed  to  embody  actual  agree- 
ment; Johnson  v.  Sherwood,  34  Ind.  App.  507,  73  N.  E.  187,  reform- 
ing deed  and  mortgage  to  show  casement  of  way  over  land  de- 
scribed; Kichmond  v.  Ogden  St.  Ey.  Co.,  41:  Or.  54,  74  Pac.  335,  re- 
forming notes  where  it  wa?  intended  that  notes  given  by  trustees 
should  not  bind  them  personally,  but  by  mistake  in  phraseology 
so  drawn  as  to  make  them  personally  liable. 

Syl.  7  (IX,  1001).  Federal  jurisdiction — Citizenship  of  real  par- 
ties. 

Approved  in  Burrcll  v.  United  States,  147  Fed.  46,  in  action  on 
public  contractor's  bond  given  under  Comp.  St.  1901,  p.  2523,  pres- 
ence of  United  States  as  formal  party  is  insufficient  to  confer  fed- 
eral jurisdiction;  United  States  v.  Churchyard,  132  Fed.  83,  uphold- 
ing federal  jurisdiction  over  action  on  contractor's  bond  given  un- 
der Comp.  St.  1901,  p.  2523,  irrespective  of  citizenship. 

101  U.  S.  591-596,  25  L.  1028,  HOLLINGSWOETH  v.  FLINT. 

Syl.  2  (IX,  1001).     Married  woman's  deed — Acknowledgment. 

Approved  in  American  Bonding  etc.  Co.  v.  Gibson  County,  145 
Fed.  874,  where  judgment  against  building  contractor  and  surety 
reversed  for  failure  to  allege  or  prove  certification  of  claim  by  archi- 
tect, action  not  sustainable  on  amendment  of  declaration  that  certifi- 
cate procured  after  reversal. 

Distinguished  in  Murray  Co.  v.  Continental  Gin  Co.,  149  Fed.  991, 
acknowledgment    of   assignment    of    patent    relates    back    to    date    or 

assignment. 

101  U.  S.  597-601,  25  L.  1019,  BECHTEL  v.  UNITED  STATES. 

Syl.   1   (IX,   1002).     Eemedial  statutes  liberally  construed. 

Approved  in  United  States  v.  Foreman,  5  Okl.  257,  48  Pac.  98, 
one  suing  in  territorial  district  court  exercising  federal  jurisdict-ou 
for  recovery  of  money  paid  for  land  on  which  entry  erroneously  al- 
lowed and  afterward  canceled,  need  not  show  surrender  to  Secretary 
of  Interior  of  duplicate  receipt  and  execution  of  relinquishment  of 
claim  to  land  as  provided  by  Act    Cong.,  June  16,  1880. 

101  U.  S.  601-609,  25  L.  1070,  CEAMPTON  v.  ZABRISKIE. 

Syl.  2  (IX,  1002).     Taxpayers  may  enjoin  county  debt. 

Approved  in  Murray  v.  City  of  Allegheny,  136  Fed.  61,  69  C.  C.  A. 
65,  upholding  suit  by  lot  owner  to  enjoin  conveyance  by  city  for 
private   purposes   of   land   dedicated   as   highway  by   original   plat   by 


ysr  Notes  on  U.  S.  Keports.  101  U.  S.  612-633 

wliieh  lots  sold  so  as  to  yive  lot  owners  aoccss  to  waterfront;  Bates 
V.  Mayor  etc.  of  Nome,  1  Alaska,  212,  upholding  suit  by  taxpayer 
to  enjoin  munieipal  officers  from  paying  expenses  of  election  called 
in  violation  of  law;  Slicrburne  v.  Portsmouth,  72  N.  H.  540,  58  Atl. 
39,  upholding  bill  by  taxpayer  to  enjoin  city  council  from  granting 
public  common  to  individuals  for  baseball  park;  Kellogg  v.  School 
District  No.  10,  13  Okl.  297,  74  Pac.  114,  upholding  injunction  at 
suit  of  taxpayer  to  restrain  school  district  from  contracting  for 
schoolhouse  at  unauthorized  place  and  contracting  liabilities  there- 
for for  which  district  would  be  liable;  Johnson  v.  Bhick,  103  Va. 
484,  106  Am.  St.  Eep.  890,  49  S.  E.  635,  upholding  suit  by  taxpayers 
against  supervisors  to  compel  them  to  restore  to  county  moneys  paid 
them  in  excess  of  their  salaries;  dissenting  opinion  in  Henry  v. 
State,  87  Miss.  89,  39  So.  882,  majority  holding  action  of  penitentiary 
board  of  control  with  relation  to  working  of  convicts  is  not  review- 
able  by  courts  in  absence  of  official  misconduct. 

101  U.  S.  612-621,  25  L.  896,  GATES  v.  GOODLOE. 

Syl.   1    (IX,   1005).     Bankruptcy — Error — Substitution   of  assignee. 

Distinguished  in  Fred  Maccy  Co.  v.  Macey,  135  Fed.  729,  68  C.  C. 
A.  363,  where  amendment  to  siiow  jurisdiction  of  removed  case  could 
not  have  been  made  in  circuit  court,  it  cannot  be  made  on  appeal, 
thougli   parties  consent. 

101  U.  S.  622-633,  25  L.  1030,  JONES  v.  NEW  YORK  GUAEANTY  & 
INDEMNITY  CO. 

Syl.  5  (IX,  1006).     Corporation's  ultra  vires  mortgage — State. 

Distinguished  in  Dunbar  v.  American  Tel.  Co.,  224  111.  31,  79  N. 
E.  430,  minority  stockholders  may  restrain  another  corporation  from 
purchasing  majority  stock  in  their  company  where  object  of'  pur- 
chase was  to  stifle  competition,  acquire  control  of  company  and  de- 
stroy it. 

Syl.  7  (IX,  1006).     Forfeitures  not  favored  in  equity. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  818,  canceling 
oil  and  gas  lease  for  breach  of  covenant  as  cloud  on  title;  Duil  v. 
Gilliland,  135  Fed.  585,  refusing  to  cancel  assignment  of  patent. 

Syl.  8  (IX,  1007).     Parol  to  explain  agent's  contract. 

Approved  in  Stitt  v.  Eat  etc.  Lumber  Co.,  96  Minn.  33,  104  N.  W. 
564,  deed  absolute  may  be  shown  by  parol  to  be  mortgage  to  se- 
cure future  advances  and  performance  of  contract  though  title  not 
in  mortgagor  at  time  and  put  in  name  of  third  party  for  convenience; 
Harlan  Co.  v.  Whitney,  65  Neb.  108,  101  Am.  St.  Eep.  610,  90  N.  W. 
994,  where  deed  by  way  of  mortgage  recites  that  grantee  is  trustee 
for  sureties  on  bond  of  grantor,  parol  evidence  is  admissible  to 
identify  bond  and  sureties. 


101  U.  S.  G33-CG4  Xotcs  on  U.  S.  Keports.  988 

101  U.  S.  633-G37,  25  L.  1072,  MASON  LUMBEE  CO.  v.  BUCHTEL. 

Syl.  3   (IX,  1007).     Review  of  referee's  findings. 

Distinguished  in  United  States  v.  Choctaw  etc.  E.  E.  Co.,  3  Okl. 
462,  464,  41  Pae.  749,  specific  findings  of  fact  entered  on  journal  at 
request  of  one  of  parties,  though  not  made  part  of  record  by  bill  of 
exceptions,  are  part  of  record. 

101  U.  S.  638,  639,  25  L.  1073,  MASON  LUMBER  CO.  v.  BUCHTEL. 

S3'l.  3   (IX,  1008).     Conclusiveness  of  judgment. 

Approved  in  Georgia  R.  etc.  Co.  v.  Wright,  132  Fed.  916,  917, 
where  state  court  decided  in  suit  between  state  and  railroad  that 
charter  created  contract  precluding  tax  in  excess  of  certain  per- 
centage of  net  earnings,  state  is  concluded  in  subsequent  suit  in- 
volving taxes  for  other  year  under  different  statute;  Territory  v. 
Hopkins,  9  Okl.  150,  59  Pac.  981,  decree  determining  validity  of 
bonds  involved  in  statutory  proceeding  is  conclusive  on  all  issues. 

101  U.  S.  641-646,  25  L.  1075,  KENNEDY  v.  CRESWELL. 

Syl.  3   (IX,  1009).     Equity— Plea  found  false. 

Approved  in  American  Graph.  Co.  v.  Leeds  etc.  Co.,  140  Fed, 
981,  burden  of  proof  rests  on  plaintiff  to  support  plea. 

Syl.  7   (IX,  1009).     Recovery  of  assets  by  decedent's  creditors. 

Approved  in  Southern  Pac.  R.  R.  Co.  v.  United  States,  200  U.  S. 
351,  50  L.  511,  26  Sup.  Ct.  296,  refusing  to  dismiss  for  adequacy  of 
law  remedy  where  government  files  bill  to  cancel  patents  erroneously 
granted  to  railroad  and  prays  discovery  of  sales  to  bona  fide  pur- 
chasers. 

Distinguished  in  United  States  v.  Bitter  Root  Development  Co.,  200 
U.  S.  476,  50  L.  562,  26  Sup.  Ct.  318,  denying  equitable  jurisdiction 
over  suit  by  government  for  wrongful  cutting  and  carrying  away 
timber  from  government  land,  though  one  of  defendants  is 
ecutrix  of  insolvent  estate  of  principal  wrongdoer. 


ex- 


3  01  U.  S.  647-664,  25  L.  945,  IMHAEUSER  v.  BUERK. 

Syl.  3   (IX,  1010).     Patent  infringement — Prior  invention. 

Approved  in  Cutler  etc.  Mfg.  Co.  v.  Union  Elec.  Mfg.  Co.,  147 
Fed.  272,  Blades  patent  No.  418,678,  for  electric  switch  for  motors, 
not  anticipated  and  infringed  by  device  of  Keeney  &  Rhine  patent 
No.   777,637. 

Distinguished  in  Central  Foundry  Co.  v.  Coughlin,  141  Fed.  95, 
holding  Coughlin  patent  No.  553,055,  for  foundry  ladle,  not  in- 
fringed. 


989  Notes  on  U.  S.  Eeports.  101  U.  S.  677-692 

101  U.  S.  677-G88,  25  L.  968,  DOUGLASS  v.  COUXTY  OF  PIKE. 

Syl.  3   (IX,  1012).     Change  of  judicial  statutory  construction. 

Approved  in  Lepine  v.  Marrcro,  116  La.  942,  41  So.  217,  registra- 
tion of  act  of  sale,  signed  by  vendor  alone  will  affect  registry  of 
sale. 

Dislinguished  in  Scdalia  v.  Donohue,  190  Mo.  418,  89  S.  W.  389, 
where  Kansas  City  court  of  appeals  decided  that  under  Rev.  St. 
1889,  §  1498,  conferring  power  on  council  to  levy  tax  for  street  im- 
provements, tax  bill  issued  by  clerk  in  pursuance  of  resolution  of 
council  was  valid,  tax  bills  subsequently  issued  by  clerk  are  not 
contracts    impaired    by    subsequent    decision    holding    them    invalid. 

101  U.  S.  6SS-G92,  25  L.  1004,  CASE  v.  BEAUREGARD. 

Syl.  2  (IX,  1014).     Exhaustion  of  legal  remedy,  how  shown. 

Approved  in  Wynian  v.  Wallace,  201  U.  S.  242,  50  L.  741,  26  Sup. 
Ct.  495,  judgment  at  law  on  note  given  by  national  bank  note  not 
necessary  to  suit  by  holder  to  subject  to  its  satisfaction  property 
conveyed  to  trustee  as  security  therefor;  George  v.  Wallace,  135 
Fed.  292,  68  C.  C.  A.  40,  where  assets  of  national  bank  in  liquidation 
put  in  hands  of  defendant,  who  was  trustee  for  another  bank,  which 
assumed  payment  of  creditors,  holder  of  note  given  by  liquidating 
bank  as  part  of  assumption  contract  may  enforce  lien  on  bank's 
assets  and  obtain  administration  of  its  affairs  without  reducing  claim 
to  judgment. 

Distinguished  in  Flournoy  v.  Bullock,  11  X.  M.  104,  106,  66  Pac. 
550.  55  L.  R.  A.  745,  where  partnership  thrown  into  hands  of  re- 
ceiver to  sell  property  and  divide  proceeds  among  creditors,  simple 
contract  creditor  cannot  intervene  and  secure  judgment  against  firm 
and  one  of  members. 

Syl.  3   (IX,  1016).     Res  adjudicata — Correctness  of  decree. 

Approved  in  City  of  Defiance  v.  McGonigale,  150  Fed.  697,  deci- 
sion of  state  court  in  suit  to  enjoin  further  performance  of  contract 
made  by  city  with  water  company,  followed  in  subsequent  federal 
action  by  water  company  to  recover  rentals  under  contract;  Phil- 
brook  V.  Newman,  148  Cal.  175,  82  Pac.  773,  motion  in  supreme  court 
to  vacate  order  vacating  former  order  rendered  nine  years  previ- 
ously affirming  order  denying  new  trial  not  maintainable  on  ground 
that  order  was  wrong  as  to  facts  and  law;  Georgia  R.  R.  etc.  Co. 
V.  Wright,  124  Ga.  603,  53  S.  E.  254,  holding  nonappealing  defend- 
ant estopped  in  subsequent  suit  from  setting  up  matter  which  might 
have  been  pleaded  on  appeal;  Lockhart  v.  Leeds,  12  N.  M.  164,  76 
Pac.  314,  judgment  for  defendant  in  action  to  declare  location  void  for 
fraud  and  violation  of  agreement  to  locate  claim  for  plaintiff  bars 
suit  to  have  property  declared  held  in  trust  for  plaintiff. 

Distinguished  in  Memphis  City  Bank  v.  Smith,  110  Tenn.  360,  75 
S.   W.  1071,  where  in  prior  action  by  defendant  against  plaintiff,  as 


101  U.  S.  693-700  Notes  on  U.  S.  Reports.  990 

indorser  of  note,  latter  pleaded  notes  secured  by  property  wliich 
defendant  sold,  and  that  prior  thereto  plaintiff  tendered  him  amount 
of  debt  and  awarded  release  of  security  which  was  refused,  and 
plaintiff  cross-complained  for  usury  and  judgment  rendered  for 
amount  of  debt  less  usury,  decree  not  res  adjudicata  in  action  for 
conversion  of  property. 

101   U.    S.    693-700,   25   L.    1005,   ANTHONY   v.    COUNTY    OF   JAS- 
PER. 

Syl.  2  (IX,  1017).     Form  of  execution  of  municipal  bonds. 

Approved  in  Frank  v.  Butler  Co.,  139  Fed.  122,  where  Nebraska 
laws  authorized  county  railroad  aid  bonds  on  note  of  people  and 
required  registration  and  certification  of  bonds  by  state  officer,  bonds 
issued  without  certification  and  registration  are  void. 

Syl.  4  (IX,  1017).     Bond  purchaser — Notice  of  law. 

Approved  in  Wright  v.  East  Riverside  Irr.  Dist.,  138  Fed.  319, 
where  bonds  prepared  under  California  irrigation  act  of  1887,  and 
coupons  contained  lithographed  name  of  then  secretary,  and  bonds  de- 
livered eighteen  months  afterward  signed  by  succeeding  secretary, 
but  lithographed  signature  on  coupons  not  changed,  bonds  void;  Sauer 
V.  Gillett,  20  Colo.  App.  371,  78  Pac.  1070,  bonds  payable  on  demand 
issued  under  ordinance  which  did  not  provide  for  tax  levy  are  invalid 
in  hands  of  bona- fide  purchaser,  irrespective  of  recital  that  they  were 
issued  in  compliance  with  law;  City  of  Guthrie  v.  New  Vienna  Bank. 
4  Okl.  217,  38  Pac.  11,  legislature  cannot  require  city  to  pay  debts 
in  excess  of  maximum  limit  fixed  by  laws  of  United  States. 

Syl.  8  (IX,  1018).     Municipal  agent's  authority  limited  by  statute. 

Approved  in  dissenting  opinion  in  Wright  v.  East  Riverside  Irr. 
Dist.,  138  Fed.  325,  majority  holding  where  bonds  prepared  under 
California  irrigation  act  of  1887,  and  coupons  signed  by  then  secre- 
tary, and  bonds  delivered  eighteen  months  afterward,  signed  by 
succeeding  secretary  without  changing  signature  on  coupons,  bonds 
void. 

Syl.   9    (IX,   1019).     Purchasers   of   municipal  bonds — Signatures. 

Approved  in  Wright  v.  East  Riverside  Irr.  Dist.,  138  Fed.  322,  where 
bonds  prepared  under  California  irrigation  act  of  1887,  and  coupons 
contained  name  of  then  secretary,  and  bonds  delivered  eighteen 
months  afterward  signed  by  succeeding  secretary,  but  signature  on 
coupons  not  changed,  bonds  void. 

Distinguished  in  Gage  v.  McCord,  5  Ariz.  234,  51  Pac.  979,  980, 
territorial  bonds  once  dated  and  executed  under  Act  Cong.  June  25, 
1890,  §  4,  may  be  thereafter  negotiated  by  successors  of  loan  com- 
missioners. 


991  Notes  on  U.  S.  Eeports.  101  XJ.  S.  711-744 

101  U.  S.  711-721,  25  L.  872,  EX  PAETE  DENVER  &  EIO  GEANDE 
RY.  CO. 

Syl.  2   (IX,  1020).     Mandamus  to  inferior  court. 

See  98  Am.  St.  Ecp.  890,  note. 

101  U.   S.   721-72G,   25   L.   833,  PIIILLTPS  v.   GILBERT. 

Syl.  2  (IX,  1020).     Mechanic's  lien  against  several  buildings. 

Approved  in  Seattle  Lumber  Co.  v.  Sweeney,  33  Wash.  696,  74 
Pac.  1002,  notice  claiming  lien  on  five  different  buildings  situated  on 
different  lots  and  not  designating  material  furnished  for  each  does 
not  invalidate  lien. 

Distinguished  in  Beach  v.  Stamper,  44  Or.  7,  102  Am.  St.  Rep. 
597,  74  Pac.  209,  subcontractor  furnishing  materials  for  several  build- 
ings under  entire  contract  with  contractor  bound  by  separate  con- 
tracts for  construction  of  separate  buildings  is  not  entitled  to  lien 
on  all  buildings  for  lump  sum  due. 

101  U.  S.  731-744,  25  L.  816,  STEWART  v.  PLATT. 

Syl.  *1   (IX,  1021).     Chattel  mortgage — Place  of   recordation. 

Approved  in  In  re  Brannock,  131  Fed.  821,  823,  recital  in  chattel 
mortgage  of  residence  of  mortgagor  is  not  evidence  of  his  residence 
to  determine  proper  place  of  recordation;  First  Nat.  Bank  v.  Beley, 
32  Mont.  296,  80  Pac.  258,  affidavit  of  renewal  stating  requisite  facts, 
including  averment  of  good  faith,  does  not  validate  chattel  mortgage 
originally  void  as  to  attaching  creditors  because  of  want  of  affidavit 
of  good  faith;  Pierson  v.  Hickey,  16  S.  D.  49,  91  N.  W.  340,  chattel 
mortgage  not  filed  as  required  by  Comp.  Laws,  §  4379,  is  void  as 
against  execution  levied  on  mortgage  property,  though  debt  on  which 
judgment  recovered  existed  prior  to  mortgage. 

Distinguished  in  In  re  Brannock,  131  Fed.  823,  under  Code  Iowa,  § 
2906,  mortgage  given  by  railroad  contractor  on  property  in  his  pos- 
session in  county  where  he  is  at  work,  and  in  which  he  resides  while 
performing  contract,  is  properly  recorded  there,  though  residence 
there  only  temporary. 

Syl.  3   (IX,   1022).     Bankruptcy— Title  of  assignee— Equities. 

Approved  in  York  Mfg.  Co.  v.  Cassell,  201  U.  S.  352,  50  L.  785, 
26  Sup.  Ct.  481,  adjudication  in  bankruptcy  does  not  operate  as  lien 
in  favor  of  trustee  as  against  conditional  vendor  of  property,  be- 
cause of  nonfiling  of  contract  as  required  by  Ohio  Eev.  St.,  §  4155; 
Thompson  v.  Fairbanks,  196  U.  S.  526,  49  L.  586,  25  Sup.  Ct.  306, 
enforcement  of  inchoate  lien  of  valid  chattel  mortgage  covering  after- 
acquired  property  by  taking  possession  with  knowledge  of  contem- 
plated bankruptcy  is  not  voidable  preference;  In  re  Cramond,  145 
Fed.  976,  persons  performing  labor  for  city  contractor,  who  there- 
after became   bankrupt,   having   filed   np   notice   of  lien   under   N.   Y. 


101  U.  S.  745-754  Notes  on  U.  S.  Reports.  992 

Laws  1S97,  §  12,  p.  520,  §  17,  p.  522,  have  no  lien  on  amount  due 
from  city  to  contractor;  In  re  Beede,  138  Fed.  453,  Bankr.  Act  1S98, 
§  67,  applies  to  judgments  obtained  by  creditors  of  bankrupt  subse- 
quent to  adjudication  where  action  had  been  commenced  prior  to 
institution  of  bankruptcy  proceedings;  In  re  Prince,  131  Fed.  552, 
where  sale  of  bankrupt's  realty  made  subject  only  to  first  mortgage, 
proceeds  of  sale  should  be  applied  to  other  liens  to  exclusion  of  costs 
of  administering  bankrupt's  estate;  Butson  v.  Home  Savings  &  Trust 
Co.,  129  Iowa,  378,  105  N.  W.  648,  where  building  association  paid 
loan  of  $300,  made  to  defendant  by  another  society  by  paying  dif- 
ference between  original  loan  and  withdrawal  value  of  defendant's 
stock,  and  defendant  treated  as  borrower  of  $300,  association  could 
not  charge  defendant  with  greater  loan  than  cash  actually  paid  other 
society;  Brunuemer  v.  Cook,  180  N.  Y.  191,  73  N.  E.  20,  chattel  mort- 
gage improperly  filed  is  valid  as  against  mortgagor's  bankruptcy's 
trustee;  Christ  v.  Zehner,  212  Pa.  192,  61  Atl.  823,  where  bill  of 
sale  given  to  secure  loan,  but  possession  of  goods  not  taken,  and 
later,  within  four  months  of  bankruptcy,  bill  indorsed  to  effect  that 
loan  still  due  and  that  possession  given  vendor,  there  was  no  unlawful 
.preference;  dissenting  opinion  in  Blackman  v.  Baxter,  125  Iowa,  130, 

100  N.  W.  79,  70  L.  R.  A.  250,  majority  holding  administrator  may 
insist  that  chattel  mortgage  executed  by  decedent  while  insolvent  is 
void  as  to  creditor  because  not  recorded  till  after  decedent's  death. 
See  104  Am.  St.  Eep.  913,  note. 

Distinguished  in  In  re  Noel,  137  Fed.  703,  where  several  mortgages, 
first  to  secure  loan  and  rest  to  secure  renewals,  were  not  recorded 
within  time  required  by  statute,  so  as  to  uphold  mortgagor's  credit, 
last  of  series,  though  recorded,  is  void  as  to  mortgagor's  bankruptcj' 
trustee;  Skilton  v.  Codington,  185  N.  Y.  88,  77  N.  E.  792,  chattel 
mortgage  not  filed  till  five  years  after  execution  is  void  as  against 
bankruptcy  trustee  of  mortgagor. 

Syl.   6    (IX,  1023).     Bankruptcy — Exchange  of  securities. 

Approved  in  In  re  Cutting,  145  Fed.  390,  renewal  mortgage  not 
preference  in  act  of  bankruptcy,  though  it  includes  additional  prop- 
erty where  mortgagor  receives  further  present  consideration;  In  re 
Noel,  137  Fed.  700,  where  valid  mortgage  given  as  security  for  pres- 
ent loan,  fact  that  new  mortgage  on  same  property  given  within  four 
months  of  mortgagor's  bankruptcy  does  not  make  mortgage  voidable 
as  preference. 

101  U.  S.  745-754,  25  L.  1040,  GODDARD  v.  ORDWAY. 

Syl.  3   (IX,  1024).     Court's  power  during  term. 

Approved  in  Mackenzie  v.  Pease,  146  Fed.  744,  circuit  court  of 
appeals  may,  during  term,  vacate  order  allowing  appeal  inadvertently 
entered. 


993  Notes  on  U.  S.  Eeports.  lOi   U.  S.  755-797 

101  U.  S.  755-772,  25  L.  915,  WOLSEY  v.  CHAPMAX. 

Syl.   1    (IX,   1024).     Public   lands    reserved   from    sale. 

Approved  in  United  States  v.  Tully,  140  Fed.  902,  determining 
whether  lands  in  military  reservation  were  legally  reserved  so  as  to 
give  federal  court  jurisdiction  over  murder  committed  thereon;  North- 
ern Lumber  Co.  v.  O'Brien,  139  Fed.  617,  Northern  Pacific  grant  of 
18G4  did  not  embrace  lands  reserved  by  land  office  for  satisfaction  of 
prior  grant,  though  lands  subsequently  became  "public  lands"; 
Behrends  v.  Goldsteen,  1  Alaska,  524,  portion  of  public  lands  in 
Alaska  set  apart  by  order  of  Secretary  of  Navy  and  used  for  pur- 
poses of  Navy  Department  constitute  valid  reservation  by  execution; 
State  V.  Tully,  31  Mont.  382,  78  Pac.  766,  denying  state  jurisdiction 
over  homicide  committed  on  portion  of  lands  of  Ft.  Missoula  Eeser- 
vation. 

101  U.   S.   773-781,  25  L.  925,  LITCHFIELD   v.   COUNTY   OF  WEB- 
STER. 

Syl.  5   (IX,  1026).     Taxation— Interest. 

Cited  in  State  v.  Chicago  etc.  Ky.  Co.,  128  Wis.  518,  108  N.  VJ. 
614,  arguendo. 

101  U.  S.  782-789,  25  L.  1044,  YOUNG  v.  BEADLEY. 

Syl.   1    (IX,   1027).     Nature   and   duration   of   trust. 

Approved  in  Brillhart  v.  Mish,  99  Md.  458,  58  Atl.  31,  where  owne» 
of  curtesy  in  land  of  deceased  wife  deeds  his  life  estate  in  trust 
for  his  life  to  one  to  manage  and  pay  for  his  support  out  of  profits, 
trustee  could  not  contest  partition  among  remaindermen  free  from 
life  estate  where  grantor  consented  thereto;  Graham  v.  Whitridge, 
99  Md.  293,  58  Atl.  38,  66  L.  E.  A.  408,  where  life  tenants  in  legal 
life  estate  under  will  are  entitled  to  vested  remainders  in  property, 
life  tenant  take  absolute  estate;  Angle  v.  Marshall,  55  W.  Va.  680.  47  S. 
E.  886,  where  OT\Tier  of  life  estate  deeds  it  to  A  in  trust  to  manage  sama 
for  grantor's  benefit,  subsequent  conveyance  of  life  estate  by  grantor 
terminated  A 's  trust.     See  100  Am.  St.  Eep.  103,  note. 

101  U.  S.   791-797,  25  L.  921,  WEIGHT  v.  NAGLE. 

Syl.  4   (IX,  1029).     Franchise  monopolies  not  presumed. 

Approved  in  Water  etc.  Co.  v.  City  of  Hutchinson,  144  Fed.  !!6.5, 
under  Kansas  laws,  city  of  second  class  cannot  grant  exclusive  right 
for  term  to  company  to  use  streets  to  supply  water  and  gas  to  city 
and  inhabitants;  In  re  Spease  Ferry,  138  N.  C.  221,  50  S.  E.  625, 
upholding  Laws  1S95,  p.  295,  authorizing  certain  persons  to  estab- 
lish ferry  at  certain  point  for  thirty  years,  and  making  it  unlawful 
for  any  one  to  establish  other  ferry  within  mile  and  a  half  thereof. 
G3 


101  U.  S.  797-821  Notes  on  U.  S.  Reports.  994 

101  U.  S.  797-810,  25  L.  1021,  TRENIER  v.  STEWART. 

Syl.  5   (IX,  1030).     Spanish  grant — Perfect  title  at  cession. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  633,  72  Pac.  32,  holding 
congressional  confirmation  of  Mexican  grant  is  adjudication  of  per- 
fect title  to  whole  of  land. 

101  U.  S.  810-813,  25  L.  875,  DUNCAN  v.  GEGAN. 

Syl.   1    (IX,   1030).     Removal — Proceedings   in   federal   court. 

Approved  in  Hatcher  v.  Hendrie  etc.  Supply  Co.,  133  Fed.  269,  68 
C.  C.  A.  19,  lien  obtained  by  attachment  in  state  court  not  lost  by 
removal;  Bryce  v.  Southern  Ry.  Co.,  129  Fed.  967,  where  at  time 
of  filing  removal  petition  motion  to  make  complaint  more  definite 
was  pending,  motion  was  transferred  to  federal  court  with  record 
to  be  there  determined;  Kipp  v.  Burton,  29  Mont.  102,  101  Am.  St. 
Rep.  544,  74  Pac,  87,  63  L.  R.  A.  325,  execution  issued  without  eeal 
of  court  is  voidable  only. 

101  U.  S.  814-821,  25  L.  1079,  STONE  v.  MISSISSIPPI. 

Syl.  2   (IX,  1031).     Police  power  not  contractable. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  481,  50  L.  279,  20 
Sup.  Ct.  127,  obligations  of  agreement  to  remove  existing  dam  from 
navigable  stream  not  impaired  by  subsequent  stati\te  to  subserve  drain- 
age of  lowlands,  authorizing  construction  of  dam  by  persons  makir.tr 
agreement;  New  Orleans  Gaslight  Co.  v.  Drainage  Commission,  197 
U.  S.  460,  49  L.  835,  25  Sup.  Ct.  471,  upholding  imposition  on  gns 
company  of  cost  of  changes  in  location  of  pipes  in  streets,  necessitatdl 
by  construction  of  drainage  system  though  it  had  exclusive  franchise ; 
Grainger  v.  Douglas  Park  Jockey  Club,  148  Fed.  541,  upholding  Ken- 
tucky act  of  1906,  creating  state  racing  commission  and  regulating 
racing  of  running  horses;  Louisville  v.  Wehmhoff,  116  Ky.  848,  79  S. 
W.  202,  upholding  city  ordinance  forbidding  transmission  to  poolroom 
operator  of  messages  intended  to  be  used  in  pool-selling  business,  though 
messages  come  from  other  state;  State  v.  Hyman,  98  Md.  614,  57  Atl. 
8,  64  L.  R.  A.  637,  upholding  act  of  1902,  regulating  sweating  system ; 
Van  Cleve  v.  Passaic  Valley  Sewerage  Commrs.,  71  N.  J.  L.  224,  58 
Atl.  587,  acts  under  which  city  of  Paterson  authorized  to  empty  sew- 
age into  Passaic  river  are  revocable  at  will  of  legislature;  Norfolk 
etc.  R.  R.  Co.  V.  Commonwealth,  103  Va.  293,  49  S.  E.  40,  state  cor- 
poration commission  may  fix  charges  for  placing  cars  on  track  scales 
in  connection  with  spur  tracks;  Petersburg  v.  Petersburg  Aqueduct  Co., 
102  Va.  659,  47  S.  E.  849,  city  may  prohibit  water  company,  chartered 
when  city  sparsely  settled  and  which  had  never  attempted  to  extend 
system  from  digging  up  streets  in  extending  limits. 

Syl.  3   (IX,  1032).     Scope  of  police  power. 

Approved  in  State  v.  Robb,  100  Me.  185,  60  Atl.  876,  upholding  ordi- 
nance prohibiting  removal  of  house  offal  by  any  but  person  authorized 
BO  to  do;  Ex  i^arte  Boyce,  27  Nev.  340,  75  Pac.  6,  665  L.  R.  A.  47,  up- 


995  Notes  on  U.  S.  Eeporta.  102  U.  S.  1-14 

holding  act  of  1903,  providing  eight-hour  work  day  in  minos,  smelters 
and  ore-mills;  Wallace  v.  Mayor  etc.  of  Eeno,  27  Nev.  81,  73  Pac.  531, 
63  L.  E.  A.  337,  upholding  provision  of  Eeno  charter  authorizing  city 
board  to  revoke  and  discontinue  business  licenses  where  there  is  reason 
to  believe  business  is  nuisance  or  menace  to  health  or  morals;  Sandys 
V.  Williams,  4G  Or.  337,  80  Pac.  646,  upholding  ordinance  prohibiting 
sale  of  liquor  in  private  rooms  or  alcoves  connected  with  saloons.  See 
104  Am.  St.  Eep.  638,  note. 

101  U.  S.  832-835,  25  L.  973,   SOUTH  &  NOETII  ALABAMA  E.  E. 
CO.  V.  ALABAMA. 

Syl.   1   (IX,  1035).     Obligation  of  contracts — Eepcal  of  statute. 

Approved  in  In  re  Iloople,  179  N.  Y.  312,  72  N.  E.  230,  right  to 
refund  amount  of  transfer  tax  illegally  assessed  is  barred  if,  at  time 
demand  for  refund  made,  action  for  same  would  be  barred  as  between 
private  parties. 

101  U.  S.  837-890,  25  L.  1081,  HOWAED  v.  MILWAUKEE  ETC.  EY. 
CO. 

Syl.   4    (IX,    103G).      Writ   of   assistance. 

Approved  in  Fox  v.  Stubenrauch,  2  Cal.  App.  94,  83  Pac.  84,  where 
complaint  averred  the  defendant  whose  name  changed  in  judgment  was 
in  possession  and  at  hearing  of  application  for  writ  of  assistance  it 
appeared  that  persons  named  in  judgment  and  in  deed  made  pendente 
lite,  grantee  of  defendant  cannot  defeat  writ. 


CII  UNITED  STATES. 


102  U.  S.  1-14,  26  L.  59,  MYER  v.  WESTERN  CAE  CO. 

Syl.  1   (IX,  1037).     Mortgage  of  after-acquired  property. 

Approved  in  Tilford  v.  Atlantic  Match  Co.,  134  Fed.  927,  holder  of 
corporation's  bonds  secured  by  trust  mortgage  executed  prior  to  cor- 
poration's purchase  of  boiler  under  conditional  contract  of  sale  re- 
serving title  till  price  paid  was  not  subsequent  mortgage  within  statute 
making  conditional  contracts  of  sale  not  recorded  void  as  to  subsequent 
mortgagors. 

Syl.  3  (IX,  1037).     Construction  of  Revised  Statutes. 

Approved  in  Schmidt  v.  United  States,  133  Fed.  201,  6G  C.  C.  A. 
389,  one  swearing  falsely  in  naturalization  proceeding  in  stiite  court 
may  be  indicted  in  federal  court  under  Comp.  St.  Supp.  1903,  p.  191. 


102  U.  S.  14-79  Notes  on  U.  S.  Reports.  996 

102  U.  S.   14-59,  26  L.  61,  BROOKLYN    CITY  ETC.    R.    R.    CO.    ▼. 
NATIONAL  BANK  OF  THE  REPUBLIC. 

Syl.  1   (IX,  1039).     Judgment  against  indorser  as  barring  maker. 

Approved  iu  Australian  Knitting  Co.  v.  Gormly,  138  Fed.  97,  manu- 
facturer of  infringing  article  who  assists  purchaser  from  him  in  de- 
fending suit  for  infringement  by  use  of  article,  but  who  is  not  party 
of  record,  is  not  estopped  by  decree  from  setting  up  new  defenses 
against  validity  of  patent  in  suit  against  him. 

Syl.   2    (IX,   1039).     Judgment   as   estoppel. 

Approved  in  Morrison  v.  Atkinson,  16  Okl.  576,  85  Pac.  473,  where 
party  asserts  legal  rights  in  district  court  and  assumes  certain  position, 
he  is  estopped  from  denying  legality  of  that  position  on  appeal. 

Syl.  3    (IX,  1039).     Notes — Transfer  before  maturity. 

Approved  in  Birket  v.  Elward,  68  Kan.  300,  302,  74  Pac.  1101,  1102, 
64  L.  R.  A.  568,  following  rule;  Iowa  Nat.  Bank  v.  Sherman,  17  S.  D. 
406,  106  Am.  St.  Rep.  778,  97  N.  W.  15,  application  of  proceeds  of 
negotiable  note  to  credit  of  transferrer  on  existing  debt  is  suf3Eicient 
consideration  to  constitute  transferee  bona  fida  holder. 

Syl.  11  (IX,  1043).     Holder  of  note  for  antecedent  debt. 

Approved  in  Gamble  v.  Rural  Ind.  School  Dist.,  132  Fed.  522,  one  ob- 
taining school  district  bond  in  payment  for  services  rendered  and  to  be 
rendered,  and  which  were  rendered  to  full  value  of  bond,  is  innocent 
holder  for  value  where  bond  not  due  and  showed  nothing  on  face  to 
show  invalidity;  Tollman  v.  Quincy,  129  Fed.  975,  where  defendant's 
note  transferred  to  plaintiff  before  maturity  in  settlement  of  pending 
suit,  plaintiff's  counsel  being  told  that  it  had  been  given  by  maker 
to  payee  in  settlement  of  account  between  them,  it  is  no  defense  that 
note   was  accommodation  paper. 

102  U.  S.  68-79,  26  L.  79,  KIRK  v.  HAMILTON. 

Syl.   1    (IX,   1045).     Ejectment — Equitable   estoppel  as  defense. 

Approved  in  Campbell  v.  Golden  Cycle  Min.  Co.,  141  Fed.  616,  es- 
toppel in  pais  forms  no  basis  for  restraining  prosecution  of  action  at 
law;  South  Penn.  Oil  Co.  v.  Calf  Creek  etc.  Co.,  140  Fed.  514,  where 
two  law  actions  pending  against  same  defendant  for  damages  for  taking 
oil  from  land,  one  by  land  owner  and  other  by  lessee,  and  rights  of  plain- 
tiffs as  between  themselves  are  uncertain  under  lease,  and  defense  to  both 
actions  is  estoppel  in  pais,  equity  has  jurisdiction  of  suit  by  defendant 
against  both  plaintiffs  to  determine  entire  matter;  Anglo-American 
Land  etc.  Co.  v.  Lombard,  132  Fed.  733,  68  C.  C.  A.  89,  estoppel  in  pais 
is  available  as  defense  to  action  at  law  to  enforce  stockholder's  liability; 
Hoge  V.  Fidelity  etc.  Co.,  103  Va.  11,  12,  48  S.  E.  495,  where  complain- 
ant had  defense  of  equitable  estoppel  to  debt  sued  on  but  neglected  to 
make  defense  to  action  at  law,  he  could  not  thereafter  enjoin  collection 
of  judgment  on  ground  of  such  estoppel. 


997  Notes  on  U.  S.  Reports.  102  U.  S.  79-120 

Syl.  2   (IX,  1046).     Estoppel  by  silence. 

Approved  in  Cheatham  v.  Edgefield  INIfg.  Co.,  131  Fed.  121,  facts 
constituting  equitable  estoppel  are  pleadable  as  defense  to  ejectment 
in  federal  court;  American  Freehold  etc.  Co.  v.  Walker,  119  Ga.  343, 
46  S.  E.  427,  where  one  as  agent  for  another  signs  deed,  he  is  estopped 
from  asserting  against  grantee  any  adverse  right  based  on  interest 
outstanding  in  agent  at  time   of   deed. 

102  U.  S.  79-81,  26  L.  48,  GAY  v.  ALTER. 

Syl.   1    (IX,  1047).     Rescission  of  installment  contract. 

Approved  in  Pierce  v.  Staub,  78  Conn.  467,  62  Atl.  703,  3  L.  E.  A. 
(N.  S.)  785,  vvfhere  contract  of  sale  providing  for  installment  payment 
contained  no  forfeiture  clause  and  seller  resold  property  after  failure 
of  payments,  buyer  could  recover  money  paid;  Buskirk  Bros.  v.  Peck, 
57  W,  Va.  372,  50  S.  E.  437,  refusing  to  assert  forfeiture  under  con- 
tract for  sale  of  timber  to  be  cut  and  removed  in  certain  time  an! 
measured  and  paid  for  each  month,  before  removal,  by  purchaser  o! 
else  latter  shall  forfeit  title  to  timber,  where  seller  allows  timber  to  be 
cut  without  measurement  or  payment. 

102  U.  S.  81-95,  26  L.  83,  MENASHA  v.  HAZARD. 

Syl.   3    (IX,   1047).     Railroad   aid — Consolidation   of   road. 

Approved  in  Jones  v.  Missouri-Edison  El.  Co.,  135  Fed.  157,  stock- 
holder in  one  of  two  consolidated  corporations  cannot  sue  in  equity 
to   avoid   consolidation. 

Distinguished  in  Jones  v.  Missouri-Edison  Elec.  Co.,  144  Fed.  775, 
minority  stockholder  may  for  fraud  sue  to  avoid  act  of  consolidation 
and  to  restore  to  corporation  property  transferred  to  consolidated  com- 
pany. 

102  U.  S.  108-112,  26  L.  92,  GIDDINGS  v.  NORTHWESTERN  MUT. 
LIFE    INS.    CO. 

Syl.  1   (IX,  1049).     Insurance — Payment  of  premium. 

Approved  in  Sterling  v.  Head  Camp  etc.  Woodmen  of  World,  28 
Utah,  521,  522,  80  Pac.  3S0,  where  benefit  certificate  never  delivered 
to  insured"  nor  signed  by  local  officers  of  lodge  as  provided  for  by  by- 
laws,  contract  was  inoperative. 

102  U.  S.  112-118,  26  L.  93  PEARCE  v.  MULFORD. 

Syl.  2  (IX,  1049).     Patent  for  improvement. 

Approved  in  New  York  Belting  etc.  Co.  v.  Sierer,  149  Fed.  768,  hold- 
ing void  Furness  &  Watts  patent  No.  527,961,  for  interlocking  tiles. 

102  U.  S.  120,  26  L.  58,  PITTSBURG  ETC.  RY.  CO.  v.  HECK. 

Syl.  1    (IX,  1050).     Ruling  on  new  trial  not  reviewable. 

Approved  in  Newport  etc.  Ry.  etc.  Co.  v.  Yount,  136  Fed.  590,  69 
C.  C.  A.  363,  Southern  Pac.  Co.  v.  Maloney,  136  Fed.  173,  69  C.  C.  A. 


102  U.  S.  121-144  Notes  on  U.  S.  Reports.  998 

83,   and   United   Engineering   etc.   Co.   v,   Broadnax,    136   Fed.    353,   69 
C.  C.  A.  177,  all  following  rule. 

Syl.   2    (1051).     Appeal — Exceptions   taken  at  trial. 
Approved  in  National  Bank  v.-  Schufelt,  145  Fed.  510,  where  no  ex- 
ception taken  to  ruling  on  admission  of  evidence,  objection  waived. 

102  U.  S.  121-122,  26  L.  95,  HAYES  v.  FISCHER. 

Syl.  2    (IX,  1052).     Review  of  contempt — Violation  of  injunction. 

Approved  in  Heinze  v.  Butte  etc.  Min.  Co.,  129  Fed.  279,  63  C.  C.  A. 
388,  where  one  convicted  for  violation  of  injunction  issued  in  equity 
suit  filed  in  aid  of  action  at  law,  judgment  of  contempt  not  reviewable 
on  error;  Bullock  El.  etc.  Co.  v.  Westinghouse  El.  etc.  Co.,  129  Fed. 
106,  63  C.  C.  A.  607,  judgment  of  conviction  for  contempt  in  violat- 
ing injunction  is  reviewable  on  error  and  not  by  appeal. 

Distinguished  in  In  re  Christensen  Engineering  Co.,  194  U.  S.  460,  48 
L.  1074,  24  Sup.  Ct.  729,  error  lies  from  circuit  court  of  appeals  to 
review  order  of  circuit  court  adjudging  defendant  in  infringement  suit 
guilty  of  contempt  in  disobeying  preliminary  injunction;  Bessette  v. 
\V.  B.  Conkey  Co.,  194  U.  S.  332,  334,  48  L.  1003,  24  Sup.  Ct.  665, 
order  of  circuit  court  finding  one  not  party  to  suit  guilty  of  con- 
tempt in  violating  injunction  is  reviewable  by  circuit  court  of  appeals 
on  error. 

102  U.  S.  123-128,  26  L.  103,  TIERNAN  v.  RINKER. 

Syl.    1    (IX,    1053).     Taxing   liquor    dealers — Exceptions. 

Approved  in  Cox  v.  Texas,  202  U.  S.  451,  50  L.  1101,  26  Sup.  Ct. 
671,  upholding  Texas  statute  taxing  liquor  dealers  and  exempting 
producers  or  manufacturers  of  domestic  wines  while  wines  are  in  their 
hands;  Hart  v.  State,  87  Miss.  179,  39  So.  525;  upholding  Code  1892, 
§  1604  making  it  misdemeanor  to  act  as  agent  of  either  seller  or 
buyer  in  effecting  unlawful  sale  of  liquor  where  sale  prohibited; 
Douthit  V.  State,  36  Tex.  Civ.  397,  82  S.  W.  353,  upholding  statute 
regulating  sale  of  liquor  and  ])roviding  that  it  shall  not  apply  to 
wines  produced  from  grapes  grown  in  state  while  in  hands  of  pro- 
ducers. 

Syl.  2    (IX,  1053).     State  tax  on  sale  of  foreign  liquor. 

Approved  in  Ex  parte  Deeds,  75  Ark.  545,  87  S.  W.  1031,  holding 
void  Kirby's  Dig.,  §  6886,  prohibiting  peddling  of  certain  articles  with- 
out license,  but  providing  that  it  shall  not  apply  to  resident  of  county. 

102  U.  S.  135-144,  26  L.  96,  NEW  ORLEANS  ETC.  R.  R.  CO.  v.  MIS- 
SISSIPPI. 

Syl.    1    (IX,    1055).     Removal — State   jurisdiction   after   petition. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co., 
196  U.  S.  244,  49  L.  464,  25  Sup.  Ct.  251  upholding  removal  of  con- 
demnation   proceeding    brought    under    Kentucky    statute;    Boatmen's 


999  Notes  on  U.  S.  Reports.  102  U.  S.  145-167 

Bank  v.  Fritzlen,  135  Fed.  653,  68  C.  C.  A.  288,  where  improper  party 
joined  or  show  cause  of  action  injected  into  case,  simply  to  defeat 
federal   jurisdiction,    court   will    not    remand. 

102  U.  S.   145-148,  26  L.  53,  LANGFORD  v.  MONTEITH. 

Syl.    1    (IX,   1059).      Indian   treaties — Tax  on   Indian  lands. 

Approved  rn  Gay  v.  Thomas,  5  Okl.  12,  46  Pac.  582,  upholding  taxa- 
tion of  cattle  of  white  men  grazed  on  Indian  reservations  under  leases 
trom  Indians;  Keokuk  v.  Ulam,  4  Okl.  13,  38  Pac.  1083,  upholding 
taxation  of  personalty  of  Indians  by  county  into  which  reservation 
is   included,   wliere   Indians   have   taken   allotments. 

102  U.  S.  148-161,  26  L.  106,  GRAHAM  v.  LA  CROSSE  ETC.  R.  R.  CO. 

Syl.    1    (IX,    1060).     Sale   by   insolvent   corporation. 

Approved  in  Heineman  v.  Marshall,  117  Mo.  App.  553,  92  S.  W. 
1133,  where  officers  of  beneficial  association  transferred  control  of  as- 
sociation and  surrendered  offices  to  others  for  money,  subsequent  cred- 
itor could  not  recover  proceeds  of  transaction  from  delinquent  officers ; 
Home  Fire  Ins.  Co.  v.  Barber,  67  Neb.  660,  108  Am.  St.  Rep.  730,  93 
N.  W.  1030,  subsequent  stockholders  "cannot  sue  to  attack  prior  mis- 
management of  corporation. 

Distinguished  in  dissenting  opinion  in  Heineman  v.  Marshall,  117  Mo. 
App.  559,  92  S.  W.  1135,  majority  holding  where  officers  of  beneficial 
society  transferred  control  of  society  and  surrendered  offices  to  others 
for  money,  subsequent  creditors  could  not  recover  money  from  delin- 
quent officers. 

Syl.  5    (IX,   1062).     Insolvent  corporation's  assets   trust  fund. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776,  where 
manufacturing  corporation  contracted  with  board  of  trade  to  sell  it 
shares  at  less  than  par,  and  latter  was  to  furnish  free  building  site, 
stock  not  liable  to  assessments  for  beneSt  of  creditors  of  corporation-, 
Jacobs  V.  Mexican  Sugar  Co.,  130  Fed.  592,  suit  "by  stockholder  of  in- 
solvent corporation  for  its  dissolution  is  within  federal  equity  juris- 
diction where  such  remedy  is  given  stockholder  by  state  statute;  City 
Nat.  Bank  v.  Goshen  Woolen  Mills  Co.,  35  Ind.  App.  579,  69  N.  E. 
211,  creditors  of  insolvent  corporation  may  complain  of  acts  of  di- 
rectors in   making  unlawful  preferences. 

102  U.  S.  163-167,  26  L.  Ill,  POTTER  v.  THIRD  NATIONAL  BANK. 

Syl.   3    (IX,   1064).     Party  as  witness. 

Approved  in  Smith  v.  Au  Gres  Twp.,  150  Fed.  263,  witness  may 
testify  after  death  of  bankrupt  to  admissions  made  by  bankrupt  con- 
cerning his  estate  while  he  was  yet  owner  thereof;  Russell  v.  Russell, 
129  Fed.  441,  widow  may  testify  with  respect  to  making  antenuptial 
agreement  in  suit  to  recover  her  dower  in  husband's  estate,  to  which 
executors   only  nominal  parties. 


102  U.  S.  167-207  Notes  on  U.  S.  Eeports.  1000 

102  U.  S.  167-176,  26  L.  126,  IVANHOE  MINING  CO.  v.  KEYSTONE 
CONSOLIDATED  MINING  CO. 

Syl.   1    (IX,   1065).      School  land   grant   to   state. 
Approved  in  State  v.  Trustees,  47  Pla.  319,  35   So.   992,  construing 
act  of   1845,  granting  school  lands  to   Florida. 

Syl.   2    (IX,   1065).     School  lands— Indemnity. 

Approved  in  Gonzales  v.  French,  4  Ariz.  82,  33  Pac.  503,  504,  where 
settlers  in  school  section  failed  to  assert  pre-emption  claim  after  survey, 
but  sold  possessions,  purchaser  acquired  no  rights. 

102  U.  S.  177-180,  26  L.  129,  JIFKINS  v.  SWEETZER. 

Syl.   1    (IX,  1066).     Removal— Time  to  file  petition. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  485,  Rev.  St.,  §  641,  re- 
lating to  removals,  applies  where  by  rulings  in  prior  trials  of  same  in- 
dictment defendant  discriminated  against  in  selection  of  jurors  and 
under  judicial  rules  coiirt  refused   evidence   to   prove   discrimination. 

102  U.  S.  183-186,  26  L.  43,  EX  PARTE  PERRY. 

Syl.  1   (IX,  1067).     Mandamus  to  inferior  court. 

Approved  in  Barber  Asphalt  etc.  Co.  v.  Morris,  132  Fed.  955,  67 
L.  R.  A.  761,  66  C.  C.  A.  55,  granting  mandamus  commanding  circuit 
judge  to  vacate  order  staying  action  on  claim  against  city  pending 
appellate  proceedings  in  state  court. 

102  U.  S.   200-203,  26  L.   145,   THE  CLARA. 

Syl.  1   (IX,   1068).     Collision — Conclusiveness  of  findings. 

Approved  in  Wiser  v.  Lawler,  7  Ariz.  183,  62  Pac.  700,  applying  prin- 
ciple on  equity  appeal. 

Syl.  2   (IX,  1068).     Collision — Anchored  vessel  without  watch. 

Approved  in  The  City  of  Birmingham,  138  Fed.  559,  holding  dredge 
anchoring  at  night  in  center  of  narrow  channel  near  sharp  bend  liable 
for  collision. 

Syl.  4   (IX,  1069).     Collision— Damages— Fault, 

Approved  in  The  Jumna,  149  Fed.  173,  holding  evidence  showed  lack 
of  negligence  on  part  of  vessels  in  collision,  and  that  collision  due  to 
inevitable   accident. 

102  U.  S.  203-207,  26  L.  132,  LOUISIANA  v.  NEW  ORLEANS. 

Syl.  1   (IX,  1069).     Meaning  of  obligation  of  contract. 

Approved  in  Ex  parte  Folsom,  131  Fed.  503,  holding  void  S.  C.  con- 
stitutional amendment  of  1902  to  Const.  1895,  art.  7,  §  11,  abolishing 
certain  townships  which  had  issued  bonds  in  payment  of  railroad  stock 
as  authorized  by  statute;  Smith  v.  Jennings,  67  S.  C.  337,  45  S.  E. 
826,  joint  resolution  requiring  state  treasurer  to  write  off  books  as 
obligations  of  state  certain  past  due  bonds  is  not  law  impairing  con- 
tract  obligatioT'A 


1001  Notes  on  U.  S.  Reports.  102  U.  S.  214-247 

Syl.  2   (IX,  1069).     Impairment  of  contracts — Eetarding  enforcement. 

Approved  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  392,  holding 
void,  as  against  contracts  made  prior  to  passage,  Kansas  act  of  1898, 
substituting  suit  in  equity  by  receiver  to  be  appointed  after  judgment 
against  corporation,  for  individual  action  by  creditor  to  enforce  stock- 
holder's liability;  Myers  v.  Knickerbocker  Trust  Co.,  139  Fed.  116, 
adirming  Knickerbocker  Trust  Co.  v.  Myers,  133  Fed.  768,  holding 
void  Maryland  act  of  1904,  substituting  for  individual  action  by  credi- 
tor to  enforce  stockholder's  liability  single  suit  in  equity  for  benefit 
of   all   creditors. 

102  U.  S.  214,  219,  26  L.  157,  THE  BENEFACTOR, 

Syl.  2   (IX,  1071).     Admiralty — Conclusiveness  of  findings. 
Approved  in  Wiser  v.  Lawler,  7  Ariz.  183,  62  Pae.  700,  applying  rule 

on  equity  appeal. 

102   U.    S.    222-230,    20   L.    149,   GOODYEAR   DENTAL   ETC.   CO.   v. 
DAVIS. 

Syl.   2    (IX,    1072).      Patents— Disclaimer. 

Approved  in  Eembert  etc.  Compress  Co.  v.  Amerirnn  Cotton  Co.,  129 
Fed.  369,  64  C.  C.  A.  25,  holding  Rembert  patent  No.  441,022,  for 
method  of  baling  cotton,  limited  and  not  infringed  by  machine  of 
Graves  patent  No.  473,144. 

102  U.  S.  235-247,  26  L.  160,  HERYFORD  v.  DAVIS. 

Syl.  2   (IX,  1073).     Contracts— Intent  of  parties. 

Approved  in  Kelley,  Maus  &  Co.  v.  Sibley,  137  Fed.  591,  69  C.  C.  A. 
674,  where  defendant  proposed  to  sell  plaintiff  unlimited  quantity 
of  bolts  at  certain  per  cent  off,  at  five  per  cent  commission,  -uhich  bolts 
he  was  to  get  under  contract  with  factory,  and  plaintiff  accepted  offer, 
defendant  was  seller  and  not  plaintiff's  agent. 

Syl.  3   (IX,  1074).     Conditional  sale  of  chattel  mortgage. 

Approved  in  Tompkins  v.  Monticello  etc.  Oil  Co.,  137  Fed.  629,  con- 
tract for  purchase  of  machinery  providing  that  title  remain  in  seller 
until  payment  and  failure  to  execute  notes  as  provided  in  contract  or 
pay  same  at  maturity,  entitled  seller  to  take  possession,  was  mortgage 
and  not  conditional  sale;  Kennedy  v.  Lee,  147  Cal.  601,  82  Pac.  259, 
contract  for  sale  of  corporate  stock  on  condition  that  buyer  pay  for 
.same  on  his  obtaining  control  of  corporation  and  realizing  certain 
sum  within  four  years  by  sale  of  property  or  earnings  of  mine,  is  con- 
ditional sale;  Scott  v.  Shultz,  67  Kan.  607,  73  Pac.  904,  where  lease 
of  mining  property  for  term  stipulated  that  at  expiration  personalty 
not  oonsumed  should  be  returned  in  kind  or  value  at  lessor 's  option, 
transaction  was  sale  of  personalty;  Kessler  v.  Manhein,  114  La.  624, 
38    So.   475,   arguendo. 

Denied  in  Freed  Furniture  etc.  Co.  v.  Sorenson,  28  Utah,  429,  431, 
107   Am.   St.   Rep.   731,   79   Pac.   566,   567,   contract   note   providing   for 


102  U.  S.  256-293  Notes  on  U.  S.  Eeports.  1002 

installment  payments  reserving  title  in  seller  till  fully  paid,  and  au- 
thorizing seller  on  default  to  take  possession  and  indorse  value  of  prop- 
erty on  note  or  resell  same  and  indorse  proceeds,  is  conditional  sale. 

102  U.  S.  256-263,  26  L.  101,  PEOPLE'S  BANK  v.  CALHOUN. 

Syl.  2   (IX,  1076).     Kemoval  of  state  suit  after  federal  receiver. 

Approved  in  In  re  Porterfield,  138  Fed.  197,  where  trust  deed  from 
bankrupt  to  wife  recorded  less  than  four  months  prior  to  state  suit 
but  more  than  four  months  prior  to  bankruptcy,  but  state  court  did  not 
take  possession  of  property,  proceeds  of  sale  under  bankruptcy  not  dis- 
tributable according  to  state  statute. 

102  U.  S.  263-268.  26  L.  164,  EOGEES  v.  PALMER. 

Syl.  1  (IX,  1077).     Attorney's  knowledge  of  insolvency  is  client's. 

Approved  in  In  re  Pease,  129  Fed.  455,  where  trust  company  through 
its  attorney,  who  also  represented  creditors  of  merchant,  made  loan 
to  merchant  with  which  he  paid  clients  of  attorney,  and  company  took 
stock  under  mortgage  and  sold  it  next  day,  mortgage  was  void  under 
Bankr.  Act  1898,  §  67e;  Wright  v.  Gotten,  140  N.  C.  8,  52  S.  E.  143, 
knowledge  of  son,  who  acted  as  father's  general  financial  agent,  that 
debtor  was  insolvent  was  knowledge  of  father  in  receiving  preference. 

102  U.  S.  273-278,  26  L.  152,  EAST  TENNESSEE  ETC.  K.  K.  CO.  v. 
HAMBLEN  CO. 

Syl.  1    (IX,  1U7S).     Tax  immunity — Foreclosure  purchaser. 

Approved  in  Lake  Drummond  Canal  Co.  v.  Commonwealth,  103  Va. 
347,  49  S.  E.  509,  applying  rule  under  statute  authorizing  foreclosure 
purchaser    to    form   corporation    with    all    rights   and   privileges    of    old. 

102  U.  S.  278-293,  26  L.  138,  BUCHANAN  v.  LITCHFIELD. 

Syl.   2    (IX,    1078).     Limiting   municipal   indebtedness. 

Approved  in  Board  of  County  Commrs.  v.  Gillett,  9  Okl.  598,  60  Pac. 
278,  it  is  good  defense  to  action  on  county  warrant  for  payment  of 
county  clerk's  salary  that  at  time  services  performed  and  warrant  is- 
sued county  debts  exceeded  limit  fixed  by  Act  Cong.  July  30,  1886, 
§  4;  Martin  v.  Territory,  5  Okl.  194,  48  Pac.  108,  applying  rule  where 
warrants  issued  for  debts  of  provisional  government  in  excess  of  limit 
authorized  by  act  of  Congress  of  1886;  City  of  Guthrie  v.  New  Vienna 
Bank,  4  Okl.  211,  38  Pac.  10,  holding  void,  c.  14,  Okl.  St.,  attempting 
to  impose  provisional  debts  of  certain  towns  on  city  of  Guthrie,  as 
conflicting  with  24  Stat.  171,  c.  818,  §  4,  limiting  amount  of  municipal 
indebtedness;  Eaton  v.  Mimnaugh,  43  Or.  474,  73  Pac.  757,  holding 
void  Gen.  Laws  1903,  p.  104,  relating  to  relocation  of  county  seat  and 
pro\ading  for  erection  of  courthouse  payable  by  county  warrants  and 
directing  tax  levy  therefor. 


1003  Notes  on  U.  S.  Eeports.  102  U.  S.  294-300 

Syl.  3   (IX,  1079).     Municipal  debt  limit — Determination  of  property. 

Approved  in  City  of  Guthrie  v.  New  Vienna  Bank,  4  Okl.  216,  38 
Pac.  11,  where  there  is  no  assessment  of  property  for  tax  purposes, 
there   is   no    power   to   incur   indebtedness. 

Syl.  4  (IX,  1079).     Bonds  in  excess  of  debt  limit  void. 

Approved  in  Corbet  v.  Rocksbury,  94  Minn.  402,  103  N.  W.  14,  bond 
in  hands  of  bona  fide  purchaser  issued  by  township  under  act  prescrib- 
ing assessment-roll  as  determinative  of  amount  of  authorized  issue, 
which  on  face  exceeds  limit  of  issue,  is  void  as  to  excess,  irrespective 
of  recitals;  City  of  Guthrie  v.  New  Vienna  Bank,  4  Okl.  218,  38  Pac. 
12,  holding  void  c.  14,  Okl.  St.,  imposing  provisional  debts  of  certain 
towns  on  city  of  Guthrie  as  conflicting  with  24  Stat.  171,  c.  818,  §  4, 
limiting  amount  of  municipal  indebtedness. 

Syl.   7    (IX,    1081).     Municipal   bonds— Recitals— Debt   limit. 

Approved  in  Green  Co.  v.  Shortell,  116  Ky.  125,  75  S.  W.  254,  where 
statute  authorized  issuance  of  county  railroad  aid  bonds  and  county 
issued  bonds  on  specified  conditions  to  be  performed  by  road,  which  were 
not  printed  on  bonds  but  appeared  on  records,  noncompliance  with  con- 
ditions  is    defense   against    purchaser. 

Syl.  8   (IX,  1081).     Law  not  changed  for  special  cases. 

Approved  in  City  of  Guthrie  v.  New  Vienna  Bank,  4  Okl.  221,  38 
Pac.  13,  holding  void  c.  14,  Okl.  St.,  imposing  provisional  debts  of 
certain  towns  on  city  of  Guthrie,  as  conflicting  with  24  Stat.  171,  c. 
818,  §   14,  limiting  amount  of  municipal  indebtedness. 

102  U.  S.  294-300,  26  L.  153,  LOUISIANA  v.  WOOD. 

Syl.  1   (IX,  1082).     Recovery  of  payments  for  void  city  bonds. 

Approved  in  Frank  v.  Butler  Co.,  139  Fed.  122,  county  railroad  bonds 
issued  on  vote  of  people  without  registration  and  certification  required 
by  constitution  and  statutes  are  not  enforceable  against  county  by 
holders ;  In  re  Waterloo  Organ  Co.,  134  Fed.  348,  67  C.  C.  A.  327,  where 
corporation  pledged  bonds  to  bank  as  security  for  credit  on  agreement 
that  corporation  could  sell  bonds  at  par,  and  on  payment  of  proceeds 
bank  w^ould  release  bonds,  bonds  were  valid  claims  against  corporation's 
bankrupt  estate ;  In  re  Waterloo  Organ  Co.,  134  Fed.  344,  67  C.  C.  A. 
255,  where  corporation  president  gave  note  to  stockholder  for  stock  and 
latter  indorsed  note  to  secretary,  who  gave  him  order  on  corporation 's 
trustee  for  bonds,  but  note  not  collected  and  bonds  not  entered  as  debt, 
bonds  void  and  not  allowable  against  corporation's  bankrupt  estate; 
Chelsea  Sav.  Bank  v.  City  of  Ironwood,  130  Fed.  412,  413,  66  C.  C.  A. 
230,  where  city  issued  bonds  subsequently  adjudged  invalid  for  irregu- 
larit}-  in  issuance,  and  sold  same  to  firm,  which  paid  part  of  price  and 
resold  them,  holder  could  sue  city  for  consideration  received  by  it,  to 
exclusion  of  receiver  for  firm ;  School  Dist.  No.  1  v.  School  Dist.  No.  7, 
33  Colo.  47,  78  Pac.  691,  Const.,  art.  15,  §  12,  prohibiting  passage  of 
law  imposing  on  people  of  any  county  or  municipal  subdivision  of  state 


102  U.  S.  300-369  Notes  on  U.  S.  Eeports.  1004 

new  liability  with  respect  to  past  transactions,  does  not  apply  to  gov- 
ernmental subdivisions  of  state  or  county;  School  City  of  Rushville  v. 
Hayes,  162  Ind.  197,  70  N.  E.  136,  where  statute  under  which  school 
district  issued  bonds  is  void,  district  not  estopped  to  deny  validity  of 
bonds. 

Syl.  2  (IX,  1083).  Eestitution — County  obtaining  money  unauthor- 
ized. 

Approved  in  City  of  Guthrie  v.  Territory,  1  Okl.  198,  31  Pae.  193,  11 
L.  R.  A.  418,  upholding  power  of  legislature  to  provide  for  payment 
by  village  corporation  which  succeeds  provisional  government  of  debt  of 
latter;  State  v.  Knoxville,  115  Tenn.  183,  90  S.  W.  291,  where  census 
enumerators  made  false  reports  as  to  scholastic  population,  whereby 
city  received  school  money  in  excess  of  amount  to  which  it  was  en- 
titled, state  could  recover  such  moneys. 

102  U.  S.  300-313,  26  L.  87,  SIMS  v.  EVERHARDT. 

Syl.  5    (IX,   1085).     Infant's   estoppel — Assertion   of  majority. 

Approved  in  Kirkham  v.  Wheeler-Osgood  Co.,  39  Wash.  424,  81  Pac. 
871,  in  action  for  injuries  to  minor  servant  it  is  immaterial  that  at 
time  of  employment  he  represented  himself  to  be  fourteen  years  old. 

102  U.  S.  318-322,  26  L.  180,  LANAHAN  v.  SEARS. 

Syl.  2   (IX,  1086).     Forced  sale  of  homestead. 

Approved  in  Mng  v.  Davis,  137  Fed.  239,  Va.  Code  1887,  §  3566, 
providing  that  lis  pendens  shall  not  affect  bona  fide  purchaser  until 
memorandum  filed  with  clerk  of  court  in  county  where  land  lies,  does 
not  apply  to  federal  courts. 

102  U.  S.  333-369,  26  L.  113,  HUNNICUTT  v.  PEYTON. 

Syl.  5   (IX,  1087).     Sale  of  Mexican  grant. 

Approved  in  Allen  v.  Parmalee,  142  Fed.  363,  construing  instrument 
as  act  of  sale  of  Mexican  grant;  Surghenor  v.  Ranger,  133  Fed.  458, 
461,  construing  instrument  by  which  purchaser  of  Mexican  land  con- 
cession agreed,  before  land  selected,  to  sell  land,  as  act  of  sale  passing 
title. 

Syl.  9  (IX,  1088).     Scope  of  adverse  possession — Defective  title. 

Approved  in  United  States  Min.  Co.  v.  Lawson,  134  Fed.  772,  67  C. 
C.  A.  587,  bill  to  quiet  title  alleging  ownership  of  mining  claim  and 
possession  of  surface  is  sufficient  though  it  alleges  defendant  has, 
through  underground  workings,  entered  and  removed  ore  beneath  sur- 
face of  claim;  Haggart  v.  Ranney,  73  Ark.  352,  84  S.  W.  706,  actual 
possession  of  land  under  instrument  giving  culor  of  title  to  it  and  to 
adjacent  tract  does  not  give  constructive  possession  of  latter  tract  as 
against  true  owner. 


1005  Notes  on  U.  S.  Reports.  102  U.  S.  370-408 

102  U.  S.  370-371,  26  L.  121,  DRAPER  v.  DAVIS. 

Syl.  1  (IX,  1089).     Power  of  lower  court  over  supersedeas. 

Approved  in  McCourt  v.  Singers-Bigger,  150  Fed.  105,  supersedeas  is 
matter  of  right;  Mackenzie  v.  Pease,  ]46  Fed.  744,  circuit  court  of  ap- 
peals may,  during  term,  vacate  order  allowing  appeal  inadvertently  en- 
tered ;  Lockman  v.  Lang,  132  Fed.  4,  where  appeal  allowed  by  taking 
security  within  statutory  time,  failure  to  issue  citation  witliin  time 
prescribed  for  appeal  is  not  fatal  to  appellate  jurisdiction;  Clarke  v. 
Eureka  Co.  Bank,  131  Fed.  146,  where  supersedeas  bond  accepted,  writ 
of  error  allowed  and  citation  issued,  motion  to  increase  bond  is  within 
exclusive  jurisdiction  of  appellate  court;  Simpson  v.  First  Nat.  Bank, 
129  Fed.  259,  260,  63  C.  C.  A.  371,  where  appeal  allowed  on  condition 
that  petitioner  give  bond  in  fixed  amount,  assignment  of  errors  filed 
before  or  at  time  of  acceptance  of  bond  is  in  time. 

102  U.  S.  372-375,  26  L.  213,  UNITED  STATES  v.  ATHERTON. 

Syl.  3    (IX,  1090).     Setting  aside  land  patent  for  fraud. 

Apjiroved  in  Le  Marchel  v.  Teegarden,  133  Fed.  827,  following  rule; 
Tetrault  v.  Fournier,  187  Mass.  62,  72  N.  E.  352,  allegations  of  bill 
to  set  aside  foreclosure  for  fraud  and  for  accounting,  stating  that 
plaintiff  delayed  in  bringing  suit  by  negligence  of  attorney,  are  no 
excuse  for  ten  years'  delay;  Alabama  etc.  Ry.  Co.  v.  Thomas,  86  Miss. 
42,  38  So.  773,  general  allegations  of  fraud  on  information  and  belief 
are  insufficient  in  bill  to  set  aside  foreclosure  sale;  Paine  v.  Foster,  9 
Okl.  254,  53  Pac.  122,  refusing  to  review  decision  of  Land  Department 
because  Secretary  of  Interior  imposed  upon  by  attorney  for  townsite 
claimants  who  filed  brief  without  notice  to  contestant;  Cummings  v.  Mc- 
Dermid,  4  Okl.  279,  44  Pac.  278,  applying  rule  where  award  of  town- 
site  trustees  attacked;  King  v.  Thompson,  3  Okl.  648,  39  Pac.  467,  re- 
fusing to  charge  holder  of  legal  title  as  trustee  for  petitioner  for  town 
lot  awarded  by  townsite  trustees  where  fraud  not  shown  to  have  been 
practiced  by  board  and  findings  of  fact  by  board  not  set  out. 

(IX,  1090.)  Miscellaneous.  Cited  in  Butte  v.  Igleheart  Bros.,  137 
Fed.  502,  70  C.  C.  A.  76,  refusal  to  permit  amendment  of  bill  must 
be  plainly  shown  to  be  abuse  of  discretion  to  authorize  inquiry  on  appeal. 

102  U.  S.  378-408,  26  L.  167,  219,  UNITED  STATES  v.  SCHURZ. 

Syl.  1  (IX,  1091).     Mandamus — Issuance  as  original  writ. 

Approved  in  United  States  v.  Lake  Shore  etc.  Ry.  Co.,  197  U.  S.  542, 
49  L.  871,  25  Sup.  Ct.  538,  circuit  court  has  no  jurisdiction  over  original 
mandamus  proceeding  to  compel  interstate  carrier  to  make  report  to 
interstate  commerce  commission;  McDaid  v.  Territory,  1  Okl.  96,  30 
Pac.  439,  teirritorial  courts  may  issue  mandamus  to  compel  townsite 
trustees  to  execute  deed  to  claimant  in  whose  favor  they  have  decided. 

Syl.  3  (IX,  1091).     Land  patent — Delivery — Passing  of  title. 

Approved  in  United  States  v.  Laam,  149  Fed.  585,  delivery  not 
necessary  to  passing  of  title  where  land  patent  issued  on  decision  of  land 
officers,  and  recorded  in  Land  Department  record-book. 


102  U.  S.  378-408  Notes  on  U.  S.  Reports.  1006 

Syl.  5    (IX,  1091),     Mandamus  to  control  judicial  action. 

Approved  in  Dever  v.  Humphrey,  68  Kan.  765,  75  Pac.  1039,  where 
legislature  provides  for  appointments  on  certain  officers  and  boards, 
courts  cannot  supervise  exercise  of  such  authority;  Kalyton  v.  Kalyton, 
45  Or.   130,  78  Pac.  333,  arguendo. 

Syl.  6   (IX,  1092).     When  title  to  public  lands  passes. 

Approved  in  Humbird  v.  Avery,  195  U.  S.  504,  49  L.  297,  25  Sup. 
Ct.  123,  refusing  to  determine,  in  advance  of  final  action  of  Land  De- 
partment, respective  rights  of  grantees  from  railroad  of  land  claimed 
to  be  within  indemnity  limits  and  pre-emptioners;  Jones  v.  Hoover,  144 
Fed.  221,  courts  will  interpose  to  give  or  maintain  possession  where 
possession  essential  to  complete  purchase;  Peyton  v.  Desmond,  129  Fed. 
8,  63  C.  C.  A.  651,  homestead  patentee  may  recover  value  of  timber 
wrongfully  cut  after  initiation  of  claim  and  prior  to  issuance  of  patent; 
Johnson  v.  Pacific  Coast  S.  S.  Co.,  2  Alaska,  237,  where  townsite  patent 
issued  to  trustee.  Interior  Department  cannot  set  aside  patent  issued 
by  trustee  to  wrong  person ;  Sims  v.  Morrison,  92  Minn.  346,  100  N.  W. 
90,  where  prior  to  patent  homestead  entryman  sold  timber  on  land  and 
contest  entered,  and  afterward  contestant  bought  off  homesteader  and 
entered  land  under  timber  act,  purchaser  of  timber  cannot  sue  to  im- 
press land  with  trust;  Sage  v.  Eudnick,  91  Minn.  334,  100  N.  W.  108, 
after  filing  of  map  of  location  by  railroad,  pendency  of  controversy  over 
land  grant  before  Interior  Department  ■  did  not  suspend  running 
of  limitations;  Bockfinger  v.  Foster,  10  Old.  502,  62  Pac.  803,  re- 
fusing to  entertain  petition  to  declare  resulting  trust  where  townsite 
trustees  have  not  conveyed  title;  Adams  v.  Couch,  1  Okl.  35,  26  Pac. 
1015,  Land  Department  not  interfered  with  by  courts  pending  contest 
of  adverse  claims;  dissenting  opinion  in  Paine  v.  Foster,  9  Okl.  290,  291, 
60  Pac.  33,  majority  refusing  to  review  award  of  townsite  trustees. 

Syl.   7    (IX,   1093).     Mandamus   controls   ministerial   duty. 

Approved  in  McDaid  v.  Territory,  1  Okl.  98,  30  Pac.  440,  territorial 
courts  may  issue  mandamus  to  compel  townsite  trustees  to  execute  deed 
to  claimant,  in  whose  favor  they  have  decided;  Clement  v.  Graham,  78 
Vt.  319,  63  Atl.  155,  granting  mandamus  to  compel  state  auditor  to  per- 
mit taxpayer  to  inspect  public  records  of  ofiice.  See  98  Am.  St.  Eep. 
874,  note. 

Syl.  8   (IX,  1004).     Mandamus  to  compel  delivery  of  patent. 
See  98  Am.  St.  Rep.  873,  note. 

Distinguished  in  Flanagan  v.  Forsythe,  6  Okl.  239,  50  Pac.  156,  exemp- 
tion from  liability  for  debts  of  lands  entered  as  homestead  does  not  apply 
after   final   certificate   issued. 

Syl.    10    (IX,    1094).     Costs    against    government    ofiicial. 

Approved  in  Wadsworth  v.  Boysen,  148  Fed.  780,  suit  to  enjoin  Indian 
agent  from  obstructing  complainant  in  prospecting  on  reservation  lands 
for  purpose  of  locating  mining  claim  is  not  suit  against  United  States, 
though  defendant  claims  to  be  acting  ofliciallyj  Western  Coal  etc,  Co.  v. 


1007  Notes  on  U.  S.  Eeports.  102  U.  S.  415-422 

Petty,  132  Fed.  604,  where  federal  action  against  joint  trespassers  dis- 
missed as  to  one  and  plaintiff  sued  him  in  state  court  and  reversed 
judgment,  which  was  satisfied,  and  defendant,  in  federal  court,  amended 
answer  to  show  such  satisfaction,  and  plaintiff  dismissed,  defendant  en- 
titled to  costs. 

102  U.  S.  415-422,  26  L.  187,  DANIELS  v.  TEARXEY. 

Syl.  4    (IX,   1096).     Estoppel — Reliance  on  void  law. 

Approved  in  Grand  Rapids  &  I.  E.  Co.  v.  Osborn,  193  U.  S.  29,  48 
L.  604,  24  Sup.  Ct.  310,  railroad  incorporating  under  general  state  act 
is  estopped  to  contest  validity  under  federal  constitution  of  provisions 
regulating  rates  which  formed  one  of  burdens  attached  by  act  to  priv- 
ilege of  incorporation;  Chicago  v.  Cicero,  210  111.  302,  71  N.  E.  361, 
upholding  Kurd's  Rev.  St.  1901,  p.  347,  §  26,  relating  to  sanitary  dis- 
tricts; Minneapolis  etc.  Ry.  Co.  v.  Gowrie  etc.  Ry.  Co.,  123  Iowa,  546, 
99  N.  W.  183,  railroad  which  is  about  to  be  crossed  by  another  and  which 
elects  to  compel  interlock  under  Code,  §  2073,  cannot  attack  validity 
of  statute  requiring  it  to  pay  portion  of  expense  of  maintaining  inter- 
lock; Succession  of  Dauphin  (Choppin  v.  Dauphin),  112  La.  136,  36 
So.  298,  refusing  to  entertain  suit  by  heirs  of  first  wife  of  deceased  for 
half  of  property  alleged  to  be  community,  and  fraudulently  abstracted 
from  succession,  after  executor  discharged;  Reiger  v.  Faber,  116  Mo. 
App.  129,  92  S.  W.  185,  where,  after  sale  under  deed  of  trust,  grantor 
filed  statutory  bond  and  sued  to  enjoin  beneficiary  from  taking  posses- 
sion, and  latter  denied  validity  of  bond  and  injunction  dissolved,  latter 
estopped  from  asserting  validity  of  bond  and  suing  thereon;  United 
States  Fidelity  etc.  Co.  v.  Ettenheimer,  70  Neb.  151,  99  N.  W.  653,  one 
executing  appeal  bond  in  unlawful  detainer  cannot  defend  action  on 
bond  because  statute  under  which  appeal  taken  was  void ;  McVcy  v. 
Peddie,  69  Neb.  527,  96  N.  W.  167,  and  Stevenson  v.  Morgan,  67  Neb. 
210,  108  Am.  St.  Rep.  631,  93  N.  "W.  181,  both  upholding  action  on  ap- 
peal bond  given  pursuant  to  void  statute;  Territory  v.  Cooper,  11  Okl. 
707,  69  Pac.  816,  applying  principle  when  one  of  sureties  signed  bond 
after  conviction  and  in  action  on  bond  insisted  on  application  of  dif- 
ferent law  to  defeat  bond;  Morrison  v.  Atkinson,  16  Okl.  576,  85  Pac. 
473,  one  assuming  position  and  asserting  legal  right  in  district  court  is 
estopped  to  deny  legality  of  position  on  appeal;  Rhea  v.  Shields,  103  Va. 
312,  49  S.  E,  72,  where  proceedings  for  sale  of  land  of  minors  are  ir- 
regular, minors  filing  amended  pleading  after  majority  requesting  sale  of 
property  are  estopped  from  objecting  to  validity  of  sale;  Smith  v.  Seattle, 
41  Wash.  62,  82  Pac.  1098,  where  city  sued  to  ascertain  value  of  prop- 
erty to  be  damaged  by  regrade  of  street  and  paid  award  after  court  had 
instructed  jury  to  deduct  special  benefits,  it  cannot  urge  invalidity  of 
law  authorizing  proceedings  in  justification  of  assessment  for  special 
benefits;  Le  Comte  v.  Freshwater,  56  W.  Va.  341,  49  S.  E.  241,  holding 
party  estopped  to  deny  boundary  where  answer  in  proceedings  by  guar- 
dian to  lease  land  agreed  to  description  set  forth  in  petition;  dissenting 
opinion  in  Jones  v.  Stoddart,  S  Idaho,  227,  67  Pac.  655,  arguendo. 


102  U.  S.  426-460  Notes  on  U.  S.  Eeports.  1008 

(IX,  1095.)  Miscellaneous.  Cited  in  Lamb  v.  Powder  Eiver  Live- 
stock Co.,  132  Fed.  440,  65  C.  C.  A.  570,  67  L.  E.  A.  558,  subsequent 
law  unreasonably  restricting  enforcement  of  judgment  rendered  on  con- 
tract impairs  objection. 

102  U.  S.  426-441,  26  L.  189,  McELEATH  v.  UNITED  STATES. 

Syl.  G  (IX,  1099).     Settlement  of  government  official's  accounts. 

Approved  in  National  Contracting  Co.  v.  Sewerage  etc.  Board,  141 
Fed.  331,  where  city  contract  required  contractor  to  use  certain  kind  of 
cement,  but  no  quantity  specified  nor  price,  fact  that  contractor  used 
inferior  grade  does  not  give  city  right  to  recover  for  difference  between 
cost  of  two  kinds  after  paying  for  work. 

Distinguished  in  Walker  v.  United  States,  139  Fed.  418,  where  marshal 
rendered  accounts  against  United  States  for  services  of  deputies,  which 
were  allowed,  audited  and  paid,  government  cannot  recover  such  sums 
years  after  he  has  gone  out  of  office. 

102  U.  S.  442-451,  26  L.  193,  SWIFT  v.  SMITH. 

Syl.  1   (IX,  1100).     Notes — Purchaser  before  maturity — Suspicion. 

Approved  in  Union  Nat.  Bank  v.  Neill,  149  Fed.  714,  where  note, 
when  presented  to  petitioner  for  discount,  was  signed  on  face  by  three 
persons,  fact  that  name  of  partnership  subsequently  adjudged  bankrupt 
appeared  as  second  signer  was  not  notice  that  firm  signed  only  as  surety ; 
First  Nat.  Bank  v.  Moore,  148  Fed.  957,  holding  evidence  did  not  show 
that  indorser  for  value  before  maturity,  through  whom  plaintiff  claimed, 
took  note  with  knowledge  of  want  of  consideration  and  that  it  was 
obtained  by  fraud;  Ford  v.  Brown,  114  Tenn.  479,  88  S.  W.  1039,  where 
certificate  of  deposit  drawn  to  one  as  "trustee"  and  wrongfully  in- 
dorsed by  him  before  maturity,  indorsee  put  on  notice ;  Unaka  Nat.  Bank 
v.  Butler,  113  Tenn.  585,  83  S.  W.  657,  where  check  drawn  November 
24th,  indorsed  in  blank  and  lost,  merchant  who  accepted  it  before  Decem- 
ber 1st  from  unknown  customer  believed  to  be  payee  is  bona  fide  holder. 

Syl.  4  (IX,  1101).     Eedemption— Trust  deed. 

Approved  in  CovTnty  of  Logan  v.  McKinley  etc.  Trust  Co.,  70  Neb. 
414,  101  N.  W.  993,  right  to  redeem  from  tax  sale  may  be  raised  by 
objection  to  motion  to  confirm  sale  made  pursuant  to  decree  barring 
redemption. 

102  U.  S.  451-460,  26  L.  141,  PENNSYLVANIA  E.  E.  CO.  v.  ROY. 

Syl.  2   (IX,  1101).     Carrier's  liability  for  injuries  to  passenger. 

Approved  in  International  Mercantile  etc.  Co.  v.  Smith,  145  Fed.  893, 
upholding  instruction  in  action  for  injuries  by  steamer  passenger  sus- 
tained by  falling  from  berth;  Fillingham  v.  St.  Louis  Transit  Co.,  102 
Mo.  App.  584,  77  S.  W.  317,  holding  electric  street  railway  liable  for 
injuries  to  passenger  while  alighting  from  ear  on  to  uneven  ground; 
Williams  v.  Spokane  Falls  etc.  Ry.  Co.,  39  Wash.  88,  89,  80  Pac.  1102, 
1103,  upholding  iustruction  in  action  for  injury  to  passenger  that  it  was 


1009  Notes  on  U.  S.  Eeports  102  U.  S.  451-460 

carrier  's  duty  to  carry  plaintiff  safely  so  far  as  human  care  and  skill 
enabled  it  to  be  done. 

Syl.  4  (IX,  1102).     Carrier  of  passengers — Injuries  in  Pullman. 

Approved  in  Robinson  v.  Chicago  etc.  R.  R.  Co.,  135  Mich.  259,  97  N. 
W.  691,  railroad  sued  jointly  with  sleeping-car  company  for  death  of 
passenger  cannot  complain  of  direction  of  verdict  for  car  company; 
Dunn  V.  Pennsylvania  R.  R.  Co.,  71  N.  J.  L.  25,  58  Atl.  165,  holding 
railroad  liable  for  injuries  to  passenger  through  collision  with  ears  which 
had  been  put  on  traciis  through  negligence  of  other  company,  which  used 
tracks  in  common  with  defendant;  Nashville  etc.  Ry.  Co.  v.  Lillie,  112 
Tenn.  343,  105  Am.  St.  Rep.  947,  78  S.  W.  1058,  railroad  is  liable  for  loss 
of  valise  carried  by  passenger  into  sleeping-ear  and  placed  under  berth. 

Syl.  5  (IX,  1103).     Damages — Pecuniary  condition  of  plaintiff. 

Approved  in  American  Car  etc.  Co.  v.  Brinkman,  146  Fed.  716,  objec- 
tion to  questions  as  improper  and  immaterial  is  insufficient;  Seattle 
Elec.  Co.  V.  Hartlcss,  144  Fed.  381,  in  action  by  widow  and  daughter  for 
wrongful  death  of  husband  and  father,  evidence  as  to  physical  condi- 
tion of  plaintiffs  is  inadmissible;  St.  Louis  etc.  Ry.  Co.  v.  Adams,  74 
Ark.  328,  109  Am.  St.  Rep.  85,  85  S.  W,  768,  admission  of  evidence  as 
to  size  of  family  of  plaintiff  in  personal  injury  case  is  reversible  error; 
Louisville  etc.  R.  R.  Co.  v.  CoUinsworth,  45  Fla.  406,  33  So.  514,  in  action 
for  injuries  to  employer  he  cannot  testify  as  to  what  family  he  has; 
Maynard  v,  Oregon  R.  R,  Co.,  46  Or.  21,  78  Pac.  986,  68  L.  R.  A.  477, 
in  action  for  injuries  to  passenger  through  collision,  evidence  as  to 
number  and  ages  of  his  family  is  inadmissible;  dissenting  opinion  in 
St.  Louis  etc.  Ry.  Co.  v.  Adams,  74  Ark.  335,  109  Am.  St.  Rep.  85,  86 
S.  W.  289,  majority  affirming  judgment  in  personal  injury  case,  where 
evidence  of  size  of  plaintiff's  family  erroneously  admitted. 

Syl.  6  (IX,  1104).  Appeal — Admission  of  incompetent  evidence — In- 
Btruction. 

Approved  in  Krause  v.  United  States,  147  Fed.  451,  applying  rule  in 
prosecution  for  murder;  Swift  v.  Johnson,  138  Fed.  872,  in  action  for 
death  by  wrongful  act,  where  father  is  sole  beneficiary  and  evidence  of 
mother 's  expectancy  admitted,  it  is  reversible  error  to  refuse  instruc- 
tion that  no  damages  recoverable  for  loss  sustained  by  mother;  National 
Biscuit  Co.  V.  Nolan,  138  Fed.  9,  70  C.  C.  A.  436,  reversing  verdict  in 
personal  injury  case  where  plaintiff  permitted  to  testify  she  depended 
on  herself  for  support;  Lazier  Gas  Engine  Co.  v.  Du  Bois,  130  Fed.  838,  65 
C.  C.  A.  172,  holding  in  action  for  breach  of  contract  erroneous  admis- 
sion of  evidence  respecting  certain  profits  sued  for  cured  by  charge 
directing  jury  to  disregard  it;  Drury  v.  Territory,  9  Okl.  412,  60  Pac. 
105,  ordering  miw  trial  in  murder  case  where  illegal  evidence  admitted 
and  subsequently  withdrawn  and  legal  evidence  uncertain;  Southern  R. 
Co.  V.  Simmons,  105  Va.  659,  661,  55  S.  E.  462,  error  in  admission  of 
evidence  that  plaintiff  in  action  for  personal  injuries  had  wife  and  child 
64 


102  U.  S.  472-533  Notes  oq  U.  S.  Eeports.  1010 

not  cured  by  admission  of  evidence  that  he  was  married  or  by  instruc- 
tion as  to  measure  of  damages. 

102  U.  S.  472-533,  26  L.  197,  MERIWEATHER  v.  GARRETT. 

Syl.  1   (IX,  1106).     Property  held  for  public— City  debts. 

Approved  in  Buell  v.  Arnold,  124  Wis.  69,  102  N.  W.  339,  judgment 
against  county  is  not  lien  on  land  bought  in  by  county  for  taxes. 

Syl.  3   (IX,  1107).     Taxation  dependent  on  legislature. 

Approved  in  Kersey  v.  Terre  Haute,  161  Ind.  474,  68  N.  E.  1029, 
upholding  city  ordinance  taxing  vehicles  using  streets,  though  street-cars, 
automobiles  and  vehicles  of  nonresidents  omitted ;  Kettle  v.  Dallas,  35 
Tex.  Civ.  638,  80  S.  W.  877,  878,  upholding  amendment  to  Dallas  charter 
authorizing  council  to  create  improvement  districts. 

Syl.  4  (IX,  1108).     Collection  of  taxes — Judicial  power. 

Approved  in  Buster  v.  Wright,  135  Fed.  956,  68  C.  C.  A.  505,  Tnrlinn 
agent  may  close  business  of  noncitizons  within  Creek  nation  who  refuse 
to  pay  permit  taxes. 

Syl.  5   (IX,  1108).     Compelling  collector  to  collect  taxes. 

Distinguished  in  Graham  v.  Folsom,  200  U.  S.  252,  253,  50  L.  468,  469, 
26  Sup.  Ct.  245,  county  auditors  and  treasurers  whose  duty  it  is  to 
collect  and  assess  taxes  may  be  compelled  by  mandamus  to  pay  judg- 
ment on  township  bonds  though  township  organization  abolished. 

Syl.  6  (IX,  1108).     Repeal  of  municipal  charter. 

Approved  in  Greer  Co.  v.  Texas,  197  U.  S.  243,  49  L.  739,  25  Sup. 
Ct.  437,  legal  title  to  Texas  lands  patented  to  Greer  county  for  school 
purposes  did  not  pass  to  Oklahoma  corporation  organized  from  same  ter- 
ritory, but  were  vested  in  state  of  Texas;  Pepin  Tp.  v.  Sage,  129  Fed. 
660,  64  C.  C.  A.  169,  where  village  created  by  special  act  from  territory 
partly  in  city  and  partly  in  township  previously  created,  and  later  such 
special  act  repealed,  statutes  creating  city  and  township  were  still  in 
force. 

Syl.   7    (IX,   1108).     Appointment  of  receiver  to  collect  taxes. 

Approved  in  Marra  v.  San  Jacinto  etc.  Irr.  Dist.,  134  Fed.  791,  where 
irrigation  district  organized  under  Cal.  St.  1887,  p.  29,  as  amended  by 
Stat.  1891,  p.  142,  issued  and  sold  bonds,  holder  thereof  securing  judg- 
ment and  return  of  execution  unsatisfied    cannot  have  receiver  appointed. 

Syl.   8    (IX,  1108).     Right  to  repeal  municipal  charter. 

Approved  in  Attorney  General  v.  Springwells  Tp.  Board,  143  Mich. 
532,  107  N.  W.  91,  upholding  Local  Acts  1905,  p.  1068,  No.  627,  pro- 
viding for  annexation  of  territory  to  Detroit;  Adams  v.  Kuykendall,  83 
Miss.  594,  35  So.  835,  upholding  Acts  1894,  c.  34,  p.  29,  appointing  state 
revenue  agent  to  supervise  action  of  county  and  municipal  tax  ofBeers; 
Van  Cleve  v.  Passaic  Valley  Sewerage  Commrs.,  71  N.  J.  L.  225,  58 
Atl.  587,  upholding  right  of  legislature  to  revoke  act  under  which  city 
of  Patcrson    authorized  to   empty  sewage  into  Passaic  river  j   Brocken- 


1011  Notes  on  U.  S.  Reports.  102  U.  S.  534-571 

brough  V.  Board  of  Water  Commrs.,  134  N.  C.  19,  46  S.  E.  33,  water- 
works of  city  transferred  pursuant  to  act  of  1899  to  board  of  commis- 
sioners to  manage  works  and  turn  over  surplus  income  to  city  treasurer 
are  not  liable  to  execution  for  city  debts;  dissenting  opinion  in  Ex  parte 
Lewis,  45  Tex.  Cr.  41,  108  Am.  St.  Rep.  951,  73  S.  W.  825,  majority 
holding  void  Galveston  special  charter  creating  board  of  commissioners, 
three  of  whom  are  appointed  by  governor. 

102  U.  S.  534-541,  26  L.  221,  WADSWORTH  v.  SUPERVISORS  OF 
EAU   CLAIRE   CO. 

Syl.  1  (IX,  1111).     Railroad  aid— County  debt  limit. 

Approved  in  Farmers'  Loan  etc.  Co.  v.  Sioux  Falls,  131  Fed.  912, 
where  amendment  of  1902  to  Const.  S.  D.,  art.  13,  §  4,  required  addi- 
tional municipal  debt  for  waterworks  must  be  authorized  by  majority 
vote,  city  could  not  issue  bonds  on  note  taken  prior  thereto  under  statute 
pro\-iding  that  majority  determined  by  vote  for  mayor  at  preceding 
city  election. 

102  U.  S.  541-545,  26  L.  224,  LORD  v.  GOODALL  ETC.  STEAMSHIP 
CO. 

Syl.  1  (IX,  1111).     Commerce — Liability  of  ocean  vessels. 

Approved  in  dissenting  opinion  in  Western  Union  Tel.  Co.  v.  Hughes, 
104  Va.  245,  51  S.  E.  226,  majority  holding,  where  points  of  transmis- 
sion and  destination  of  telegram  were  same  state,  fact  that  part  of 
transmission  was  over  line  in  another  state  did  not  make  business  inter- 
state. 

102  U.  S.  55G-563,  26  L.  229,  GORDMAN  v.  NIBLOCK. 

Syl.   2    (IX,   1114).     Assignment   of   government  claims. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  20,  50  L.  353,  26  Sup.  Ct.  216, 
illegality  of  clause  in  contract  for  prosecution  of  claim  against  United 
States  making  payment  for  services  lien  on  claim  does  not  invalidate 
part  of  contract  providing  for  payment  for  services  of  percentage  of 
allowance. 

Syl.  4  (IX,  1115).     Judgment — Service  by  publication. 

Approved  in  Miller  v.  Ahrens,  150  Fed.  648,  complainant  in  suit  to 
enforce  claim  to  land  and  remove  cloud  therefrom  may  sue  in  district 
in  which  property  located  and  join  nonresidents  of  district;  York  Co. 
Sav.  Bank  v.  Abbot,  131  Fed.  983,  suit  by  lessee  against  nonresident 
lessor  to  enforce  rights  under  lease  by  requiring  election  to  buy  building 
or  sell  land,  or  have  court  make  election,  is  within  jurisdiction  of  circuit 
court  for  district  where  land  situated. 

102  U.  S.  564-571,  26  L.  232,  GEORGE  v.   TATE, 
Syl.  3   (IX,  1115).     Bond — Fraud  touching  execution. 
Approved  in  Heck  v.  Missouri  Pac.  Ry.  Co.,  147  Fed.  781,  fact  that 
plaintiff  induced  to  sign  release  by  false  representation  as  to  its  con- 
tents does  not  avoid  it  as  defense  where  he  failed  to  read  it;   Levin 


102  U.  S.  572-586  Notes  on  U.  S.  Eeports.  1012 

r.  Northwestern  Nat.  Ins.  Co.,  146  Fed.  77,  in  federal  law  action  on  in- 
surance policy,  award  of  arbitrators  fixing  amount  of  plaintiff's  loss, 
made  in  accordance  with  policy  cannot  be  impeached  for  fraud  of  arbi- 
trators; Levi  V.  Mathews,  145  Fed.  154,  in  federal  action  at  law  to  recover 
money  due  on  contract,  answer  alleging  fraud  in  procuring  contract 
should  be  stricken  out;  Lefler  v.  New  York  Life  Ins.  Co.,  143  Fed.  817, 
in  action  at  law  on  written  unambiguous  instrument,  parol  evidence  of 
negotiations  preceding  its  execution  is  inadmissible  to  vary  terms; 
Stephenson  v.  Supreme  Council  A.  L.  H.,  130  Fed.  492,  where  beneficiary 
in  life  policy  after  death  of  insured  was  induced  by  false  statements 
of  insurer  to  settle  claim,  remedy  in  federal  court  is  in  equity;  Bush  v. 
Prescott  etc.  Ky.  Co.,  76  Ark.  501,  89  S.  W.  88,  fact  that  one  fraudulently 
induced  to  compromise  action  might  obtain  relief  by  motion  to  reinstate 
docs  not  oust  equity  jurisdiction  to  cancel  compromise;  Colonial  etc. 
Mortg.  Co.  v.  Jeter,  71  Ark.  188,  71  S.  W.  947,  applying  principle  in 
action  on  rent  notes;  Broyles  v.  Absher,  107  Mo.  App.  178,  80  S.  W.  705, 
under  plea  of  non  est  factum  to  note,  defendant  may  show  that,  through 
.""Vliteracy,  by  misreading  paper  to  him,  instrument  other  than  one  in- 
tended by  him  was  fraudulently  substituted;  State  v.  Stuart,  111  Mo. 
App.  493,  86  S.  W.  475,  arguendo. 

102  U.  S.  572-575,  26  L.  234,  WILSON  v.  McNAMEE. 

Syl.  3   (IX,  1116).     Recovery  of  pilotage — State  law. 

.Approved  in  In  re  Clyde  S.  S.  Co.,  134  Fed.  99,  suit  may  be  brought  in 
admiralty  for  damages  from  vessel  at  fault  for  collision  on  high  seas 
for  death  from  sinking  of  other  ship,  where  recovery  for  wrongful  death 
given  by  state   to   which  both  vessels  belonged. 

Syl.  4  (IX,  1116).     State  pilot  legislation. 

Approved  in  Olsen  v.  Smith,  195  U.  S.  341,  49  L.  229,  25  Sup.  Ct. 
52,  upholding  Texas  pilotage  laws. 

102  U.  S.  577-586,  26  L.  235,  BENNETT  v.  LOUISVILLE  ETC.  E. 
R.  CO. 

Syl.   1    (IX,   1117).     Negligence — Liability   to  license. 

Approved  in  De  Haven  v.  Hennessy  Bros.  &  Evans  Co.,  137  Fed. 
476,  69  C.  C.  A.  620,  determining  liability  of  contractor  for  public 
building  to  citizen  injured  while  visiting  building  in  course  of  erection 
through  invitation;  St.  Louis  etc.  Ey.  Co.  v.  Dooley,  77  Ark.  567,  92 
S.  W.  791,  where  railroad  constructs  steps  over  right  of  way  fence  and 
impliedly  invites  persons  to  cross  same,  it  is  liable  for  injuries  caused  by 
unsafe  condition  of  steps  resulting  from  failure  to  use  ordinary  care  in 
keeping  them  in  safe  condition;  Carr  v.  Missouri  Pacific  Ry.  Co.,  195 
Mo.  227,  92  S.  W.  878,  where  licensee  walking  near  railroad  track  was 
struck  by  shoe-brake  which  flew  from  passing  train,  railroad  not  liable ; 
Stevens  v.  United  Gas  &  Elec.  Co.,  73  N.  H.  169,  60  Atl.  853,  where  plain- 
tiff employed  by  contractor  on  construction  of  power-house  for  defendant 
and  plaintiff  went  on  staging  while  at  work,  defendant  liable  for  failure  to 
protect  him  from   high  voltage  wires  near  staging;    True  v.  Meredith 


1013  Notes  on  U.  S.  Reports.  102  U.  S.  586-620 

Creamery,  72  N.  H.  156,  55  Atl.  894,  applying  rule  where  customer  of 
creamery  was  injured  by  breaking  of  belt  while  watching  another  being 
weighed,  plaintiff  waiting  for  separation  of  cream;  Matthews  v.  Sea- 
board etc.  Ry.  Co.,  67  S.  C.  511,  46  S.  E.  339,  65  L.  R.  A.  286,  holding 
railroad  liable  for  injuries  to  one  using  path  over  right  of  way  in  ignor- 
ance of  dangers  where  railroad  had  long  acquiesced  in  use  of  path ; 
dissenting  opinion  in  Hotchkin  v.  Erdrich,  214  Pa.  St.  466,  63  Atl. 
1037,  majority  holding  w'here  plaintiff  sent  by  his  employer  to  fix  cap 
on  chimney  for  defendant,  and  ladder  fixed  inside  placed  at  his  disposal, 
and  ladder  broke,  defendant  not  liable. 

Distinguished  in  Mayne  v.  Chicago  etc.  Ry.  Co.,  12  Okl.  18,  69  Pac. 
935,  holding  railroad  not  liable  for  injuries  to  prospective  passenger 
who  was  compelled  to  go  over  obstruction  because  crossing  blocked  by 
freight   train. 

Syl.   3    (IX,   1120).     Negligence — Inference   of  invitation. 

Approved  in  Sloss  Iron  etc.  Co.  v.  Tilson,  141  Ala.  161,  37  So.  430,  in 
action  for  injuries  to  one  who  wont  on  defendant 's  premises  by  invita- 
tion, burden  of  showing  invitation  is  on  plaintiff;  Archer  v.  Union  Pac. 
R.  R.  Co.,  110  Mo.  App.  353,  85  S.  W.  935,  where  excursionist  with  others 
engaged  car  for  transportation  to  another  place  and  return,  and  went 
into  car  for  own  accommodation  while  on  switch,  before  time  for  return, 
he  was   not  passenger. 

102  U.  S.  586-603,  26  L.  253,  SPRINGER  v.  UNITED  STATES. 

Syl.  2   (IX,  1120).     Distraint  for  taxes. 

Approved  in  Scottish  Union  etc.  Ins.  Co.  v,  Bowland,  196  U.  S.  632, 
49  L.  628,  25  Sup.  Ct,  345,  upholding  distraint  of  personal  property  of 
foreign  insurance  company's  personalty  under  Ohio  Rev.  St.,  §  1095,  to 
satisfy  personal  taxes. 

102  U.  S.  603-612,  26  L.  246,  UNITED  STATES  v.  CHOUTEAU. 

Syl.   3    (IX,   1121).     Compromise   with   government — Penalty. 

Distinguished  in  United  States  Fidelity  etc.  Co.  v.  United  States,  150 
Fed.  554,  conviction  and  imprisonment  of  Indian  agent  for  malfeasance 
in  office  is  not  bar  to  suit  by  government  on  bond  to  recover  money  un- 
accounted  for. 

Syl.   4    (IX,   1121).     Penalty  involves  punishment. 

Approved  in  State  v.  Warner,  197  Mo.  659,  94  S.  W.  964,  act  of  1905, 
requiring  fines  for  violation  of  game  law  to  be  paid  into  treasury  for 
benefit  of  game  protection  fund,  violates  constitutional  provision  that 
fines  and  penalties  shall  belong  to  county  school  fund. 

102  U.  S.  612-620,  26  L.  259,  CRAMER  v.  ARTHUR. 

Syl.  2  (IX,  1122).     Proclamation  of  value  of  foreign  coins. 

Approved  in  Stone  v.  Whitridge,  129  Fed.  37,  64  C.  C.  A.  47,  where 
Secretary  of  Treasury  directs  collector  of  customs  to  reliquidate  on  basis 
of  commercial  value. of  foreign  coin,  action  of  collector  is  reviewable  by 


102  U.  S.  620-658  Notes  on  U.  S.  Eeports.  1014 

general  appraisers  and  courts   under   §§   14,   15,  Custom's  Admin.   Act, 
1890. 

Syl.  4  (IX,  1122).     Tariff— Value  of  foreign  money. 
Distinguished  in  United   States   v.   Wliitridge,   197   U.   S.   143,   49  L. 
698,  25  Sup.  Ct.  406,  arguendo. 

102  U.  S.  620-623,  26  L.  262,  AUFFINOEDT  v.  EASIN. 

Syl.  1   (IX,  1123).     Statutes — Eetrospective  construction. 

Approved  in  Grunsfeld  Bros.  v.  Brownell,  12  N.  M.  201,  76  Pac.  312, 
act  of  1889,  to  prevent  preferences  by  persons  contemplating  insolvency, 
not  suspended  by  bankruptcy  act  so  as  to  preclude  setting  aside  fraud- 
ulent conveyance  made  prior  to  bankruptcy  act. 

102  U.  S.  625-634,  26  L.  122,  WELLS  v.  SUPERVISOES. 

Syl.  2   (IX,  1124).     Municipal  railroad  aid  bonds. 

Approved  in  dissenting  opinion  in  Sluder  v.  St.  Louis  Transit  Co., 
189  Mo.  194,  88  S.  W.  673,  majority  holding  St.  Louis  ordinance  pro- 
viding that  motorman  shall  keep  watch  for  vehicles  and  that  on  first 
appearance  of  danger  shall  stop  car  as  soon  as  possible,  valid  without  its 
acceptance  by  railroad. 

Syl.  4   (IX,  1124).     Exclusive  mode  of  discharging  liability. 
Cited  in  Jones  v.  Horn,  104  Mo.  App.  711,  78  S.  W.  640,  arguendo. 

102  U.  S.  641-647,  26  L.  266,  KAHN  v.  CENTRAL  SMELTING  CO. 

(IX,  1125.)  Miscellaneous.  Cited  in  Marks  v.  Gates,  2  Alaska,  523, 
holding   grubstake   contract   not   to   be   mining   partnership. 

102  U.  S.  647-650,  26  L.  290,  TEIMBLE  v.  WOODHEAD. 

Syl.   1    (IX,   1126).     Bankruptcy — Property   fraudulently  transferred. 

Approved  in  Bush  v.  Export  Storage  Co.,  136  Ped.  921,  bankruptcy 
trustee  cannot  recover  property  of  bankrupt  fraudulently  transferred 
where  it  has  passed  into  hands  of  bona  fide  holder  prior  to  adjudication; 
Northwestern  etc.  Ins.  Co.  v.  Kidder,  162  Ind.  391,  70  N.  E.  492,  66 
L.  E.  A.  89,  where  insolvent  corporation  was  in  hands  of  receiver  at 
time  liability  on  policy  insuring  managing  stockholder  accrued,  insurance 
company  could  not  interplead  beneficiary  and  creditors  of  corporation, 
who  asserted  claim  to  proceeds  of  policy;  Moore  Mfg.  Co.  v.  Billings,  40 
Or.  404,  80  Pac.  424,  creditor  having  no  special  lien  on  property  cannot 
maintain  creditor's  bill  to  set  aside  fraudulent  transfer  by  bankrupt. 

102  U.  S.  651-658,  26  L.  291,  BAERETT  v.  HOLMES. 

Syl.  1    (IX,  1127).     Following  state  statutory  construction. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ry.  Co.,  144  Fed.  179, 
*V»t*i:aiining  title  to  Oakland  waterfront. 


1015  Notes  on  U.  S.  Reports.  102  U.  S.  658-707 

102  U.  S.  658-6G3,  26  L.  250,  WHITE  v.  MINERS'  NATIONAL  BANK. 

Syl.  2   (IX,  1129).     Parol  to  explain  indorsement. 

Approved  in  Smith  v.  Bayer,  46  Or.  146,  147,  79  Pac.  498,  indorsee 
of  note  for  collection  may  sue  thereon  in  own  name. 

102  U.  S.  672-686,  26  L.  271,  HAETMAN  v.  GREENHOW. 
Syl.   1    (IX,   1130).     Review — Decision   by   divided   court. 
Cited  in  State  v.  Sunapee  Dam  Co.,  72  N.  H.  115,  55  Atl.  900,  arguendo. 
Syl.   2    (IX,   1130).     State's   contracts— Release   by   statute. 
See  101  Am.  St.  Rep.   162,  note. 

Syl.  3  (IX,  1131).     Review  of  denial  of  mandamus. 
Api)roved  in  In  re  Epley,  10  Okl.  643,  64  Pac.  21,  judgment  granting 
peremptory  mandamus  is  reviewable  on  appeal. 

Syl.   6    (IX,   1131).     Tax  on  bonds — Coupons. 

Approved  in  State  ex  rel.  Louisiana  Imp.  Co.  v.  Board  of  Assessors. 
Ill  La.  986,  993,  36  So.  92,  95,  general  law  directing  taxation  of  all 
l-roperty,  including  "bonds"  and  "credits,"  does  not  include  public 
credits  of  municipality  by  which  tax  is  demanded. 

Syl.  7   (IX,  1132).     Mandamus — Receipt  of  coupons  for  taxes. 

Approved  in  Woodworth  v.  Old  Second  Nat.  Bank,  144  Mich.  339,  107 
N.  W.  906,  mandamus  proceedings  are  ' '  civil  actions ' '  within  statute 
providing  for  change  of  venue  in  civil  cases;  State  v.  Chittenden,  127 
Wis.  494,  107  N.  W.  508,  independent  proceeding  commenced  by  writ 
of  certiorari  is  action  under  Rev.  St.,  1898,  §  2595. 

102  U.  S.  GS6-G91,  26  L.  277,  SHARPE    v.  DOYLE. 

Syl.  1   (IX,  1132).     Bankruptcy — Seizure  of  fraudulent  conveyance. 

Approved  in  In  re.  Knopf,  144  Fed.  253,  bankruptcy  court  after 
petition  in  bankruptcy  may  order  custodian  to  take  possession  of  prop- 
erty pending  adjudication,  though  in  possession  of  adverse  claimant. 

102  U.  S.  691-707,  26  L.  238,  COUNTY  OF  MOBILE   v.  KIMBALL. 

Syl.  1   (IX,  1133).     Commerce — Nonaction  b}^  Congress. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  393, 
United  States  may  require  alteration  of  bridge  as  obstruction  to  navi- 
gation of  interstate  stream,  though  it  was  built  under  state  authority; 
United  States  Express  Co.  v.  State,  164  Ind.  204,  73  N.  E.  104,  uphold- 
ing Burns'  Ann.  St.  1901,  §  3312a,  requiring  express  companies  to  de- 
liver package  to  persons  to  whom  same  is  directed  within  limits  of  cities 
of  certain  population;  dissenting  opinion  in  Northern  Securities  Co.  v. 
United  States,  193  U.  S.  371,  48  L.  714,  24  Sup.  Ct.  436,  majority 
holding  combination  of  stockholders  in  two  competing  interstate  rail- 
roads to  form  stockholding  corporation  which  should  acquire  control 
of  such  railroads  in  exchange  for  its  own  stock,  violates  anti-trust 
act. 


102  U.  S.  691-707  Notes  on  U.  S.  Reports,  1016 

Syl,  3   (IX,  1135).     Commerce — State  harbor  improvements. 

Approved  in  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  879,  holding 
void  Laws  Wis.  1905,  p.  37,  as  amended  by  Laws  Sp.  Sess.  1905,  p. 
19,  providing  for  inspection  and  grading  of  grain  at  Superior  and 
prohibiting  sales  under  Minnesota  grades;  Hart  v.  State,  100  Md. 
610,  60  Atl.  462,  upholding  act  of  1904,  requiring  carriers  to  provide 
separate  cars  for  negroes  and  whites,  as  affecting  intrastate  passen- 
gers; Kansas  City  etc.  E.  E.  Co.  v.  Wiygul,  82  Miss.  231,  33  So. 
967,  61  L.  E.  A.  578,  act  of  Cong.  1899,  prohibiting  creating  obstruc- 
tion to  navigable  water  not  expressly  authorized  by  statute,  does  not 
take  from  railroad  which,  under  state  authorization,  has  constructed 
bridge,  implied  power  to  make  repairs;  Hagan  v.  City  of  Eichmond, 
104  Va.  731,  a  L.  E.  A.  (N.  S.)  1120,  52  S.  E.  388,  under  U.  S.  Comp. 
St.  1901,  p.  3546,  authorizing  Secretary  of  War  to  remove  obstruc- 
tions to  navigation,  where  he  fails  so  to  do,  local  authorities  may 
protect  domestic  commerce  by  keeping  waters  open. 

Syl.  4   (IX,   1136).     County  river  bonds — Public  use. 

Approved  in  Voris  v.  Pittsburg  Plate  Glass  Co.,  163  Ind.  607,  70 
N.  E.  252,  upholding  Burns'  Eev.  St.  1894,  §  4290,  taxing  lots  for 
improvements  according  to  frontage  and  assessing  abutting  lots  back 
to  distance  of  one  hundred  and  fifty  feet;  Dodge  Co.  v.  Saunders 
Co.,  70  Neb.  451,  100  N.  W.  934,  under  Comp.  St.  1901,  c.  78,  §  87, 
county  may  be  required  to  contribute  toward  repair  of  bridge  abutting 
in  such  county,  though  it  is  located  mainly  in  another  county;  Hor- 
ton  v.  City  of  Newport,  27  E.  I.  288,  294,  61  Atl.  761,  763,  upholding 
act  requiring  payment  of  salaries  of  Newport  police  commissioners 
from  city  funds. 

Syl.  5   (IX,  1137).     Public  work — Eaising  means. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
336,  48  L.  700,  24  Sup.  Ct.  436,  combination  of  stockholders  of  two 
competing  interstate  railroads  to  form  stockholding  corporation  which 
should  acquire  control  of  stock  in  such  railroads,  in  exchange  for  its 
own  stock,  violates  anti-trust  act;  St.  Louis  etc.  Ey.  Co.  v.  Davis, 
132  Fed.  633,  upholding  assessment  of  railroad  property  by  Arkansas 
railroad  assessors  pursuant  to  Sand.  &  H.  Dig.,  §§  6464-6473,  which 
provide  time  and  place  for  assessment  and  for  public  hearing. 

Syl.  7   (IX,  1138).     Dismissal  without  prejudice  as  bar. 

Approved  in  Eobinson  v.  American  Car  etc.  Co.,  142  Fed.  171,  and 
Eobinson  v.  American  Car  etc.  Co.,  135  Fed.  696,  68  C.  C.  A.  331, 
both  applying  rule  to  suit  for  infringement  of  patent;  State  v.  Sun- 
apee  Dam  Co.,  72  N.  H.  123,  55  Atl,  904,  where,  in  suit  to  restrain 
owner  of  dam  from  operating  it  so  as  to  injure  other  shore  owners, 
injunction  denied,  court  had  jurisdiction  to  ascertain  damages  to 
plaintiff;  Newberry  v.  Euffin,  102  Va.  76,  45  S.  E.  734,  dismissal 
without  prejudice  leaves  whole  subject  of  litigation  open  to  suit. 


1017  Notes  on  U.  S.  Eeports.  102  U.  S.  707-735 

Syl.  10  (IX,  1138).     Conirneree  includes  what. 

Approved  in  Howard  v.  Illinois  etc.  K.  Co.,  148  Fed.  1000,  and 
Brooks  V.  Southern  Pac.  Co.,  148  Fed.  991,  both  holding  void  em- 
ployer's liability  act  of  1900;  dissenting  opinion  in  Northern  Secur- 
ities Co.  V.  United  States,  193  U.  S.  379,  385,  48  L.  717,  720,  24  Sup. 
Ct.  436,  majority  holding  combination  of  stockholders  in  two  com- 
peting interstate  railroads  to  form  stockholding  corporation,  which 
should  acquire  control  of  stock  in  such  railroads  in  exchange  for  its 
own  stock,  violates  anti-trust  act. 

102  U.  S.  707-735,  26  L.  279,  TILGHMAN  v.  PEOCTOR. 

Syl.   1    (IX,   1139).     Patents— Anticipation. 

Approved  in  American  Sales  Book  Co.  v.  Carter  Crume  Co.,  150 
Fed.  336,  Beck  patent  No.  647,934,  for  manifolding  sales  book,  is 
void  for  anticipation;  Universal  Brush  Co.  v.  Sonn,  146  Fed.  533, 
Morrison  patent  No.  717,014,  for  method  of  making  brushes,  is  in- 
fringed by  method  of  Sonn  patent  No.  791,510;  National  Enameling 
etc.  Co.  V.  Enameling  Co.,  139  Fed.  653,  construing  Claus  patent  No. 
527,301,  for  enameling  metal  ware;  Manhattan  etc.  Co.  v.  Helios- 
Upton  Co.,  135  Fed.  788,  holding  void  Bakei;  patent  No.  684,165,. for 
method  of  regulating  electric  circuits;  Chisholm  v.  Fleming,  133  Fed. 
930,  upholding  Chisholm  patent  No.  421,244,  for  improvement  in 
method   of  hulling  peas. 

Syl.   2    (IX,   1140).     Patent   for  process. 

Approved  in  Expanded  Metal  Co.  v.  Bradford,  136  Fed.  872,  uphold- 
ing Golding  patent  No.  527,242,  for  process  of  making  open  metal 
work  by  expanding  sheet  metal. 

Syl.  4   (IX,  1141).     Process  patent — Description. 

Approved  in  Comptograph  Co.  v.  Universal  etc.  Mach.  Co.,  142  Fed. 
543,  upholding  Feet  patent  No.  628,176,  for  improvement  in  com- 
puting machines;  Eastern  Paper  Bag  Co,  v.  Continental  Paper  Bag 
Co.,  142  Fed.  493,  holding  Liddell  patent  No.  558,969,  for  paper-bag 
machine,  not  anticipated  by  Claussen  patent  No,  598,497. 


cm  UNITED  STATES. 


103  U.  S.  5-11,  26  L.  302,  HALL  v.  WISCONSIN. 

Syl.  2   (X,  10).     Commissioner  to  survey  not  public  officer. 

Approved  in  United  States  v.  Schlierholz,  137  Fed.  621,  special 
agent  of  Land  Department  appointed  under  appropriation  act  for 
protection  of  timber,  not  an  "officer  of  the  United  States,"  within 
Eev.  St.,  §  5481,  punishing  extortion. 

103  U.  S.  11-21,  26  L.  439,  DENNICK  v.  CENTRAL  R.  E.  CO. 

Sj'l.   1   (X,  8).     Action  for  wrongful  death  is  transitory. 

Approved  in  Walker  v.  Globe  etc.  Co.,  140  Fed.  310,  copyright  pro- 
tected by  common-law  remedies  of  action  for  damages,  though  special 
remedy  provided  by  statute;  Anglo-American  etc.  Co.  v.  Lombard, 
132  Fed.  750,  68  C.  C.  A.  89,  cause  of  action  given  by  laws  of  Kansas 
to  cTreditor  of  corporation  which  has  suspended  business  against  stock- 
holder, arises  in  Kansas,  not  where  stockholder  resides;  Reeves  v. 
Southern  Ey.  Co.,  121  Ga.  565,  49  S.  E.  676,  67  L.  R.  A.  803,  holding 
nonresident  could  sue  foreign  corporation  in  Georgia  for  tort  com- 
mitted in  Alabama;  Christiansen  v.  Graver  Tank  Works,  223  111. 
150,  79  N.  E.  101,  holding  in  action  brought  in  Illinois  for  injury 
caused  by  negligence  in  Iowa,  law  of  latter  state  determines  liability; 
Illinois  etc.  Ry.  Co.  v.  Eblin,  114  Ky.  825,  71  S.  W.  921,  holding 
railroad  company  liable  in  civil  action,  for  negligently  failing  to  pro- 
vide feeding  facilities  for  horses,  though  federal  statute  imposed 
a  penalty  therefor;  Rick  v.  Saginaw  Bay  Towing  Co.,  132  Mich. 
240,  102  Am.  St.  Rep.  422,  93  N.  W.  633,  holding  in  action  brought 
in  Michigan  upon  injury  caused  by  negligence  in  Canada,  liability  de- 
termined by  law  of  Canada;  Bergman  v.  Inman,  43  Or.  462,  99  Am. 
St.  Rep.  771,  72  Pac.  1087,  holding  in  action  in  Oregon  for  conversion 
of  logs  taken  in  Washington  and  brought  into  Oregon,  statute  of 
limitations  began  to  run  on  their  removal  from  Oregon;  Dennis  v. 
Atlantic  Coast  Line  R.  R.  Co.,  70  S.  C.  258,  106  Am.  St.  Rep.  746, 
49  S.  E.  870,  applying  North  Carolina  statute  of  limitations  as  to 
action  for  wrongful  death;  Whitlow  v.  Nashville  etc.  Ry.  Co.,  114 
Tenn.  356,  84  S.  W.  620,  holding  action  by  administrator  in  Tennessee 
maintainable  for  death  occurring  under  wrongful  death  statute  in 
Alabama;  Morrisette  v.  Canadian  Pacific  Ey.  Co.,  76  Vt.  272,  56  Atl. 
1103,  enforcing  Canadian  law  as  to  contributory  negligence  and 
assumption  of  risk  by  servant;  dissenting  opinion  in  Slater  v.  Mex- 
ican National  R.  R.  Co.,  194  U.  S.  134,  48  L.  906,  24  Sup.  Ct.  581, 
majority  holding  liability  under  Mexican  statute  for  periodical  pay- 

£1018] 


1019  Notes  on  U.  S.  Reports.  103  U.  S.  11-21 

merits  to  widow  and  next  of  kin  not  enforceable  in  Texas,  procedure 
not   being  adapted   to   enforcement   of   right. 

Distinguished  in  Slater  v.  Mexican  National  E.  R.  Co.,  194  U.  S. 
126,  48  L.  903,  24  Sup.  Ct.  581,  holding  not  only  obligation  but  also 
extent  of  the  liability  determined  by  law  where  death  occurred; 
Casey  v,  St.  Louis  Transit  Co.,  116  Mo.  App.  266,  269,  91  S.  W. 
430,  431,  holding  Missouri  statute  imposing  liability  of  $5,000  for 
wrongful  death  created  a  penalty  and  strictly  construed,  and  action 
for  less  amount  not  maintainable,  overruling  Marsh  v.  Kansas  City 
etc.  Ry.  Co.,  104  Mo.  App.  584,  78  S.  W.  286,  holding  such  statute 
not  penal  and  allowing  recovery  of  less  amount  than  therein  specified. 

Syl.  2   (X,  10).     Enforcement  of  foreign  statute  by  administrator. 

Approved  in  "Williams  v.  Camden  etc.  Ky.  Co.,  138  Fed.  574,  577, 
578,  holding  Kentucky  personal  representative  could  sue  there  for 
tlcath  occurring  under  wrongful  death  statute  in  Ohio,  though  he 
could  have  sued  in  Ohio;  Stockwell  v.  Boston  &  M.  R.  Co.,  131  Fed. 
154,  holding  cause  of  action  for  wrongful  death  occurring  under  stat- 
ute in  New  Hampshire  maintainable  by  personal  representative  in 
V^ermont,  where  deceased  was  domiciled;  In  re  Estate  of  Coe,  130 
Iowa,  310,  106  N.  W.  744,  holding  money  recovered  by  Iowa  admin- 
istrator for  wrongful  death  occurring  in  Illinois  distributed  according 
to  law  of  Illinois,  and  not  of  former  state  where  deceased  domiciled; 
Roman  v.  Capital  City  Brick  etc.  Co.,  125  Iowa,  599,  101  N.  W. 
440.  106  Am.  St.  Rep.  323,  68  L.  R.  A.  132,  holding  Iowa  administrator 
could  maintain  action  under  wrongful  death  act  in  that  state,  though 
sole  heir  of  deceased  was  a  nonresident  alien;  Hartley  v.  Hartley, 
71  Kan.  694,  81  Pac.  505,  holding,  where  wrongful  death  act  of  Iowa 
provides  damages  recovered  "shall  be  disposed  of  as  personal  property 
belonging  to  estate  of  deceased,"  money  recovered  by  Kansas  admin- 
istrator, where  deceased  was  domiciled,  distributed  according  to  laws 
of  Kansas;  Vance  v.  Railroad  Co.,  138  N.  C,  463,  50  S.  E.  861,  hold- 
ing letters  of  administration  issued  in  North  Carolina  for  purpose 
of  suing  for  wrongful  death  occurring  there,  are  valid,  though  de- 
ceased resided  elsewhere  and  left  no  property  in  that  state;  Gottlieb 
V.  North  Jersey  St.  Ry.  Co.,  72  N.  J.  L.  484,  63  Atl.  340,  holding  the 
fund  recovered  not  a  part  of  deceased's  estate,  but  is  a  trust  for 
benefit  of  persons  named  in  the  act;  Bain  v.  Northern  Pacific  Ry. 
Co.,  120  Wis.  416,  98  N.  W.  243,  holding  action  for  wrongful  death 
occurring  in  Minnesota  could  be  brought  by  administrator  in  Wis- 
consin. 

Distinguished  in  Sanbo  v.  Union  Pac.  Coal  Co.,  130  Fed.  53,  Colo- 
rado administrator  cannot  maintain  action  for  wrongful  death  based 
on  Wyoming  statute  in  courts  of  former  state. 


103  U.  S.  22-62  Notes  on  U.  S.  Reports,  1020 

103  U.  S.  22-25,  26  L.  360,  PEEWIT  v.  WILSON". 

Syl.  1  (X,  12).  Fraud  imputed  to  grantee  upon  adequate  consid- 
eration. 

Approved  in  First  Nat.  Bank  v.  Follett,  20  Colo.  App.  380,  80  Pac. 
150,  holding  conveyance  to  one  creditor  in  satisfaction  of  her  claim 
with  intent  to  defraud  others  cannot  be  set  aside  unless  first  creditor 
knew  of  fraudulent  intent. 

Syl.  2  (X,  12).     Marriage  is  adequate  consideration. 

Approved  in  Savage  v.  Savage,  141  Fed.  349,  holding  trust  deed 
to  secure  payment  of  amount  of  alimony  to  former  wife  for  her  life 
in  consideration  that  she  release  the  lien  of  the  alimony  from  other 
property  not  affected  by  later  remarriage. 

103  U.  S.  40-44,  26  L.  317,  BAMBEEGEE  v.  TEEEY. 

Syl.  4  (X,  15).     Submission  not  vacated  by  amendment. 

Approved  in  Bainum  v.  American  Bridge  Co.,  141  Fed.  180,  allow- 
ing amendment  of  complaint  short  time  before  trial  to  state  defendrnt 
to  be  a  corporation  of  New  York  instead  of  New  Jersey,  there 
having  been  no  doubt  on  either  side  as  to  the  real  parties;  Dunn  v. 
Mayo  Mills,  134  Fed.  805,  67  C.  C.  A.  450,  allowing  amendment  of 
complaint  at  trial  by  substituting  a  true  copy  of  the  contract  sued 
on  for  an  unsigned  and  inaccurate  one  that  had  been  inserted. 

103  U.  S.  49-62,  26  L.  347,  SPEING  CO.  v.  KNOWLTON. 

Syl.  2   (X,  16).     No  recovery  where  illegal  contract  executed. 

Approved  in  Harriman  v.  Northern  Securities  Co.,  197  U.  S.  296, 
49  L.  763,  25  Sup.  Ct.  493,  holding  corporate  stock  illegally  trans- 
ferred to  a  holding  corporation  in  exchange  for  its  stock  cannot  be 
recovered  back;  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed. 
343,  majority  holding  money  lost  by  betting  on  races  fraudulently 
fixed  can  be  recovered. 

Syl.  3   (X,  16).     No  action  upon  illegal  contract. 

Distinguished  in  Camors-McConnell  Co.  v.  McConnell,  140  Fed.  414, 
holding,  where  defendant  had  sold  his  business  agreeing  not  to  en- 
gage in  competing  business,  fact  that  purchase  was  part  of  scheme 
to  secure  monopoly  no  defense  to  action  to  enjoin  defendant  from 
so  engaging. 

Syl.  4  (X,  16).     Consideration  of  executory  contract  recoverable. 

Approved  in  Knapp  v.  Knapp,  118  Mo.  App.  705,  96  S.  W.  301, 
holding  where  intestate  delivered  money  to  another  as  bailee  for  pur- 
pose of  defrauding  creditors,  his  administratrix  could  recover  it; 
Fairbanks,  Morse  &  Co.  v.  City  of  North  Bend,  68  Neb.  566,  94  N.  W. 
540,  holding  money  deposited  on  making  bid  for  municipal  contract 
can  be  recovered  where  bid  illegally  allowed;  Monahan  v.  Monahan, 
77  Vt.  148,  59  Atl.  173,  70  L.  E.  A.  935,  holding  securities  which  plain- 


1021  Notes  on  TJ.  S.  Eeporta.  103  U.  S.  62-71 

tiff  had  placed  in  name  of  his  son  to  avoid  taxation,  but  not  intending 
eon  to  have  them,  can  be  recovered  from  latter  who  obtained  pos- 
session of  them  secretly;  Urwan  v.  Northwestern  etc,  Ins.  Co.,  125 
Wis.  362,  103  N.  W.  1106,  holding  where  insurance  contract  illegal 
under  statute  prohibiting  discriminations,  premiums  paid  thereunder 
could  be  recovered. 

103  U.  S.  62-OG,  26  L.  369,  MITCHELL  v.  OVERMAN. 
Syl.  3  (X,  18).  Court  may  make  nunc  pro  tunc  order. 
Approved  in  Stern  v.  Bennington,  100  Md.  346,  103  Am.  St.  Eep. 
433,  60  Atl.  18,  holding  court  may  order  nunc  pro  tunc  entry  of 
judgment,  where  clerk  had  omitted  to  enter  it  when  made;  Oliver  v. 
Love,  104  Mo.  App,  84,  78  S.  W.  338,  where  finding  on  plaintiiT's  claim 
set  aside  and  that  on  counterclaim  allowed  to  stand,  interest  allowed 
on  counterclaim  from  verdict  on  it, 

Syl.  4   (X,  18).     Entry  of  decree  nunc  pro  tunc. 

Approved  in  Roberts  v.  Wessinger,  69  S.  C.  284,  48  S.  E.  248,  decree 
of  spcrial  judge  rendered  out  of  county  in  which  he  held  court  after 
term  in  which  case  marked  "heard"  on  last  day  of  term  referred 
to  day  it  was  marked;  Rnshton  v.  Woodhara,  68  S.  C.  114.  46  S.  E. 
944,  applying  rule  where  opinion  announced  j)rior  to  qualification  of 
officers  of  new  county  and  decree  filed  afterward. 

103  U.  S.  r.G-71,  2a  L.  428,  STOUT  v.  LYE. 

Svl.  4  (X,  20).     Foreclosure  decree  binds  mortgagor's  assignee. 

Approved  in  Rothschild  v.  Leonhard,  33  Ind.  App.  460,  71  N.  E. 
675,  in  suit  to  reform  deed  executed  by  defendant  and  to  quiet  plain- 
tiff's title,  right  of  plaintiff  not  affected  by  subsequent  conveyance 
by  defendant. 

Syl.  5   (X,  20).     Foreclosure  unaffected  by  later  judgment. 

Approved  in  Seaboard  Air  Line  Ry.  Co.  v.  Trust  Co.,  125  Ga.  465, 
54  S.  E.  140,  holding  after  decree  of  foreclosure  and  sale  under 
railroad  mortgage,  intervention  not  allowed  which  seeks  to  bring  in 
claim  having  priority  to  mortgage  bonds  and  also  to  set  up  defense 
that  bonds  issued  without  consideration. 

Syl.  9  (X,  21).     Judgment  on  merits  concludes  issues. 

Approved  in  Kittel  v.  Trustees  etc.  Improvement  Fund,  139  Fed. 
955,  where  trustees  of  swamp  lands  agreed  to  convey  to  railroad,  to 
which  legislature  made  grant,  when  lands  patented  to  state,  and  on 
foreclosure  in  which  trustees  made  defendants,  they  did  not  contend 
that  title  was  in  United  States,  succeeding  trustees  estopped  in  later 
suit  to  enforce  certificate  to  say  that  title  was  in  United  States; 
Georgia  etc.  Co.  v,  Wright,  132  Fed.  917,  former  judgment  holding 
tax  against  railroad  company  invalid  because  corporate  charter  granted 
exemption,  held  bar  as  to  question  of  exemption  in  later  suit  to  en- 
force taxes  for  different  year. 


103  U.  S.  71-86  Notes  on  U.  S.  Reports.  1022 

103  U.  S.  71-74,  26  L.  305,  UNITED  STATES  v.  HOUGH. 

Syl.  1  (X,  21).     Charge  partly  erroneous  properly  refused. 

Approved  in  Chicago  etc.  By.  Co.  v.  Eoddy,  131  Fed.  718,  65  C.  C. 
A.  470,  holding  request  for  instruction  containing  two  propositions, 
one  of  which  is  unsound,  properly  refused. 

Syl.  2   (X,  22).     Surety's  obligation  restricted. 

Approved  in  Swift  v.  Jones,  135  Fed.  439,  holding  guarantor  on 
contract  for  employment  of  another  not  liable  where  contract  also 
provided  employee  should  give  fidelity  bond,  which  was  not  procured. 

103  U.  S.  74-79,  26  L.  430,  WALL  v.  COUNTY  OF  MONEOE. 

Syl.  1  (X,  22).     County  warrants  prima  facie  evidence. 

Approved  in  Apache  Co.  v.  Barth,  6  Ariz.  23,  53  Pac.  189,  holding 
in  suit  on  county  warrant  verified  answer  denying  legal  execution 
of  warrants  does  not  overcome  prima  facie  presumption  of  their 
validity. 

Syl.  2   (X,  22).     County  warrants  transferable,  but  not  negotiable. 

Approved  in  Coleman  v.  Borough  of  New  Kensington,  140  Fed. 
686,  holding  action  may  be  brought  on  vouchers  given  for  materials 
furnished  by  borough,  instead  of  on  contract  under  which  they  were 
furnished;  Fidd  v.  Village  of  Highland  Park,  141  Mich.  71,  104  N.  W. 
394,  holding  village  warrant  in  hands  of  bona  fide  holder  subject  to 
defense  that  street  work  for  which  it  was  issued  was  never  completed ; 
Crawford  v.  Board  of  Commrs.,  8  Okl.  456,  58  Pac.  618,  where,  after 
claim  allowed  and  warrant  issued,  appeal  taken  on  behalf  of  county 
and  judgment  obtained  declaring  claim  void,  the  judgment  is  binding 
on  transferee  of  warrant. 

103  U.  S.  80-86,  26  L.  318,  ALLEN  v.  LOULSIANA. 

Syl.  2  (X,  24).     "When  invalid  part  of  statute  severable. 

Approved  in  United  States  v.  Ju  Toy,  198  U.  S.  263,  49  L.  1044, 
25  Sup.  Ct.  644,  holding  act  making  decision  of  department  final  as  to 
right  of  person  to  enter  country,  applies  as  well  where  he  claims  to 
be  a  citizen  of  this  country  as  to  other  cases;  Cella  Com.  Co.  v. 
Bohlinger,  147  Fed.  423,  holding  state  statute  allowing  summons 
against  any  foreign  corporation,  whether  doing  business  in  state  or 
not,  to  be  served  on  auditor  of  state,  not  valid  as  to  foreign  cor- 
poration doing  business  in  state;  McDonald  v.  Doust,  11  Idaho,  37, 
81  Pac.  68,  holding  legislature  not  having  power  to  abolish  a  county 
recognized  by  constitution,  an  act  seeking  to  abolish  such  county 
and  establish  two  new  ones  in  its  place  cannot  be  held  valid  as  to 
one  new  county  only. 


1023  Notes  on  U.  S.  Ecports.  103  U.  S.  90-145 

103  U.  S.  90  98,  2G  L.  310,  BOOGIIER  v.  NEW  YORK  LIFE  INS.  CO. 

Syl.  2  (X,  26).     Federal  statutes  govern  Supreme  court  review. 

Approved  in  Francisco  v.  Chicago  &  A.  E.  Co.,  149  Fed.  359,  federal 
supreme  court  will  not  review  nonsuit  voluntarily  procured,  even 
though  it  would  have  been  reviewed  by  state  supreme  court. 

Syl.  4   (X,  26).     Record  must  show  jury  waived. 

Approved   in   Anglo-American   etc.    Co.   v.   Lombard,    132   Fed.    740. 

68  C.  C.  A.  89,  where  supreme  court  reviewed  judgment  rendered  on 
special  findings,  there  being  written  stipulation  waiving  jury. 

Syl.  6   (X,  27).     Referee's  findings  not  reviewable. 

Approved  in  Swift  v.  Jones,  145  Fed.  493,  holding  in  action  in 
federal  circuit  court  judge  not  authorized  to  order  trial  of  facts  before 
special  master. 

103  U.  S.  99-104,  26  L.  443,  NATIONAL  BANK  v.  'WHITNEY. 

Syl.  4   (X,  28).     Ultra  vires  loans  binding  on  parties. 

Approved  in  Third  Nat.  Bank  v.  Buffalo  German  Ins.  Co.,  193  U.  S. 
588,  48  L.  803,  24  Sup.  Ct.  524,  law  prohibiting  national  banks  from 
making  loan  or  discount  on  security  of  its  own  stock  cannot  be 
invoked  by  debtor  in  such  loan;  Waterbury  v.  McKinnon,  146  Fed. 
739,  holding  no  defense  in  suit  to  foreclose  mortgage  that  real  owner 
thereof  fraudulently  had  it  executed  to  nonresident  to  avoid  tax- 
ation; Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed.  527,  67 
C.  C.  A.  393,  government  alone  can  object  to  devise  to  corporation 
in  excess  of  its  legal  capacity  to  hold  property;  Tidwell  v.  Chiricahua 
Cattle  Co.,  5  Ariz.  362,  53  Pac.  195,  conveyance  by  settler  on  public 
land  to  corporation  can  be  attacked  on  ground  corporation  could  not 
acquire  public  land  only  by  government  in  direct  proceeding;  Schoon- 
over  V.  Petcina,  126  Iowa,  267,  100  N.  W.  493,  holding  mortgage  notes 
taken  by  president  of  national  bank  in  his  own  name  and  indorsed 
to  bank  belong  to  and  assessable  to  bank,  though  without  authority 
to  take  such  security,  and  though  president  thereby  became  indorser 
for   larger   amount   than  law   allowed;    State   v.   American   Book   Co., 

69  Kan.  10,  13,  76  Pac.  414,  415,  1  L.  R.  A.  (N.  S.)  1041,  holding 
contract  made  with  foreign  corporation  before  it  complied  with  laws 
enabling  it  to  do  business  in  the  state  binding  on  both  parties; 
Farmers'  Nat.  Bank  v.  Western  Pa.  Fuel  Co.,  215  Pa.  St.  119,  64  Atl. 
375,  holding,  in  action  by  bank  for  rent,  it  is  not  defense  that  bank 
had  no  authority  to  own  buildings  and  rent  offices. 

103  U.  S.  118-145,  26  L.  327,  RAILROAD  v.  SCHUTTE. 

Syl.  5  (X,  32).     Contracts  interpreted  according  to  language. 

Cited  in  Flaherty  v.  Fleming,  58  W.  Va.  671,  52  S.  E.  858,  holding, 
in  construing  grant  of  "free  right  of  way  for  alleyway  twelve  feet 
wide,"  owner  of  servient  tenement  had  no  right  to  construct  fence 
or  gate  therein. 


103  U.  S.  155-205  Notes  on  U.  S.  Eeports.  1024 

Syl.  7  (X,  33).     Case  authority  on  points  decided. 

Approved  in  Union  Pac.  E.  E,  Co.  v.  Mason  City  etc.  E.  E.  Co., 
199  U.  S.  166,  50  L.  137,  26  Sup.  Ct.  19,  opinion  of  court  assigning 
two  grounds  for  decision  is  authority  as  to  each;  Clark  v.  Knox,  32 
Colo.  353,  76  Pac.  375,  where  two  defenses  to  action  passed  upon  and 
upheld,  though  first  alone-  would  have  decided  case,  the  second  is 
res  adjudicata  between  parties;  dissenting  opinion  in  Hall  v.  Madison, 
128  Wis.  145,  146,  107  N.  W.  35,  36,  majority  restricting  authority 
of  former  decision  to  actual  question  decided,  and  holding  statute 
allowing  women  to  vote .  at  elections  pertaining  to  school  matters 
allowed  them  to  vote  on  question  of  issuing  school  bonds. 

103  U.  S.  155-164,  26  L.  374,  TILLEY  v.  COUNTY  OF  COOK. 

Syl.  1  (X,  33).     Offer  must  be  accepted  unconditionally. 

Approved  in  Four  Oil  Co.  v.  United  Oil  Producers,  145  Cal.  625, 
79  Pac.  367,  68  L.  E.  A.  226,  where  acceptance  of  offer  imposed  con- 
dition not  stated  in  offer  there  was  no  contract. 

Syl.   3   (X,  34).     Unreasonable   custom   not   binding. 

Approved  in  McSherry  v.  Blanehfield,  CS  Kan.  312,  75  Pac.  122, 
not  error  to  reject  evidence  of  custom  in  interpreting  contract,  it 
not  appearing  that  one  contracting  party  knew  of  it. 

Distinguished  in  Lillard  v.  Kentucky  Distilleries  etc.  Co.,  134  Fed. 
182,  67  C.  C.  A.  74,  holding  under  written  contract  for  sale  of  dis- 
tillery slops  as  feed  for  cattle,  evidence  of  custom  as  to  manner  of 
delivery  admissible. 

103  U.  S.  168-205,  26  L.  377,  KILBOUEN  v.  THOMPSON". 

Syl.  1   (X,  34).     Due  process  of  law  defined. 

Approved  in  Taylor  v.  Crawford,  72  Ohio  St.  570,  74  N.  E.  1068, 
69  L.  E.  A.  805,  upholding  95  Ohio  Laws,  p.  155,  §  3,  providing  for 
cleaning  and  repairing  of  public  drains  and  watercourses. 

Syl.  3   (X,  35).     Can  Congress  punish  for  contempt? 

Cited  in  Ex  parte  Parker,  74  S.  C.  470,  55  S.  E.  124,  holding  com- 
mittee appointed  by  legislature  to  investigate  affairs  of  state  dis- 
pensary may  commit  witness  for  contempt  in  refusing  to  answer  ques- 
tions. 

Syl.  4  (X,  35).     Power  of  Congress  to  compel  attendance. 

Approved  in  In  re  Conrades,  112  Mo.  App.  33,  85  S.  W.  154,  com- 
mittee appointed  by  municipal  house  of  delegates  to  investigate  viola- 
tions of  license  tax  ordinances  may  compel  witnesses  to  attend. 

Syl.  5   (X,  36).     Proceeding  of  Congress  without  jurisdiction  void. 

Approved  in  Ex  parte  Caldwell,  138  Fed.  496,  house  of  delegates 
of  West  Virginia  having  no  power  to  carry  on  investigation  could 
Dot  punish  witness  for  not  obeying  subpoena;   dissenting  opinion  in 


1025  Notes  on  U.  S,  Reports.  103  U.  S.  205-216 

In  re  Conrades,  112  Mo.  xVpp.  45,  85  S.  W.  158,  majority  holding  in- 
vestij^ating  committee  of  municipal  house  of  delegates  could  compel 
witnesses  to  attend. 

Distinguished  in  Application  of  Bunkers,  1  Cal.  App.  67,  81  Pac. 
750,  holding  m'ember  of  state  Senate  committee  for  investigation  of 
afTairs  of  certain  corporations  punishable  for  accepting  bribe  for 
vote  in  such  committee,  Senate  having  power  to  make  such  investi- 
gation. 

Syl.  6  (X,  36).  Powers  of  government  departments  exclusive. 
Approved  in  McCray  v.  United  States,  195  U.  S.  55,  49  L.  95,  24 
Sup.  Ct.  769,  tax  imposed  on  artificially  colored  oleomargarine  being 
within  power  of  Congress  cannot  be  declared  invalid  by  courts;  State 
V.  Rogers,  71  Ohio  St.  217,  73  N.  E.  402,  holding  act  constituting 
judges  of  court  a  commission  to  fix  salaries  of  county  surveyors  in- 
valid. 

Cited  in  State  v.  Bates,  96  Minn.  115,  104  N.  W.  711,  holding  statute 
providing  for  liquor  licenses  to  be  issued  by  county  commissioners, 
composed  in  part  of  judicial  officers  not  unconstitutional. 

Syl.  11   (X,  38).     Arrest  held  false  imprisonment. 

Approved  in  Stephens  v.  "Wilson,  115  Ky.  37,  72  S.  W.  339,  holding 
three  justices  of  peace  of  a  county  constituting  minority  of  fiscal 
court  of  county  guilty  of  false  imprisonment  in  attempting  to  enforca 
attendance  of  another  justice  at  meeting. 

103  U.  S.  205-216,  26  L.  514,  BARNEY  v.  LATHAM. 

Syl.  1   (X,  38).     Acts  for  removal  to  federal  courts. 

Cited  in  Indian  etc.  Coal  Co.  v.  Asheville  Ice  etc.  Co.,  135  Fed. 
840,  where  in  state  court  judgment  for  plaintiff  had  been  affirmed 
as  to  main  cause  of  action,  but  reversed  as  to  counterclaim,  case  not 
removable  for  trial  of  counterclaim. 

Syl.  3   (X,  38).     When  case  removable  as  to  parties. 

Approved  in  Manufacturers'  Com.  Co.  v.  Brown  Alaska  Co..  148 
Fed.  310,  where  one  action  brought  on  note  against  maker  and  sev- 
eral indorsers,  any  one  nonresident  defendant  can  remove  cause  of 
action  against  him  to  federal  court;  Iowa  etc.  Min.  Co.  v.  Bliss,  144 
Fed.  457,  in  action  against  guaranty  company  on  fidelity  bond  which 
also  seeks  to  hold  principal  liable  for  the  embezzlement  covered  by 
the  bond,  former  controversy  separable  and  action  removed;  Cella 
V.  Brown,  144  Fed.  757,  affirming  136  Fed.  444,  in  suit  against  non- 
resident for  specific  performance  of  contract  for  allotment  of  bonds 
and  securities  in  a  reorganization  scheme,  a  defendant  bank  which 
acted  as  agent  in  making  allotments,  though  a  resident  of  same  state 
as  plaintiff,  not  necessary  party,  and  removal  granted;  Lucas  v. 
Milliken,  139  Fed.  828,  in  suit  for  specific  performance  of  contract 
65 


103  U.  S.  217-226  Notes  on  U.  S.  Reports.  1026 

for  sale  of  corporate  stock,  for  damages  for  its  breach,  and  to  enjoin 
defendant  from  voting  the  stock,  the  corporation  not  necessary  party 
defendant  and  will  not  prevent  federal  jurisdiction;  Boatmen's  Bank 
V,  Fritzlen,  135  Fed.  662,  663,  68  C.  C.  A.  288,  in  suit  to  foreclose 
mortgage  and  also  to  avoid  prior  mortgages  for  fraud,  controversies 
are  separable,  and  removal  can  be  based  upon  latter;  Groel  v.  United 
Elec.  Co.,  132  Fed.  254,  257,  261,  suit  by  New  Jersey  stockholder  in 
corporation  of  that  state  to  enforce  corporate  claim  against  Penn- 
syhania  corporation,  remanded.  New  Jersey  corporation  appearing  to  be 
opposed  to  enforcement  and  aligned  with  defendant  in  controverm'. 

Syl.  4   (X,  41).     No  definite  rule  as  to  multifariousness. 

Approved  in  Thomas  v.  Great  Northern  Ry.  Co.,  147  Fed.  86,  error 
in  refusing  to  remand  case  from  federal  court  not  cured  by  amend- 
ment of  pleading  which  would  give  federal  court  jurisdiction;  Emmons 
V.  National  etc.  Assn.,  135  Fed.  692,  68  C.  C.  A.  327,  bill  by  stock- 
holder in  and  borrower  of  building  and  loan  corporation  for  account- 
ing with  the  corporation  to  enjoin  sale  of  security  for  the  loan  and 
to  have  receiver  appointed  for  the  corporation  is  multifarious;  United 
Cigarette  etc.  Co.  v.  Wright,  132  Fed.  197,  bill  against  agent  for 
accounting  not  multifarious  because  several  separate  transactions 
growing  out  of  agency  are  included;  Hosmer  v.  Wyoming  Ey.  etc. 
Co.,  129  Fed.  888,  65  C.  C.  A.  81,  appellate  court  refused  to  reverse 
decree  of  lower  court  on  ground  of  multifariousness  where  only  preju- 
dice was  in  burden  of  costs  which  could  be  remedied  by  modifying 
decree. 

Syl.  6   (X,  41).     Removal   depends  on  pleadings. 

Approved  in  Helena  etc.  Co.  v.  Spratt,  146  Fed.  314,  where  it  ap- 
pears from  bill  and  answers  in  condemnation  suit  that  legal  title  to 
land  held  by  nonresident,  but  equitable  title  held  by  resident,  removal 
not  allowed;  Laden  v.  Meek,  130  Fed.  879,  65  C.  C.  A.  361,  case 
remanded  where  pleading  did  not  show  nonresident  defendants  to  be 
citizens  of  same  state. 

103  U.  S.  217-221,  26  L.  536,  WILMOT  v.  MUDGE. 

Syl.  1  (X,  41).     Composition  a  proceeding  in  bankruptcy. 

Approved  in  In  re  Friend,  134  Fed.  779,  67  C.  C.  A.  500,  judgment 
confirming  composition  under  bankrupt  act  of  1898  is  a  judgment 
granting  discharge  in  bankruptcy  and  reviewable. 

103  U.  S.  222-226,  26  L.  337,  RELFE  v.  RUNDLE, 

Syl.  3   (X,  43).     Charter  follows  corporation. 

Approved  in  Brown  v.  Equitable  L.  Assur.  Soc,  142  Fed.  843,  844, 
statute  of  New  York  prohibiting  appointment  of  receiver  for,  or  suit 
for  accounting  against  insurance  company  unless  attorney  general 
approves  same  is  part  of  charter  of  New  York  insurance  corporation, 
and  binding  on  stockholders  residing  elsewhere;   Lewis  -v.  Clark,  129 


1027  Notes  on'U.  S.  Reports.  103  U.  S.  227-278 

Fed.  574,  64  C.  C.  A.  138,  allowing  receiver  of  corporation  appointed 
in  Wisconsin  to  sue  in  federal  court  in  Idaho  on  ground  of  comity. 

Distinguished  in  Great  Western  Min.  etc.  Co.  v.  Harris,  198  U.  S. 
576,  49  L.  1169,  25  Sup.  Ct.  770,  receiver  of  corporation  cannot  be 
empowered  by  appointing  court  to  sue  in  another  jurisdiction;  Ed- 
wards V.  National  Window  Glass  etc.  Assn.,  139  Fed.  797,  where 
receiver  appointed  by  federal  court  for  district  of  Massachusetts,  but 
not  shown  to  have  been  vested  with  title  to  property,  not  allowed  to 
sue  in  federal   court  for  district  of  New  Jersey. 

103  U.  S.  227-237,  26  L.  462,  BLAKE  v.  UNITED  STATES. 

Syl.  2  (X,  44).'    Eemoval  incident  of  power  to  appoint. 

Approved  in  Mial  v.  Ellington,  134  N.  C.  165,  46  S.  E.  972,  65  L.  R. 
A.  697,  one  appointed  supervisor  of  roads  for  a  township  for  term 
of  two  years  has  no  property  or  contract  right  in  the  office  which 
cannot  be  taken  away  by  legislature;  dissenting  opinion  in  Territory 
v.  Albright,  12  N.  M.  318,  78  Pac.  212,  majority  holding  assessor 
appointed  on  March  23,  1903,  pursuant  to  Stat.  1903,  p.  80,  relating  to 
division  of  Bernadillo  county,  not  entitled  to  office. 

Syl.  4  (X,  44).     President's  power  to  supersede  officer. 

Cited  in  Hartigan  v.  United  States,  196  U.  S.  174,  49  L.  436,  25 
Sup.  Ct.  204,  cadet  in  United  States  Military  Academy  not  officer 
in  army  within  meaning  of  statute  forbidding  President  from  dis- 
missing  such   officer  without   court-martial. 

103   U.   S.  239-250,  26  L.  351,  THE  BENEFACTOR. 

Syl.  1   (X,  45).     Admiralty  rule  56  construed. 

Distinguished  in  The  Sacramento,  131  Fed.  374,  375,  admiralty  rule 
56  applies  to  proceeding  to  limit  liability  where  no  suit  or  libel  for 
recovery  is  pending. 

Syl.  5   (X,  46).     No  limited  liability "  after  satisfaction. 

Cited  in  The  Pine  Forest,  129  Fed.  705,  64  C.  C.  A.  228,  holding  lim- 
ited liability  proceeding  taken  after  owners  have  performed  salvage 
services  will  not  affect  principle  that,  being  owners  of  vessel  at  fault, 
they  cannot  claim  salvage. 

103  U.  S.  261-278,  26  L.  539,  OSCANYAN  v.  ARMS  CO. 

Syl.  1  (X,  48).     Counsel's  admission  dispenses  with  proof. 

Approved  in  State  v.  Marx,  78  Conn.  27,  60  Atl.  694,  where,  in  trial 
for  murder,  defendant  admitted  fact  of  murder  and  confined  evidence 
to  proving  he  did  not  do  it;  Missouri  etc.  Tel.  Co.  v.  Vandevort,  67 
Kau.  272,  72  Pac.  772,  testimony  of  opening  statement  of  attorney  on 
former  trial  containing  material  admission  admissible;  Beard  v.  State, 
44  Tex.  Cr.  403,  71  S.  W.  960,  holding  not  error  to  reject  evidence  of 
good  character  where  that  fact  is  admitted  by  prosecuting  attorney. 


103  U.  S.  261-278  Notes  on  U.  S.  Eeports.  1028 

Syl.  2   (X,  48).     Court  may  direct  verdict. 

Distinguished  in  Redding  v.  Puget  Sound  Iron  etc.  Works,  36  Wash. 
644,  79  Pac.  309,  holding  error  to  direct  judgment  for  defendant  where 
opening  statement  of  plaintiff  falls  short  of  making  out  a  case. 

Syl.  3   (X,  49).     Nonsuit  same  as  directing  verdict. 

Cited  in  Parks  v.  Southern  By.  Co.,  143  Fed.  278,  and  Huntt  v.  Mc- 
Namee,  141  Fed.  295,  both  holding  not  error  to  refuse  nonsuit  after 
evidence  in  and  defendant  has  moved  for  direction  of  verdict  for  de- 
fendant, which  motion  has  been  submitted;  Smythe  v.  Evans,  209  111. 
383,  70  N.  E.  909,  refusing  to  enforce  contract  whereby  contractor, 
constructing  plant  for  corporation  under  supervision  of  latter 's  en- 
gineei',  had  agreed  to  pay  engineer  a  share  of  its  profits;  Gunn  v. 
Union  E.  R.  Co.,  27  R.  I.  327,  62  Atl.  121,  holding  statute  authorizing 
supreme  court  to  direct  judgment  without  further  reference  to  jury 
not  invalid  as  depriving  party  of  due  process  of  law;  dissenting  opinion 
in  McNeill  v.  Railroad  Co.,  135  N.  C.  722,  47  S.  E.  779,  67  L.  R.  A. 
227,  majority  allowing  recovery  against  railroad  company  for  personal 
injuries  received  while  riding  on  a  pass  issued  in  violation  of  law. 

Syl.  4   (X,  49).     Illegality  provable  under  general  issue. 

Approved  in  Heffron  v.  Daly,  133  Mich.  615,  95  N.  W.  715,  holding 
in  action  on  note  given  for  premium  on  illegal  contract  of  insurance 
illegality  does  not  have  to  be  pleaded;  McGriiiin,  v.  Coyle,  16  Okl.  652, 
85  Pac.  955,  where  in  action  on  note  it  appears  from  note  itself  and 
from  plaintiffs'  evidence  to  be  against  public  policy,  demurrer  to  evi- 
dence should  be  sustained. 

Distinguished  in  Eueker  v.  Bolles,  133  Fed.  862,  67  C.  C.  A.  30,  hohling 
evidence  that  written  contract  sued  on  was  champertous  not  admissible 
under  general  issue,  contract  not  appearing  so  on  its  face. 

Syl.  5   (X,  50).     Contract  against  public  policy  void. 

Approved  in  Sussman  v.  Porter,  137  Fed.  164,  holding  contract  to 
procure  consent  of  property  owners  to  construction  of  trolley  line  and 
also  franchise  to  operate  same  for  contingent  fee  against  public  policy; 
Young  V.  City  of  Mankato,  97  Minn.  6,  105  N.  W.  970,  3  L.  R,  A.  (N. 
S.)  849,  holding  contract  whereby  board  of  freeholders  appointed  to 
draft  municipal  charter  agreed  to  pay  one  of  its  members  to  furnish 
advice  and  prepare  charter  invalid;  dissenting  opinion  in  Stewart  v. 
Wright,  147  Fed.  339,  majority  holding  one  given  double  cross  in  fake 
footrace  may  recover  money  wagered.     See  97  Am.  St.  Rep.  148,  note. 

Distinguished  in  Stewart  v.  Wright,  147  Fed.  335,  one  induced  by 
confidence  men  to  wager  money  on  footraces  under  belief  that  he  was 
defrauding  other  members  of  conspiracy  may  recover  money;  Kerr  v. 
American  Pneumatic  Service  Co.,  188  Mass.  29,  73  N.  E.  857,  where 
contract  for  services  in  procuring  government  contracts  for  construction 
of  pneumatic  tubes  for  carrying  mail  held  valid. 


1029  Notes  on  U.  S.  Reports.  103  U.  S.  278-316 

103  U.  S.  278-280,  2G  L.  447,  BOXDURANT  v.  WATSON. 

Syl.  1   (X,  51).     Form  prescribed  for  writ  of  error. 

Approved  in-  Long  v.  Farmers'  State  Bank,  147  Fed.  361,  holding 
writ  of  error  from  federal  supreme  court,  in  name  of  President  of 
United  States,  attested  by  a  judge  of  district  court,  and  clerk  of  district 
court,  irregular,  but  amendable. 

103  U.  S.  293-297,  26  L.  478,  BARBOUR  v.  PRIEST. 

Syl.  1  (X,  53).     Mortgage  of  bankrupt  not  avoidable. 

Aj)proved  in  Des  Moines  Sav.  Bank  v.  Morgan  Jewelry  Co.,  123  Towa, 
438,  99  N,  W.  123,  and  Stevenson  v.  Milliken  etc.  Co.,  99  Me.  326,  59 
Atl.  475,  both  following  rule;  Hardy  v.  Gray,  144  Fed.  925,  926,  holding 
under  facts  that  creditor  receiving  preference  had  reasonable  cause  to 
believe  it  made  in  fraud  of  bankruptcy  act;  Goldberg  v.  Harlan,  33  Ind. 
App.  475,  67  N.  E.  711,  where  insolvent  had  transferred  entire  stock 
to  surety  on  his  note,  trustee  in  bankruptcy  could  sue*  to  recover  it 
without  previous  notice  to  transferee;  Suffel  v.  McCartney  Nat.  Bank, 
127  Wis.  213,  106  N.  W.  839,  holding  trustee  in  bankruptcy  could  not 
recover  preferential  payment  though  creditor  knew  facts  that  would 
cause  reasonably  intelligent  man  to  doubt  debtor's  solvency. 

103  U.  S.  298-300,  26  L.  562,  THE  ILLINOIS. 

Syl.  1  (X,  53).     Steamer  prima  facie  liable  for  collision. 

Approved  in  Brigham  v.  Luckenbach,  140  Fed.  332,  holding  schooner 
not  liable  for  collision  because  she  held  her  course. 

103  U.  S.  301-304,  26  L.  394,  MOYER  v.  DEWEY. 

Syl.  2   (X,  54).     Assignee  alone  can  recover  property. 

Approved  in  Nf  rthwestern  etc.  Ins.  Co.  v.  Kidder,  162  Ind.  391,  70  N. 
E.  492,  66  L.  R.  A.  89,  holding  creditors  of  insolvent  corporation  could 
not  assert  right  to  share  in  proceeds  of  money  wrongfully  diverted  from 
corporation,  there  being  a  receiver;  Moore  Mfg.  Co.  v.  Billings,  46  Or. 
404,  80  Pac.  424,  holding  creditor's  bill  to  set  aside  chattel  mortgage 
and  sale  thereunder,  brought  after  adjudication  in  bankruptcy,  does  not 
give  creditor  lien  as  to  such  goods. 

103  U.  S.  304-316,  26  L.  481,  MILES  v.  UNITED  STATES. 

Syl.  1    (X,  54).     Juror  challenged  for  religious  belief. 

Cited  in  Cochran  v.  United  States,  147  Fed.  207,  in  criminal  prosecu- 
tions by  United  States  in  territorial  district  courts  questions  as  to 
right  of  joint  defendant  to  separate  trial  and  as  to  challenge  of  jurors 
governed  by  statute  of  territory;  State  v.  Chenowith,  163  Ind.  99,  71 
N.  E.  199,  in  trial  for  involuntary  manslaughter  in  failing  to  provide 
medical  attendance  to  cure  child,  the  religious  belief  of  father  that  it 
was  against  teachings  of  Bible  no  defense;  Ex  parte  Murphy,  1  Okl. 
291,  29  Pac.  653,  holding  territorial  statute  governs  allowing  of  bail 
pending  appeal  from  district  court  of  territory  in  criminal  case  on 
federal  side  of  such  court;  Welty  v.  United  States,  14  Okl.  16,  76  Pac. 


103  U.  S.  316-330  Notes  on  U.  S.  Reports,  1030 

123,  procedure  in  criminal  case  being  tried  in  district  court  of  territory 
is  that  prescribed  by  legislature  of  territory. 

Syl.  2   (X,  55).     Defendant's  admission  proves  first  marriage. 

Approved  in  MeSein  v.  State,  120  Ga.  176,  47  S.  E.  544,  where  in 
trial  for  bigamy  first  marriage  proved  by  admission  of  defendant;  State 
V.  Still,  68  S.  C.  38,  102  Am.  St.  Rep.  657,  46  S.  E.  524,  applying  rule 
in  adultery;  State  v.  Tillinghast,  25  R.  I.  397,  56  Atl.  184,  and  State  v. 
Kelson,  39  Wash.  226,  81  Pac.  723,  both  allowing  parol  evidence  in 
proof  of  marriage;  dissenting  opinion  in  Lee  v.  State,  44  Tex.  Cr.  370, 
72  S.  W.  1013,  61  L.  R.  A.  904,  majority  holding  defendant  guilty  of 
rape  consummated  by  a  sham  marriage. 

Distinguished  in  Hoch  v.  People,  219  111.  278,  109  Am.  St.  Rep.  327, 
76  N.  E.  361,  holding  bigamous  wife  competent  witness  against  one 
charged  with  murder. 

Syl.  3  (X,  55).     "Reasonable  doubt"  not  definable. 

Approved  in  State  v.  Blay,  77  Vt.  60,  58  Atl.  795,  holding  omission 
of  court  to  explain  term  "reasonable  doubt"  in  criminal  trial  not  error. 

Syl.  5   (X,  56).     Second  wife  witness  to  bigamy. 
See  100  Am.  St.  Rep.  769,  note. 

103  U.  S.  316-326,  26  L.  546,  LAND  CO.  t.  SAUNDERS. 

Syl.  1   (X,  56).     Monuments  control  courses  and  distances. 

Cited  in  Leonard  v.  Smith,  111  La.  1010,  36  So.  102,  where  deed  de- 
PTibes  a  line  as  "up  the  west  bank"  of  a  certain  bay  to  White  Laico, 
and  it  was  uncertain  which  of  two  prongs  of  the  lake  went  by  that 
name,  tlie  shortest  course  to  objective  point  adopted. 

Distinguished  in  Security  Land  etc.  Co.  v.  Burns,  193  U.  S.  179, 
48  L.  671,  24  Sup.  Ct.  425,  where,  upon  the  facts,  courses  and  distances 
as  set  forth  in  patent  and  official  map  which  show  meander  line  of  lake 
bordering  land  allowed  to  control  over  actual  boundary  of  lake  which 
was  some  distance  away. 

103  U.  S.  327-330,  26  L.  339,  WARD  v.  TODD. 

Syl.  1   (X,  57).     Court  gives  parties  complete  relief. 

Approved  in  In  re  Blake,  150  Fed.  284,  holding  where  trustee  in 
bankruptcy  and  county  each  claim  money  in  hands  of  bank,  and  on  bill 
by  bank  in  bankruptcy  proceeding  court  decides  in  favor  of  county, 
no  error  for  want  of  jurisdiction;  Southern  Pac.  R.  Co.  v.  United  States, 
133  Fed.  657,  66  C.  C.  A.  581,  holding  court  of  equity  has  jurisdiction 
to  settle  all  matters  involved  in  suit  by  United  States  against  railroad 
company,  its  mortgagee  and  others,  to  adjust  titles  to  land;  In  re  Leeds 
Woolen  Mills,  129  Fed.  926,  holding,  on  petition  by  trustee  in  bank- 
ruptcy to  recover  goods,  bankruptcy  court  had  jurisdiction  to  determine 
adverse  claima. 


1031  Notes  on  U.  S.  Reports.  103   U.  S.  33G-409 

103  U.  S.  33G  330,  20  L.  563,  BLAKE  v.  MeXIM. 

Syl.  1   (X,  57).     When  suit  not  removable. 

Approved  in  Miller  v.  Clifford,  133  Fed.  S84,  67  C.  C.  A.  52,  holding 
creditors'  suit  against  stockholders  of  insolvent  corporation  to  enforce 
stockholders '  liability,  accounting  and  pro  rata  payment  to  creditors, 
does  not  present  a  separable  suit  against  one  stockholder  of  anotlicr 
state  so  as  to  give  federal  jurisdiction;  Mayor  etc.  of  Savannah  v. 
Hoist,  132  Fed.  901,  holding  suit  to  enjoin  municipal  ordinance  brought 
against  Georgia  corporations  by  seven  citizens  of  Georgia  and  one  of 
New  York  not  within  jurisdiction  of  federal  courts. 

Distinguished  in  Cella  v.  Brown,  136  Fed.  445,  granting  removal  in 
suit  for  specific  performance  of  contract,  a  defendant  bank  which  acted 
merely  as  an  agent  not  being  necessary  party;  Boatmen's  Bank  v. 
Fritzlen,  135  Fed.  603,  68  C.  C.  A.  288,  holding  in  suit  to  foreclose 
mortgage  and  also  to  avoid  prior  mortgage  for  fraud  controversies  are 
sejiarable  and   removal  based   on   latter. 

103  U.  S.  344  351,  26  L.  565,  WEBBER  v.  VIRGINIA. 
Syl.  2  (X,  59).  Patent  laws  cannot  displace  police  power. 
Cited  in  Ozan  Lumber  Co.  v.  Union  etc.  Bank,  145  Fed.  345,  346,  347, 
and  Clark  Co.  v.  Rice,  127  Wis.  460,  106  N.  W.  235,  both  holding  state 
statute  requiring  notes  taken  in  payment  for  patented  articles  to  be  in 
certain  form  invalid  as  discriminating  against  nonpatented  goods  of 
same  kind;  In  re  Sydow,  4  Ariz.  210,  211,  36  Fac.  216,  upholding  state 
license  on  dealers ;  dissenting  oj^inion  in  Continental  Paper  Bag  Co.  v. 
Eastern  Paper  Bag  Co.,  150  Fed.  750,  majority  holding  patentee  could 
maintain  suit  to  enjoin  infringement  of  his  patent  though  he  had  never 
put  it  to  commercial  use. 

Syl.  3   (X,  60).     Legislation  against  foreign  goods  void. 

Cited  in  In  re  Sydow,  4  Ariz.  210,  36  Pac.  215,  holding  act  imposing 
license  on  dealers,  ' '  except  in  agricultural  or  horticultural  products  of 
this  territory,  when  vended  by  the  producer  thereof,"  is  valid  except 
as  to  dealers  in  such  products  from  foreign  states,  or  in  products  of 
that  territory  not  produced  by  them;  Bacon  v.  Locke,  42  Wash.  217, 
83  Pac.  721,  722,  statute  imposing  license  on  person  who  poddies  out  or, 
"after  shipment  to  the  state,"  sells  certain  goods,  invalid. 

103  U.  S.  358-369,  26  L.  395,  WOLFF  v.  NEW  ORLEANS. 

Syl.  2   (X,  63).     Impairment  of  contracts  with  state. 

Apiiroved  in  City  of  Ft.  Madison  v.  Ft.  Madison  etc.  Co.,  134  Fed. 
216,  67  C.  C.  A.  142,  holding  statute  providing  for  assessment  at 
twenty-five  per  cent  of  actual  value  invalid  as  affecting  contract  be- 
tween city  and  water  company  made  when  assessment  was  for  full  value. 

103  U.  S.  370-409,  26  L.  567,  NEAL  v.  DELAWARE. 

Syl.  1  (X,  64).     Negroes  entitled  to  jury  duty. 

Approved  in  Martin  v.  Texas,  200  U.  S.  319,  50  L.  498,  26  Sup.  Ct. 
338,   where   motion   to   quash   indictment   and   panel   of   petit   jurors   on 


103  U.  S.  412-431  Notes  on  U.  S.  Eeports.  1032 

ground  of   discrimination  against  negroes   denied,   not   being  supported 
by  evidence. 

Syl.  3    (X,  65).     Recognition  of  federal  constitution   presumed. 
Cited  in  Kentucky  v.  Powers,  139  Fed.  479,  480,  where  amendment  to 
federal  constitution  conflicted  with  existing  state  statutes. 

Syl.  4  (X,  65).     Eemoval — Discrimination  against  negro  jurors. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  30,  31,  50  L.  647,  26  Sup. 
Ct.  387,  overruling  139  Fed.  454,  482,  485,  and  holding  under  sec.  G41, 
Rev.  St.  (U.  S.  Comp.  St.  1901,  p.  520),  where  defendant  pleads  pardon 
in  bar  which  is  denied  and  denial  sustained  by  highest  state  court  hav- 
ing jurisdiction,  no  right  of  removal  to  federal  courts;  New  Jersey  v. 
Corrigan,  139  Fed.  761,  765,  holding  statute  relative  to  qualifica- 
tion of  grand  jurors  does  not  give  right  to  removal  under  §  641,  Ecv. 
St. 

Syl.    6    (X,    66).     Affidavit    evidence   of   discrimination. 

Approved  in  Sharp  v.  United  States,  138  Fed.  883,  sustaining  motion  to 
set  aside  indictment  where  affidavit  showing  noncompliance  with  statute 
in  selection  of  grand  jury  uncontradicted. 

Syl.  7   (X,  66).     Official  acts  within  fourteenth  amendment. 

Approved  in  Ow'ensboro  Waterworks  Co.  v.  Owensboro,  200  U.  S.  45, 
50  L.  364,  26  Sup.  Ct.  249,  refusing  to  enjoin  municipal  corporation  from 
diverting  funds  collected  from  taxpayers  for  specific  object,  as  a  viola- 
tion of  fourteenth  amendment  of  federal  constitution;  Douglas  etc.  Chib 
v.  Grainger,  146  Fed.  417,  holding  violation  of  fourteenth  amendment  of 
federal  constitution  for  state  racing  commission  to  discriminate  arbit- 
rarily in  granting  racing  licenses;  Georgia  R.  R.  etc.  Co.  v.  Wright, 
125  Ga.  603,  54  S.  E.  58,  holding  where  tax  law  valid,  claim  that  it  is 
administered  unequally  must  be  proved  by  clear  evidence. 

103  U.  S.  412-417,  26  L.  518,  LINCOLN  v.  CAMBRIA  IRON  CO. 

Syl.  2    (X,  67).     Pleading  validity  of  municipal  bonds. 

Approved  in  Northwestern  Sav.  Bank  v.  Centreville  Station,  143  Fed. 
84,  holding  recitals  in  municipal  bonds  showing  valid  issue  make  prima 
facie  case  of  validity. 

103  U.  S.  417-422,  26  L.  401,  WILSON  v.  GAINES. 

Syl.  1  (X,  68).     Exemption  from  taxation  not  assignable. 

Approved  in  Rochester  v.  Rochester  Ry.  Co.,  182  N.  Y.  118,  75  N. 
E.  959,  70  L.  R.  A.  773,  holding  exemption  granted  to  railroad  com- 
pany from  assessment  for  street  paving  does  not  pass  to  successor. 

103  U.  S.  426-431,  26  L.  578,  RAILROAD  CO.  v.  BALDWIN. 

Syl.  1  (X,  70).     Railroad  grant  land  pre-emptable  until  location. 

Approved  in  Moon  v.  Salt  Lake  Co.,  27  Utah,  445,  76  Pac.  225, 
construing  Act  Cong.  1870,  granting  Utah  Central  Railroad  right  of 
way  through  public  lands  in  Utah;  Kneelaud  v.  Korter,  40  Wash.  367, 


1033  Notes  on  U.  S.  Keporta,  103  U.  S,  447-479 

82  Pac.  Gil,  1  L.  K.  A.  (N.  S.)  745,  holding  title  to  tide  land  within 
limits  of  congressional  grant  to  railroad  company  as  located  by  con- 
struction of  road  passed  to  company;  Okanogan  Co.  v.  Cheetham,  37 
Wash.  687,  80  Pac.  263,  70  L.  R.  A.  1027,  holding  federal  statute  grant- 
ing right  of  way  for  public  highways  with  provision  for  acceptance 
thereof  by  county  commissioners  a  grant  in  praesenti,  located  and  ac- 
cepted by  public  use  of  a  highway  over  public  land  for  seven  years. 

Syl.  2  (X,  71).     Eailroad  grant  effective  immediately. 

Approved  in  Northern  Pac.  Ey.  Co.  v.  Ely,  197  U.  S.  5,  49  L.  640, 
25  Sup.  Ct.  302,  holding  railroad  company  having  located  its  road 
under  congressional  grant  of  right  of  way,  has  superior  title  to  sub- 
sequent settlers  on  any  part  thereof;  Northern  Pac.  Ey.  Co.  v.  Hasse, 
197  U.  S.  10,  49  L.  642,  25  Sup.  Ct.  305,  holding  grant  of  right  of 
way  to  railroad  company  effective  from  date  of  act;  Oregon  etc.  E. 
E.  Co.  v.  Quigley,  10  Idaho,  782,  783,  80  Pac.  404,  holding  under 
grant  of  right  of  way,  railroad  company  had  better  title  than  prior 
settlers,  who  were  mere  occupants;  Churchill  v.  Choctaw  Ey.  Co.,  4 
Okl.  468,  46  Pac.  505,  holding  under  grant  of  right  of  way  to  rail- 
road company,  latter  has  better  title  than  settlers  prior  to  location; 
Sage  v.  Eudnick,  91  Minn.  331,  100  N.  W.  107,  holding  adverse  pos- 
session began  to  run  against  railroad  on  filing  of  map  of  location; 
dissenting  opinion  in  Sage  v.  Eudnick,  91  Minn.  328,  98  N.  W.  90, 
majority  holding  adverse  possession  did  not  run  against  railroad  gran- 
tee of  land  while  the  land  was  in  litigation  in  Land  Department  be- 
tween two  railroad  companies,  each  claiming  it  under  its  grant. 

103  U.  S.  447-460,  26  L.  405,  UNITY  v.  BUEEAGE. 

Syl.  1  (X,  74).     Act  legalizing  bonds  a  public  act. 

Approved  in  White  v.  Bracelin,  144  Mich.  335,  337,  107  N.  W.  1056, 
1057,  holding  statute  prohibiting  sale  of  intoxicating  liquor  within 
certain  distance  of  schools  in  a  certain  county  constitutional. 

103  U.  S.  461-470,  26  L.  409,  WICKE  v.  OSTEUM. 

Syl.  3  (X,  75).     Contrivance  and  not  idea  patentable. 

Approved  in  Manhattan  etc.  Co.  v.  Helios-Upton  Co.,  135  Fed.  788, 
holding  patent  for  regulating  electric  currents  void  as  being  merely 
for  operative  theory  and  not  for  contrivance. 

103  U.  S.  471-479,  26  L.  314,  EDWAEDS  v.  UNITED  STATES. 

Syl.  2  (X,  76).     Eesignation  not  effective  until  accepted. 

Distinguished  in  State  v.  Popejoy,  165  Ind.  179,  74  N.  E.  995,  hold- 
ing where  county  commissioners  of  several  counties  interested  in  a 
joint  drainage  proceeding  appoint  viewers  to  represent  different  coun- 
ties, their  resignation  may  be  accepted  in  county  appointing,  though 
not  the  county  in  which  jiroceeding  commenced. 


103  U.  S.  480-498  Notes  on  U.  S.  Eeporta.  1034 

103  U.  S.  480-485,  2G  L.  521,  THOMPSON  v.  UNITED  STATES. 

Syl.  5  (X,  77).     Mandamus  not  abated  by  expiration  of  term. 

Approved  in  Utter  v.  Franklin,  7  Ariz.  306,  64  Pac.  429,  liolding 
mandamus  to  compel  loan  commissioners  of  a  territory  to  fund  bonds 
did  not  abate  with  expiration  of  their  term  of  office;  Territory  v. 
Mayor  etc.  of  City  of  Socorro,  12  N.  M.  184,  76  Pac.  284,  mandamus 
properly  directed  to  mayor  and  city  council  to  compel  tax  levy;  Die- 
fenderfer  v.  State,  14  Wyo.  309,  83  Pac.  592,  where  municipal  officers 
compelled  to  issue  bonds. 

Distinguished  in  State  v.  Board  of  State  Canvassers,  32  Mont.  17, 
79  Pac.  403,  holding  action  to  compel  state  board  of  canvassers  to 
reconvene  and  certify  votes  cast  for  certain  office  abated  with  ex- 
piration of  term  of  majority  of  board. 

103  U.  S.  485-494,  26  L.  354,  KERN  v.  HUIDEKOPER. 

Syl.  1  (X,  78).     Removal  withdraws  state  court's  jurisdiction. 

Approved  in  Bryant  Bros.  Co.  v.  Robinson,  149  Fed.  326,  holding 
motion  to  remand  based  solely  on  ground  that  proceedings  for  re- 
moval were  irregular  will  be  denied;  Mutual  Life  Ins.  Co.  v.  Lang- 
ley,  145  Fed.  420,  holding  order  of  state  court  not  necessary  to  re- 
moval, and  enjoining  further  proceedings  therein. 

Syl.  2  (X,  79).     Removal  transfers  whole  subject  matter. 

Approved  in  Hatcher  v.  Hendrie  etc.  Co.,  133  Fed.  269,  68  C.  C.  A. 
19,  holding  lien  obtained  by  attachment  in  suit  in  state  court  en- 
forceable after  removal  as  if  obtained  in  federal  court. 

Syl.  4  (X,  79).     State  court's  subsequent  proceedings  void. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co., 
196  U.  S.  245,  49  L.  464,  25  Sup.  Ct.  251,  where,  after  condemna- 
tion proceeding  between  corporations  of  different  states  removed  to 
federal  court,  plaintiff  enjoined  from  further  proceedings  in  state 
court;  Knight  v.  Shelton,  134  Fed.  440.  holding  federal  court  may 
pass  upon  question  whether  amendment  to  state  constitution  has  been 
legally  adopted  if  it  arises  in  case  properly  before  it;  St.  Bernard 
Min.  Co.  V.  Madisonville  etc.  Co.,  130  Fed.  795,  holding  after  case  re- 
moved from  state  to  federal  court,  latter  court  may  enjoin  further 
proceedings  in  state  court. 

Distinguished  in  Steveusons  v.  Illinois  etc.  R.  R.  Co.,  117  Ky.  859, 
79  S.  W.  767,  holding  action  removed  to  federal  court  could  there 
be  dismissed  without  prejudice  to  future  action  in  state  court. 

103  U.  S.  494-498,  26  L.  497,  DIETZSCH  v.  HUIDEKOPER. 

Syl.  1   (X,  80).     State  court  enjoined  after  removal. 

Approved  in  Gunter  v.  Atlantic  etc.  R.  R.  Co.,  200  U.  S.  292,  50  L. 
487,  26  Sup.  Ct.  252,  where,  after  federal  court  had  enjoined  col- 
lection  of   certain   taxes,   it   enjoined   later   action   in  state   court  for 


1035  Notes  on  U.  S.  Reports.  103  U.  S.  498-540 

tliMT  collectiou;  Eiverdale  Cotton  Mills  v.  Alabama  etc.  Mfg.  Co., 
19S  U.  S.  19G,  49  L.  1015,  25  Sup.  Ct.  629,  holding  after  foreclosure 
decree  and  sale  in  federal  court,  suit  in  state  court  attacking  title 
of  purchasers  at  sale  on  ground  federal  court  had  no  jurisdiction  will 
be  enjoined;  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  245,  49  L.  464,  25  Sup.  Ct.  251,  where,  after  condemnation  pro- 
ceeding removed  to  federal  court,  plaintiff  enjoined  from  further  pro- 
ceeding in  state  court;  Julian  v.  Central  Trust  Co.,  193  U.  S.  112,  48 
L.  639,  24  Sup.  Ct.  399,  holding,  after  property  sold  on  decree  of 
foreclosure  in  federal  court,  that  court  will  enjoin  sale  to  satisfy 
judgment  in  state  court  against  mortgagor;  St.  Louis  Min.  etc.  Co. 
V.  Montana  Min.  Co.,  148  Fed.  455,  Mutual  Life  Ins.  Co.  v.  Lang- 
ley,  145  Fed.  422,  and  St.  Bernard  Min.  Co.  v.  Madisonville  etc.  Co., 
130  Fed.  795,  all  holding  on  removal  of  case  to  federal  court  plain- 
tiff will  be  enjoined  from  further  proceedings  in  state  court;  Lehman 
V.  Graham,  135  Fed.  42,  67  C.  C.  A.  513,  holding  sec.  720  of  Kovised 
Statutes  (U.  S.  Comp.  St.  1901,  p.  581),  does  not  prevent  federal 
court  having  jurisdiction  to  determine  suit  from  enjoining  subsequent 
proceedings  thereon  in  state  court;  Hatcher  v.  Ilendrie  etc.  Co.,  133 
Fed.  270,  68  C.  C.  A.  19,  holding  where  action  removed  to  federal 
court  after  attachment  lien  obtained,  later  suit  to  enforce  that  lien 
is  ancillary  and  may  be  brought  in  federal  court  without  regard  to 
parties;  In  re  Mertens,  131  Fed.  515,  where  federal  court  in  which 
bankruptcy  proceeding  pending  enjoined  suit  in  state  court  against 
receiver. 

103  U.  S.  49S-515,  26  L.  498,  COUNTY  OF  MORGAN  v.  ALLEN. 

Syl.  1  (X,  81).     Capital  stock  trust  fund  for  creditors. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  776,  allow- 
ing assessment  on  all  shares  of  bankrupt  corporation  issued  for  less 
than  par  value. 

103  U.  S.  518-520,  26  L.  486,  GREEN  v.  FISK. 

Syl.  1   (X,  83).     Partition  decree  not  final  decree. 

Approved  in  Camp  Phosphate  Co.  v.  Anderson,  48  Fla.  233,  236,  111 
Am.  St.  Rep.  80,  81,  37  So.  725,  726,  holding  decree  based  on  report 
of  commissioners  appointed  to  partition  land  that  partition  could  not 
be  made,  ordering  a  sale  by  commissioners  is  final  and  appealable. 

103  r.  S.  523-540,  26  L.  340,  TIPTON  v.  LOCOMOTIVE  WORKS. 

Syl.  2   (X,  84).     County  estopped  to  deny  bond  validity. 

Distinguished  in  Jones  v.  Missouri  etc.  Elec.  Co..  144  Fed.  775, 
holding  where  two  corporations  have  consolidated  according  to  stat- 
ute, minority  stockholder  in  one,  who  is  injured  by  consolidation  may 
maintain  bill  to  set  aside  consolidation  agreement,  overruling  same 
case,  135  Fed.  157,  where  such  suit  not  allowed. 


103  U.  S.  540-574  Notes  on  U.  S.  Keporta.  1036 

103  U.  S.  540-544,  26  L.  313,  THE  EICHMOND. 

Syl.  1  (X,  85).     On  appeal,  findings  presumed  right. 

Approved  in  The  Iroquois,  194  U.  S.  247,  48  L.  960,  24  Sup.  Ct. 
640,  where  holding  of  two  lower  courts  that  it  was  duty  of  captain 
of  vessel  to  stop  at  a  port  to  afford  medical  attendance  to  injured 
sailor  not  disturbed  by  appellate  court;  Last  Chance  Min.  Co.  v.  Bun- 
ker Hill  etc.  Co.,  131  Fed.  588,  66  C.  C.  A.  299,  refusing  to  disturb 
findings  of  master  upon  conflicting  testimony  approved  by  court. 

103  U.  S.  544-549,  26  L.  436,  NOETHWESTEEN  INS.  CO.  v.  NEL- 
SON. 

Syl.  1   (X,  85).     Clear  evidence  required  to  impeach  deed. 

Approved  in  McGuigan  v.  Gaines,  71  Ark.  618,  77  S.  W.  53,  apply- 
ing rule  in  suit  to  reform  deed  for  mistake;  Western  Loan  etc.  Co. 
V.  Waisman,  32  Wash.  648,  73  Pac.  704,  holding  notary's  certificate 
of  acknowledgment  on  mortgage  not  overcome, by  testimony  of  mort- 
gagors that  one  of  them  did  not  appear  before  him. 

103  U.  S.  554-558,  26  L.  486,  SUPEEVISOES  v.  KENNICOTT. 

Syl.  1   (X,  86).     Stipulated  submission  a  waiver  of  jury. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  740, 
68  C.  C.  A.  89,  holding  stipulation  entitled  in  several  cases  that  one 
finding  should  be  signed  and  filed  for  all,  and  stipulation  in  some  of 
them  waiving  jury,  a  sufficient  waiver  of  jury  in  others. 

Syl.  2  (X,  86).     Agreed  facts  present  questions  of  law. 

Approved  in  Anderson  v.  Messinger,  146  Fed.  930,  holding  judgment 
reciting  that  court  "does  find  the  issues  of  the  cause  with  the  de- 
fendant," means  issues  of  law  only;  Amnions  v.  Brunswick  etc.  Co., 
141  Fed.  574,  holding  judgment  supported  by  agreed  statement  of 
facts;  Hulitt  v.  Ohio  Val.  Nat.  Bank,  137  Fed.  465,  69  C.  C.  A.  609, 
holding  court  limited  to  facts  stated  in  an  agreed  statement  and  a 
finding  of  court,  in  such  case  of  no  effect. 

103  U.  S.  562-574,  26  L.  411,  HAETEE  v.  KEENOCHAN. 

Syl.  2  (X,  87).     Eemoval — Eeal  controversy  alone  considered. 

Approved  in  Lucas  v.  Milliken,  139  Fed.  828,  holding  in  suit  for 
specific  performance  of  contract  for  sale  of  corporate  stock  for  dam- 
ages for  its  breach,  and  to  enjoin  defendant  from  voting  stock,  the 
corporation  not  necessary  party;  Boatmen's  Bank  v.  Fritzlen,  135  Fed. 
658  68  C.  C.  A.  288,  holding  suit  by  second  mortgagee  to  have  first 
mortgage  declared  void  and  to  foreclose  his  mortgage  contains  separa- 
ble controversy  between  first  mortgagee  on  one  side  and  other  parties 
on  other,  and  removable. 

Syl.  4  (X,  88).     Municipal  bonds  irregularly  issued  valid. 

Cited  in  Jones  v.  Missouri  etc.  Elec.  Co.,  144  Fed.  775,  holding 
where    two    corporations    have    consolidated,    injured    minority    stock- 


1037  Notes  on  U.  S,  Eeports.  103  U.  S.  580-G37 

holder  in  one  may  maintain  bill  to  set  aside  consolidation  agreement, 
overruling  same  case,  135  Fed.  157,  where  such  suit  not  allowed. 

103  U.  S.  580-591,  26  L.  492,  JARROLT  v,  MOBEELY. 

Syl.  2  (X,  90).     Municipal  credit  for  railroads  forbidden. 

Approved  in  Ex  parte  Anderson,  46  Tex.  Cr.  380,  81  S.  W.  976, 
holding  city  charter  authorizing  governor  to  appoint  board  of  three 
commissions  to  have  control  of  all  departments  of  city  government 
unconstitutional. 

103  U.  S.  597,  598,  26  L.  525,  SWAN  v.  ARTHUR. 

Syl.  1  (X,  91).     Tariff  act  given  ordinary  meaning. 

Approved  in  United  States  v.  Hoe  &  Co.,  147  Fed.  203,  holding 
molders'  patterns  for  making  sand  molds  within  provision  of  tariff 
act  of  1897  admitting  free  "patterns  for  machinery." 

103  U.  S.  599-606,  26  L.  550,  KENNEDY  v.  INDIANAPOLIS. 

Syl.  1  (X,  91).     Eminent  domain — "When  title  passes. 

Approved  in  Zimmerman  v.  Kansas  City  etc.  R.  Co.,  144  Fed.  625. 
holding  where  owner  of  land  taken  by  railroad  company  without 
legal  proceedings  waived  trespass  and  sued  for  value  of  property, 
payment  of  his  judgment  condition  precedent  to  title  vesting  in  com- 
pany. 

103  U.  S.  606-613,  26  L.  507,  BABBITT  v.  CLARK. 

Syl.  2  (X,  92).     No  removal  after  trial  term. 

Approved  in  State  v.  District  Court,  32  Mont.  41,  79  Pac.  547, 
holding  submission  of  motion  for  judgment  on  pleadings  a  "trial" 
within  statute  allowing  plaintiff  to  dismiss  action  before  trial. 

103  U.  S.  613-637,  26  L.  585,  HOYT  v.  SPRAGUE. 

Syl.  2  (X,  98).     Partner's  death — Subsequent  creditors'  rights. 

Distinguished  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed. 
747,  68  C.  C.  A.  89,  holding  where  Kansas  corporation  transferred 
all  its  property  to  Missouri  corporation,  latter  assuming  its  debts, 
creditors  of  former  by  accepting  benefits  of  transfer  not  estopped  to 
assert   stockholder's  liability   under  laws  of   Kansas. 

Syl.  3  (X,  94).     State  laws  not  exterritorial. 

Approved  in  In  re  Culp,  2  Cal.  App.  83,  83  Pac.  95,  holding  where 
decree  of  divorce  awarded  custody  of  child  to  mother,  latter  not 
affected  by  modification  of  decree  after  she  had  moved  with  child  to 
another  state. 

Syl.  4  (X,  94).     Guardian's  authority  confined  to  state. 
Approved  in  In  re  Chace.  26  R.  I.  360.  58  Atl.  982,  69  L.  R.  A.  493, 
holding  under  statute  in  Rhode  Island  forbidding  marriage  of  ward 


108  U.  S.  651-711  Xotes  on  U.  S.  Reports.  1038 

without   consent   of   guardian,   marriage    contracted   in   Massachusetts 
without  consent  valid. 

103  U.  S.  651-659,  26  L.  509,  WARDELL  v.  RAILROAD  CO. 

Syl.  1   (X,  96).     Directors  cannot  misuse  corporate  contracts. 

Cited  in  McCourt  v.  Singers-Bigger,  145  Fed.  107,  holding  where 
director  organized  new  corporation  and  obtained  renewal  of  leases  in 
its  name,  new  company  held  leases  in  trust  for  old  company;  Burns 
V.  Cooper,  140  Fed.  277,  holding  sale  of  real  property  by  guardian 
invalid,  purchaser  having  immediately  thereafter  conveyed  to  guard- 
ian; Pacific  Vinegar  etc.  Wks.  v.  Smith,  145  Cal.  362,  104  Am.  St. 
Rep.  42,  78  Pac.  552,  holding  corporate  president  having  purchased 
note  of  corporation  and  caused  its  indorsement  to  be  put  on  them 
could  not  sue  on  indorsement;  Young  v.  City  of  Mankato,  97  Minn. 
6,  105  N.  W.  970,  3  L.  R.  A.  (N.  S.)  849,  holding  board  of  free  hold- 
ers appointed  to  draft  charter  cannot  employ  one  of  its  members; 
Barnes  v.  Lynch,  9  Okl.  186,  59  Pac.  1007,  holding  deeds  executed  in 
name  of  corporation  under  agreement  whereby  officers  had  agreed 
to  divide  property  between  them  invalid  as  against  stockholders. 
See  97  Am.  St.  Rep.  41,  note. 

Distinguished  in  In  re  Castle  Braid  Co.,  145  Fed.  230,  allowing 
claim  against  insolvent  corporation  based  on  contract  between  cor- 
poration and  one  of  its  officers,  there  being  no  evidence  of  fraud  or 
detriment  to  corporation. 

Syl.  2  (X,  97).     Directors'  obligation  toward  stockholders. 

Approved  in  Altalla  Iron  Ore  Co.  v.  Virginia  etc.  Coke  Co.,  Ill 
Tenn.  535,  77  S.  W.  775,  allowing  contract  made  by  managing  offi- 
cers with  new  corporation,  formed  for  purpose  to  be  repudiated  by 
old  corporation. 

103  U.  S.  699-703,  26  L.  599,  THE  CIVILTIC  AND  RESTLESS. 

Syl.  2  (X,  103).     Tug  and  tow  liable  for  collision. 

Distinguished  in  The  Degama,  150  Fed.  324,  holding  where  mov- 
ing vessel  collides  with  one  moored,  former  presumed  at  fault,  and 
defense  that  she  was  under  control  of  tug  must  be  both  pleaded  antl 
proved,  overruling  same  case,  140  Fed.  755,  where  vessel  in  tow 
held  not  liable  for  collision,  she  being  under  control  of  tug  and  no 
negligence  appearing  on  her  part;  In  re  Walsh,  136  Fed.  5,59,  69 
C.  C.  A.  267,  holding  tug  lashed  to  side  of  vessel,  merely  supplying 
motive  power  and  under  command  of  pilot  of  vessel,  not  liable  for 
collision. 

103  U.  S.   710,  711,  26  L.  467,  THE  CONNECTICUT. 

Syl.  2   (X,  105).     Tug  and  tow  liable  for  collision. 

Distinguished  in  In  re  Walsh,  136  Fed.  559,  69  C.  C.  A.  2G7.  hold- 
ing tug  lashed  to  side  of  vessel  and  under  command  of  vessel's  pilot 
not  liable. 


1039  Notes  on  U.  S.  Keports.  103  U.  S.  714-744 

103  U.  S.  7141720,  26  L.  602,  PENNIMAX'S  CASE. 

Syl.  2  (X,  106).     Act  abolishing  imprisonment  for  debt  valid. 

Approved  in  Miners  etc.  Bank  v.  Snyder,  100  Md.  65,  108  Am.  St. 
Rep.  390,  59  Atl.  708,  68  L.  R.  A.  312,  holding  statute  affecting 
stockholders'  liability  valid  as  to  corporate  debts  contracted  before 
its  enactment. 

103  U.  S.  732-735,  26  L.  469,  NATIONAL  BANK  v.  KIMBALL. 

Syl.  1  (X,  107).     Tax  not  enjoined  without  tender. 

Approved  in  Couts  v.  Cornell,  147  Cal.  563,  109  Am.  St.  Rop.  IGS, 
82  Pac.  195,  refusing  to  enjoin  execution  of  tax  deed  on  ground 
property  misdescribed  in  assessment,  where  no  offer  made  to  pay 
lax;  Douglas  v.  City  of  Fargo,  13  N.  D.  484,  101  N.  W.  924,  refusing 
to  set  aside  tax  sale  and  cancel  subsequent  assessments,  it  appearing 
part  at  least  of  tax  was  valid  and  no  tender  made;  Halff  &  Bros, 
v.  Green,  10  Okl.  339,  62  Pac.  817,  Lasaster  &  Noble  v.  Green,  10  Okl. 
337,  62  Pac.  816,  and  Collins  &  Wallace  v.  Green,  10  Okl.  250,  62 
Pac.  815,  all  holding  collection  of  invalid  portion  of  tax  will  not  be 
enjoined  where   valid   portion   not   tendered. 

Syl.  2   (X,  107).     Tax  unequally  levied  not  enjoined. 

Approved  in  Humbird  Lumber  Co.  v.  Thompson,  11  Idaho,  628,  83 
Pac.  946,  refusing  to  enjoin  sale  of  land  for  taxes,  on  ground  that 
assessment  was  too   high. 

Distinguished  in  dissenting  opinion  in  San  Francisco  Nat.  Bank  v. 
Dodge,  197  U.  S.  113,  49  L.  6SS.  25  Sup.  Ct.  384,  majority  refusing 
to  enjoin  collection  of  tax  on  shares  of  stock  of  national  bank,  on 
ground  stock  in  state  banks  not  so  taxed. 

103  U.  S.  736,  737,  26  L.  456,  HUMPHREY  v.  BAKER. 
Syl.  1  (X,  108).  Decree  upon  remittitur  not  appealable. 
Approved  in  Taylor  v.  Colorado  Iron  Works,  33  Colo.  185,  80  Pac. 
130,  holding  supreme  court  will  not  review  on  writ  of  error  judg- 
ment entered  in  trial  court  according  to  directions  of  court  of  ap- 
peals; Willis  v.  Felton,  119  Ga.  636,  46  S.  E.  858,  refusing  to  com- 
pel trial  judge  to  certify  to  bill  of  exceptions  to  judgment  entered 
in  compliance  with  directions  of  appellate  court. 

103  U.  S.  739-744,  26  L.  456,  GRINNELL  v.  RAILROAD  CO. 

Syl.   3   (X,   110).     Railroad  grant   passes  upon  location. 

Distinguished  in  Humbird  v.  Avery,  195  U.  S.  508,  49  L.  299,  25 
Sup.  Ct.  123,  and  Sjoli  v.  Dreschel,  199  U.  S.  566,  50  L.  312,  note,  26 
Sup.  Ct.  154.  both  holding  title  to  laud  within  indemnity  limits  did 
not  pass  until  selectious  approved  by  Stcretary  of  interior. 


103  U.  S.  754-799  Notes  on  U.  S.  Reports.  1040 

103  U.  S.  754-756,  26  L.  322,  THE  CONNEMAEA. 

Syl.  1   (X,  111).     Decree  allowing  salvage  claims  appealable. 

Approved  in  McDaniel  v.  Traylor,  196  U.  S.  430,  49  L.  540,  25 
Sup.  Ct.  369,  holding,  in  suit  upon  several  claims  against  adminis- 
trator of  estate,  amount  in  controversy  is  aggregate  of  claims. 

103  U.  S.  764-766,  26  L.  458,  HINCKLEY  v.  MORTON. 
Syl.  1   (X,  113).     Proceedings  after  remittitur  appealable. 

Approved  in  McCourt  v.  Singers-Bigger,  150  Fed.  104,  allowing 
appeal  from  judgment  entered  in  trial  court  in  accordance  with  di- 
rections of  appellate  court,  but  which  had  been  modified  by  new  is- 
sues, determined  in  trial  court.     See  98  Am.  St.  Rep.  905,  note. 

103  U.  S.  766-769,  26  L.  607,  CLARK  v.  KILLIAN. 

Syl.  2   (X,  114).     Bill  of  review  to  correct  decree. 

Approved  in  Jorgensen  v.  Young,  136  Fed.  3S1,  69  C.  C.  A.  222, 
dismissing  bill  of  review  filed  after  time  for  appeal  :^om  judgment 
sought  to  be  reviewed  had  expired. 

103   U.   S.   783-786,   26   L.   459,  NATIONAL   BANK   v.   INSURANCE 
CO. 

Syl.  1   (X,   115).     Agent's  overdraft — Principal  not  liable. 

Approved  in  Fidelity  etc.  Co.  v.  Fidelity  Trust  Co.,  143  Fed.  160, 
holding  insurance  society  could  not  follow  as  trust  fund  money  which 
its  defaulting  treasurer  had  deposited  in  bank  in  his  own  name. 

103  U.  S.  792-794,  26  L.  460,  COOK  v.  LILLO. 

Syl.  5   (X,  116),     Usury  reclaimable  only  within  year. - 

Approved  in  Gunby  v.  Armstrong,  133  Fed.  434,  66   C.   C.  A.   627, 

holding  defendant  could  not  set  off  claim  for  usurious  interest  paid 

after  one  year  from  payment. 

103  U.  S.  794-797,  26  L.  461,  EX  PARTE  RAILWAY  CO. 
Syl.  1  (X,  117).     Errors  not  corrected  by  mandamus. 
Approved  in  State  v.  District  Court,  13  N.  D.  219,  100  N.  W.  249, 

refusing  mandamus  to   compel   trial  court   to   hear  and   detcrmiue   on 

merits  a  case  it  has  dismissed. 

103  U.  S.  797-799,  26  L.  426,  CROUCH  v.  ROEMER. 

Syl.  2  (X,  118).     Change  of  materials  not  patentable. 

Approved  in  Sloan  Filter  Co.  v.  Portland  Gold  Min.  Co.,  139  Fed. 
26,  holding  patent  for  barrel  filter  for  filtering  metal  solutions  void. 


1041  Notes  on  U.  S.  Keports.  104  U.  S.  5-24 

103  U.  S.  806-S20,  26  L.  612,  THOMPSON  v.  PERRINE. 

Syl.  3  (X,  120).     Federal  courts — Validity  of  municipal  bonds. 

Approved  in  Board  of  Conunrs.  v.  Tollman,  145  Fed.  763,  holding 
federal  court  not  bound  by  decision  of  state  court  rendered  after 
bonds  purchased,  construing  section  of  state  constitution  claimed  to 
be   violated  by  statute  authorizing  issue. 


CIV  UNITED  STATES. 


104  U.  S.  5-lS,  26  L.  643,  BALTIMORE  &  OHIO  R.  R.  CO.  v.  KOONTZ. 

Syl.    1    (X,   123).     Jurisdiction — Suit   against   foreign   corporation. 

Approved  in  Kibbler  v.  St.  Louis  etc.  R.  Co.,  147  Fed.  881,  foreign 
corporation,  which  under  state  laws  can  be  sued  in  state  courts  only 
in  counties  in  which  it  does  business,  is  not  suable  in  federal  court 
in  state  unless  it  docs  business  in  one  of  counties  in  district;  Terri- 
tory V.  Baker,  12  N.  M.  459,  78  Pae,  625,  denying  mandamus  to  com- 
pel judge  to  take  juriKdietion  of  suit  against  foreign  corporation  on 
service  on  its  president  while  traveling  through  state. 

Syl.  2   (X,  124).     Jurisdiction  not  dependent  on  citizenship. 

Approved  in  Pyron  v.  Ruohs,  120  Ga.  1003,  48  S.  E.  436,  partner- 
ship is  suable  in  any  county  in  which  one  of  partners  has  residence 
regardless  of  his  citizenship. 

Syl.  8   (X,  125).     Wrongful  denial  of  removaL 

Approved  in  Texarkana  Telephone  Co.  v.  Bridges,  75  Ark.  120,  8G 
S.  W.  842,  filing  of  answer  after  denial  of  removal  is  not  waiver  of 
right  to  insist  on  removal. 

Syl.  9   (X,  125).     Removal — When  state  jurisdiction  ends. 

Approved  in  Madisouville  Traction  Co.  v.  St.  Bernard  Min.  Co., 
196  U.  S.  245,  49  L.  464,  25  Sup.  Ct.  251,  upholding  removal  of  pro- 
ceeding for  taking  land  by  eminent  domain  under  Kentucky  statute; 
Mutual  Life  Ins.  Co.  v.  Langley,  145  Fed.  421,  where  proper  removal 
petition  and  bond  filed  in  time  with  state  court's  clerk  and  certified 
copy  of  record  filed  in  federal  court,  latter  court  acquires  jurisdic- 
tion without  state  court's  order  of  transference;  Boatmen's  Bank  v. 
Fritzlen,  135  Fed.  653,  68  C.  C.  A.  288,  upholding  seizure  on  replevin 
in  federal  court  where  state  suit  concerning  same  property  removed 
to  federal  court. 

104  U.  S.   18-24,  26  L.  635,  SHANKS  v.  KLEIN. 

Syl.  1  (X,  128),     Partnership  realty— Firm  debts. 

Approved  in  Schlichter  Jute  Cordage  Co.  v.  Mulqueen,  142  Fed. 
587,  where  after  death  of  partner  his  interest  in  firm,  including  realty, 
66 


104  U.  S.  25-51  Notes  on  U.  S.  Reports.  1012 

bought  by  survivor,  and  distributed  as  part  of  estate,  and  minor 
residuary  legatees  did  not  join  in  conveyance  to  purchaser,  but  on 
majority  approved  executor's  final  settlement,  they  were  enjoined 
from  enforcing  ejectment  judgment  obtained  for  such  interest  in 
action  at  law;  Eunner  v.  Wortke,  2  Alaska,  393,  one  partner  cannot 
sell  partner's  interest  in  realty  standing  in  firm  name  without  writ- 
\.?n  authority,  where  no  necessity  shown  for  sale;  Kennedy  v.  Dickey, 
93  Md.  305,  57  Atl.  625,  only  surplus  left  on  sale  of  testator 's  part- 
nership realty  after  payment  of  debts  and  adjustment  of  i):n'tnt^i's' 
claims  is  distributable  as  realty. 

104  U.  S.  25-30,  26  L.  637,  SMITH  v.  McCULLOUGH. 

Syl.  3  (X,  130).     Mortgage  of  after-acquired  property. 

Approved  in  Mallory  v.  Maryland  Glass  Co.,  131  Fed.  114,  mort- 
gage of  glass  factory  covering  plant  and  enumerated  articles  ami  all 
property  owned  or  to  be  afterward  acquired  does  not  cover  after- 
acquired  merchandise  manufactured  for  sale  in  ordinary  business. 
See  99  Am.  St.  Ecp.  259,  note. 

104  U.  S.  30-40,  26  L.  647,  MARTIN  v.  COLE. 

Syl.  1  (X,  130).     Indorsement — Contemporaneous  parol  contract. 

Approved  in  Crilly  v.  Gallice,  148  Fed.  836,  conditional  agreement 
for  compromise  pursuant  to  which  debtor  delivered  notes  indorsed 
by  third  party,  who  was  also  party  to  agreement,  which  provided 
for  full  release  on  payment  of  notes,  does  not  discharge  indorser  on 
maker's  default;  Payne  v.  Mutual  Life  Ins.  Co.,  141  Fed.  345,  bind- 
ing obligation  of  premium  note  cannot  be  affected  by  contemporane- 
ous parol  agreement  that  it  need  not  be  paid;  Kessler  v.  Pcrilloux, 
132  Fed.  910,  66  C.  C.  A.  113,  where  written  contract  is  unambigu- 
ous, parol  evidence  is  inadmissible  to  show  contemporaneous  agree- 
ment enlarging  its  scope. 

Distinguished  in  Nethercutt  v.  Hopkins,  38  Wash.  579,  80  Pac.  799, 
where  defendants  advised  by  plaintiff,  who  was  their  attorney  and 
also  that  of  maker,  to  sell  notes  for  fifty  per  cent,  as  maker  was 
insolvent,  and  they  indorsed  notes  to  plaintiff  for  sale,  and  he 
bought  them,  evidence  of  fraudulent  representations  admissible  in  ac- 
tion against  defendants  as  indorsers. 

104  U.  S.  44-51,  26  L.  652,  KING  v.  WORTHINGTON. 

Syl.  2  (X,  131).     Competency  of  witnesses  in  federal  court. 

Approved  in  Smith  v.  Au  Gres  Twp.,  150  Fed.  263,  under  Rev.  St., 
8  858,  witness  may  testify  after  death  of  bankrupt  to  admissions 
made  by  bankrupt  concerning  estate  while  he  was  owner  thereof. 


1043  Notes  on  U.  S.  Reports.  10-1  U.  S.  52-77 

104   U.   S.   52-54,   26   L.   658,   DRIESBACII   v.   SECOND   NATIONAL 
BANK. 

Syl.  1    (X,  132).     Usurious  interest — Application  on  principal. 

Approved  in  Gunby  v.  Armstrong,  133  Fed.  434,  66  C.  C.  A.  627, 
under  Louisiana  statute  authorizing  recovery  back  of  usurious  in- 
terest, unless  right  is  asserted  within  limitations  it  cannot  be  pleaded 
as  defense  or  setoff. 

104  U.  S.  54-77,  26  L.  693,  CENTRAL  NATIONAL  BANK  v.  CON- 
NECTICUT MUT.  LIFE  INS.   CO. 

Syl.  1   (X,  132).     Deposit  as  agent— Setoff  by  bank. 

Approved  in  First  Nat  Bank  v.  National  Surety  Co.,  130  Fed.  405, 
66  L.  R.  A.  777,  where  surety  company  insured  bank  against  em- 
ployee's dishonesty  and  depositor  overdrew  through  falsification  of 
books  by  bookkeeper  but  later  deposits  exceeded  overdraft,  surety 
not  liable. 

Syl.  2   (X,  133).     Deposit  of  trust  funds  to  personal  account. 

Approved  in  Fidelity  etc.  Co.  v.  Fidelity  Trust  Co.,  143  Fed.  159, 
upholding  equity  jurisdiction  over  bill  against  depositories  of  funds 
of  insolvent  association  arising  out  of  association  treasurer's  embez- 
zlement. 

Syl.  3  (X,  133).     Following  trust  funds — Commingling. 

Approved  in  Smith  v.  Au  Gres  Twp.,  150  Fed.  260,  265,  where  bank- 
rupt, who  was  township  trustee,  used  township's  money  to  replenish 
stock  in  trade  and  mingled  new  goods  with  old,  township  had  equita- 
ble lien  on  proceeds  of  sale  of  'entire  stock  by  bankrupt's  trustee 
for  amount  appropriated;  Board  of  Commrs.  v.  Patterson,  149  Fed. 
232,  234,  determining  amount  recoverable  by  countj  from  bank  re- 
ceiver where  bank  cashier  was  county  treasurer  and  mingled  county 
funds  with  bank's;  Bay  State  Gas  Co.  v.  Rogers,  147  Fed.  560,  where 
subject  matter  of  suit  consisted  of  profits  arising  out  of  trust,  fact 
that  amount  claimed  could  be  liquidated  in  cash  did  not  deprive 
federal  equity  court  of  jurisdiction;  In  re  Berry,  7M  Fed.  211,  where 
petitioner,  under  mistake  'of  fact,  paid  A  money  for  debt  which  he 
did  not  owe,  and  three  days  later  petition  in  bankruptcy  filed  against 
him,  and  money  deposited  with  A's  other  monr  ys  and  was  paid  to 
bankruptcy  trustee,  money  so  paid  was  recov  rable  from  trustee; 
In  re  Royea's  Estate,  143  Fed.  183,  where  petit  oner  intrusted  money 
to  bankrupt  for  safekeeping  and  latter  deposited  with  his  own  funds, 
petitioner  could  enforce  preferred  claim  on  bank  balance  in  hands 
of  trustee;  Southern  Pine  Co.  v.  Savannah  Trust  Co.,  141  Fed.  808, 
where  claimant  agreed  to  sell  boards  to  car  company  to  be  paid  for 
on  delivery,  and  it  sent  boards  to  president  of  company  to  check  up 
on  assurance   that  they  would  not  be  delivered  before  payment,  but 


1 104  U.  S.  54-77  Notes  on  U.  S.  Reports  1044 

through  oversight  of  employee  boards  delivered  before  payments,  claim- 
ant could  recover  value  of  boards  from  proceeds  of  sale  of  cars 
made  from  boards  and  sold  at  bankrupt  sale;  Erie  R.  Co.  v.  Dial, 
140  Fed.  691,  where  corporation  ordered  rubber  to  make  tires,  which 
was  to  be  paid  for  on  delivery,  but  corporation  took  rubber  from 
railroad  platform  without  paying  drafts  and  used  it  up,  assignee 
of  shipper  could  recover  value  from  corporation's  bankruptcy  trustee 
in  preference  to  general  creditors;  Holder  v.  Western  German  Bank, 
136  Fed.  92,  68  C.  C.  A.  554,  where  plaintiff  deposited  check  with 
defendant  bank  for  collection,  which  latter  sent  it  to  Bank  A  for 
collection,  with  instructions  to  remit  New  York  Exchange,  which 
latter  did  but  New  York  bank  refused  to  pay  on  instructions  from 
A's  receiver,  A  bank  was  trustee;  Oswego  Mill  Co.  v.  Skillern,  73 
Ark.  326,  84  S.  W.  476,  complaint  against  receiver  of  insolvent  bank 
to  establish  preferred  claim  for  proceeds  of  check  received  for  col- 
lection must  allege  that  proceeds  of  check  were  paid  into  hands  of 
receiver;  Indiana  Trust  Co.  v.  International  etc.  Assn.,  165  Ind.  600, 
76  N.  E.  307,  affirming,  36  Ind.  App.  691,  74  N,  E.  635,  where  treas- 
urer of  society  drew  check  against  society's  funds  to  secretary,  who 
opened  account  in  his  name  as  secretary  and  who  did  not  pay  moneys 
to  treasurer  each  day  as  required  by  rules,  payment  by  treasurer  to 
secretary  entitled  him  to  credit  therefor  as  against  society;  Page 
■Co.  V.  Rose,  130  Iowa,  299,  106  N.  W.  745,  where  county  treasurer 
without  authority  deposited  tax  receipts  with  bank  for  collection, 
county  had  preferred  claim  against  bank's  insolvent  estate;  Brown 
V.  Spohr,  180  N.  Y.  212,  73  N.  E.  17,  where  trust  deed  acknowledged 
receipt  of  trust  funds  by  trustees  and  it  was  credited  to  them 
on  books  of  firm  to  which  settlor  ^belonged,  action  by  trustees  in 
withdrawing  funds  from  bank  and  redepositing  same  to  credit  of 
firm  was  delivery  to  trustee;  Texas  Moline  Plow  Co.  v,  Kingman  etc. 
Implement  Co.,  32  Tex.  Civ,  347,  80  S.  W.  1045,  where  personalty 
mortgaged  to  different  persons  was  sold  by  mortgagor  and  pro- 
ceeds so  used  as  to  be  incapable  of  identification,  property  purchased 
with  proceeds  not  impressed  with  trust  in  favor  of  mortgagees. 

Distinguished  in  Beugnot  v.  Tremoulet,  111  La.  19,  35  So.  368, 
where  mother  of  minor  intrusts  funds  of  minor  with  one  who  con- 
fuses them  with  own,  and  obtains  large  credit  thereby,  latter  13 
chargeable  with  interest. 

Syl.  4   (X,  136).     Bank's  lien — Notice  of  equities. 

Approved  in  First  Nat  Bank  v.  City  Nat.  Bank,  102  Mo.  App.  363, 
76  S.  "W.  490,  where  bank  depositor  made  deposit  to  credit  of  gen- 
eral account  and  bank  not  notified  that  he  intended  deposit  to  be 
applied  in  payment  of  note  to  another  bank,  first  bank  could  apply 
deposit  to  overdraft;  Brookhouse  v.  Union  Pub,  Co.,  73  N,  H.  373, 
111  Am.  St.  Rep.  627,  62  Atl.  222,  2  L.  R.  A.  (N.  S.)  993,  where 
treasurer  of  defendant  was  plaintiff's  guardian  and  withdrew  funds 
.from   other  sources  and  gave   draft   to  assistant   treasurer,   who   de- 


1045  Notes  on  U.  S.  Eeports.  104  U.  S.  78-83 

posited  them,  and  guardian  as  treasurer  drew  money  for  personal 
benefit,  defendant  not  charfjeuble  with  notice  of  trust;  Interstate 
Nat.  Bank  v.  Claxton,  97  Tex.  578,  80  S.  W.  607,  65  L.  K.  A.  820, 
where  bank  permitted  factor  to  overdraw  and  after  his  insolvency 
applied  funds  of  principal  to  payment  of  debt,  it  was  liable  to  prin- 
cipal.    See   111   Am.  St.   Ecp.  424,  note. 

Distinguished  in  Kimmel  v.  Bean,  68  Kan.  602,  75  Pac.  1119,  64 
L.  E.  A.  785,  bank  receiving  from  agent  moneys  of  principal  for  de- 
posit in  agent's  name  witliout  notice  of  agency  may  apply  same  to 
overdraft. 

Syl.    5    (X,    138).     National    bank's    liquidation. 

Approved  in  Muir  v.  Citizens'  Nat.  Bank,  39  Wash.  58,  80  Pac. 
1007,  national  bank  going  into  voluntary  liquidation  is  not  re- 
quired to  register  subsequent  transfer  of  stock  and  to  issue  new 
stock   to   transferee. 

Syl.  6   (X,  138).     Irregular  pleas  need  not  be  traversed. 

Approved  in  Bryant  Bros.  Co.  v.  Eobinson,  149  Fed.  328,  follow- 
ing rule;  Computing  Scale  Co.  v.  Moore,  139  Fed.  200,  where  plea  in 
equity  is  not  properly  verified,  complainant  should  disregard  plea  and 
take  decree  pro  confesso. 

Syl.  7   (X,  139).     Eeversal — Failure  to  file  replication. 

Approved  in  Mutual  Life  Ins.  Co.  v.  Blair,  130  Fed.  973,  where  in- 
sured died  after  commencement  of  suit  to  cancel  policy,  but  before 
answer,  whereupon  action  brought  on  policy,  plea  in  bar  alleging 
death  and  pendency  of  law  action  does  present  objection  to  want  of 
equity. 

104  U.  S.  78-83,  26  L.  658,  KELLY  v.  PITTSBUEG. 

Syl.  4   (X,  139).     Tax  of  farm  lands  in  city. 

Approved  in  Union  Eefrigerator.  Transit  Co.  v.  Kentucky,  199  IT.  S. 
203,  50  L.  153,  26  Sup.  Ct.  36,  due  process  of  law  is  denied  Kentucky 
corporation  by  tax  under  Kentucky  statute  on  rolling  stock  perma- 
nently located  in  other  states  and  employed  there  in  business;  Toney  v. 
Macon,  119  Ga.  87,  46  S.  E.  82,  upholding  annexation  act  of  December 
13,  1900;  Attorney  General  v.  Springwell's  Tp.  Board,  143  Mich.  534, 
107  N.  W.  91,  upholding  Soc.  Acts  1905,  p.  1068,  annexing  territory  to 
Detroit;  Taylor  v.  Crawford,  72  Ohio  St.  570,  74  N.  E.  1068,  69  L.  E. 
A.  805,  upholding  act  of  1902,  for  cleaning  and  keeping  in  repair  pub- 
lic ditches,  drains  and  watercourses;  Gay  v.  Thomas,  5  Okl.  21,  46  Pac. 
584,  upholding  act  providing  for  listing  and  assessing  personalty  in 
Indian  reservations  and  unorganized  territory  at  different  time  from 
that  fixed  for  listing  property  in  organized  counties;  Horton  v.  City  of 
Newport,  27  E.  I.  288,  294,  61  Atl.  761,  763,  upholding  Laws  1900-01, 
p.  110,  c.  804,  §  9,  requiring  payment  of  salaries  of  Newport  police 
commissioners  from  funds  of  city. 


104  U.  S.  88-99  Notes  on  U.  S.  Keports.  1046 

104  U.  S.  88-92,  26  L.  662,  KLEIN  v.  NEW  YOEK  LIFE  INS.  CO. 

Syl.  1  (X,  141).     Life  insurance — Nonpayment  of  premiums. 

Approved  in  Supreme  Lodge,  K.  of  H.  v.  Jones,  35  Ind.  App.  130,  69 
N.  E.  721,  where  member  of  beneficial  society  failed  to  pay  February 
dues  and  creditor  paid  such  dues  after  his  death  and  received  receipt 
therefor,  society  not  estopped  to  declare  forfeiture  for  nonpayment,  it 
not  knowing  of  death  at  time  of  payment. 

Syl.  3   (X,  141).     Equity — Insurance — Nonpayment  of  premiums. 

Approved  in  Eessler  v.  Fidelity  etc.  Life  Ins.  Co.,  110  Tenn.  415, 
75  8.  W.  735,  where  premium  note  stated  that  if  not  paid  at  maturity 
policy  void,  failure  to  pay  note  at  maturity  rendered  policy  void,  though 
policy  contained  no  such  provision;  Loadon  etc.  Accident  Co.  v.  Siwy, 
35  Ind.  App.  346,  66  N.  E.  483,  employer  failing  to  notify  insurer  of 
action  by  employee  for  injuries  until  issue  joined  and  case  set  for  trial, 
does  not  comply  with  condition  of  policy  requiring  immediate  notice; 
Metropolitan  Life  Ins.  Co.  v.  Bradley,  98  Tex.  232,  82  S.  W.  1031,  68 
L.  E.  A.  509,  New  York  statute  prohibiting  forfeiture  of  life  policies 
for  failure  to  pay  premium  unless  notice  mailed  to  insured  in  state 
does  not  apply  where  insured  lived  in  Texas  and  policy  there  delivered, 
though  premiums  and  policy  payable  in  New  York. 

Distinguished  in  Aetna  Life  Ins.  Co.  v.  Fallow,  110  Tenn.  729,  77  S. 
W.  939,  holding  accident  policy  provision  forfeiting  right  for  non- 
payment of  premiums  prior  to  accident  waived  whereby  custom  agent 
requested  insured  to  hold  premiums  until  collector  called.  , 

104  U.  S.  93-99,  26  L.  665,  METCALF  v.  WILLIAMS. 

Syl.  2  (X,  142).     Equitable  relief — Fraud  or  mistake. 

Approved  in  Sanford  v.  White,  132  Fed.  535,  setting  aside  judgment 
where  attorney  refused  to  call  material  witness  and  stipulated  certain 
facts  which  virtually  defended  client's  cause  of  action;  Nelson  v. 
Meehan,  2  Alaska,  493,  where  judgment  obtained  by  fraud  and  perjury 
was  affirmed  on  appeal,  and  pending  final  disposition  of  case  in  dis- 
trict court  defendants  by  motion  and  affidavits  disclosed  fraud  and 
perjury  and  moved  to  vacate,  court  had  jurisdiction  to  vacate;  Farm- 
ers' etc.  Warehouse  Co.  v.  Pridemore,  55  W.  Va.  463,  47  S.  E.  263,  re- 
fusing to  enjoin  judgment  on  mere  allegation  that  complainant  is  now 
able  to  prove  his  defense  of  action  at  law  which  he  was  unable  to  prove 
at  trial. 

Syl.  3   (X,  142).     Signing  check  as  agent — Knowledge  of  agency. 

Approved  in  State  Bank  of  St.  Johns  v.  McCabe,  135  Mich.  484,  98 
N.  W.  22,  where  bank  deals  with  depositor  as  trustee  and  recognizes 
funds  standing  in  his  name  as  trust  funds,  it  cannot  appropriate  them 
to  payment  of  trustee's  individual  debt  to  bank;  Janes  v.  Citizens' 
Bank,  9  Okl.  556,  564,  60  Pac.  293,  295,  admitting  parol  evidence  to 
show  note  signed  by  one  in  official  capacity  as  secretary  of  corporation 
that  it  was  understood  by  parties  that  corporation  was  to  be  bound. 


1047  Notes  on  U.  S.  Reports.  104  U.  S.  99-141 

104  U.  S.  99-105,  26  L.  GG8,  DUDLEY  v.  E ASTON. 

Syl.  1   (X,  143).     Bankruptcy  assignee  as  agent  of  secured  creditors. 

Approved  in  Sellers  v.  Hayes,  163  Ind.  430,  72  N.  E.  122.  lankruptey 
trustee  cannot  impeach  mortgage  given  by  purchaser  from  bankrupt  to 
third  party. 

Syl.  3   (X,  143).     Bankruptcy  assignee — Preferences. 

Approved  in  Smith  v.  Au  Gres  Twp.,  1.50  Fed.  264,  determining  ad- 
missibility of  affidavit  of  bankrupt  in  action  against  trustee;  First  Nat. 
Bank  v.  Connett,  142  Fed.  40,  if  chattel  mortgage,  though  given  be- 
fore, is  not  recorded  until  within  four  months  prior  to  bankruptcy  and 
under  circumstances  which  would  render  it  a  voidable  preference  if  it 
had  been  then  given,  trustee  may  defeat  it  as  preference. 

(X,  143).  Miscellaneous.  Cited  in  Empire  State  etc.  Co.  v.  Trustee 
of  Fisher  &  Co.,  67  N.  J.  Eq.  603,  60  Atl.  940,  bankruptcy  trustee  may 
avoid  mortgage  made  by  New  Jersey  corporation  which  creditors  of 
corporation  might  avoid  under  New  Jersey  Corporation  Act.  §  64. 

104  U.  S.  111-112,  20  L.  703,  NEVADA  BANK  v.  SEDGWICK. 

Syl.  2  (X,  144).     Ta.\  of  debts  due  residents. 

Distinguished  in  London  &  S.  F.  Bank  v.  Block,  136  Fed.  140,  69 
C.  C.  A.  136,  where  foreign  corporation  maintained  branches  in  other 
states,  credits  on  books  of  San  Francisco  office  of  sums  paid  to  other 
branches  and  charged  to  them  as  mere  matter  of  bookkeeping  were  not 
taxable  as  credits  in  California. 

104  U.  S.  112-119,  26  L.  639,  LEIIIGII  VALLEY  R.  R.  CO.  v.  MEL- 
LON. 

Syl.  1   (X,  144).     Patents  liniited  by  claim. 

Cited  in  Colundjus  Chain  Co.  v.  Standard  Chain  Co.,  14S  Fed.  625, 
arguendo. 

104  U.  S.  126-141,  26  L.  673,  BARTON  v.  BARBOUR. 

Syl.  1   (X,  146).     Recovery  of  property  from  receiver. 

Approved  in  James  Freeman  Brown  Co.  v.  Harris,  139  Fed.  109, 
where  in  replevin  against  receiver  federal  judge  filed  memorandum  de- 
clining to  try  merits  but  rendered  judgment  for  recovery  of  possession 
by  defendant,  or  for  value  of  projierty,  judgment  was  res  adjiidicata; 
Western  New  York  etc.  R.  Co.  v.  Penu.  Ref.  Co.,  137  Fed.  360,  70  C. 
C.  A.  23,  receiver  should  not  be  joined  with  other  raift-oads  in  action 
to  enforce  judgment  for  damages  sustained  by  discrimination  in  freight 
rates  in  violation  of  interstate  commerce  act,  where  judgment  would 
constitute  personal  judgment  against  railroads;  Ridge  v.  Manker,  132 
Fed.  602,  67  C.  C.  A.  596,  decree  against  receiver  of  another  court  is 
not  nullity  subject  to  collateral  attack  merely  because  record  fails  to 
affirmatively  show  permission  to  suit;  Johnson  v.  Southern  B.  &  L. 
Assn.,  132  Fed.  544,  tax  deed  executed  after  property  has  passed  into 
custody   of   court   by   its   appointment   of   receiver   for   mortgagee   does 


104  U.  S.  146-159  Notes  on  U.  S.  Reports.  1048 

not  cut  off  receiver's  right  of  redemption;  Payson  v.  Jacobs,  38  Wash. 
205,  80  Pac.  430,  where  foreclosure  brought  against  receiver  in  same 
court  in  which  he  was  appointed,  it  is  presumed  in  collateral  proceed- 
ing that  leave  to  sue  was  obtained. 

Distinguished  in  Eatcliff  v.  Adler,  71  Ark.  271,  72  S.  W.  897,  action 
against  receiver  in  court  presided  over  by  same  judge  who  appointed 
receiver  not  dismissed  on  appeal  for  failure  to  obtain  leave  to  sue ; 
Isom  v.  Eex  Crude  Oil  Co.,  147  Cal.  667,  82  Pac.  320,  where  in  prior 
state  action  to  cancel  oil  lease  for  fraud  judgment  rendered  for  plain- 
tiff and  appointed  to  work  oil  land,  and  pending  appeal  plaintiff  sued 
in  federal  court  to  cancel  lease,  and  receiver  not  made  party,  federal 
judgment  does  not  affect  receiver's  rights;  Manker  v.  Phoenix  Loan 
Assn.,  124  Iowa,  343,  100  N.  W.  38,  failure  to  obtain  leave  to  sue  re- 
ceiver is  no  bar  to  jurisdiction  of  law  court. 

Syl.  5    (X,  148).     Equity— Right  to  jury. 

Approved  in  Dokken  v.  Page,  147  Fed.  439,  where  bankruptcy  receiver 
took  possession  of  goods  which  bankrupt  had  transferred  to  third  per- 
son and  by  stipulation  transferee  filed  intervention  setting  up  claim  as 
bona  fide  purchaser,  no  jury  required;  In  re  Neasmith,  147  Fed.  163, 
failure  of  involuntary  bankrupt  to  formally  apply  for  jury  in  writing 
at  or  before  time  for  answer  is  waiver  of  right  to  jury  trial;  State  v. 
Sunapee  Dam  Co.,  72  N.  H.  126,  127,  55  Atl.  906,  907,  where,  in  suit  to 
restrain  dam  owner  from  interfering  with  rights  of  shore  owners,  court 
refused  injunction  but  held  plaintiffs  entitled  to  damages,  defendants 
not  entitled  to  jury  trial  on  question  of  damages. 

Syl.  7   (X,  148).     Railroad  receiver — Repairs. 

Approved  in  Castle  Creek  Water  Co^  v.  City  of  Aspen,  146  Fed.  15, 
where  city  has  refused  to  perform  contract  to  purchase  waterworks  of 
company  at  price  to  be  determined  by  appraisers,  water  company  may 
bring  specific  performance;  dissenting  opinion  in  Gregg  v.  Metropolitan 
Trust  Co.,  197  U.  S.  194,  49  L.  721,  25  Sup.  Ct.  415,  majority  holding 
claim  for  ties,  to  repair  railroad,  furnished  within  six  months  of  re- 
ceivership, is  not  preferred  to  mortgage  recorded  prior  to  contract  for 
ties. 

104  U.  S.  146-159,  26  L.  679,  ST.  LOUIS  INS.  CO.  v.  ST.  LOUIS  ETC. 
R.  R.  CO. 

Syl.  1  (X,  150).     Carriers — Delivery  to  succeeding  carrier. 

Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Bryant,  36  Ind.  App.  345, 
75  N.  E.  831,  mere  receipt  of  goods  by  carrier  marked  for  delivery  at 
point  beyond  its  own  line  does  not  constitute  contract  to  transport  and 
deliver  them  at  destination.     See  106  Am.  St.  Rep.  606,  note. 

Syl.  2    (X,   150).     Trafiie  agreements — Joint  liability. 

Approved  in  Chesapeake  etc.  Ry.  Co.  v.  Stock,  104  Va.  107,  51  S. 
E.  164,  holding  connecting  carrier  not  liable  for  loss  not  occurring  on 


1049  Notes  on  U.  S.  Eeports.  104  U.  S.  159-191 

its  portion  of  through   route  where  agency  not  shown,   though  through 
rate  guaranteed. 

104  U.  S.  159-170,  26  L.  686,  DAVIS  v.  WELLS. 

Syl.  1  (X,  151).     Guaranty — Notice  of  acceptance. 

Approved  in  Buhrer  v.  Baldwin,  137  Mich.  270,  100  N.  W.  470,  where 
contract  of  guaranty  recites  consideration,  no  notice  of  acceptance  is 
necessary  to  bind  guarantor.     See  105  Am.  St.  Eep.  514,  515,  note. 

Syl.  2  (X,  151).     Guaranty — Notice — Guarantee's  request. 

Approved  in  Stewart  v.  Sharp  County  Bank,  71  Ark.  588,  580,  76 
S.  W.  1065,  1066,  where  defendants  guaranteed  debt  due  plaintiff  at 
request  of  latter 's  agent,  notice  of  acceptance  of  guaranty  not  re- 
quired. 

Syl.  3  (X,  152).     Guaranty — Nominal  consideration. 

Approved  in  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed.  807,  lease  in  con- 
sid'.'ration  of  one  dollar  paid  at  time  is  not  wanting  in  mutuality  merely 
because  it  reserves  to  one  party  option  to  terminate  it  which  it  with- 
holds from  other. 

Syl.  4  (X,  152).     Guaranty  liberally  construed. 

Approved  in  Swift  v.  Jones,  135  Fed.  438,  where  contract  employing 
defendant's  son  as  phiintitf's  broker  signed  by  defendant  as  guarantor 
required  son  to  give  bond,  plaintiff  to  pay  premium,  and  plaintiff  sent 
son  application,  which  he  signed,  but  plaintiff  did  not  get  bond  till 
after  defalcation  guarantor  not  liable. 

104  U.  S.  176-179,  26  L.  704,  FLAGSTAFF  SILVER  MINING  CO.  v. 

CULLINS. 

Syl.  1   (X,  153).     Mechanic's  lien  statutes  liberally  construed. 

Approved  in  United  States  v.  American  Surety  Co.,  200  U.  S.  203,  50 
L.  440,  26  Sup.  Ct.  168,  labor  and  materials  furnished  under  contract 
to  contractor  or  subcontractor  are  within  surety  bond  executed  under 
Comp.  St.  1901,  p.  2523,  conditioned  for  prompt  payment  by  contractor 
to  all  persons  supplying  labor  and  materials  under  contract;  Salt  Lake 
Hardware  Co.  v.  Chainman  Min.  etc.  Co.,  137  Fed.  637,  mechanic's  lien 
not  void  because  statement  filed  claimed  more  than  actually  due,  where 
it  was  result  of  mistake  and  without  fraudulent  intent. 

Syl.  2  (X,  153).     Mechanic's  lien — Mine  foreman. 

Approved  in  Thompson  v.  Wise  Boy  Min.  etc.  Co.,  9  Idaho,  367,  74 
Pac.  960,  an  amalgamator  in  quartz-mill  located  on  mine  and  operated 
by  mine  owners  is  entitled  to  lien  on  mine  for  labor. 

104  U.  S.  185-191,  26  L.  716,  THE  ANNIE  LINDSLEY. 

Syl.   1    (X,   154).     Admiralty — Conclusiveness  of  findings. 

Approved  in  Wiser  v.  Lawler,  7  Ariz.  183,  62  Pac.  700,  applying  rule 
in  equity. 


104  U.  S.  192-244  Notes  on  U.  S.  Reports.  1050 

104  U.   S.   192-196,   26  L.   707,  MAHONEY  MINING  CO.   v.  ANGLO 
CALIFORNIA  BANK. 

Syl.  1    (X,  155).     Mining  corporation — Power  to  borrow.    • 
See  111  Am.  St.  Rep.  317,  note. 

104  U.  S.  197-208,  26  L.  708,  KNICKERBOCKER  LIFE  INSURANCE 
CO.  V.  TREFZ. 

Syl.  2   (X,  156).     Insurance — Answer  to  specific  queries. 

Approved  in  Hanrahan  v.  Metropolitan  Life  Ins.  Co.,  72  N.  J.  L. 
508,  63  Atl.  281,  where  insurance  application  asked  for  name  of  lost 
attending  physician,  date  of  attendance  and  complaint,  and  name  of 
physician  not  given  in  answer,  there  is  breach  of  warranty;  Logan  v. 
Assurance  Society,  57  W.  Va.  394,  50  S.  E.  533,  insured's  answer  that 
he  was  never  sick  not  breach  of  warranty  where  he  only  had  slight 
ailments,  such  as  colds  and  stomachache. 

104  U.  S.  209-213,  26  L.  719,  WILLIAMS  v.  NOTTAWA. 

Syl.  1   (X,  156).     Federal  jurisdiction — Suit  by  assignee. 

Approved  in  Steigleder  v.  McQuesten,  198  U.  S.  142,  49  L.  987,  25 
Sup.  Ct.  616,  question  of  federal  jurisdiction  invoked  on  ground  of 
diversity  of  citizenship  may  be  raised  by  motion  to  dismiss  based  on 
proofs  taken  by  master  to  whom  cause  referred ;  Kreider  v.  Cole,  149 
Fed.  654,  where  persons  interested  in  corporation  desiring  to  sue  in 
Pennsylvania  federal  court  for  receiver  caused  bonds  and  stocks  of 
nominal  value  to  be  assigned  to  citizen  of  New  Jersey,  merely  for 
purposes  of  suit,  transaction  vv^as  fraud  on  court's  jurisdiction;  Kirven 
v.  Virginia-Carolina  Chemical  Co.,  145  Fed.  291,  where  objection  to 
federal  jurisdiction  is  taken  by  answer,  issue  thereon  should  not  be 
submitted  to  jury  with  other  issues  to  be  determined  by  general  verdict ; 
Briggs  V.  Traders'  Co.,  145  Fed.  257,  question  of  federal  jurisdiction 
may  be  raised  in  any  manner;  Woodside  v.  Vasey,  142  Fed.  619,  circuit 
court  has  no  jurisdiction  of  action,  against  directors  of  corporation  to 
enforce  claims  against  corporation  where  claims  assigned  merely  for 
purpose  of  suit  and  no  single  claim  is  within  jurisdictional  amount; 
Turnbull  v.  Ross,  141  Fed.  652,  dismissing  suit  where  evidence  shows 
collusive  transfer  of  subject  matter  of  action  to  give  jurisdiction; 
Pennsylvania  Co.  v.  Bay,  138  Fed.  205,  where  bill  to  enjoin  ticket 
scalping  alleged  value  of  business  sought  to  be  protected  was  $5,000, 
and  answer  alleged  amount  in  controversy  was  less  than  $2,000,  case 
not  dismissed  till  defendant  had  sustained  burden  of  showing  jurisdic- 
tional amount  was  lacking. 

104  U.  S.  228-244,  26  L.  723,  CONNER  v.  LONG. 

Syl.  2    (X,   160).     Bankruptcy  assignee's  title — Relation  back. 

Approved  in  Northwestern  etc.  Ins.  Co.  v.  Kidder,  162  Ind.  391,  70 
N.  E.  492,  66  L.  R.  A.  89,  where  creditors  of  insolvent  corporation  which 
insured   controlled   claimed    latter   paid    premiums     with     corporation's 


1051  Notes  on  U.  S.  Reports.  104  U.  S.  245-261 

fiinrls,  and  demanded  that  insurer  stop  payment  on  check  given  to  bene- 
ficiary, insurer  could  not  compel  parties  to  interplead. 

104  U.  S.  245-252,  26  L.  729,  WALKER  v.  POWERS. 
Syl.  3  (X,  161).  Equity— Multifariousness  of  bill 
Approved  in  Horncr-Gaylord  Co.  v.  Miller  &  Bennett,  147  Fed.  297, 
in  suit  for  appointment  of  receiver  of  bankrupt  prior  to  adjudication 
for  purpose  of  taking  possession  of  property  fraudulently  conveyed,  not 
multifarious  because  many  transferees  joined;  South  Penn.  Oil  Co.  v. 
Calf  Creek  etc.  Co.,  140  Fed.  516,  bill  to  enjoin  prosecution  of  two  ac- 
tions at  law  against  complainant,  which  involve  same  indivisible  sub- 
ject matter,  is  not  multifarious  because  claims  of  two  plaintiffs  in  such 
actions  are  separate;  Inman  v.' New  York  etc.  Water  Co.,  131  Fed.  999, 
bill  joining  question  of  ownership  in  corporate  stock  with  request  for  re- 
lief defendant  on  such  ownership  is  multifarious. 

104  U.  S.  252-261,   26  L.    765,    THOMPSON    v.    KNICKERBOCKER 
LIFE  INS.  CO. 

Syl.    1    (X,    161).     Insurance — Unpaid    premium    note. 

Approved  in  Parker  v.  Knights  Templar  etc.  Co.,  70  Neb.  279,  97 
N.  W.  285,  permanent  waiver  of  conditions  in  policy  as  to  place  of  piay- 
ment  of  premiums  not  shown  by  occasional  indulgences  shown  insured; 
Hagins  v.  Aetna  Life  Ins.  Co.,  72  S.  C.  219,  51  S.  E.  684,  where  acci- 
dent policy  provided  for  payment  of  premiums  by  orders  on  employer 
of  insured  foi*  earnings  for  particular  period,  where  employee  failed 
to  earn  amount  of  premium  during  period,  he  was  not  entitled  to  notice 
of  nonpayment  before  policy  avoided ;  Ressler  v.  Fidelity  etc.  Life  Ins. 
Co.,  110  Tenn.  414,  420,  75  S.  W.  735,  737,  where  premium  note  stated 
that  if  not  paid  at  maturity  policy  void,  failure  to  pay  note  at  maturity 
rendered  policy  void,  though  policy  contained  no  such  provision;  Met- 
ropolitan Life  Ins.  Co.  v.  Bradley,  98  Tex.  232,  82  S.  W.  1031,  68  L.  R. 
A.  509,  New  York  statute  prohibiting  forfeiture  of  life  policies  for 
failure  to  pay  premium  unless  notice  mailed  to  insured  in  state  does  not 
apply  where  insured  lived  in  Texas  and  policy  there  delivered  though 
premiums  and  policy  payable  in  New  York. 

Syl.  2    (X,  162).     Insurance — Nonpayment  of  premiums — Sickness.' 
Approved  in  Smith  v.  Sovereign  Camp,  W,  O.  W.,  179  Mo.  134,  77  S. 
W.  806,  following  rule. 

Syl.  3   (X,  162).     Insurance — Time  of  payment  of  essence. 

Approved  in  Supreme  Lodge  K.  of  H.  v.  Jones,  35  Ind.  App.  130, 
69  N.  E.  721,  where  member  of  beneficial  society  failed  to  pay  Feb- 
ruary dues  and  creditor  paid  such  dues  after  his  death,  and  received 
receipt  therefor,  society  not  estopped  to  declare  forfeiture  for  non- 
payment, it  not  knowing  of  death  at  time  of  receipt;  Graham  v.  Se- 
curity Mut.  Life  Ins.  Co.,  72  N.  J.  L.  303,  62  Atl.  683,  holding  forfeit- 
ure for  nonpayment  of  premium  waived  by  company. 


104  U.  S.  261-279  Notes  on  U.  S.  Reports.  1052 

Syl.  4   (X,  1G2).     Insurance — Xonpayment  of  premium — Notice. 

Approved  in  Pacific  Mutual  Life  Ins.  Co.  v.  Galbraith,  115  Tenn.  477, 
91  S.  W.  206,  where  policy  provided  for  forfeiture  for  nonpayment  of 
premiums  and  that  it  was  incontestable  after  two  years,  and  it  was 
forfeited  for  nonpayment  and  later  reinstated  on  reliance  on  insured's 
fraudulent  representations,  insurer  could  take  advantage  of  representa- 
tions within  two  years  of  reinstatement. 

Syl.    5    (X,    163).     Insurance — Parol   agreement   waiving   terms. 

Approved  in  Connecticut  Fire  Ins.  Co.  v.  Buchanan,  141  Fed.  889, 
891,  applying  rule  where  policy  insured  building  while  occupied  as 
normal  school ;  Liverpool  etc.  Ins.  Co.  v.  Richardson  Lumber  Co.,  11 
Okl.  624,  626,  69  Pac.  951,  where  policy  provided  for  clear  space  of 
two  hundred  feet  between  lumber  insured  and  any  mill,  knowledge  of 
agent  of  lack  of  space  uncommunicated  to  company  is  not  waiver. 

Syl.  6    (X,  163).     Insurance — Premiums — Usage. 

Approved  in  Taylor  v.  Provident  Sav.  Life  Assur.  Soc,  134  Fed.  934, 
where  five  year  policy  provided  for  payment  of  yearly  premium  in  ad- 
vance on  certain  day  and  thirty-day  grace  allowed  for  payment,  and 
insured  died  within  thirty  days  after  premium  due  and  premium  ten- 
dered by  his  representative,  policy  not  forfeited. 

Syl.   10    (X,   164).     Insurance — Waiver  of  Conditions. 
Approved   in   Gish  v.   Insurance   Co.   of   North   America,   16   Okl.   78, 
79,  87  Pac.  875,  determining  whether  adjuster  waived  "iron-safe  clause." 

104  U.  S.  261-270,  26  L.  732,  HALE  v.  FINCH. 

Syl.  3   (X,  164).     Sales — Conditions  and  covenants. 

Distinguished  in  Amalgamated  Gum  Co.  v.  Casein  Co.  of  America, 
146  Fed.  911,  construing  contract  whereby  manufacturer  of  patented 
article  agreed  to  sell  to  defendant  as  sole  customer  if  latter  took  speci- 
fied quantities,  as  not  binding  defendant  to  take  such  quantities; 
Barker  v.  Pullman  Co.,  134  Fed.  71,  67  C.  C.  A.  196,  where  contract 
between  insurance  company  and  car  company  provided  that  insurance 
company  agreed  on  expiration  of  car  company's  policies  to  renew  same, 
car  company  not  bound  to  take  insurance  though  agreement  signed  by 
both  parties. 

104  U.  S.  271-279,  26  L.  742,  NATIONAL  BANK  v.  JOHNSON. 
Syl.  1   (X,  165).     Purchase  of  note  by  bank — Discount. 
Approved  in  Morris  v.  Third  Nat.  Bank,  142  Fed.  31,  following  rule. 

Syl.  3  (X,  165).     Usury  by  national  bank. 

Approved  in  Daggs  v.  Phoenix  Nat.  Bank,  5  Ariz.  418,  53  Pac. 
204,  national  bank  in  Arizona  may  charge  any  rate  of  interest  which 
may  be  agreed  on. 


1053  Notes  on  U.  S.  Reports.  101  U.  S.  279-291 

104  U.  S.  279-291,  26  L.  735,  BELK  v.  MEAGER. 
Syl.  1  (X,  163).  Mines — Relocation — Assessment  work. 
Approved  in  Providence  Gold  Min.  Co.  v.  Burke,  6  Ariz.  333,  57 
Pac.  644,  burden  is  on  second  locator  to  show  prior  location  for- 
feited by  failure  to  do  assessment  work;  Jordan  v.  Duke,  6  Ariz. 
70,  53  Pac.  201,  where  locators  did  no  work  till  December  31st,  and 
succeeding  six  days,  and  then  abandoned  claim  without  performing 
all  statutory  work,  parties  locating  on  first  of  year  acquired  no 
rights;  Worthen  v.  Sidway,  72  Ark.  226,  79  S.  W.  781,  failure  to 
perform  annual  work  is  of  no  avail  to  defeat  claim  where  work  re- 
sumed before  third  person  made  valid  location;  Field  v.  Tanner,  32 
Colo.  285,  75  Pac.  919,  filing  of  notice  of  enlistment  and  desire  to 
hold  claim  by  volunteers  in  Spanish  war  is  equivalent  to  actual  per- 
formance of  assessment  work  so  as  to  revive  claimant 's  rights  for- 
feited by  failure  to  do  assessment  work  for  preceding  year. 

Syl.  3  (X,  166).  Mines — Actual  possession  of  locator — Abandon- 
ment. 

Approved  in  Porter  v.  Tonopah  etc.  Dev.  Co.,  133  Fed.  758,  follow- 
ing rule;  Zerres  v.  Vanina,  150  Fed.  565,  566,  relocator  cannot  main- 
tain ejectment  against  original  locator  or  his  grantees  on  ground 
that  first  location  was  void  for  failure  to  record  claim  as  provided 
by  statute;  Reed  v.  Munn,  148  Fed.  757,  purchaser  from  locator 
of  mining  claim  has  prior  equity  over  claimant  of  prior  equitable 
interest;  Malone  v.  Jackson,  137  Fed.  8S0,  881,  70  C.  C.  A.  216,  where 
claim  located  on  December  6,  1898,  it  was  not  subject  to  relocation 
for  locator's  failure  to  do  work  until  after  December  31,  1899; 
Zerres  v.  Vanina,  134  Fed.  614,  618,  under  Comp.  Laws  Nev.  1900, 
§  210,  providing  for  recordation  of  mining  claim  within  ninety 
days  of  posting  location  notice,  failure  to  record  did  not  forfeit 
locator's  rights;  Willitt  v.  Baker,  133  Fed.  946,  947,  where  locators 
were  at  work  on  December  31st,  and  left  tools  that  night  intending 
to  return  in  morning,  which  they  did,  one  relocating  during  night 
acquired  no  rights;  Last  Chance  Min.  Co.  v.  Bunker  Hill  etc.  Co., 
131  Fed.  585,  66  C.  C.  A.  299,  locator  of  another  claim  on  same 
vein  within  fifteen  days  required  by  Idaho  statute  for  recordation 
of  location  notice,  with  knowledge  of  prior  claim,  and  that  owner 
was  in  possession,  acquired  no  rights  in  conflict  with  older  claim; 
Loeser  v.  Gardiner,  1  Alaska,  648,  where  one  located  claim  on  Jan- 
uary 6,  1899,  no  location  could  be  made  prior  to  December  31,  1900, 
for  failure  to  do  assessment  work;  Tyee  Consol.  Min.  Co.  v.  Langstedt, 
1  Alaska,  449,  mining  locator  may  bring  ejectment  against  rival 
claimant;  Hickey  v.  Anaconda  Copper  Min.  Co.,  33  Mont.  64,  81  Pac. 
811,  where  declaratory  statement  filed  in  support  of  mining  claim 
was  void,  patent  subsequently  issued  did  not  by  relation  give  valid- 
ity to  location  at  date  antecedent  to  application  for  patent;  dis- 
senting  opinion  in  Dwinnell   v.  Dyer,   145   Cal.  29,   30,   78   Pac.   250, 


104  U.  S.  279-291  Notes  on  U.  S.  Eeports.  1054 

majority  holding  where  locators  took  necessary  steps  to  make  valid 
location  under  federal  law  but  failed  to  comply  with  Stat.  1897,  p. 
214,  and  were  in  possession  when  statute  repealed,  location  was 
valid;   Adams  v.  Couch,  1  Okl.  38,  26  Pac.   1016,  arguendo. 

Distinguished  in  Dwinnell  v.  Dyer,  145  Cal.  20,  78  Pac.  253,  where 
locators  took  steps  necessary  to  make  valid  location  under  federal 
laws,  but  failed  to  comply  with  Stat.  1897,  p.  214,  and  were  in  pos- 
session when  statute  was  repealed,  it  was  valid  location;  Eebecea 
Gold  Min.  Co.  v.  Bryant,  31  Colo.  123,  126,  102  Am.  St.  Eep.  17,  71 
Pac.  1111,  1112,  where  strip  included  in  location  certificate  of  C.  claim 
was  excluded  when  patent  issued  and  adjoining  locators  included  it 
in  their  application  and  received  final  certificate  therefor,  and  later 
land  office  excluded  it  from  records  without  notice  subsequent  lo- 
cator   acquired    no    title. 

Syl.  4  (X,  167).     Mines — Relocation  on  existing  location. 

Approved  in  Sullivan  v.  Sharp,  33  Colo.  348,  80  Pac.  1054,  and 
Peoria  etc.  Min.  Co.  v.  Turner,  20  Colo.  App.  479,  79  Pac.  917,  both 
following  rule;  Dufresne  v.  Northern  Light  Min.  Co.,  2  Alaska, 
593,  595,  597,  599,  where  senior  valid  placer  location  overlapped  by 
junior  location,  and  overlap  abandoned  by  senior  locator,  aban- 
doned portion  is  subject  to  relocation;  Providence  Gold  Min.  Co.  v., 
Burke,  6  Ariz.  333,  57  Pac.  644,  recital  in  location  notice  that  it  is 
relocation  of  another  mining  claim  is  implied  admission  of  validity 
of  former  location;  Jordan  v.  Duke,  4  Ariz.  282,  36  Pac.  897,  holding 
erroneous  instruction  that  if  mining  ground  not  within  valid  location 
or  not  in  actual  possession  of  one  entitled  thereto,  location  was  valid; 
Heine  v.  Roth,  2  Alaska,  424,  mining  location  conflicting  with  prior 
homestead  entry  is  void;  Thompson  v.  Burk,  2  Alaska,  254,  where 
defendant  located  placer  claim,  but  made  no  discovery,  and  plaintiff 
made  subsequent  relocation,  and  thereafter  contracted  with  defendant 
to  dig  discovery  shaft  for  him,  and  he  discovered  gold,  discovery 
inured  to  defendant's  location;  dissenting  opinion  to  Bonanza  etc. 
Min.  Co.  V.  Golden  Head  Min.  Co.,  29  Utah,  180,  80  Pac.  743,  majority 
holding  claim  not  located  at  time  of  subsequent  location;  Thompson 
V.  Allen,  1  Alaska,  639,  arguendo. 

Syl.  2   (X,  106).     Mining  claim  salable  property. 

Approved  in  Worthen  v.  Sidway,  72  Ark.  225,  79  S.  W.  781,  and 
Copper  River  Min.  Co.  v.  McClellan,  2  Alaska,  143,  both  following 
rule;  Clipper  Min.  Co.  v.  Eli  Min.  etc.  Co.,  194  U.  S.  226,  48  L.  950, 
24  Sup.  Ct.  632,  entry  on  prior  valid  placer  location  for  purpose  of 
prospecting  for  unknown  lodes  initiates  no  title  to  lode  claims  thus 
located  within  boundaries  of  placer  claim;  O'Connell  v.  Pinnacle 
Oold.  Mines  Co..  140  Fed,  855.  affirming  131  Fed.  110,  and  holding 
?:jossessory  ngtit  of  locator  of  unpatented  mining  claim  passes  to  heirs 
b^  ^AP-sicent,  and  his  rights  may  be  administered  on  and  sold  as 
iftlier  property  by  administrator;  dissenting  opinion  in  Lily  Min.  Co. 


10."5  Notes  on  U.  S.  Reports.  104  U.  S.  291-300 

V.  Kellogg,  27  Utah,  123,  74  Pac.  522,  majority  holding  in  action 
to  determine  right  of  possession  to  mining  claim  arising  out  of  land 
office  proceedings,  state  statutes  regulating  actions  for  recovery  of 
realty  are  inapplicable;  Montague  v.  Labay,  2  Alaska,  576,  577,  fol- 
lowing rule;  Creede  etc.  Milling  Co.  v.  Uinta  Tunnel  etc.  Co.,  196 
U.  S.  346,  49  L.  507,  25  Sup.  Ct.  266,  entry  of  lode  claim  followed 
by  patent  does  not  preclude  owner  of  tunnel  site  located  across  lode, 
who  claims  location  prior  to  discovery  in  lode,  from  showing  order 
of  steps  taken  to  perfect  lode  location;  Hickey  v.  Anaconda  Copper 
Min.  Co.,  33  Mont.  63,  81  Pac.  811,  applying  rule  in  determining 
priority  of  location  where  extralateral  mining  rights  involved;  Wright 
V.  Lyons,  45  Or.  172,  77  Pac.  82,  where  lode  locators  omitted  center 
end  posts  and  did  not  attach  to  copy  of  location  notice  filed  for 
record,  an  affidavit  of  proof  of  work  as  required  by  statute,  omis- 
sions are  fatal;  Reiner  v.  Schroder,  146  Cal.  418,  SO  Pac.  519,  and 
dissenting  opinion  in  Sproat  v.  Durland,  2  Okl.  57,  35  Pac.  889,  both 
arguendo.     See  104  Am.  St.  Rep.  088,  note. 

Distinguished  in  Goldberg  v.  Brusehi,  146  Cal.  713,  81  Pac.  25, 
where  defendant  did  no  work  on  mining  claim  after  its  location,  its 
mere  possession  cannot  prevent  relocation. 

(X,  165.)  Miscellaneous.  Cited  in  Butte  City  Water  Co.  v.  Baker, 
196  U.  S.  124,  49  L.  411,  25  Sup.  Ct.  211,  recognizing  validity  of 
state   mining  laws. 

104  U.   S.   291-300,   26  L.   745,   GILES  v..  LITTLE. 

Syl.   1    (X,    169).     Wills — Intent — Surrounding    circumstances. 

Approved  in  Anderson  v.  Mcssinger,  146  Fed.  938,  construing  will 
declaring  that  if  either  of  two  sons  died  without  lineal  descendants, 
survivor  should  take  his  estate,  and  if  survivor  died  without  lineal 
descendants,  one-half  of  decedent's  original  portion,  as  well  as  half 
of  survivorship  portion,  should  go  to  one  of  testator's  brothers,  and 
other  half  to  his  other  brothers  and  sisters. 

Syl.   2    (X,   169).     Devise   with   power   to   sell. 

Distinguished  in  Widows'  Home  v.  Lippardt,  70  Ohio,  289.  71  X.  E. 
774,  will  devising  estate  to  widow  with  power  to  dispose  of  as  she 
sees  fit  and  after  her  death  what  remains  to  be  distributed  in  desig- 
nated manner,  gives  widow  right  to  convey  fee. 

Syl.    3    (X,    1G9).     Life    tenant's    power    to    dispose. 

Approved  in  Dickey  v.  Barnstable,  122  Iowa,  579,  98  N".  W.  370, 
where  power  granted  to  life  tenant  to  convey  fee  and  invest  proceeds 
for  herself  for  life,  remainder  to  daughter,  discretion  not  interfered 
with  in  absence  of  fraud;  Parks  v.  Robinson,  138  N.  C.  273,  50  S.  E. 
650,  devise  to  wife  during  her  life  and  at  her  disposal  gives  widow 
ri;iht  to  convey  fea. 


104  U.  S.  303-321  Notes  on  U.  S.  Reports.  1056 

104  U.  S.  303-310,  26  L.  769,  LIBBY  v.  HOPKINS. 

Syl.  1  (X,  171).     Bankruptcy— Setoff  of  credits. 

Approved  in  Western  Tie  etc.  Co.  v.  Brown,  196  U.  S.  510,  49  L. 
574,  25  Sup.  Ct.  339,  sum  retained  by  corporation  creditor,  with 
knowledge  of  debtor's  insolvency,  within  four  months  of  bankruptcy, 
which  was  owing  bankrupt  under  agreement  whereby  corporation 
in  paying  employees  was  to  deduct  amounts  due  from  employees  to 
bankrupt,  cannot  be  set  off  by  creditor  in  proving  claim  against  bank- 
rupt; In  re  Becker,  139  Fed.  367,  against  claim  of  landlord  for  rent 
under  lease  to  bankrupt,  unliquidated  claim  for  damages  in  favor  of 
bankrupt  arising  dependently  of  lease  cannot  be  set  off. 

Syl.   3    (X,   171).     Bankruptcy— Setoffs. 

Approved  in  Smith  v.  Perry,  197  Mo.  452,  95  S.  W.  340,  where 
estate  of  cestui  que  trust  was  insolvent,  trustee's  estate  in  action  for 
accounting,  in  absence  of  fraud,  could  set  off  in  equity  claims  held  by 
trustee  individually  against  cestui  que  trust. 

104  U.  S.  310-319,  26  L.  749,  PICKERING  v.  McCULLOUGH. 

Syl.  1  (X,  172).     Patents — Combination  of  old  devices. 

Approved  in  Van  Epps  v.  United  Box  Board  etc.  Co.,  143  Fed.  874, 
Victory  patent  No.  417,451,  for  pulp-screening  machine  not  antici- 
pated; American  Choc.  Mach.  Co.  v.  Helmstetter,  142  Fed.  9S0,  Holmes 
patent  No.  492,205,  for  chocolate-dipping  machine,  not  infringed  by 
machine  of  Weeks  patent  No.  634,633;  Louden  Mach.  Co.  v.  Janes- 
ville  etc.  Tool  Co.,  141  Fed.  979,  upholding  Louden  patent  No.  444,546, 
for  hay  sling;  Johnson  v.  Foos  Mfg.  Co.,  141  Fed.  87,  holding  void 
Johnson  patents  Nos.  654,550  and  506,268,  for  apparatus  for  separat- 
ing cotton-seed  and  hulls;  Dodge  Coal  Storage  Co.  v.  New  York  etc. 
R.  R.  Co.,  139  Fed.  985,  986,  987,  holding  void  Piez  &  Beaumont 
patents  Nos.  668,960,  688,111,  for  improvements  in  storage  apparatus; 
Pennsylvania  Globe  Gaslight  Co.  v.  Best,  137  Fed.  942,  upholding 
Campbell  patent  No.  447,757,  for  improvement  in  incandescent  burn- 
ers; Voightmann  v.  Weis  &  Ridge  Cornice  Co.,  133  Fed.  300,  holding 
void  Voightmann  patent  No.  ^00,186,  for  improvement  in  fire-proof 
windows;  Voightmann  v.  Perkinson,  133  Fed.  835,  holding  void  Voight- 
mann patent  No.  600,180,  for  fire-proof  window;  Timolat  v.  Phila- 
delphia Pneumatic  Tool  Co.,  131  Fed.  261,  upholding  Moffet  patent 
No.  369,120,  for  portable  drilling  machine;  Thomson-Houston  El.  Co. 
v.  Ohio  Brass  Co.,  129  Fed.  379,  upholding  Van  Depoeli  patent  No. 
394,039,  for  insulated  turn  buckle. 

104  U.  S.  319-321,  26  L.  740,  SAGE  v.  WYNCOOP. 

Syl.  1  (X,  174).  Bankruptcy — Evidence  as  to  preference  by  in- 
solvent. 

Approved  in  Wright  v.  Gotten,  140  N.  C.  8,  52  S.  E.  143,  knowledge 
of  son  who  acted  as  father's  financial  agent  that  bankrupt  was  in- 
solvent was  knowledge  of  father  in  receiving  preference. 


1057  Notes  on  U.  S.  Reports.  104  U,  S.  322-344 

104  U.  S.  322-329,  26  L.  752,  COLLINS  v.  EILEY. 

Syl.  1  (X,  175).     Special  verdict  defined. 

Approved  in  Wiser  v.  Lawler,  7  Ariz.  183,  62  Pac.  700,  on  equity, 
appeal  findings  of  court  are  conclusive. 

104  U.  S.  333-339,  2G  L.  755,  EGBERT  v.  LIPPMANN. 

Syl.  1  (X,  176).     Patents— Prior  use. 

Distinguished  in  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140  Fed. 
173,  holdiug  Schrader  patent  No.  592,920,  for  engraving  machine 
for  etching  glassware. 

Syl.  2   (X,  176).     Patents — Sufficiency  of  prior  use. 

Approved  in  National  Phonograph  Co.  v.  Lambert  &  Co.,  142  Fed. 
166,  Edison  patent  No.  713,209,  for  process  of  duplicating  phono- 
grams is  void,  having  been  used  by  patentee  and  employees  for  more 
than  nine  years  prior  to  application;  American  Feathcrbone  Co.  v. 
Warren  Fcatherbone  Co.,  141  Fed.  658,  holding  void  Warren  &  Holden 
patent  No.  559,827  for  process  for  manufacturing  featherbone;  Jenner 
V.  Bowen,  139  Fed.  560,  where  inventor  of  bottle-wrapping  machine 
set  up  one  for  customer,  who  paid  for  it  and  used  it  commercially  for 
more  than  two  years  prior  to  patent,  there  is  prior  use;  Bradley  v. 
Eccles,  138  Fed.  914,  915,  holding  void  Hannan  reissue  No.  11,260 
for  improvements  in  thill-couplings;  Eastman  v.  Maj-or  etc.  of  N.  Y., 
134  Fed.  858,  69  C.  C.  A.  628,  holding  void  Knibbs  patent  no.  42,920, 
for  improvement  in  fire-engine  pumps. 

Syl.  3   (X,  177).     Patents — Experimental  uses. 

Approved  in  Victor  Talking  Mach.  Co.  v.  American  Graph.  Co., 
140  Fed.  864,  where  inventor  of  Berliner  patent  No.  534,543,  for  im- 
provement in  talking  machines,  used  machine  and  delivered  lecture 
in  relation  thereto  to  audience  more  than  two  years  prior  to  patentee, 
there  was  no  prior  use. 

104  U.  S.  340-344,  26  L.  821.  WORLEY  v.  LOKER  TOBACCO  CO. 

Syl.  1  (X,  177).     Patents— Public  use. 

Approved  in  National  Phonograph  Co.  v.  Lambert  &  Co.,  142  Fed. 
166,  Edison  patent  No.  713,209,  for  process  of  duplicating  phonograms, 
is  void,  having  been  used  by  patentee  and  employees  for  more  than 
nine  years  prior  to  application;  Bradley  v.  Eccles,  138  Fed.  914,  hold- 
ing void  Hannan  reissue  No.  11,260,  for  improvements  in  thill-coup- 
lings; Eastman  v.  Mayor  etc.  of  N.  Y.,  134  Fed.  858,  69  C.  C.  A.  628, 
holding  void  Knibbs  patent  No.  42,920,  for  improvement  in  fire-engine 
pumps. 

(X,  177.)  Miscellaneous.  Cited  in  Drewson  v.  Hartje  etc.  Co.,  131 
Fed.  738,  65  C.  C.  A.  548,  date  of  letters  patent  is  prima  facie  date  of 
application. 

67 


104  U.  S.  350-385  Notes  on  U.  S.  Eeporta.  105S 

104  U.  S.  350-356,  26  L.  783,  MILLER  v.  BRIDGEPORT  BRASS  CO. 

Syl.  1  (X,  178).     Patent  reissue — Same  as  original. 

Approved  in  Rawson  etc.  Mfg.  Co.  v.  Hunt  Co.,  147  Fed.  240,  where 
drawings  and  description  of  Norris  reissue  No.  12,085,  for  clutch 
mechanism  are  identical  with  those  of  original,  validity  of  claims  of 
original  repeated  and  separately  stated  in  reissue  not  affected  by 
invalidity  of  other  claims;  Cleveland  Foundry  Co.  v.  Detroit  Vapor 
Stove  Co.,  131  Fed.  751,  holding  void  Jeavons  patent  No.  475,401,  for 
oil  burner. 

Distinguished  in  Victor  Talking  Mach.  Co.  v.  American  Graph.  Co., 
140  Fed.  865,  upholding  Berliner  patent  No.  534,543  for  improvements 
in  talking  machines. 

Syl.  2  (X,  181).     Patents — Time  for  reissue  application. 

Approved  in  Milloy  Elec.  Co.  v.  Thompson-Houston  Elec.  Co.,  148 
Fed.  846,  Van  Depoele  reissue  No.  11,872  for  traveling  conti-act  for 
electric  railways  is  void  because  application  made  more  than  seven 
years  after  issuance  of  original  and  more  than  three  years  after  it 
had  been  declared  void;  Fitch  v.  Spang,  140  Fed.  294,  arguendo. 

104  U.  S.  356-385,  26  L.  786,  JAMES  v.  CAMPBELL. 

Syl.  1   (X,  183).     Patents — Use  by  government. 

Approved  in  dissenting  opinion  in  International  Postal  Supply  Co. 
v.  Bruce,  194  U.  S.  607,  608,  48  L.  1137,  1138,  24  Sup.  Ct.  82u, 
majority  holding  inability  to  make  United  States  party  defeats  right 
of  patentee  for  improvement  in  stamp-canceling  machine  to  enjoin 
use  by  postmaster  of  infringing  machines  of  which  United  States  is 
lessee. 

Syl.  4   (X,   184).     Patents — Reissue   expanding  claim. 

Approved  in  National  Elec.  Sig.  Co.  v.  De  Forest  Wireless  Tel. 
Co.,  140  Fed.  453,  Fessenden  reissue  No.  12,115,  for  receiver  for  electro 
magnetic  waves,  not  covered  by  prior  patent  No.  706,744  to  same  in- 
ventor; Williams  Calk  Co.  v.  Neverslip  Mfg.  Co.,  136  Fed.  212,  holding 
void  Williams  patent  No.  666,583,  for  horseshoe  calk. 

Syl.  6  (X,  186).     Patents — Omissions  from  claim. 

Approved  in  Davis  etc.  Drill  Co.  v.  Plunger  Elev.  Co.,  135  Fed.  120, 
Davis  patents  Nos.  694,534  and  694,535  for  rock-boring  machine  and 
apparatus,  anticipated  by  prior  patent  No.  555,640,  to  same  inventor; 
Cleveland  Foundry  Co.  v.  Detroit  Vapor  Stove  Co.,  131  Fed.  744, 
holding  void  Jeavous  patent  No.  475,401,  claim  5,  for  oil-burner. 

Distinguished  in  Victor  Talking  Mach.  Co.  v.  American  Graph.  Co., 
140  Fed.  865,  upholding  Berliner  patent  No.  534,543,  for  improve- 
ments in  talking-machines. 


1059  Notes  on  U.  S.  Eeports.  104  U.  S,  386-418 

104  U.  S.  386-407,  26  L.  757,  DAVIS  v.  GAINES. 

Syl.  2   (X,  187).     Probate  sale  is  in  rem. 

Approved  in  Clark  v.  Eossier,  10  Idaho,  359,  78  Pac.  3^0,  probate 
court  sale  is  not  collaterally  attackable. 

104  U.  S.  407-410,  26  L.  823,  HYDE  v.  RUBLE. 

Syl.  1  (X,  188).     Removal — Separable  controversy. 

Approved  in  O 'Conor  v.  Texas,  202  U.  S.  507,  50  L.  112G,  26  Sup. 
Ct.  726,  alien  nonresident  cannot  remove  state  action;  Manufacturers' 
Com.  Co.  V.  Brown  Alaska  Co.,  148  Fed.  310,  where  maker  and  in- 
dorsers  of  note  are  sued  jointly,  action  may  be  removed  by  any  de- 
fendant who  could  have  removed  if  sued  alone,  irrespective  of  citizen- 
ship of  codefendants;  Cella  v.  Brown,  136  Fed.  445,  where  citizen  of 
Missouri  sued  A  to  avoid  railroad  reorganization  contract,  and  for 
specific  performance  of  A's  contract  to  convey  pledged  securities  of 
railroads,  and  bill  alleged  codefendant  through  whom  transaction  was 
to  be  carried  out  insisted  on  invalid  conditions,  complainant  could 
remove,  though  codefendant  was  citizen  of  same  state;  Boatmen's 
Bank  v.  Fritzlen,  135  Fed.  663,  68  C.  C.  A.  288,  suit  to  avoid  prior 
mortgage  and  to  foreclose  junior  mortgage  involves  separable  contro- 
versy; Latlirop  etc.  Co.  v.  Pittsburg  etc.  R.  Co.,  135  Fed.  620,  where 
in  action  against  railroad  and  construction  company  for  services  cit- 
izenship of  latter  only  was  diverse,  and  it  acted  as  agent  for  railroad, 
action  not  removable;  Miller  v.  Clifford,  133  Fed.  884,  67  C.  C.  A. 
52,  equity  suit  on  behalf  of  all  creditors  of  Colorado  bank  to  enforce 
stockholder's  liability  under  Colorado  statute  cannot  be  removed  by 
single  stockholder;  Groel  v.  United  Elec.  Co.,  132  Fed,  254,  in  suit  by 
stockholder  in  own  name  on  right  of  action  in  corporation,  latter  is 
indispensable  party,  and  for  purpose  of  federal  jurisdiction  is  aligned 
with  defendant  when  its  officers  are  opposed  to  object  sought  by  plain- 
tiff and  with  plaintiff  when  opposition  not  shown. 

104  U.  S.  410-418,  26  L.  797,  BROXSON  v.   SCHULTEN. 

Syl.  1  (X,  191).     Control  of  judgment  during  term. 

Approved  in  Gagnon  v.  United  States,  193  U.  S.  456,  48  L.  747, 
24  Sup.  Ct.  510,  judgment  of  naturalization  never  recorded  or  record 
of  which  is  lost  cannot  be  entered  by  law  court  nunc  pro  tunc  thirty- 
three  years  after  rendition;  O'Connor  v.  O'Connor,  142  Fed.  450, 
federal  court  cannot  vacate  judgment  at  law  rendered  at  previous 
term;  King  v.  Davis,  137  Fed.  227,  federal  law  court  cannot  vacate 
judgment  of  former  term  founded  on  false  but  apparently  valid 
return  of  service  of  process;  King  v.  Davis,  137  Fed.  218,  default 
judgment  in  ejectment  recovered  in  federal  law  court  at  former  term 
cannot  be  vacated  for  fraud  in  procurement;  United  States  v.  Four 
Lorgnette  Holders,  132  Fed.  565,  judgment  of  forfeiture  against  mer- 
chandise for  attempt  to  defraud  customs  laws  cannot  be  vacated  after 
term    to    permit   importer    to    defend    on   ground    of    irregularities    in 


104  U.  S,  419-427  Notes  on  U.  S.  Keports.  1060 

procedure;  Fisher  v.  Fisher,  114  Mo.  App.  633,  90  S.  W.  415,  where 
defendant  was  guilty  of  no  negligence  in  making  defense,  but  court 
misled  into  entering  judgment  against  her  by  default,  court  could 
after  term  set  aside  judgment  on  motion;  Livesley  v.  Johnston,  47  Or. 
19G,  82  Pac.  855,  supreme  court  may,,  at  any  time  during  term  at 
which  appeal  dismissed  as  to  one  of  parties  under  stipulation  entered 
into  by  mistake,  recall  mandate  after  it  has  been  transmitted  to  trial 
court;  Banks  v.  Wilson,  1  Alaska,  244,  refusing  to  vacate  nonsuit; 
Matter  of  Guardianship  of  Zeckendorf,  7  Ariz.  330,  64  Pac.  493, 
upholding  refusal  to  vacate  judgment  on  motion  made  after  term  at 
which  it  was  entered;  Goldreyer  v.  Cronan,  76  Conn.  116,  55  Atl. 
595,  where  after  trial  judge  filed  memorandum  reciting  judgment  for 
plaintiff  for  $300,  and  after  term  formal  judgment  entered  for  plain- 
tiff for  $400,  judge  entering  finding  that  he  had  accidentally  omitted 
to  add  the  interest,  court  could  not  correct  mistake  after  term;  dis- 
senting opinion  in  State  v.  Marsh,  134  N.  C.  201,  47  S.  E.  12,  67 
L.  E.  A.  179,  majority  holding  where  conviction  of  rape  reversed  be- 
cause indictment  in  record  failed  to  show  want  of  consent,  but  such 
allegation  omitted  from  printed  record  by  misprision  of  clerk,  supreme 
court  after  term  could  grant  certiorari  to  correct  record. 

Syl.  2  (X,  193).     Writ  of  error  coram  nobis — Judgment. 

Approved  in  Ex  parte  Peeke,  144  Fed.  1020,  where  one  found  guilty 
on  five  counts  of  indictment  under  Eev.  St.,  §  5440,  and  was  given 
single  sentence  of  five  years,  and  statute  prescribed  maximum  of  two 
years,  court  may  correct  judgment. 

Syl.   3    (X,   193).     Federal   courts — State   practice. 

Approved  in  King  v.  Davis,  137  Fed.  215,  finding  of  fact  by  trial 
court  that  defendant  in  ejectment  had  no  notice  of  application  to 
amend  declaration  does  not  authorize  vacation  of  final  judgment. 

104  U.  S.  419,  26  L.  824,  CUMMINGS  v.  JONES. 

Svl.  1   (X,  194).     Error  to  state  court — Limitations. 

Approved  in  Cresap  v,  Cresap,  54  W.  Va.  584,  46  S.  E.  584,  date 
of  decree  as  shown  by  record  marks  time  from  which  state  of  limi- 
tations governing  appeal  from  it  commences  to  run. 

104  U.  S.  420-427,  26  L.  800,  QUINBY  v.  CONLAN. 

Syl.  5   (X,  195).     Conclusiveness  of  land  decisions. 

Approved  in  Hartwell  v.  Havighorst,  196  U.  S.  635,  49  L.  629,  25 
Sup.  Ct.  793,  Peyton  v.  Desmond,  129  Fed.  9,  63  C.  C.  A.  651,  Adams 
v.  Couch,  16  Okl.  40,  26  Pac.  1016,  and  Paine  v.  Foster,  9  Okl.  228, 
254,  263,  264,  53  Pac.  113,  122,  60  Pac.  25,  all  following  rule;  Miller 
V.  Margerie,  149  Fed.  697,  applying  rule  in  suit  to  set  aside  deed  by 
Alaska  townsite  trustee  for  fraud;  Cagle  v.  Dunham,  14  Okl.  615,  78 
Pac.  562,  refusing  to  set  aside  land  department  decision  rendered  on 


1061  Notes  on  U,  S.  Reports.  104  U.  S.  441-462 

full  hearing,  on  allegation  that  perjury  committed  at  hearing  before 
department;  Estes  v.  Timmons,  12  Okl.  544,  73  Pac.  305,  sustaining 
demurrer  to  petition  based  on  alleged  fraud  of  defendant  in  proofs 
submitted  by  him  to  land  office  receiver;  Parker  v.  Lynch,  7  Okl. 
650,  661,  56  Pac.  10S8,  1092,  fact  that  one  offered  contest  against 
homestead  entry  which  was  rejected  by  Land  Department  gives  no 
right  of  action  to  sue  to  declare  patentee,  who  was  entryman  at  time 
of  contest,  trustee  for  use  of  plaintiff;  Thornton  v.  Peery,  7  Okl.  447, 
54  Pac.  651,  refusing  to  consider  allegation  that  testimony  given  in 
contest  before  Land  Department  does  not  prove  abandonment  of  claim; 
Cummings  v.  McDermid,  4  Okl.  280,  44  Pac.  278,  holding  insufficient 
allegations  of  fraud  in  petition  to  set  aside  award  of  townsite  trus- 
tees; King  v.  Thompson,  3  Okl.  647,  39  Pac.  467,  holding  insufficient 
petition  seeking  to  charge  holder  of  legal  title  as  trustee  for  lot 
awarded  by  townsite  board  which  fails  to  show  fraud  practiced  on 
board  by  prevailing  party  and  fails  to  set  out  findings  on  which  board 
made  award. 

104  U.  S.  441,  442,  26  L.  765,  VIGEL  v.  HOPP. 

Syl.  1   (X,  199).     Equity — Answer  responsive  to  bill. 

Approved  in  Ford  v.  Taylor,  137  Fed.  151,  applying  rule  to  bill  for 
appointment  of  receiver. 

104  U.  S.  444-449,  26  L.  825,  WELLS  v.  XTCKLES. 

Syl.  1  (X,  200).     Land  Department  special  agents. 

Approved  in  United  States  v.  Schlierholz,  137  Fed.  619,  special  agent 
of  Land  Department  appointed  under  Appropriation  Act  June  4,  1897, 
is  not  officer  of  United  States  within  Eev,  St.,  §  5481,  punishing  ex- 
tortion, 

104  U.  S.  450-462,  26  L.  827,  HAWES  v.  OAKLAND. 

Syl.  1  (X,  200).     Stockholder's  suit  on  behalf  of  corporation. 

Approved  in  Dawson  v.  Columbia  Avenue  etc.  Trust  Co.,  197  U.  S. 
181,  49  L.  716,  25  Sup.  Ct.  420,  denying  federal  jurisdiction  over 
suit  against  city  by  mortgagee  of  water  company  to  enforce  city's 
contract  with  company  where  there  is  no  diversity  of  citizenship  be- 
tween city  and  company,  and  interests  of  latter  and  mortgagee  are 
not  antagonistic;  Doctor  v.  Harrington,  196  U.  S.  588,  49  L.  610,  25 
Sup.  Ct.  355,  fact  that  ultimate  interest  of  corporation  defendant 
may  be  same  as  that  of  complaining  stockholders  does  not  require  that 
corporation  be  aligned  with  complainant  for  purpose  of  federal  juris- 
diction where  bill  alleges  corporation  controlled  by  persons  antag- 
onistic to  complainants;  Macon  etc.  E.  Co.  v.  Shailer,  141  Fed.  590, 
591,  minority  stockholder  cannot  sue  to  set  aside  executed  sale  of 
assets  of  corporation  by  pledgee  under  pledge  where  directors  not 
alleged  to  disapprove  sale  or  that  they  would  not  ratify  it;  Kem- 
merer  v.  Haggerty,  139  Fed.  696,  where  corporation,  citizen  of  same 


104  U.  S.  450-462  Notes  on  U.  S.  Eeports.  1062 

state  as  defendants,  sued  employees  in  state  court  to  enjoin  strike, 
and  pending  suit  nonresident  stockholders  made  demand  ou  officers 
to  SU8  in  federal  court,  and  on  refusal,  themselves  sued  therein,  fed- 
eral court  had  no  jurisdiction;  Columbia  Nat.  Sand  Dredging  Co.  v. 
Washed  etc.  Dredging  Co.,  136  Fed.  712,  where  stockholder's  bill  shows 
that  directors  of  corporation  own  majority  of  stock  and  that  they 
are  mismanaging  corporation  and  diverting  funds  and  income  to  them- 
selves, demand  on  corporation  not  necessary  to  suit;- Bowling  Green 
Trust  Co.  V,  Virginia  etc.  E.  Co.,  132  Fed.  923,  denying  right  of  bond- 
holders to  intervene  in  suit  by  trustee  to  foreclose  railroad  mortgage; 
Maeder  v.  Buffalo  Bill's  Wild  West  Co.,  132  Fed.  284,  stockholder 
cannot  sue  corporation  and  directors  to  compel  declaration  of  dividend 
where  no  application  made  to  directors  or  not  shown  that  application 
would  not  be  considered;  Ide  v.  Bascomb,  18  Colo.  App.  424,  72  Pac. 
65,  where  persons  pretending  to  act  as  directors  of  corporation 
authorized  note  to  one  of  their  number,  stockholders  cannot  main- 
tain suit  to  cancel  judgment  on  note  where  directors  not  asked 
to  bring  suit;  Smith  v.  Bulkley,  18  Colo.  App.  231,  70  Pac.  959,  fact  that 
corporation  enjoined  from  suing  to  prevent  sale  under  its  trust  deed 
does  not  authorize  stockholder  to  enjoin  sale  on  ground  that  mortgage 
ultra  vires,  where  no  fraud  or  refusal  of  directors  to  dissolve  injunc- 
tion alleged;  Bond  v.  Gray  Imp.  Co.,  102  Md.  433,  62  Atl.  828, 
minority  stockholders  in  corporation  whose  property  sold  on  fore- 
closure cannot  intervene  to  except  to  ratification  of  sale  where  other 
stockholders  satisfied;  Von  Arnim  v.  American  Tube  Works,  188  Mass. 
517,  74  N.  E.  680,  upholding  suit  by  minority  stockholder  against 
officers  of  corporation  for  misappropriation  of  its  funds;  Home  Fire 
Ins.  Co.  v.  Barber,  67  Neb.  656,  659,  108  Am.  St.  Eep.  726,  93  N.  W. 
1028.  1029,  subsequent  stockholders  cannot  complain  of  prior  misman- 
agement of  corporation  where  they  have  obtained  shares  from  wrong- 
doers; Rankin  v.  Southwestern  Brewery  etc.  Co.,  12  N.  M.  59,  73 
Pac.  614,  stockholder  acquiring  stock  by  purchase  cannot  complain 
of  illegal  salaries  paid  directors  prior  to  his  becoming  stockholder; 
Peterson  v.  Christiansen,  18  S.  D.  474,  101  N.  W.  42,  in  action  by 
members  of  church  corporation  composed  of  two  nationalities  to  re- 
strain other  members  from  preventing  plaintiffs  from  occupying  church 
half  of  time,  as  provided  by  by-laws,  corporation  is  not  necessary 
party;  McCampbell  v.  Fountain  Head  E.  E.  Co.,  Ill  Tenn.  69,  102 
Am.  St.  Eep.  731,  77  S.  W.  1073,  where  owners  of  part  of  railroad's 
stock,  who  were  its  directors,  authorized  corporation  to  subscribe  for 
stock  in  land  company  and  to  indorse  notes  of  land  company,  and 
they  became  insolvent  and  stock  taken  by  creditors,  creditors  could 
sue  in  equity  without  applying  to  railroad;  Hearst  v.  Putnam  Min. 
Co.,  28  Utah.  196,  107  Am.  St.  Eep.  698,  77  Pac.  757,  66  L.  E.  A. 
784,  stockholders  cannot  sue  in  own  right  to  cancel  conveyance  by 
corporation  on  ground  of  fraud  giving  rise  to  trust  in  their  favor; 
Virginia  etc.  Co.  v.  Fisher,  104  Va.  126,  51  S.  E.  200,  upholding  suit 


1063  Notes  on  U.  S.  Eeports.  104  U.  S.  462-479 

by  stockholder  for  appointment  of  receiver  without  demand  on  cor- 
poration for  action  to  redress  wrong  committed  by  controlling  mem- 
ber.    See  notes,  97  Am.  St.  Eep.  31,  38,  40;  103  Am.  St.  Eep.  560. 

Limited  in  Groel  v.  United  Elec.  Co.,  132  Fed.  255,  256,  257,  260, 
201,  2G2,  in  equity  suit  by  stockholder  in  own  name  on  right  of  action 
in  corporation,  latter  is  indispensable  party,  and  will  be  aligned  with 
defendant  when  its  officers  are  opposed  to  plaintiff,  and  with  plaintiff 
where  not  opposed  to  him. 

104  U.  S.  462-464,  26  L.  832,  EOSEXBLAT  v.  JOHNSTON. 

Syl.   1    (X,   205).     State   tax — Insolvent   national   bank. 

Distinguished  in  Gerard  v.  Duncan,  84  Miss.  733,  735,  36  So.  1035, 
66  L.  E.  A.  461,  notes  of  insolvent  state  bank  passing  to  assignee  by 
general  assignment  made  prior  to  February  1st,  are  taxable  in  hands 
of  assignee  under  Code  1892,  §  3755, 

Syl.  2   (X,  20G).     Appointment  of  receiver  for  national  bank. 

Approved  in  Muir  v.  Citizens'  Nat.  Bank,  39  Wash.  58,  80  Pac. 
1007,  where  national  bank  went  into  voluntary  liquidation,  it  was 
not  required  to  register  subsequent  transfer  of  its  stock  and  to  issue 
new  stock  to  transferee. 

104  U.  S.  464,  465,  26  L.  833,  MUEPHY  v.  UNITED  STATES. 

Syl.  1   (X,  206).     Government  claim — Acceptance  of  less. 

Approved  in  Hunt  v.  Franklin  County  Commrs.,  100  Me.  446,  62 
Atl.  214,  where  county  commissioners  allowed  smaller  gross  sum  in 
full  for  itemized  bill  against  county,  and  claimant  draws  such  sum 
from  treasury,  claim  for  remainder  is  barred;  Weston  v.  Falk,  66  Neb. 
201,  92  N.  W.  206,  where  claim  against  state  is  allowed  in  part  by 
auditor,  if  claimant  accepts  warrant  drawn  for  part  allowed  he 
thereby  waives  right  of  appeal. 

104  U.  S.  469-479,  26  L.  775,  LOUISA'ILLE  v.  PORTSMOUTH  SAV- 
INGS BANK. 

Syl.   2   (X,  207).     Time— Fractions  of  day. 

Approved  in  Maxwell  v.  Jacksonville  Loan  etc.  Co.,  45  Fla.  454,  34  So. 
264,  under  rule  requiring  testimony  to  be  taken  within  three  months 
after  cause  at  issue,  it  is  immaterial  at  what  time  of  day  replication  is 
filed ;  Quinn  v.  Cambridge,  187  Mass.  509,  73  N.  E.  661,  69  L.  E.  A.  311, 
determining  when  time  within  which  assessment  for  betterments  com- 
mences to  run  under  Pub.  St.  1882,  c.  51,  §  1. 

Distinguished  in  Gibson  v.  Anderson,  131  Fed.  42,  65  C.  C.  A.  277, 
where  published  records  of  joint  congressional  resolutions,  duly  authen- 
ticated, showed  resolutions  approved  May  27,  1902,  it  cannot  be  im- 
peached by  proof  showing  they  were  not  in  fact  approved  until  later 
day. 


104  U.  S.  482-512  Notes  on  U.  S.  Reports.  1064 

104  U.  S.  482-484,  26  L.  833,  HUNTINGTON  v.  PALMER. 

Syl.  1  (X,  208).     Suit  by  stockholder  for  corporation. 

Approved  in  Kemmerer  v.  Haggerty,  139  Fed.  696,  where  corporation, 
citizen  of  same  state  as  defendants,  sued  in  state  court  to  enjoin  strike 
of  employees,  and  nonresident  stockholders  demand  of  officers  of  cor- 
poration that  they  sue  in  federal  court,  and  on  refusal  themselves  sued 
in  federal  court  for  such  relief,  latter  court  had  no  jurisdiction.     See 

103  Am.  St.  Rep.  560,  note. 

Limited  in  Groel  v.  United  Electric  Co.,  132  Fed.  256,  in  suit  by 
stockholder  on  right  of  action  in  corporation,  latter  is  indispensable 
party,  and  for  purpose  of  federal  jurisdiction  is  aligned  with  defendants 
when  officers  are  opposed  to  complainant's  object  and  with  latter  when 
no  opposition  shown. 

104  U.  S.  493-497,  26  L.  810,  BANK  OF  COMMERCE  v.  TENNESSEE. 

Syl.  2   (X,  209).     Tax  exemption. 

Approved  in  Powers  v.  Detroit  etc.  Ry.  Co.,  201  U.  S.  560,  50  L.  866, 
26  Sup.  Ct.  556,  contract  betwen  state  and  railroad  exempting  property 
from  taxation  other  than  tax  prescribed,  in  statute  created  by  pro- 
vision of  statute  prescribing  annual  tax  of  percentage  of  capital  stock 
of  company  in  lieu  of  other  taxes. 

104  U.  S.  498-500,  26  L.  633,  VICTOR  v.  ARTHUR. 

Syl.  1   (X,  210).     Construction  of  Revised  Statutes. 

Approved  in  United  States  v.  Raisch,  144  Fed.  490,  Rev.  St.,  §  5424, 
prohibits  felonious  making  of  certificate  of  naturalization  by  one  other 
than  person  applying  for  citizenship  or  his  witness;  United  States  v. 
York,  131  Fed.  329,  construing  Rev.  St.,  §  5424,  relating  to  false  per- 
sonation in  naturalization  proceedings. 

104  U.  S.  505-512,  26  L.  866,  STEWART  v.  LANSING. 
Syl.  2  (X,  211).  Negotiable  paper — Indorsement — Fraud, 
Approved  in  Pere  Marquette  R.  Co.  v.  Bradford,  149  Fed.  497,  where 
railroad  sued  to  rescind  contract  for  purchase  of  stock  in  another  com- 
imny  and  to  cancel  bonds  issued  in  payment  thereof,  where  contract 
made  collusively  with  officers,  and  answer  denied  fraud  and  set  up  matters 
in  avoidance,  preliminary  injunction  granted  restraining  transfer  of 
bonds;  Gibbs  v.  Farmers'  etc.  Bank,  123  Iowa,  742,  99  N.  W.  706, 
determining  burden  of  proof  in  action  for  amounts  overpaid  oh  note 
where  indorsements  show  overpayments;  Toledo  etc.  R.  R.  Co.  v.  Star  etc. 
Mills   Co.,   146  Fed.   959,   arguendo. 

Syl.  5  (X,  213).     Direction  of  verdict. 

Approved  in  lOunk  v.  Hocking  Valley  Ry.  Co.,  74  Ohio  St.  134,  77 
N.  E.  754,  determining  sufficiency  of  rebuttal  of  evideuee  of  negligence 
in  action  for  personal  injuries  to  locomotive  fireman  caused  by  defects 
ia  water-gauge  glass.  * 


1065  Notes  on  U.  S.  Reports.  104  U.  S.  515-595 

104  U.  S.  515-519,  26  L.  814,  EX  PARTE  GORDON. 
Syl.  4  (X,  214).  Prohibition  to  admiralty  court. 
See  111  Am.  St.  Rep.  934,  note. 

104  U.  S.  519,  520,  26  L.  815,  EX  PARTE  DETROIT  RIVER  FERRY 
CO. 

Syl.  1  (X,  214).     Prohibition  does  not  correct  errors. 

Approved  in  dissenting  opinion  in  State  v.  Godfrey,  54  W.  Va.  77,  46 
S.  E.  194,  majority  prohibiting  mayor  from  trying  petitioner  for  vio- 
lation of  void  gambling  ordinance.     See  111  Am.  St.  Rep.  965,  note. 

104  U.  S.  521-530,  26  L.  816,  GOTTFRIED  v.  MILLER. 

Syl.  3   (X,  216).     Agent  executing  contract  for  corporation. 

Approved  in  Kessol  v.  Austin  Min.  Co.,  144  Fed.  861,  contract  pur- 
porting in  body  to  be  obligation  of  corporation  and  signed  by  A,  man- 
ager,  is    contract   of   corporation. 

104  U.  S.  553-554,   26  L.   840,  GRIGGS  v.  HOUSTON. 

Syl.  1   (X,  217).     Direction  of  verdict. 

Approved  in  Parks  v.  Southern  Ry.  Co.,  143  Fed.  277,  iipholding 
direction  of  verdict  for  defendant  and  refusing  to  permit  plaintiff  to 
take  nonsuit  in  action  for  death  of  flagman  run  over  by  train;  Inter- 
national Text  Book  Co.  v.  Hearth,  136  Fed.  133,  69  C.  C.  A.  127,  corpora- 
tion not  liable  for  slanderous  words  of  agent  uttered  after  agent  left 
plaintiff's  presence  and  gone  to  another  locality  where  he  was  not  en- 
gaged in  performance  of  duties  under  contract  of  employment;  Gunn 
V.  Union  R.  R.  Co.,  27  R.  I.  327,  62  Atl.  121,  upholding  Gen.  Laws 
1896,  c.  .251,  §  11,  authorizing  direction  of  judgment  without  further 
trial  by  jury;  Woolf  v.  Washington  etc.  Nav.  Co.,  37  Wash.  503,  79  Pac. 
999,  refusing  relief  to  one  injured  while  driving  across  railroad  crossing 
where  he  whipped  horses  across  track  instead  of  stojiiiing. 

(X,  217.)  Miscellaneous.  Cited  in  Chaddick  v.  Lindsay,  5  Okl.  627, 
49  Pac.  944,  refusing  relief  to"  brakeman  for  injuries  caused  by  neg- 
ligence of  fellow-servant  in  leaving  trunk  along  track. 

104  IT.  S.  579-591,  26  L.  856,  COUNTY  OF  CLAY  v.  SOCIETY  FOR 
SAVINGS. 

Syl.  1   (X,  221).    Recitals  in  municipal  bonds. 

Approved  in  Northwestern  Sav.  Bank  v.  Ceutreville  Station,  etc.,  143 
Fed.  84,  where  town  bonds  recited  issuance  under  statute  authorizing 
borrow  for  highways,  and  further  recited  supervisors  and  town  clerk 
acting  under  direction  of  town  highway  commissioner  pursuant  to  pop- 
ular vote,  bona  fide  purchaser  established  prima  facie  liability  of  town. 

104  U.  S.  592-595,  26  L.  845,  BONAPARTE  v.  APPEAL  TAX  COURT. 

Syl.  1  (X,  222),     Tax  on  debt  of  other  state. 

Approved  in  Union  Refrigerator  Transit  Co.  v.  Kentucky,  195  U.  S. 
205,  50  L.  154,  26  Sup.  Ct.  30,  due  process  of  law  denied  Kentucky  rail- 


104  U.  S.  604-631  Notes  on  U.  S.  Eeports.  1066 

road  by  tax  assessed  under  authority  of  Kentucky  statute  on  rolling  stock 
permanently  located  in  other  states  and  employed  there  in  its  business ; 
Commonwealth  v.  Williams,  102  Va.  789,  47  S.  E.  871,  on  death  of  de- 
cedent, legal  title  to  debts  due  him  passes  to  executor  and  should  be 
taxed  at  domicile  of  executor. 

104  U.  S.  604-618,  26  L.  861,  EX  PAETE  ROWLAND. 

Syl.  1   (X,  223).     Contempt  of  void  orders. 

Approved  in  United  States  v.  Atchinson  etc.  Ey.  Co.,  142  Fed.  182, 
holding  judgment  of  contempt  for  violation  of  injunction  by  circuit 
court  restraining  railroad  from  granting  rebates  is  void;  Cuyler  v. 
Atlantic  etc.  R.  Co.,  131  Fed.  99,  where  federal  court  punished  newspaper 
publisher  for  contempt  in  publishing  criticism  of  official  conduct  and  in- 
tegrity of  court,  judgment  was  void  and  publisher  released  on  habeas  cor- 
pus; Jamison  v.  Wimbish,  130  Fed.  361,  granting  habeas  corpus  where 
municipal  judge  imposed  infamous  punishment  for  violation  of  petty 
municipal   offense. 

104  U.  S.  G21-624,  26  L.  869,  UNITED  STATES  v.  McBRATNEY. 

Syl.  2   (X,  26).     Admission  of  state — Indian  reservations. 

Approved  in  In  re  Terrill,  144  Fed.  618,  under  Oklahoma  territorial 
organic  act,  Oklahoma  courts  had  jurisdiction  of  territorial  offense 
committed  on  land  reserved  for  governmental  use  by  proclamation  of 
March  3,  1889. 

Syl.  3   (X,  226).     Jurisdiction — Offenses  on  Indian  reservation. 

Approved  in  State  v.  Tully,  31  Mont.  377,  78  Pac.  764,  holding  state 
court  has  no  jurisdiction  over  prosecution  for  murder  committed  on 
part  of  Missoula  Military  Reservation  not  ceded  to  state;  Goodson  v. 
United  States,  7  Okl.  123,  125,  127,  54  Pac.  425,  426,  upholding  jurisdic- 
tion of  district  court  exercising  federal  over  jurisdiction,  prosecution,  for 
adultery   committed    on    Indian    reservation. 

Distinguished  in  Brown  v.  United  States,  146  Fed.  977,  larceny  com- 
mitted on  Indian  reservation  in  Oklahoma  territory  by  one  not  Indian 
is  crime  against  United  States,  cognizable  by  the  territorial  district 
courts  exercising  jurisdiction  vested  in  federal  courts. 

104  U.   S.   625-631,   26  L.   870,  MOORES  v.   CITIZENS'  NATIONAL 
BANK. 

Syl.  2   (X,  227).     Reversal — Erroneous  sustaining  of  demurrer. 

Approved  in  Armour  v.  Russell,  144  Fed.  616,  reversing  personal  in- 
jury judgment  where  erroneous  instruction  as  to  safe  machinery  given, 
though  part  of  charge  correct;  Seattle  Elec.  Co.  v.  Hartless,  144  Fed. 
381,  in  action  by  deceased's  wife  and  daughter  for  damages  for  wrongful 
death  of  husband  and  father,  evidence  as  to  physical  condition  of  plain- 
tiffs is  inadmissible;  National  Biscuit  Co.  v.  Nolan,  138  Fed.  9,  70  C,  C, 
A.  436,  it  is  reversible  error  to  permit  plaintiff  in  personal  injury  case  to 
testify  that  she  depended  upon  herself  for  support;  Union  Pac.  R.  Co.  v. 


1067  Notes  on  U.  S.  Reports.  104  U.  S.  631-657 

Field,  137  Fed.  18,  69  C.  C.  A.  536,  reversing  for  erroneous  remarks  of 
counsel  in   argument. 

104  U.  S.  631-635,  26  L.  873,   HOPT  v.  PEOPLE. 

Syl.   1    (X,   227).     Murder — Evidence   of   intoxication. 

Approved  in  State  v.  Williams,  122  Iowa,  123,  97  N.  W.  995,  de- 
termining propriety  of  instruction  on  effect  of  intoxication  in  prosecu- 
tion for  murder  in  first  degree. 

Syl.  2   (X,  228).     Instructions  in  writing. 

Approved  in  dissenting  opinion  in  Boggs  v.  United  States,  10  Okl.  448, 
11  Okl.  145,  65  Pac.  929,  majority  holding  all  statements  by  court  to 
Jury  are  not  instructions  with  statute  requiring  instructions  to  be  in 
writing. 

Distinguished  in  State  v.  Armstrong,  43  Or.  220,  73  Pac.  1027,  in 
reading  of  additional  instruction  in  murder  case  from  law  report  not 
reversible  error  where  substance  of  instruction  contained  in  written 
charge. 

(X,  227.)  Miscellaneous.  Cited  in  dissenting  opinion  in  Kcpner  v. 
United  States,  195  U.  S.  135,  49  L.  126,  24  Sup.  Ct.  797,  majority  holding 
government  cannot  appeal  from  judgment  of  acquittal  in  Philippine 
court  of  first  instance. 

104   U.   S.   63G-G57,   26  L.  875,   ST.   LOUIS   SMELTING   ETC.   CO.   v. 
KEMP. 

Syl.  1    (X,  229).     Collateral  attack  on  land  patent. 

Approved  in  Demars  v.  Hickey,  13  Wyo.  378,  80  Pac.  522,  following 
rule;  Brown  v.  Gurney,  201  U.  S.  193,  50  L.  722,  26  Sup.  Ct.  509,  rulings 
of  Land  Department  as  to  tract  covered  by  lode  mining  claim  are  not 
collaterally  atackable  where  final  entry  made;  Eeeve  v.  North  Carolina 
Land  etc.  Co.,  141  Fed.  825,  determining  invalidity  of  grant  of  state 
lands;  Teegarden  v.  Le  Marchel,  129  Fed.  488,  in  ejectment  in  federal 
court  defendant  cannot  set  up  equitable  title  to  defeat  legal  title  by  im- 
peaching legal  title;  Peyton  v.  Desmond,  129  Fed.  8,  9,  63  C.  C.  A.  651, 
homestead  patentee  may  recover  value  of  timber  wrongfully  cut  and 
removed  from  land  after  initiation  of  claim  and  before  issuance  of 
patent ;  Gurney  v.  Brown,  32  Colo.  480,  77  Pac.  359,  Land  Department 
judgment  determining  whether  applicant  for  lode  patent  is  entitled  to 
acquire  fee  is  not  collaterally  attackable;  Florida  Town  Imp.  Co.  v. 
Bigalsky,  44  Fla.  777,  33  So.  451,  public  lands  on  Amelia  Island  reserved 
for  military  purposes  were  beyond  Land  Department's  jurisdiction; 
Gebo  V.  Clark  Fork  C.  Min.  Co.,  30  Mont.  92,  75  Pac.  860,  holding 
complainant  to  hold  patentee  as  trustee  because  defendant  filed  in  land 
office  forged  relinquishment  of  plaintiff's  rights  in  land,  insufficient 
where  no  showing  made  that  plaintiff  did  not  fail  to  do  work  on  land  or 
did  not  fail  to  make  reasonable  proof  and  payment ;  Bockfinger  v.  Foster, 
10  Okl.  502,  62  Pac.  803,  townsite  trustees  cannot  be  adjudged  by  equity 
to  be  trustees  for  claimants  adverse  to  trust  created  by  act  of  Congress 


104  U.  S.  636-657  Notes  on  U.  S.  Keports.  1068 

under  which  patent  issued;  Oklahoma  City  v.  Hill  Bros.,  6  Okl.  125,  50 
Pac.  245,  where  townsite  trustees  made  deed  while  appeal  pending  from 
their  decision  to  Secretary  of  Interior,  and  prior  to  order  of  Interior 
Department  setting  aside  lots  for  public  use  as  site  for  public  buildings, 
deed  void;  Eastern  Oregon  Land  Co.  v.  Andrews,  45  Or,  210,  77  Pac. 
119,  were  on  issue  as  to  exterior  limits  of  road  aid  grant  plaintiff  in- 
troduced diagram  from  land  oflSce  and  defendant  introduced  plat  from 
office  of  state's  Secretary  of  State,  showing  location  of  line  of  road, 
but  such  plat  not  required  by  law  to  be  filed  with  Secretary  of  State, 
diagram  controlled;  Board  of  Education  v.  Mansfield,  17  S.  Dak.  82,  10(5 
Am.  St.  Eep.  771,  95  N.  W.  289,  townsite  patent  issued  by  land 
officials  is  not  collaterally  attackable  by  mining  locators  subsequent  to 
patent,  on  theory  that  land  was  mineral ;  Welsh  v.  Callvert,  34  Wash.  254, 
75  Pac.  872,  where  state  conveyed  lands  as  second-class  tide  lands, 
subsequent  applicant  to  purchase  portion  thereof  as  oyster  lands  cannot 
claim  did  not  include  lands  applied  for;  Laramie  Nat.  Bank  v.  Steinhoff, 
11  Wyo.  308,  71  Pac.  994,  in  action  by  possessor  under  certificate  of 
purchase  where  no  patent  issued,  court  cannot  determine  title:  dissenting 
opinion  in  United  States  v.  Ju  Toy,  198  U.  S.  278,  49  L.  1050,  25  Sup. 
(Jt.  644,  majority  holding  decision  of  Department  of  Commerce  affirming 
denial  of  emmigration  officials  of  right  of  Chinese  to  land  is  conelusivo 
on  habeas  corpus,  where  entry  claimed  on  ground  of  citizenship;  dis- 
senting opinion  in  Lily  Min.  Co.  v.  Kellogg,  27  Utah,  121,  74  Pac. 
21  majority  holding  where  no  claim  adverse  to  mining  claim  sought  to 
be  patented  is  filed  in  time  limited  by  Rev.  St.,  §  2325,  conclusively 
presumed   that  applicant  entitled  to   patent. 

Syl.  3  (X,  233).     Conclusiveness  of  land  patent. 

Approved  in  Galbraith  v.  Shasta  Iron  Co.,  143  Cal.  98,  76  Pac.  903, 
following  rule. 

Syl.  4   (X,  233).     Mistake  of  land  officers — Equitable  relief. 

Approved  in  Parker  v.  Lynch,  7  Okl.  650,  662,  56  Pac.  1088,  1092, 
fact  that  one  offered  contest  against  homestead  entry  which  was  re- 
jected by  Land  Department  gives  no  right  of  action  to  sue  to  declare 
patentee,  who  was  entryman  at  time  of  contest,  trustee  for  use  of 
plaintiff;  Adams  v.  Couch,  1  Okl.  34,  26  Pac.  1015,  refusing  to  give 
relief  where  contest  between  adverse  claimants  is  pending  before  Land 
Department;  dissenting  opinion  in  Paine  v.  Foster,  9  Okl.  275^  60  Pac. 
29,  majority  following  rule. 

Syl.  6   (X,  233).     (Salability  of  interest  in  mining  claim. 

Approved  in  Price  v.  Mcintosh,  1  Alaska,  293,  294,  miner's  rule 
fixing  size  of  placer  claims  at  1320  feet  long  by  660  feet  wide  is  void 
as  limiting  claim  to  less  than  20  acres. 

Syl.  7  (X,  233).     Contiguous  mines — Joint  application. 

Approved  in  Lockard  v.  Asher  Lumber  Co.,  131  Fed.  691,  695,  65 
C.  C.  A.  517,  under  Bev.  St.  Ky.,  c.  102,  §  3,  relating  to  purchase  of 
vacant  lands  one  may  survey  several  200  acre  tracts  and  obtain  patent 
therefor. 


1069  Notes  on  U.  S.  Reports.  104  U.  S.  668-693 

Syl.  8  (X,  235).     Mines — Assessment  work. 

Distinguished  in  Hain  v.  Mattes,  34  Colo.  351,  355,  83  Pac.  129, 
130,  under  Rev.  St.  U.  S.,  §  2324,  as  amended  February  11,  1875,  work 
done  in  tunnel  may  be  applied  as  assessment  work  on  mining  location 
though  person  doing  work  does  not  own  continuous  strip  of  territory 
from  po»tal  of  tunnel  to  boundary  of  location. 

(X,  229.)  Miscellaneous.  Cited  in  Crcede  etc.  Milling  Co.  v.  Uinta 
Tunnel  etc.  Co.,  196  U.  S.  347,  49  L.  507,  25  Sup.  Ct.  266,  defining  "loca- 
tion" and  "mining  claim";  Nome-Sinook  Co.  v.  Simpson,  1  Alaska, 
583. 

104  U.  S.  668-680,  26  L.  886,  KOSHKOXOXG  v.  BURTON. 

Syl.  2   (X,  235).     Limitations — Existing  causes. 

Approved  in  Soper  v.  Lawrence  Bros.  Co.,  201  U.  S.  370,  50  L.  792, 
26  Sup.  Ct.  473,  twenty  years '  adverse  possession  of  wild  land  before 
passage  of  Me.  Pub.  Laws,  1895,  c.  162,  bars  suit  by  former  owner  for 
possession  if  adverse  possession  did  not  continue  for  five  years  following 
passage  of  act;  Lamb  v.  Powder  River  Livestock  Co.,  132  Fed.  439,  65 
C.  C.  A.  570,  67  L.  R.  A.  558,  holding  void  Colo.  Sess.  Laws,  1895,  p. 
239,  as  amended  by  Sess.  Laws,  1899,  p.  248,  prescribing  limitation  on 
actions  on  judgments.     See  111  Am.   St.  Rep.  455,  note. 

Syl.  4  (X,  236).     Retrospective  statutory  construction. 

Approved  in  Hall  v.  Chicago  etc.  Ry.  Co.,  149  Fed.  567,  employers ' 
liability  act  of  1906,  did  not  apply  to  causes  of  action  existing  at  time 
of   its  adoption. 

104  U.  S.  680-687,  26  L.  891,   CHICAGO   ETC.  RY.  CO.  v.  UNITED 
STATES. 

Syl.  1  (X,  236).     Postmaster  general — Mail  contract  compensation. 

Ap^jroved  in  Slavens  v.  United  States,  196  U.  S.  236,  49  L.  461,  25 
Sup.  Ct.  229,  postmaster  general  may  cancel  mail  contract,  service  under 
which  has  materially  decreased  by  using  street-cars  to  carry  mail. 

104  U.  S.  689-693,  26  L.  894,  MASON  v.  SARGENT. 

Syl.  1  (X,  237).     Taxation  of  legacies — Accrual. 

Approved  in  Eidman  v.  Tilghman,  136  Fed.  143,  69  C.  C.  A.  139, 
affirming  Tilghman  v.  Eidman,  131  Fed.  652,  and  holding  legacies  left 
by  testator  who  died  prior  to  July  1,  1902,  at  which  time  act  repealing 
War  Revenue  Act,  1898,  §§  29,  30,  took  effect,  are  not  taxable  there- 
under; Shanley  v.  Herold,  141  Fed.  426,  427,  where  testator  left  residuary 
estate  in  trust  until  death  or  remarriage  of  widow,  then  to  be  divided 
among  sons,  and  until  such  time  income  to  be  divided  between  widow 
and  sons,  reversionary  interest  of  sons  not  subject  to  War  Revenue  Act 
1896,  §§  29,  30,  as  amended  in  1901. 


104  U.  S.  694-783  Notes  on  U.  S.  Reports.  1070 

104  U.  S.   694-707,  26  L.   896,  MERRITT  v.  WELSH. 

Syl.  1  (IX,  237).     Customs  duties — Department  regulations. 

Distinguished  in  Stratton  v.  Oceanic  Steamship  Co.,  140  Fed.  834, 
treasury  regulation  requiring  master  or  owner  of  vessel  bringing  in  alien 
in  transit  to  foreign  country  to  deposit  head  tax  provided  by  U.  S. 
Comp.  St.  Supp.  1905,  p.  274,  is  valid;  Borden  v.  United  States,  >32  Fed. 
206,  requirement  in  treasury  department  regulations  of  proof  of  registry 
of  grandsires  and  grand  dams  of  animals  imported  for  breeding  f>urposea 
does  not  contravene  Comp.  St.  1901,  p.  1679. 

Syl.  4  (X,  237).     Duty  on  sugar. 

Distinguished  in  Stone  etc.  Co.  v.  United  States,  147  Fed.  605,  607, 
determining  rate  of  duty  where  two  kinds  of  wools  changed  in  condition 
by  mixing  in  same  bale  to  make  mixture  subject  to  lower  duty  provided 
for  poorer  kind. 

104  U.  S.  728-734,  26  L.  908,  UNITED  STATES  v.  SAVINGS  BANK. 

Syl.  2,   (X,  238).     Revenue  appeal — Presentation  to  commissioner. 

Approved  in  Christie-Street  Com.  Co.  v.  United  States,  136  Fed.  329. 
330,  69  C.  C.  A.  464,  affirming  129  Fed.  508,  holding  action  against 
United  States  on  claim  to  recover  back  internal  revenue  taxes  illegally 
collected  which  has  been  presented  to,  but  not  approved,  by  internal 
revenue  commissioner,  is  barred  two  years  after  cause  of  action  accrues: 

104  U.  S.  737-757,  26  L.  910,  HEALD  v.  RICE. 

Syl.  1  (X,  239).     Patents — Identity  of  patent  and  reissue. 

Approved  in  Connors  v.  Ormsby,  148  Fed.  14,  holding  void  Ormsby 
reissue  No.  11,639,  for  transom  lifter;  Cramer  v.  Singer  Mfg.  Co.,  147 
Fed.  920,  Cramer  patent  No.  271,426,  for  sewing-machine  treadle,  is  not 
infringed  by  device  of  Diehl  patent  No.  306,469. 

Syl.  3   (X,  239).     Patent  for  combination. 

Distinguished  in  Pennsylvania  Globe  Gaslight  Co.  v.  Best,  137  Fed. 
942,  upholding  Campbell  patent  No.  447,757,  for  method  of  employing 
hydrocarbon  fluids  for  illuminating  purposes. 

104  U.  S.  757-766,  26  L.  917,  BRITTON  v.  NICCOLLS. 

(X,  240.)  Miscellaneous.  Cited  in  Opinion  of  the  Justices,  73  N.  H. 
624,  62  Atl.  971,  woman  cannot  be  notary. 

104  U.  S.  775-783,  26  L.  924,  WARNOCK  v.  DAVIS. 

Syl.    1    (X,    241).     Insurable    interest    of    assignee    of    policy. 

Approved  in  Gould  v.  New  York  Life  Ins.  Co.,  132  Fed.  931,  where 
bankrupt  held  life  policy  payable  to  administrators  which  has  no  sur- 
render value,  and  surrendered  it  to  trustee,  who  failed  to  pay  premium, 
and  bankrupt  committed  suicide,  administrator  and  not  trustee  entitled 
to  proceeds;  Metropolitan  etc.  Ins.  Co.  v.  Elison,  72  Kan.  204,  83  Pac. 
412,  3  L.  R.  A.  (N.  S.)  934,  holding  void  agreement  assigning  half  of 
proceeds  of  life  policy  to  one  having  no  insurable  interest  on  considera- 


1071  Notes  on  U.  S.  Keports.  104  U.  S.  775-783 

tion  that  assignee  pay  premiums;  Griffin  v.  Equitable  Assur.  Soc,  119 
Ky.  859,  84  S.  W.  1165,  one  not  creditor  of  insured  who  procures  policy 
on  false  representation  that  he  is  such  creditor  is  not  entitled  to  pro- 
ceeds; Ryan  v.  Metropolitan  etc.  Ins.  Co.,  117  Mo.  App.  690,  93  S.  "W.  348, 
cousins  have  no  insurable  interest  in  each  other's  lives;  Hinton  v.  Mutual 
Eeserve  etc.  Ins.  Co.,  135  N.  C.  323,  102  Am.  St.  Rep.  545,  47  S.  E.  477, 
65  L.  R.  A.  161,  where  life  policy  payable  to  estate  of  insured  was  secured 
under  agreement  between  insured  and  person  having  no  insurable  interest 
that  latter  would  pay  premiums  and  take  proceeds,  and  policy  assigned 
to  him,  he  could  not  sue  as  administrator  to  secure  proceeds  under  agree- 
ment. 

Distinguished  in  Mechanics'  Nat.  Bank  v.  Commrs.,  72  N.  H.  19, 
20,  21,  101  Am.  St.  Rep.  650,  55  Atl.  195,  policy  taken  by  insured  on  own 
life  is  assignable  to  one  who  bad  loaned  money  to  corporations  of  which 
insured  was  manager  to  secure  such  debt. 

Syl.  2  (X,  242).     Assignment  of  policy  to  creditor. 

Approved  in  Clark  v.  Equitable  Life  Assur.  Soc,  133  Fed.  818,  where 
insurer  had  knowledge  that  pledgee  of  policy,  though  having  received 
amount  thereon  exceeding  debt,  declared  intention  to  collect  balance 
due  on  policy,  and  insurer  agreed  to  hold  balance  until  legally  authorized 
to  dispose  of  it,  insured  could  sue  company  therefor;  Gordon  v.  Ware 
Nat.  Bank,  132  Fed.  446,  65  C.  C.  A.  580,  67  L.  R.  A.  550,  pledgee  of 
life  policy  who  bids  in  policy  on  foreclosure  sale  may  sell  same  to  one 
having  no  insurable  interest;  Griffin  v.  Equitable  Assur.  Soc,  119  Ky. 
861,  84  S.  W.  1166,  where  policy  made  to  one  having  no  insurable  in- 
terest is  not  absolutely  void  as  w^ager  and  insured  pays  proceeds  to 
such  beneficiary  without  notice  of  want  of  insurable  interest,  he  cannot 
be  compelled  to  again  pay  to  insurer's  administrator;  New  York  Life  Ins. 
Co.  V.  Neal,  114  La.  660,  38  So.  488,  determining  right  of  heirs  to  take 
proceeds  of  policy  where  no  beneficiary  capable  of  taking  exists;  Me- 
chanics' Nat.  Bank  v.  Comins,  72  N.  H.  15,  101  Am.  St.  Rep.  650,  55 
Atl.  193,  one  advancing  funds  to  conduct  business  of  corporation  may 
have  insurable  interest  in  life  of  manager;  Hinton  v.  Mutual  Reserve 
etc.  Ins.  Co.,  135  N.  C.  324,  102  Am.  St.  Rep.  545,  47  S.  E.  477,  65 
L.  R.  A,  161,  where  life  policy  payable  to  estate  of  insured  was  secured 
under  agreement  between  insured  and  person  having  no  insurable  interest 
that  latter  would  pay  premiums  and  take  proceeds,  and  policy  assigned  to 
him,  he  could  not  sue  as  administrator  to  secure  proceeds  under  agree- 
ment; Brett  V.  Warnick,  44  Or.  520,  521,  102  Am.  St.  Rep.  639,  75  Pac. 
1064,  cousin  of  member  of  beneficial  society  may  with  assent  of  bene- 
ficiary, make  contract  with  member  for  assignment  of  certificate  as 
security  for  advances;  Wilton  v.  New  York  Life  Ins.  Co.,  34  Tex.  Civ. 
158,  78  S.  W.  404,  niece  who  lived  with  and  was  supported  by  uncle 
has  no  insurable  interest  in  his  life. 


104  U.  S.  786-797  Notes  on  U.  S.  Keports.  1072 

104  U.   S.  786-797,  26  L.  779,  WOOD  v.  WEIMAR. 

Syl.  1   (X,  244).     Eeplevin  by  mortgagee  of  attached  goods. 
Approved  in  First  Nat.  Bank  v.  Steers,  9  Idaho,  525,  108  Am.  St.  Rep. 
174,  75  Pac.  227,  following  rule. 

Syl.  2    (X,   244).     Error  from  state  cost  judgment.  ^ 

Distinguished  in  Western  Coal  etc.  Co.  v.  Petty,  132  Fed.  606,  judg- 
ment at  law  denying  costs  to  prevailing  party  is  reviewable  on  error; 
Nutter  V.  Brown,  58  W.  Va.  240,  52  S.  E.  90,  1  L.  E.  A.  (N.  S.)  1083, 
decree  respecting  extraordinary  costs  such  as  expense  and  compensation 
of  receiver  is  appealable. 

Syl.  3   (X,  244).     Mortgage — Misdescription  of  debt. 

Approved  in  Holley  v.  Curry,  58  W.  Va.  75,  112  Am.  St.  Rep.  948,  51 
S.  E.  137,  writing  containing  clause  that  it  is  to  secure  A  as  executor 
of  will  of  B,  payment  of  whatever  amount  C  may  owe  him  as  such  ex- 
ecutor on  settlement  is  not  new  promise  removing  bar  of  limitations. 

Syl.  4   (X,  244).     Unrecorded  mortgage — Possession  by  mortgagee. 
Approved  in  First  State  Bank  v.  Sibley  County  Bank,  96  Minn.  463, 

105  N.  W.  488,  holding  reception  of  evidence  to  show  oral  agreement 
to  make  notes  secured  by  mortgage  running  to  creditor's  agent,  who  was 
to  sell  lands  and  apply  proceeds  to  debts,  properly  admitted  and  did 
not  show  express  parol  trust. 

Syl.  6  (X,  245).     Appeal — Objections  in  lower  court. 

Approved  in  Columbus  Ey.  Co.  v.  Patterson,  143  Fed.  250,  objection 
to  admissibility  of  deposition  on  ground  that  not  shown  that  witness 
is  not  at  time  of  trial  within  reach  of  subpoena  will  not  be  considered 
when  first  raised  on  appeal;  Graves  v.  Bonness,  97  Minn.  281,  107  N. 
W.  164,  refusing  to  reverse  for  admission  of  evidence  objected  to  on 
ground  that  no  sufficient  foundation  laid,  where  objection  results  in 
misdirection  of  trial  court  to  only  certain  of  several  possible  phases  of 
preliminary  proof;  Territory  v.  Gonzales,  11  N.  W.  458,  68  Pac.  925, 
holding  insufficient  assignment  of  error  that  verdict  in  larceny  case  is 
contrary  to  law  and  evidence. 


CV  UNITED  STATES. 


105  U.  S.  3,  4,  26  L.  939,  SWOPE  v.  LEFFINGWELL. 

Syl.   2    (X,   246).     AfTirmanee — State   decision  on   federal  question. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  19,  50  L.  352,  Sup.  Ct.  246, 
one  who  insists  that  judj^mcnt  cannot  be  rendered  against  him  con- 
sistently with  federal  statutes  asserts  privilege  and  immunity  under 
such  statutes  within  Eev.  St.,  §   709, 

Syl.  4  (X,  246).     Who  may  urge  ultra  vires. 

Approved  in  State  v.  American  Book  Co.,  69  Kan.  13,  76  Pac.  415, 
1  L.  R.  A.  (N.  S.)  1041,  contracts  made  with  foreign  corporation  be- 
fore it  has  obtained  permission  to  do  business  in  state  under  statute 
are  not  subject  to  cancellation  by  one  of  parties. 

105  U.  S.  7-12,  26  L.  998,  POLLARD  v.  VINTON, 

Syl.  1  (X,  247).  Bill  of  lading  as  evidence  of  ownership. 
Approved  in  McKelvey  v.  Perham,  31  Mont.  606,  79  Pac.  254,  where 
defendant  ordered  lime  for  use  on  6th  and  plaintiff  put  it  on  cars  on 
12th,  and  thereafter  he  received  countermand  but  did  not  recall  ship- 
ment, and  kept  bill  of  lading,  defendant  not  obliged  to  accept  limo 
on  its  arrival. 

Syl.  2   (X,  247).     Bill  of  lading  as  negotiable  instrument. 

See  105  Am.  St.  Rep.  334,  348,  note. 

Syl.  4  (X,  248).     Bill  of  lading— Actual  receipt  of  goods. 

Approved  in  Roy  v.  Northern  Pac.  Ry.  Co.,  42  Wash.  579,  85  Pac. 
55,  act  of  carrier's  agent  in  delivering  bill  of  lading  for  goods  which  he 
knew  were  not  delivered  to  carrier  does  not  bind  carrier  as  to  innocent 
pledgee. 

Syl.  5  (X,  248).  Bill  of  lading — Goods  not  received. 
•  Approved  in  Clark  v.  Clyde  S.  S.  Co.,  148  Fed.  244,  steamer  not  liable 
for  nondelivery  of  goods  not  actually  received  for  shipment  though 
it  issued  bills  of  lading  therefor  on  receipts  with  name  of  its  clerks 
forged;  Arthur  v.  Texas  etc.  Ry.  Co.,  139  Fed.  132,  where  railroad  issued 
bill  of  lading  for  cotton  on  compress  company's  platform  on  receipt  of 
latter  and  cotton  burned  before  actual  delivery  to  railroad,  latter  not 
liable  for  negligence  of  compress  company;  Guffey  v.  Alaska  etc.  S. 
S.  Co.,  130  Fed.  275,  64  C.  C.  A.  517,  where,  at  time  goods  delivered  on 
wharf  under  bill  of  lading  reciting  goods  to  be  shipped  on  vessel  "now" 
at  certain  port,  complainant  knew  vessel  was  at  sea,  and  goods  never 
delivered  to  ship,  vessel  not  subject  to  maritime  lien  for  breach  of 
68  [1(»73] 


105  U.  S.  13-36  Notes  on  U.  S.  Eeports.  1074 

contract;  Watkins  Nat.  Bank  v.  Cleveland  etc.  Ey.  Co.,  117  Mo.  App. 
252,  93  S.  W.  846,  carrier  not  liable  to  one  to  whom  bill  of  lading  is- 
sued before  receipt  of  goods  where  they  are  afterward  received  but 
have  spoiled  in  meantime ;  Koy  v.  Northern  Pac.  Ey.  Co.,  42  Wash. 
576,  580,  85  Pac.  54,  56,  act  of  carrier's  agent  in  delivering  bill  of  lading 
for  goods  which  he  knew  were  not  delivered  to  carrier  does  not  bind 
carrier  as  to  innocent  pledgee.     See  105  Am.  St.  Eep.  352,  note. 

105  U.  S.   13-24,  26  L.  961,  GEEENWOOD  v.  UNION  FEEIGHT  E. 
•    CO. 

Syl.  1   (X,  249).     Suit  by  stockholder  for  corporation. 

Approved  in  Doctor  v.  Harrington,  196  U.  S.  588,  49  L.  610,  25 
Sup.  Ct.  355,  fact  that  interests  of  corporation  may  be  same  as  those 
of  complaining  stockholder  does  not  require  alignment  with  complain- 
ant where  bill  alleges  corporation  is  under  antagonistic  control;  Groel 
V.  United  Elee.  Co.,  132  Fed.  257,  262,  265,  in  suit  by  stockholder  on 
right  of  action  in  corporation,  latter  aligned  with  either  party  accord- 
ing to  facts,  for  purposes  of  federal  jurisdiction;  New  York  etc.  E.  Co. 
V.  Offield,  77  Conn.  421,  59  Atl.  512,  upholding  right  of  railroad  to  con- 
demn few  shares  of  another  railroad  which  it  does  not  own,  where  im- 
provements of  other  road  necessary  and  it  has  not  means  to  make  them 
but  condemning  road  has.  See  notes,  97  Am.  St.  Eep.  32 ;  103  Am.  St. 
Eep.  560. 

Distinguished  in  Kcssler  v.  Ensley  Co.,  129  Fed.  404,  contract  by 
which  officers  have  obtained  property  of  corporation  by  actual  fraud 
may  be  ratified  by  directors  and  disinterested  majority  of  stockholders 
where  they  act  fairly  and  to  interest  of  corporation. 

105  U.  S.  24-36,  26  L.  1001,  THE  SCOTLAND. 

Syl.  1    (X,  251).     Maritime  law,  how  far  operative. 

Approved  in  The  Sacramento,  131  Fed.  374,  following  rule. 

Syl.  6   (X,  252).     Shipping — Limitation  of  liability. 

Approved  in  Oceanic  Steam  Nav.  Co.  v.  Aitken,  196  U.  S.  598,  49  L. 
614,  25  Sup.  Ct.  317,  damage  to  cargo  from  sinking  of  ship  after  reach- 
ing port  due  to  imprudent  unloading  does  not  exempt  owner  of  vessel 
under  Harter  Act,  §  3. 

Syl.  9  (X,  253).     Collision — Law  governing. 

Approved  in  The  Eagle  Point,  142  Fed.  454,  where  two  British  vessels 
in  fault  for  collision  on  high  seas,  cargo  owner  can  recover  only  half 
loss  from  either  vessel;  In  re  Clyde  S.  S.  Co.,  134  Fed.  100,  suit  for 
damages  for  wrongful  death  caused  by  collision  on  high  seas  maintain- 
able in  admiralty  where  recovery  for  wrongful  death  allowable  by  stat- 
utes of  state  where  both  vessels  belonged. 

Distinguished  in  The  Eagle  Point,  136  Fed.  1014,  where  two  British 
vessels  are  both  in  fault  for  collision  on  high  seas,  in  suit  in  federal 
court  cargo  owner  may  recover  fuU  damages  from  either  vesseL 


1075  Notes  on  U.  S.  Reports.  105  U.  S.  45-76 

Syl.  11   (X,  254).     Shipjiing — Limitation  of  liability- — Damages. 

Approved  in  The  Lotta,  150  Fed.  222,  wbere  there  was  only  one 
claim  against  vessel  for  negligent  death,  vessel  owner  cannot  enjoin 
state  suit  to  recover  amount  of  liability  determined  in  federal  court. 

Syl.  13  (X,  254).     Collision — Loss  of  cargo^Measure  of  damages. 

Distinguished  in  La  Bourgogne,  139  Fed.  435,  where  passage  or 
freight  money  is  prejiaid  under  contract  by  which  it  becomes  property 
of  shij)owner  whether  voyage  completed  or  not,  it  must  be  surrendered 
before  liability  limited. 

105  U.  S.  45-51,  26  L.  1028,  HEAD  v.  HARGRAA^E. 

Syl.  2  (X,  255).  Attorney's  opinion  as  to  value  of  services. 
Approved  in  Walker  Mfg.  Co.  v.  Knox,  136  Fed.  340,  69  C.  C.  A. 
160.  in  action  for  reasonable  value  of  plaintiff's  services  it  was  no  ob- 
jection to  recovery  that  witnesses  disagreed  as  to  price  usually  paid  for 
such  services ;  Denison  v.  Shawmut  Min.  Co.,  135  Fed.  865,  applying  rule 
where  evidence  on  question  of  market  value  of  coal  at  mine  was  opinion 
evidence;  Andrews  v.  Frierson,  144  Ala.  477,  39  So.  514,  in  determin- 
ing value,  of  auctioneer's  services,  register  not  bound  to  give  credit  to 
imimpeached  expert  evidence  as  to  their  value ;  Chicago  etc.  Ey.  Co.  v. 
Mysor  Land  Co.,  163  Ind.  292,  69  N.  E.  547,  applying  rule  to  damages 
in  condemnation  proceedings;  Continental  Ins.  Co.  v.  Chicago  etc.  Ey. 
Co.,  97  Minn.  476,  107  N.  W.  552,  applying  rule  to  expert  testimony  as 
to  practicability  of  locomotives  operated  so  as  not  to  start  fires  at  dis- 
tance involved;  Eestelsky  v.  Delmar  Ave.  etc.  E.  R.  Co.,  106  Mo.  App. 
389,  85  S.  W.  667,  applying  rule  in  estimating  damages  to  realty  by 
reason  of  street  grading;  Meyer  v.  Michaels,  69  Neb.  146,  95  N.  W.  66, 
applying  rule  in  replevin  where  value  of  goods  in  issue. 

105  U.  S.  60-73,  26  L.  1008,  TAYLOR  v.  YPSILANTE. 

Syl.   2    (X,  258).     Railroads — Power  of  eminent   domain. 

Cited  in  Detroit  etc.  R.  R.  Co.  v.  Campbell,  140  Mich.  387,  103  N. 
W.  857,  arguendo. 

Syl.  4    (X,  258).     State   decisions  after  bond  issue. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  where  at 
time  county  railroad  aid  bonds  issued  state  supreme  court  had  not  con- 
structed constitutional  provision  claimed  to  be  violated  by  statute  under 
which  bonds  issued,  holder  of  coupons  entitled  to  federal  court's  con- 
struction irrespective  of  state  decisions  rendered  after  issuance  of  bonds. 

105  U.  S.  73-76,  26  L.  1024,  NEW  BUFFALO  TOWNSHIP  v.  IRON 
CO. 

Syl.  1  (X,  259).     State  decision  after  bond  issue. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  whore  at 
time  county  railroad  aid  bonds  issued  state  supreme  court  had  not  con- 
strued constitutional  provision  claimed  to  be  violated  by  statute  under 


105  U.  S.  77-99  Notes  on  U.  S.  Reports.  1076 

which  bonds  issued,  holder  of  coupons   entitled  to   federal  court 's  con- 
struction irrespective  of  state  decisions  rendered  after  issuance  of  bonds. 

Syl.  4  (X,  259).     Railroad  aid  bonds — Consolidation. 

Approved  in  Jones  v.  Missouri  etc.  El.  Co.,  135  Fed.  157,  stockholder 
in  one  of  two  consolidated  corporations  cannot  maintain  bill  to  en- 
force rights  based  on  theory  that  company  still  existed. 

Distinguished  in  Jones  v.  Missouri  etc.  Elec.  Co.,  144  Fed.  775,  min- 
ority holders  of  preferred  stock  may  avoid  consolidation  of  corpora- 
tions which  constituted  fraud  upon  their  rights. 

105  U.  S.  77-94,  26  L.  1111,  HAMMOCK  v.  FARMERS'  LOAN  ETC. 
CO. 

Syl.   1    (X,   259).     Statutory   construction— Punctuation. 

Approved  in  Crawford  v.  Burke,  195  U.  S.  192,  49  L.  153,  25  Sup. 
Ct.  9,  construing  Bankr.  Act.  1898,  §  17,  subd.  4;  Chicago  etc.  Ry.  Co. 
V.  Voolker,  129  Fed.  527,  65  C.  C.  A.  226,  70  L.  R.  A.  264,  construing; 
federal  safety  appliance  act  of  1898  and  Code  Iowa  1897,  §§  2097,  2080, 
requiring  automatic  couplers;  Appleton  v.  American  Matting  Co.,  65  N. 
J.  Eq.  379,  54  Atl.  45,  construing  P.  L.  1896,  e.  185,  §  30,  as  making 
directors  liable  for  declaring  dividends  out  of  capital,  though  there  is 
no  dissolution  or  insolvency  of  corporation;  State  v.  Banfield,  43  Or. 
291,  72  Pac.  1095,  construing  Laws  1903,  p.  339,  amending  certain  acts. 

105  U.  S.  94-97,  26  L.  939,  LEHNBEUTER  v.  HOLTHAUS. 

Syl.  1   (X,  261).     Patent  as  evidence  of  novelty. 

Approved  in  Los  Angeles  Art  Organ  Co.  v.  Aeolian  Co.,  143  Fed. 
884,  Tremaine  &  Pain  patent  No.  552,796,  for  improvements  in  musical 
instruments  using  perforated  music  sheets,  is  infringed  by  device  of 
Fleming  patent  No.  659,442;  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140 
Fed.  171,  Shrader  patent  No.  592,920,  for  machine  for  etching  glass- 
ware, is  infringed  by  machine  of  Schiflfbauer  patent  No.  645,333 ; 
Atwood-Morrison  Co.  v.  Sipp  Electric  etc.  Co.,  136  Fed.  860,  upholding 
patent  No.  729,084,  for  improvements  in  swift-brackets;  Cleveland 
Foundry  Co.  v.  Kauflfman,  135  Fed.  361,  68  C.  C.  A.  658,  upholding 
Jeavons  patent  No.  702,560,  for  oil-burner. 

Syl.  3    (X,  262),     Patents — Infringement  as  evidence  of  utility. 

Approved  in  A.  R.  Milner  etc.  Co.  v.  Yesbera,  133  Fed.  919,  67  C. 
C.  A.  210,  upholding  Mijner  patent  No.  597,686,  for  improvements  in 
counter  stools  for  stores. 

105  U.  S.  97-99,  26  L.  967,  UNITED  STATES  v.  TEMPLE. 

Syl.  1  (X,  262).     Statutory  construction. 

Approved  in  Houghton  v.  Payne,  194  U.  S.  100,  48  L.  891,  24  Sup. 
Ct.  590,  banks  complete  in  themselves  are  not,  because  published  at 
stated  intervals  and  in  consecutive  numbers,  entitled  to  Sficond-clasa 
postal  rates  under  Comp.  St.  1901,  p.  2646. 


1077  Notes  on  U.  S.  Reports.  105  U.  S.  100-132 

105  U.  S.  100-122,  26  L.  1080,  BLEMEEHASSETT  v.  SHERMAN. 

Syl.  3   (X,  263).     Bankruptcy — Mortgage  as  preference. 

Approved  in  In  re  Mcintosh,  150  Fed.  549,  unrecorded  mortgage  can- 
not be  set  aside  as  fraudulent  at  suit  of  mortgagor's  trustee  in  ab- 
sence of  allegation  that  it  was  withheld  from  record  by  agreement  or 
for  fraudulent  purpose;  In  re  Shaw,  146' Fed.  276,  279,  where  bankrupt 
gave  mortgage  on  tannery  and  materials  therein,  but  by  agreement  not 
recorded  nor  possession  taken,  and  mortgagee  gave  mortgage  on  bark 
which  it  held  under  mortgage,  but  last  mortgage  not  recorded  and  con- 
structive possession  given  agent  of  second  mortgage,  who  appointed 
bankrupt  custodian,  both  mortgages  void  as  against  bankrupt's  trustee; 
Rogers  v.  Page,  140  Fed.  605,  606,  where  mortgage  given  by  insolvent 
to  brother  for  future  advances  not  delivered  until  two  years  after  sign- 
ing under  agreement  not  to  record  until  necessary  to  protect  mortgagee, 
was  not  recorded  till  few  days  prior  to  mortgagor's  bankruptcy  it  w?5 
voidable  preference;  In  re  Noel,  137  Fed.  702,  where  succession  of  mort- 
gages, first  to  secure  loan  and  others  to  secure  renewals  thereof  every 
forty-five  days  thereafter,  were  withheld  from  record  for  more  than  time 
prescribed  by  statute  for  recordation,  to  uphold  mortgagor's  credit 
last  of  series,  though  recorded,  is  void  as  to  mortgagor's  bankruptcy 
trustee;  In  re  Ewald,  135  Fed.  170,  act  of  creditor  in  withholding 
chattel  mortgage  from  record  by  agreement  with  mortgagor  until  latter 's 
bankruptcy  does  not  affect  right  to  prove  debt  in  bankruptcy  nor  sub- 
ordinate it  to  claims  of  subordinate  creditors;  Johnston  v.  Columbus 
etc.  Banking  Co.,  85  Miss.  259,  260,  38  So.  103,  where  bank  president 
conveyed  property  to  bank  and  deeds  withheld  from  record  at  his  re- 
quest so  he  could  secure  credit,  bank's  claim  under  conveyance  postponed 
to   other   creditors   of   president's   estate   in   probate. 

Distinguished  in  In  re  Hunt,  139  Fed.  290,  291,  mortgage  of  property 
in  New  York  which  by  law  need  not  be  recorded  except  as  to  subsequent 
purchasers  is  not  preference  if  executed  more  than  four  months  prior  to 
bankruptcy,  unless  it  is  withheld  from  record  pursuant  to  fraudulent 
agreement. 

105  U.  S.  126-132,  26  L.  942,  AGER  v.  MURRAY. 

Syl.  3    (X,  264).     Equity — Application  of  property  to  judgment. 

Approved  in  In  re  Hurlbutt  Hatch  &  Co.,  135.  Fed.  507,  68  C.  C.  A. 
216,  where  member  of  stock  exchange  contributed  seat  to  firm,  which 
subsequently  became  bankrupt,  bankruptcy  court  could  compel  him  to 
transfer  it  for  benefit  of  firm's  bankruptcy  trustee. 

(X,  264).  Miscellaneous.  Cited  in  Bobbs-Merrill  Co.  v.  Straus,  147 
Fed.  18,  determining  right  of  owner  of  copyrighted  book  to  sell  under 
restriction  as  to  price  of  resale. 

Syl.  5  (X,  265).     Subjection  of  patent  right  to  debt. 

Approved  in  O'Dell  v.  Boyden,  150  Fed.  736,  on  bankruptcy  of 
member  of  stock  exchange  seat  passes  to  trustee  as  assets  of  estate;  In 
re  Hurlbutt,  135  Fed.  507,  68  C.  C.  A.  216,  where  member  of  stock  ex- 


105  U.  S.  143-159  Notes  ou  U.  S.  Reports.  1078 

change  contributed  seat  to  firm  -which  subsequently  became  bankrupt, 
bankruptcy  court  could  compel  him  to  transfer  it  for  benefit  of  firm 's 
bankruptcy  trustee. 

Distinguished  in  Hildreth  v.  Thibodeau,  186  Mass.  84,  104  Am. 
St.  Eep.  560,  71  N.  E.  112,  where  record  owners  of  patent*were  non- 
residents and  service  made  by  delivery  of  copy  of  bill  and  notice  in  their 
state,  court  acquired  no  jurisdiction  of  suit  in  personam  to  obtain  pos- 
session of  patent. 

105  U.  S.   143-159,  26  L.  968,  SCOYILL  v.  THAYER. 

Syl.  4   (X,  266).     Estoppel  of  stockholders  to  plead  ultra  vires. 

Approved  in  Anglo-American  Land  etc.  Co.  v.  Lombard,  132  Fed. 
737,  743,  68  C.  C.  A.  89,  where  Kansas  corporation  largely  indebted 
transferred  all  assets  to  Missouri  corporation,  which  assumed  obliga- 
tion, and  stockholders  of  former  exchanged  stock  for  stock  in  latter, 
liability  of  stockholders  of  former  not  affected,  as  contract  was  ultra 
vires  of  latter  corporation;  Stealey  v.  Kansas  City,  179  Mo.  408,  78 
S.  W.  601,  where,  at  time  of  passage  of  ordinance  directing  construc- 
tion of  sidewalks  along  certain  street,  street  was  outside  city  limits, 
construction  of  sidewalk  did  not  estop  city  from  denying  liability  for 
personal  injuries  caused  by  defects  in  walk. 

Distinguished  in  Burnes  v.  Burnes,  132  Fed.  496,  corporation  which 
accepted  transfer  of  own  stock  under  its  agreement  to  pay  annuity  to 
former  owners  and  received  dividends  on  such  stock  for  several  years, 
cannot  plead  ultra  vires. 

Syl.   10    (X,  268).     Nonassessable  stock — Creditor's  rights. 

Approved  in  Vaughn  v.  Alabama  Nat.  Bank,  143  Ala.  576,  42  So. 
64,  stockholder  purchasing  stock  at  less  than  par  is  liable  to  corporate 
creditors  for  difference  between  price  paid  and  par  value;  Maryland 
Trust  Co.  V.  National  Mechanics'  Bank,  102  Md.  627,  63  Atl.  77,  hold- 
ing Maryland  Trust  Company  incorporated  under  Acts  1892,  p.  156,  c. 
109,  §  851,  and  Const.,  art.  3,  §  39,  cannot  purchase  its  own  stock. 

Syl.  11    (X,  269).     Capital  stock  as  trust  fund. 

Approved  in  In  re  Remington  etc.  Motor  Co.,  139  Fed.  775,  where 
corporation  agreed  with  board  of  trade  to  sell  it  stock  at  less  than  par 
and  latter  gave  it  free  factory  site,  neither  board  nor  purchasers  from  it 
liable  to  further  assessments  on  stock  in  favor  of  corporation  's  creditors. 

Syl.  12  (X,  269).  Compelling  payment  of  unpaid  stock  subscrip- 
tion. 

Approved  in  Commercial  Bank  v.  Warthen,  119  Ga.  994,  47  S.  E. 
537,   on   bankruptcy   of   corporation   trustee   may   sue   for  unpaid  stock 

subscriptions. 

Syl.   14    (X,   270).     Stockholder's   liability,   when  fixed. 
Approved  in  Felker  v.  Sullivan,  34  Colo.  216,  83  Pac.  214,  where  cor- 
poration issued  stock  on  payment  of  small  sum  per  share  and  agreed 


1U79  Notes  on  U.  S.  Eeports.  IOj  U.  S.  166-217 

not  to  call  for  further  payments,  corporation 's  bankruptcy  trustee  can- 
not sue  on  stock  subscription  until  contract  between  corporation  set 
aside  as  in  fraud  of  creditors;  Swing  v.  Brister,  87  Miss.  531,  40  So. 
150,  where  mutual  insurance  company  adjudged  insolvent  in  1890  and 
iu  1901  supreme  court  of  Ohio  decreed  assessments  against  policy- 
holders, limitations  in  favor  of  policy-holders  did  not  run  on  assess- 
ments till  liability  became  absolute;  Chilberg  v.  Silbenbaum,  41  Wash. 
667,  84  Pac.  600,  stock  subscription  liability  accrues  on  insolvency  of 
corporation;  Bennett  v.  Thorne,  36  Wash.  270,  78  Pac.  941,  68  L.  E.  A. 
113,  action  against  stockholders  of  bank  for  additional  liability  im- 
posed by  Const.,  art.  12,  §  11,  must  be  commenced  within  six  years 
of  bank's  insolvency. 

105  U.   S.   166-174,  26  L.    1015,   NEW  ORLEANS   ETC.  E.  E.  CO.   v. 
ELLERMAN. 

Syl.  2    (X,  272).     Who  may  plead  ultra  vires. 

Approved  in  Wisconsin  Lumber  Co.  v.  Greene  etc.  Tel.  Co.,  127  Iowa 
360,  109  Am.  St.  Eep.  387,  101  N.  W.  745,  69  L.  E.  A.  968,  stock- 
holders cannot  set  aside  ultra  vires  acts  of  corporation,  which  corpora- 
tion may  not  take  advantage  of,  unless  conduct  of  directors  worked 
substantial  injury;  State  Ins.  Co.  v.  Farmers'  Mut.  Ins.  Co.,  65  Neb.  41, 
90  N,  W.  1000,  defendant  sued  for  unearned  premiums  on  policies  is- 
sued by  it  cannot  set  up  contract  by  which  plaintiff  obtained  assign- 
iiient  of  such   premiums  was  ultra  vires. 

105  U.  S.  175-1S3.  26  L.  1034,  MARINE  ETC.  MANUFACTURING  CO. 
V.  BRADLEY. 

Syl.   1    (X,  272).     Federal  suit  by  assignee. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  381,  26  Sup.  Ct. 
220,  trust  deed  cannot  be  foreclosed  in  federal  court  by  assignee  unless 
assignor  could  sue  therein,  though  bill  prays  cancellation  of  release  of 
trust  deeds  to  grantor  as  in  fraud  of  complainant. 

Syl.  8   (X,  274).     Corporation  bonds — Transfer  by  receiver. 

Approved  in  Cobe  v.  Ricketts,  111  Mo.  App.  116,  85  S.  W.  134,  where 
decree  directed  master  to  advertise  for  bids  for  assets  of  loan  society 
and  plaintiff 's  bid  accepted  and  commissioner  authorized  to  execute 
deed,  and  it  was  ordered  that  notes  should  be  assigned  by  receiver, 
without  recourse,  to  plaintiff,  latter  obtained  title  on  delivery  of  note 
indorsed  by  receiver  without  recourse. 

105  U.  S.  189-217,  26  L.  975,  ROOT  v.  LAKE  SHORE  ETC.  R.  R.  CO. 

Syl.  1  (X,  274).     Infringement  of  patent  after  expiration. 

Approved  in  dissenting  opinion  in  Continental  Paper  Bag  Co.  v. 
Eastern  Paper  Bag  Co.,  150  Fed.  748,  majority  holding  fact  that  ma- 
chine never  put  into  commercial  use  does  not  preclude  owner  of  patent 
from  enjoining  infringement. 


105  U.  S.  189-217  Notes  on  U.  S.  Eeports.  1080 

Distinguished  in  Saxlehner  v.  Eisner,  140  Fed.  940,  fact  that  in- 
fringement of  trademark  has  ceased  before  commencement  of  suit  in 
equity  therefor  does  not  oust  jurisdiction  where  bill  alleges  threatened 
and   intended  continuance   of  infringement. 

Syl.  5    (X,  276).     Equity — Adequate  law  remedy — Jury. 

Approved  in  General  Elec.  Co.  v.  Westinghouse  Elec.  &  Mfg.  Co., 
144  Fed.  466,  where  contract  for  manufacture  and  sale  of  electrical 
equipment  provided  penalty  of  fifty  per  cent  of  ordinary  selling  price 
for  violation,  violation  of  contract  not  enjoinable;  Kane  v.  Luckman, 
131  Fed.  618,  refusing  specific  performance  of  contract  for  sale  to 
plaintiff  of  number  of  cows  at  certain  price  per  head  where  not 
shown  cows  have  any  distinctive  value  not  determinable  at  law ; 
Miller  v.  Schwarner,  130  Fed.  5f'3,  denying  equity  jurisdiction 
over  suit  for  infringement  of  patent,  where  six  days  after  ser- 
vice of  process  and  prior  to  time  to  appear  patent  expired;  Shields 
V.  Johnson,  10  Idaho,  482,  79  Pac.  393,  no  jury  required  in  action  by 
party  in  possession  to  quiet  title  to  leasehold  estate  under  Eev.  St.  1887, 
§  4538. 

Syl.   6    (X,   276).     Equity — Adequate   law   remedy. 

Approved  in  Garside  v.  Norval,  1  Alaska,  24,  where  one  eotenant  of 
mining  claim  acting  as  agent  of  other  sells  his  interest  to  third  party, 
equity  suit  for  accounting  does  not  lie;  Hoosier  Constr.  Co.  v.  National 
Bank  of  Commerce,  35  Ind.  App.  276,  73  N.  E.  1008,  action  for  goods 
sold  is  action  at  law  and  triable  by  jury  though  complaint  alleges  de- 
fendant is  entitled  to  certain  credits,  which  sum  cannot  be  stated, 
because  unknown  to  plaintiff,  and  concludes  with  prayer  for  accounting. 

Syl.  9  (X,  277).     Patent  infringement — Profits  as  damages. 

Approved  in  Social  Eegister  Assn.  v.  Murphy,  129  Fed.  148,  in  equity 
suit  for  infringement  of  copyright  no  damages  are  recoverable  beyond 
profits  from  infringement, 

Syl.   10    (X,  277).     Patent  infringement — Accounting   for   profits. 

Approved  in  Brown  v.  Lanyon,  148  Fed.  842,  action  at  law  cannot  be 
maintained  for  sole  purpose  of  recovering  profits  which  infringer  has 
made;  Plotts  v.  Central  Oil  Co.,  143  Fed.  902,  suit  for  infringement 
of  patent  in  which  accounting  and  injunction  asked  properly  dismissed 
where  agreement  for  royalty  shown,  and  insolvency  or  threat  to  use 
patented  article  without  complainant's  consent  not  shown;  Kegis  v. 
Jaynes,  191  Mass.  247,  77  N.  E.  775,  decreeing  account  of  profits 
where  defendants  in  suit  to  restrain  infringement  of  trademark  per- 
sisted in  infringement  during  litigation. 

Distinguished  in  Johnson  v.  Fooss  Mfg.  Co.,  141  Fed.  75,  fact  that 
defendant  sued  for  infringement  in  making  and  selling  patented  ma- 
chine has  made  and  sold  but  one  machine,  and  that  pending  suit  pur- 
chaser was  licensed  by  complainant,  does  not  deprive  equity  of  juris- 
diction to  enjoin. 


1081  Notes  on  U.  S.  Reports.  105  U.  S.  217-230 

Syl.  11    (X,  278).     Equity — Accounting  for  profits  of  infringer. 

Approved  in  Miller  v.  Schwarner,  130  Fed.  562,  following  rule;  Corbin 
▼.  Taussig,  137  Fed.  153,  where  one  has  exclusive  agency  for  sale  of 
goods  manufactured  by  another  in  certain  territory,  recovery  in  equity 
against  invader  is  limited  to  benefits  derived  by  offending  party  from 
sales  so  made;  dissenting  opinion  in  Continental  Paper  Bag  Co.  v.  East- 
ern Paper  Bag  Co.,  150  Fed.  758,  majority  holding  owner  of  patent  may 
enjoin  infringement   though   machine  never  put  into  commercial  use. 

Distinguished  in  Bay  State  Gas  Co.  v.  Rogers,  147  Fed.  5G0,  up- 
holding equity  jurisdiction  over  bill  for  profits  of  trustee  arising  out 
of  trust;  Victor  Talking  Machine  Co.  v.  American  Graphophone  Co.,  140 
Fed.  861,  prior  agreement  by  which  parties  to  suit  for  infringement 
of  patent  agree  on  terms  of  settlement  on  condition  that  patent  is 
sustained   does   not   oust   jurisdiction.      _  • 

Syl.  12   (X,  278).     Equity  jurisdiction  in  patent  cases. 

Approved  in  McMullcn  Lumber  Co.  v.  Strother,  136  Fed.  303,  69  C. 
C.  A.  433,  where,  under  contracts  for  sale  and  delivery  of  large  amounts 
of  lumber  of  different  grades  at  certain  places,  vendor  gets  ven- 
dee's agent  drunk  and  memoranda  of  delivery  rendered  unreliable,  bill 
of  disco iery  lies  in  suit  for  accounting  against  vendor. 

(X,  274).  Miscellaneous.  Cifcd  in  Wooster  v.  Crane,  147  Fed.  516, 
owner  of  equitable  title  to  copyright  may  sue  in  equity  in  own  name 
for  infringement  where  owner  of  legal  title  is  one  of  infringers. 

105  U.  S.  217-224,  26  L.  1039,  CECIL  NATIONAL  BANK  v.  WATSON 
BANK. 

Syl.  5   (X,  279).     Transfer  of  stock  on  books. 

Approved  in  Lipscomb  v.  Condon,  56  W.  Va.  425,  107  Am.  St.  Rep. 
946,  49  S.  E.  395,  67  L.  R.  A.  670,  attachment  in  favor  of  creditor  of 
transferrer,  does  not  prevail  over  title  of  transferee  of  stock  not  trans- 
ferred on  books. 

105  U.  S.  224-230,  26  L.  1117,  WARREN  v.  STODDART. 

Syl.   1    (X,   280).     Contracts — Duty  to   lessen   damages. 

Approved  in  Indian  Mt.  etc.  Coal  Co.  v.  Ashville  etc.  Coal  Co.,  134 
N.  C.  588,  47  S.  E.  121,  applying  rule  in  action  on  contract  for  delivery 
and  sale  of  coal. 

Distinguished  in  Moore  &  Co.  v.  Cornwall,  144  Fed.  33,  ship  owner  not 
required  to  accept  offer  made  during  lay  days  contracted  for  in  char- 
ter, where  charterer  refused  to  accept  ship  on  erroneous  construction  of 
charter  and  owner  had  .reason  to  think  reasons  assigned  would  be  re- 
moved; Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  178,  67  C.  C.  A.  74, 
burden  of  proving  damages  sustained  by  reason  of  failure  to  furnish 
cattle  pens  and  feeding  troughs  under  contract  for  delivery  of  distil- 
lery slop,  could  have  been  minimized,  is  on  party  guilty  of  breach;  Allen 
V.  Keld,  130  Fed.  653,  65  C.  C.  A.  19,  where  defendant  agreed  to  buy 


105  U.  S.  235-252  Notes  on  U.  S.  Eeports.  1082 

all  product  of  plaintiff's  distillery  for  fifteen  seasons,  and  defendant 
repudiated  contract  after  two  seasons,  plaintiff  not  bound  to  operate 
distillery  during  remainder  of  term  and  sell  product  to  minimize 
damages. 

105  U.  S.  235-236,  26  L.  1018,  HECHT  v.  BOUGHTOK 
Syl.  1   (X,  281).     Appeal — Review  of  territorial  judgment. 
Distinguished  in  Shields  v.  Mongollon  Exploration  Co.,  137  Fed.  543, 

70  C.  C.  A.  123,  under  Alaska  Civ.  Code,  §  504,  ninth  circuit  court  of 

appeals  has  jurisdiction  on  error  to   review  decree  in  actions  tried  to 

court  to  recover  interest  in  mining  claim. 

105  U.  S.  237-243,  26  L.  1018,  DAVENPORT  v.  COUNTY  OF  DODGE. 

Syl.  1   (X,  282).     County  bonds  for  precinct. 

*• 

Distinguished  in  Folsom  v.  Greenwood  County,  130  Fed.  732,  734, 
county  in  South  Carolina  is  not  liable  for  payment  of  bonds  issued  be- 
fore county  created  by  township,  which  was  at  time  in  another  county 
but  has  since  its  territory  included  in  new  county  been  dissolved. 

(X,  282).  Miscellaneous.  Cited  in  Pratt  v.  Langston  Mercantile  Co., 
Ill  Mo.  App.  103,  85  S.  W.  136,  instrument  having  clause  with  sum 
affixed  as  penalty  binding  signers  to  pay  same  conditioned  that  it  may 
be  avoided  by  their  performing  their  part  of  contract  is  bond,  though 
it  has  no  surety. 

105  U.  S.  244-246,  26  L.  985,  UNITED  STATES  v.  TYLER, 
Syl.  1   (X,  283).     Increased  pay  of  retired  army  officer. 
Approved  in  United  States  v.  Mills,  197  U.  S.  226,  227,  49  L.   734, 

25  Sup.  Ct.  434,  pay  on  which  increased  pay  to  army  officer  serving  in 

Philippines  is  computed  under  acts  of  1900  and  1901,  includes  longevity 

pay  under  Rev.  St.,  §  1262. 

Distinguished  in  Reed  v.  Sehon,  2  Cal.  App.  59,  83  Pac.  79,  retired 
army  oflieer  is  not  holding  office  within  Const.,  art.  4,  §  20,  making 
person  holding  lucrative  office  under  United  States  ineligible  to  state 
office. 

105  U.  S.  247-249,  26  L.  986,  BURLEY  v.  FLINT. 

Syl.  1    (X,  284).     Foreclosure  without  redemption — Attack. 

Approved  in  Logan  Co.  v.  McKinley  etc.  Trust  Co.,  70  Neb.  413,  101 
N.  W.  993,  absolute  order  confirming  tax  sale  which  deprives  decree 
debtor  of  right  of  redemption  from  tax  sale  given  by  statute  or  con- 
stitution is  erroneous. 

105  U.  S.  249-252,  26  L.  1070,  SCHEFFER  v.  WASHINGTON  ETC. 
RAILWAY  CO. 

Syl.  1   (X,  284).     Negligence — Proximate  cause. 

Approved  in  Jarnagin  v.  Travelers'  Prot.  Assn.,  133  Fed.  895,  896, 
66  C.  C.  A.  622,  68  L.  E.  A.  499,  where  deceased  died  from  shot  fired 


10S3  ,  Notes  on  U.  S.  Keports,  105  U.  S.  253-258 

by   tliinl    pJirty   while    in   custody   of   officer,    proximate   cause   of   death 
was  shot  and  not  negligence  of  officer  in  failing  to  protect  hira. 

Syl.  2  (X,  284).     Negligence — What  is  proximate  cause. 

Approved  in  United  States  Fidelity  Co.  v.  Des  Moines  Nat.  Bank,  145 
Fed.  280,  applying  rule  in  action  on  fidelity  bond  of  bank  teller  for 
loss  of  money  while  teller  temporarily  absent;  W.  K.  Niver  Coal  Co. 
V.  Cheronea  S.  S.  Co.,  142  Fed.  410,  where  large  quantities  of  coal 
brought  from  Wales  on  account  of  Pennsylvania  strike  and  congestion 
of  vessels  caused  delay  in  discharging,  strike  not  proximate  cause  of 
delay  within  charter  exempting  from  demurrage  for  delay  caused  by 
strikes;  Texas  &  P.  Ey.  Co.  v.  Coutourie,  135  Fed.  474,  68  C.  C.  A.  177, 
in  action*  for  loss  of  goods  by  fire  while  in  carrier's  possession  through 
failure  to  protect  goods,  failure  to  distinguish  between  proximate  and 
remote  cause  not  reversible  error,  where  jury  instructed  that  det'en<l- 
ant's  negligence  must  have  been  direct  cause  of  loss;  Empire  State 
Cattle  Co.  v.  Atchinson  etc.  By.  Co.,  135  Fed.  142,  where  cattle  shipped 
were  unable  to  reach  distination  on  account  of  flood,  and  shipment  di- 
verted and  cattle  put  in  yards,  and  unprecedented  flood  coming  on, 
cattle  driven  into  overhead  viaducts  wliere  many  died  or  were  injured, 
proximate  cause  was  flood;  St.  Louis  etc.  Ky.  Co.  v.  Harrison,  76  Ark. 
434,  89  S.  W.  54,  in  action  against  carrier  for  assault  by  conductor 
during  altercation  over  pass,  error  to  refuse  charge  that  jury  should 
not  consider  fact  that  defendant  negligently  wrote  date  on  pass  so  that 
it  appeared  to  expire  on  May  1st  instead  of  May  10th;  Watters  v. 
Waterloo,  126  Iowa,  205,  101  N.  W.  874,  where  plaintiff  injured  by 
fall  caused  by  defective  sidewalk,  which  fall  caused  him  to  sufl'er  from 
dizziness,  fall  and  tlizziness  not  j)roximate  cause  of  injury  sustained  by 
fall  on  another  street  due  to  failure  of  city  to  clear  sidev.alk  of  ice; 
Setter  V.  Maysville,  114  Ky.  70,  69  S.  W.  1075,  where  plaintiff  al- 
leged city  negligently  permitted  street  to  be  so  obstructed  that  only 
narrow  path  left  between  car  tracks  and  obstruction,  city  not  liable 
for  injury  caused  by  street-car  where  motorman  could  have  discovered 
peril  in  time  to  avoid  accident;  Moffatt  Conim.  Co.  v.  Union  Pac.  Ey. 
Co.,  113  Mo.  App.  547,  88  S.  W.  117,  carrier  not  liable  for  injuries  to 
goods  caused  by  unforeseen  flood  to  which  carrier's  negligent  delay  in 
moving  goods  subjected  them,  dissenting  opinion  in  Franklin  v.  Atlan- 
tic etc.  Ey.  Co.,  74  S.  C.  359,  54  S.  E.  586,  majority  holding  carrier 
not  liable  for  indignities  inflicted  on  passenger  by  fellow-passenger. 

105  U.  S.  253-258,  26  L.  987,  GOULD  'S  MFG.  CO.  v.  COWING. 

Syl.    1    (X,    286).     Patent   infringement— Profits. 

Approved  in  Westinghouse  v.  New  York  Air  Brake  Co.,  140  Fed.  550, 
denying  recovering  of  profits  for  infringement  of  Westinghouse  patent 
No.  376,837,  for  improvement  in  air-brake  valve;  Eegis  v.  Jaynes,  191 
Mass.  251,  77  N.  E.  777,  on  taking  account  of  profits  in  suit  where 
trademark  infringement  enjoined,  defendant  is  liable  for  all  profits 
irrespective  of  whether  public  actually  deceived  or  not. 


105  U.  S.  262-302  Notes  cm  U.  S.  Eeports.  ^  1084 

105  U.  S.  262,  26  L.  989,  SrANDIES  v.  COCHRANE. 

Syl.   1   (X,  287).     Perfection  of  appeal. 

Approved  in  Loekman  v.  Lang,  132  Fed.  4,  where  appeal  allowed  by 
taking  of  security  within  statutory  time  and  transcript  filed  and  cause 
docketed,  failure  to  issue  citation  within  time  prescribed  for  appeal  is 
no  ground  for  dismissal;  Simpson  v.  First  Nat.  Bank,  129  Fed.  259,  63 
C.  C.  A.  371,  where  appeal  allowed  on  condition  that  petitioner  give 
bond  in  fixed  amount,  filing  of  assignment  of  errors  at  time  of  giving 
and  acceptance  of  bond  is  in  time. 

105  U.  S.  263-264,  26  L.  1021,  UNITED  STATES  v.  UNION  PACIFIC 
E.  R.  CO. 

Syl.  3   (X,  288).     Appeal  by  government. 

Approved  in  United  States  v.  Choctaw  etc.  R.  R.  Co.,  3  Okl.  454,  41 
Pac.  746,  in  action  in  name  of  United  States  by  private  parties  as  relat- 
ors, they  must  give  security  for  costs  on  appeal;  dissenting  opinion  in 
State  V.  Marsh,  134  N.  C.  192,  47  S.  E.  9,  67  L.  R.  A.  179,  majority 
holding  where  on  appeal  in  rape  case  conviction  reversed  because  in- 
dictment in  record  did  not  show  want  of  consent,  whereas  allegation 
omitted  from  printed  record  by  misprision  of  clerk,  supreme  clerk  could 
after  term  grant  certiorari  for  correction  of  record. 

105  U.  S.  265-267,  26  L.  1025,  KEYSER  v.  FARE. 

Syl.   1   (X,  288).     Acceptance   of   appeal   bond. 

Approved  in  Clarke  v.  Eureka  Co.  Bank,  131  Fed.  146,  where  super- 
sedeas bond  accepted,  writ  of  error  allowed  and  citation  issued,  motion 
to  increase  bond  is  within  exclusive  jurisdiction  of  appellate  court; 
dissenting  opinion  in  Sullivan  v.  Woods,  5  Ariz.  202,  50  Pac.  116, 
majority  holding  where  district  court  on  appeal  overruled  motion  for 
new  trial  and  plaintiff  gave  notice  of  appeal  and  filed  appeal  bond, 
district  court  could  during  term  vacate  judgment. 

(X,  288.)  Miscellaneous.  Cited  in  Mackenzie  v.  Pease,  146  Fed. 
744,  circuit  court  of  appeals  may  during  term  vacate  order  allowing 
appeal  inadvertently  entered. 

105  U.  S.  271-278,  26  L.  1087,  SIMMONS  v.  OGLE. 

Syl.  1  (X,  284).     Adverse  possession — Title  in  government. 

Approved  in  Teegarden  v.  Le  Marchel,  129  Fed.  489,  following  rule; 
Tyee  Consol.  Min.  Co,  v.  Langstedt,  136  Fed.  126,  69  C.  C.  A.  548, 
there  is  no  disseisin  sufficient  to  start  statute  of  limitations  against 
locator  of  mining  claim  prior  to  issuance  of  patent  to  him, 

105  U.  S.  278-302,  26  L.  1090,  LOUISIANA  v,  PILLSBURY. 
Syl.  1  (X,  290).     Consolidation  of  municipalities — Debts, 
Approved  in  City  of  Ft.  Madison  v.  Ft.  Madison  etc.  Co.,  134  Fed. 
216,  67   C.  C.   A.   142,  Code  Iowa   1897,   §   1305,  providing  for   assess- 
ment  of   property   at   quarter   of   actual   value   is   void    in   so   far   as 


1085  Kotos  ou  U.  S.  Reports.  105  U.  S.  305-318 

it   affects   ability   of   city   to    meet    prior   contract    for   water   rentals 
made  when  statute   required   assessments  at  true   cash  value. 

Distinguished  in  Wichman  v.  Placerville,  147  Cal.  164,  81  Pac.  538, 
Stat.  1863,  p.  211,  reincorporating  Placerville  repealed  Stat.  1863, 
p.  166,  authorizing  city  to  issue  fire  department  relief  bonds,  and 
reincorporated  city  could  not  issue  such  bonds, 

Syl.  7  (X,  291).^   Construction  of  adopted  statute. 

Approved  in  York  v.  Washburn,  129  Fed.  567,  570,  64  C.  C.  A.  132, 
whether  or  not  oral  contract  for  lease  of  realty  for  more  than  one 
year  is  void  or  voidable  under  laws  of  state  where  property  situated 
is  determined  by  federal  courts  according  to   decisions  of  that  state. 

Distinguished  in  dissenting  opinion  in  Muhlker  v.  New  York  etc. 
R.  R.  Co.,  197  U.  S.  573,  49  L.  879,  25  Sup.  Ct.  522,  majority  holding 
owner  of  land  abutting  on  street  who  derived  title  from  grantor  to 
city,  in  trust  for  public  highway,  and  acquired  title  when  state  courts 
had  held  that  one  so  situated  had  contract  easement  of  light  and 
air,  cannot,  have  easement  impaired  by  substitution  of  elevated  road 
for  surface  road  at  command  of  state. 

(IX,  290.)  Miscellaneous.  Cited  in  Arnold  v.  Knoxville,  115  Tenn. 
215,  90  S.  W.  473,  upholding  Acts  1905,  p.  585,  authorizing  levy  of 
special  assessments  for  municipal  improvements  on  abutting  property 
benefited  thereby. 

105  IT.  S.  305-318,  26  L.   1044,  SUPERVISORS  OF  ALBANY  CO.  v. 
STANLEY. 

Syl.  2  (X,  292),  Who  objects  to  validity  of  class  tax. 
Approved  in  Marvin  v.  Trout,  199  U,  S,  227,  50  L.  163,  26  Sup. 
Ct.  31,  objection  of  denial  of  due  process  to  owner  of  gambling  prop- 
erty by  Ohio  statute  making  judgment  in  action  against  those  who 
won  money  there  conclusive  as  to  amount  of  loss  in  action  to  charge 
property  of  owner  is  not  open  to  owner  where  there  is  other  evidence 
as  to  losses;  Smiley  v.  Kansas,  196  U.  S.  457,  49  L.  551,  25  Sup.  Ct, 
289,  upholding  Kansas  anti-trust  law  of  1897  as  forbidding  four  com- 
petitive wheat  buyers  in  single  town  to  enter  into  agreement  under 
which,  if  either  purchase  more  than  fourth  of  wheat  in  market,  he 
should  pay  others  three  cents  per  bushel  on  excess.  See  112  Am. 
St.   Rep.   650,   note. 

Syl.  3   (X,  292).     National  bank  tax — Discrimination, 
Approved  in  Ankeny  v.  Blakley,  44  Or.  86,  74  Pac.  488,  enjoining 
assessment  of  taxes  on  national  bank  stock  on  ground  that  assessment 
was  so  excessive  as  compared  with  taxes  assessed  on  other  moneyed 
capital  as  to  amount  to  illegal  discrimination. 

Syl.  4  (X,  293).     Statutes  void  in  part. 

Approved  in  Michigan  R.  R.  Tax  Cases,  138  Fed.  244,  upholding 
Mich.  Pub.  Acts  1901,  p,  236,  relating  to  assessment  of  railroad  prop- 


105  U.  S.  319-327  Notes  on  U.  S.  Eeports.  1086 

erty;  Attornej^  General  v.  Electric  etc.  Battery  Co.,  188  Mass.  241, 
74  N.  E.  468,  Stat.  1903,  pp.  447,  450,  §§  66,  67,  75,  requiring  cor- 
porations to  file  certificate  of  certain  facts  and  to  pay  excess  tax, 
is  valid  and  applies  to  interstate  corporation  which  has  also  place  of 
business  in  state  for  domestic  business. 

Syl.  5  (X,  293).     State  tax  on  national  bank  shares. 

Approved  in  State  v.  Flemming,  70  Neb.  526,  97  N.  W.  1064,  uphold- 
ing Sess.  Laws  1903,  c.  73,  relating  to  taxation  as  applied  to  foreign 
insurance  companies. 

105  U.  S.  319-322,  26  L.  1052,  HILLS  v.  NATIONAL  ALBANY  EX- 
CHANGE BANK. 

Syl.  2   (X,  294).     Stale  tax  on  national  bank  shares. 

Approved  in  Ankeny  v.  Blakley,  44  Or.  86,  74  Pac.  488,  enjoining 
collection  of  taxes  on  national  bank  stock  because  assessment  so  ex- 
cessive as  compared  with  taxes  on  other  money  capital  as  to  be  dis- 
criminatory. 

Distinguished  in  dissenting  opinion  in  San  Francisco  Nat.  Bank  v. 
Dodge,  197  U.  S.  112,  49  L.  687,  25  Sup.  Ct.  384,  majority  enjoining 
enforcement  of  tax  on  shares  of  national  bank  imposed  under  Cal. 
Pol.  Code,  §§  3608-3610. 

Syl.  3    (X,   294).     Taxes— Bank's   suit   for   stockholder. 
Approved  in  San  Francisco  Nat.  Bank  v.  Dodge,   197  U.  S.  75,  49 
L.  672,  25  Sup.  Ct.  384,  following  rule. 

Syl.  6  (X,  295).     Tender  of  performance. 

Ajiproved  in  Pierce  v.  Lukens,  144  Cal.  401,  77  Pac.  997,  where 
defendant  in  selling  bonds  agreed  to  repurchase  within  three  years 
at  plaintiff's  election,  and  when  latter  called  to  sell  said  he  did  not 
remember  but  for  plaintiff  to  send  him  letter,  which  was  done,  and 
he  replied  soliciting  further  correspondence,  but  such  letter  could  not 
reach  plaintiff  within  three  years,  latter  could  sue  without  tender. 

105  U.  S.  322-327,  26  L.  1053,  EVANSVILLE  NATIONAL  BANK  v. 
BEITTON. 

Syl.  1   (X,  296).     Taxes — Bank's  suit  for  stockholders. 

Approved  in  dissenting  opinion  in  San  Francisco  Nat.  Bank  v. 
Dodge,  197  U.  S.  112,  49  L.  687,  25  Sup.  Ct.  384,  majority  enjoining 
enforcement  of  tax  on  shares  of  national  bank  imposed  under  Cal. 
Pol.  Code,  §§  3608-3610. 

Syl.  2   (X,  296).     State  tax  on  bank  shares. 

Approved  in  Adams  v.  Kuykendall,  83  Miss.  585,  35  So.  832,  Nicks- 
burg  Charter,  §  31,  exempting  from  taxation  bills  and  notes  given 
for  property  within  city  subject  to  taxation,  violates  constitutional 
provision  requiring  uniform  taxation;  Ankeny  v.  Blakley,  44  Or.  86, 


1087  Notes  on  U.  S.  Reports.  105  U.  S.  350-362 

74  Pac.  488,  enjoining  collection  of  taxes  on  national  bank  stock  be- 
cause so  excessive  as  compared  with  taxes  on  other  moneyed  capital 
as  to  be  discriminatory. 

105  U.  S.  350-355,  26  L.  1055,  KNICKERBOCKEE  LIFE  INS.  CO.  v. 
FOLEY. 

Syl.  4  (X,  299).     Insurance — Answer  as  to  sobriety. 

Approved  in  Packard  v.  Metropolitan  Life  Ins.  Co.,  72  N.  H.  3,  54 
Atl.  288,  construing  expression  "sound  health"  in  life  policy;  Puis 
v.  Grand  Lodge  A.  O.  U.  W.,  13  N.  D.  567,  102  N.  W.  166,  where  in 
insurance  application  insured  stated  he  was  not  addicted  to  intoxicat- 
ing liquors  and  never  drank  immoderately,  evidence  that  he  sometimes 
drank  and  on  few  occasions  seemed  to  be  drunk  does  not  show  rep- 
resentations false. 

105  U.  S.  355-.'502,  26  L.  990,  BENNECKE  v.  CONNECTICUT  MUT. 
LIFE  INS.  CO. 

Syl,  1  (X,  299).     Contracts — Waiver  of  stipulations. 

Approved  in  Stephens  v.  Essex  County  Park  Commission,  143  Fed. 

847,  building  contract 'provision  for  payment  of  certain  sum  for  each 
day's  delay  in  completion  not  waived  by  failure  to  answer  con- 
tractor's letter  explaining  cause  of  delay  and  asking  extension;  Moor^i 
V.  Mutual  Life  Assn.,  133  Mich.  533,  95  N.  W,  576,  holding  information 
by  insurer  of  falsity  of  some  statements  in  application  did  not  estop 
it  from  relying  on  other  warranties;  Gish  v.  Insurance  Co.  of  North 
America,  16  Okl.  74,  87  Pac.  874,  determining  question  of  waiver  of 
conditions  as  to  inventory  and  iron  safe;  Whigham  v.  Independent 
Order  of  Foresters,  44  Or.  554,  75  Pac.  1069,  where  none  of  officers  of 
benefit  society  knew  what  answers  made  to  questions  in  application 
and  physician  did  not  know  applicant  personally  and  forwarded  appli- 
cation to  head  office,  order  not  estopped  to  declare  forfeiture  for  breach 
of  warranty  because  officers  knew  applicant  intemperate  in  habits. 

Distinguished  in  Monahan  v.  Mutual  Ins.  Co.,  103  Md.  159,  63  Atl. 
213,  5  L.  E.  A.  (N.  S.)  759,  receipt  of  premiums  estops  insured  from 
denying  validity  of  policy  providing  it  should  be  void  if  other  insur- 
ance in  force,  where  it  did  not  learn  of  other  insurance  on  account 
of  system  of  bookkeeping. 

Syl.  2   (X,  300).     Eatification  of  agent's  unauthorized  act. 
Approved  in  Stephens  v.  Essex  County  Park  Commission,  143  Fed. 

848,  where  building  contract  provided  for  certificate  by  architect  for 
progress  payments  and  authorized  deduction  for  each  tlay  's  delay  in 
completion,  except  where  work  suspended  by  architect,  issuance  of 
certificates  for  work  done  after  time  fixed  is  not  admission  that  delay 
consented  to  by  architect. 


105  U.  S.  381-408  Notes  on  U.  S.  Keports.  1088 

105  IT.  S.  381-392,  26  L.  1100,  THE  FRANCIS  WEIGHT. 

Syl.  2  (X,  302).     Appeal — Refusal  to  find  on  issue. 

Approved  in  Wiser  v.  Lawler,  7  Ariz.  184,  62  Pac.  700,  applying 
rule  on  equity  appeal. 

Syl.  4   (X,  302).     Appeal — Incidental   facts  not  in  record. 

Approved  in  United  States  Fidelity  etc.  Co.  v.  Board  of  Commrs., 
145  Fed.  151,  applying  rule  in  action  on  fidelity  bond;  Barnsdall  v. 
Waltemeyer,  142  Fed.  417,  finding  of  fact  in  case  tried  to  court  not 
reviewable  when  there  was  substantial  evidence  to  sustain  it;  Eureka 
Co.  Bank  v.  Clarke,  130  Fed.  327,  64  C.  C.  A.  571,  where  action  for 
conversion  tried  to  court,  appellate  court  is  precluded  from  reviewing 
sufficiency  of  evidence  unless  there  was  absolutely  no  evidence  to  sup- 
port findings;  Phenix  Ins.  Co.  v.  Kerr,  129  Fed.  724,  64  C.  C.  A.  251, 
66  L.  R.  A.  569,  where  at  close  of  jury  trial  each  side  requests  per- 
emptory instruction,  and  court  grants  one  request  only,  question  re- 
viewable is  sufficiency  of  evidence;  Wiser  v.  Lawler,  7  Ariz.  183,  62 
Pac.  700,  applying  rule  in  equity  appeal. 

105  U.  S.  393-401,  26  L.  1072,  HEWITT  v.  PHELPS. 

Syl.  3   (X,  303).     Equity — Services  rendered  for  trust. 

Approved  in  Gates  v.  McClenahan,  124  Iowa,  596,  100  N.  W.  480, 
where  nonresidents,  appointed  executors  of  foreign  will,  employed 
complainants  as  attorneys  to  recover  land  in  Iowa  devised  by  will, 
complainants  could  sue  executors  in  equity  in  Iowa  without  first 
exhausting  legal  remedy. 

105  U.  S.  401-408,  26  L.  1075,  HAUSELT  v.  HARRISON. 

Syl.   1    (X,   303).     Bankruptcy — Advances — Mortgage. 

Approved  in  Cincinnati  etc.  Warehouse  Co.  v.  Leslie,  117  Ky.  485, 
78  S.  W.  415,  64  L.  E.  A.  219,  where  corporation  advanced  money  to 
bankrupt  to  buy  goods  to  be  shipped  to  former  for  sale  under  agree- 
ment that  it  was  to  have  lien  on  goods,  and  debt  to  be  paid  out  of 
proceeds  of  sale,'  corporation's  lien  passed  to  its  successor,  who  pur- 
chased assets  on  its  insolvency. 

Syl.  2   (X,  303).     Validity  of  unrecorded  chattel  mortgages. 

Approved  in  Heiseh  v.  Bell,  11  N.  M.  531,  70  Pac.  573,  bill  of  sale 
given  on  exempt  personal  property  is  not  void  as  to  creditors,  though 
unacknowledged  and  unrecorded;  Christ  v.  Zehner,  212  Pa.  192,  61 
Atl.  823,  where  bill  of  sale  given  to  secure  loan,  but  possession  not 
taken  was,  within  four  months  of  bankruptcy  of  purchaser,  indorsed 
to  effect  that  loan  still  due  and  that  possession  given  vendee,  there 
was  no  uslawful  preference. 

Syl.  3  (X,  304).     Bankruptcy  assignor's  title — Equities. 
Approved  in  Thompson  v.  Fairbanks,  196  U.  S.  526,  49  L.  586,  25 
Sup.  Ct.  306,  enforcement  of  lien  of  valid  chattel  mortgage  by  taking 


1089  Notes  on  U.  S.  Reports.  105  U.  S.  418-447 

possession  after  condition  broken  as  authorized  by  mortgage,  with 
knowledge  of  mortgagor's  contemplated  bankruptcy,  is  not  voidable 
preference,  though  possession  taken  within  four  months  of  bank- 
ruptcy; In  re  Cramond,  145  Fed.  976,  where  city  contractor  on  assum- 
ing contract  assigned  right  to  payment  to  bank  to  secure  money  to  do 
work,  bank  acquired  equitable  lien  superior  to  laborer's  lien  under 
Bankr.  Act,  c.  54,  §  64.     See  104  Am.  St.  Rep.  913,  note. 

(X,  303.)  Miscellaneous.  Cited  in  O'Neal  v.  Richardson,  78  Ark. 
137,  92  S.  W.  1118,  as  to  correction  of  written  by  oral  instructions. 

105  U.  S.  418-422,  26  L.  1131,  UNITED  STATES  v.  RINDSKOPF. 

Syl.  2   (X,  306).     Revenue  commissioner's  assessment  of  tax.. 

Approved  in  Western  Express  Co.  v.  United  States,  141  Fed.  30, 
following  rule;  United  States  v.  Cole,  134  Fed.  699,  upholding  finding 
for  government  in  suit  for  assessment  on  unreported  spirits  distilled 
from  certain  amount  of  fruit,  where  defendant  admitted  roreption  of 
fruit,  but  failed  to  account  for  destruction  of  fruit  or  spirits  distilled 
therefrom. 

105  U.  S.  430-232,  26  L.  1142,  DOWELL  v.  MITCHELL. 

Syl.  1  (X,  306).     Equity — Dismissal  for  lack  of  jurisdiction. 

Approved  in  Fowler  v.  Osgood,  141  Fed.  24,  applying  rule  where 
demurrer  to  petition  by  foreign  receiver  dismissed  for  want  of  juris- 
diction; Indian  Land  &  T.  Co.  v.  Shoenfelt,  135  Fed.  487,  68  C.  C.  A. 
196,  where  equity  has  no  jurisdiction,  decree  of  dismissal  must  ex- 
pressly adjudge  dismissal  on  that  ground  or  that  it  is  made  without 
prejudice;  Hatcher  v.  Hendrie  etc.  Supply  Co.,  133  Fed.  272,  68  C.  C. 
A.  19,  arguendo. 

105  U.  S.  433-447,  26  L.  1060,  RUSSELL  v.  FARLEY. 

Syl.  1   (X,  306).     No  appeal  from  costs  decree. 

Distinguished  in  Western  Coal  etc.  Co.  v.  Petty,  132  Fed.  606.  in 
federal  law  action  where  prevailing  party  is  entitled  to  costs  as  of 
right,  judgment  on  dismissal  denying  such  right  is  reviewable  on 
error;  Nutter  v.  Brown,  58  W.  Va.  240,  52  S.  E.  90,  1  L.  R.  A.  (N.  S.) 
1083,  decree  respecting  allowance  and  compensation  of  receivers  is 
appealable. 

Syl.  2   (X,  307).     Injunction — Damages  where  bond  waived. 

Approved  in  Baer  v.  Fidelity  &  Deposit  Co.,  130  Fed.  97,  64  C.  C. 
A.  428,  applying  rule  where  court  ordered  bond  given  to  defendant 
in  receivership  proceedings  to  indemnify  him  against  damages  sus- 
tained by  depositing  money  on  dismissal  of  receivership, 

Syl.  3  (X,  307).     Injunction  bond  for  damages. 

Approved  in  Hoy  v.  Altoona  etc.  Oil  Co.,  136  Fed.  485,  granting 
preliminary  injunction  on  bill  to  recover  shares  of  stock  fraudulently 
obtained  by  defendant  from  complainant;   llarrinian  v,   Northeri:   Se- 


105  U.  S.  447-4G6  Notes  on  U.  S.  Eeports.  1090 

curities  Co.,  132  Fed.  476,  granting  preliminary  injunction  against 
transferring  stock  received  from  plaintiff  under  agreement  to  former 
merger  declared  void  by  courts;  State  v.  Sunapee  Dam  Co.,  72  N.  H. 
122,  55  Atl.  904,  where,  in  suit  to  restrain  dam  owner  from  operating 
it  to  injury  of  other  shore  owners  injunction  withheld,  equity  had 
jurisdiction  to  ascertain  damages. 

Syl.  4  (X,  307).     Damages  on  injunction  bond. 

Approved  in  Empire  State  etc.  Co.  v.  Hanley,  136  Fed.  104,  69 
C.  C.  A.  87,  where,  after  affirmance,  appellee  filed  in  trial  court  motion 
to  proceed,  containing  notice  to  sureties  on  supersedeas  bond  of  appli- 
cation for  summary  decree  on  bond,  which  was  served  on  surety, 
court  could  render  judgment  against  surety  under  Idaho  Code,  § 
3576;  Dougal  v.  Eby,  11  Idaho,  797,  85  Pac.  103,  where  claim  made 
against  sureties  on  injunction  bond,  summary  judgment  cannot  be 
entered  against  sureties  on  dissolution  of  injunction. 

105  U,  S.  447-451,  26  L.  1065,  THE  S.  S.  OSBOENE. 

Syl.  2   (X,  308).     Lower  court's  jurisdiction  after  appeal. 

Approved  in  First  Nat.  Bank  v.  State  Nat.  Bank,  131  Fed.  431, 
65  C.  C.  A.  414,  where  appeal  perfected  under  Bankr.  Act,  §  25a, 
from  judgment  rejecting  debt,  district  court  cannot  entertain  motion 
for  rehearing  pending  appeal. 

105  U.  S.  451-453,  26  L.  1066,  EX  PARTE  SLAYTON, 
Syl.  1   (X,  308).     Shipping— Limitation  of  liability. 
Approved  in  The  Sacramento,  131  Fed.  374,  where  petition  to  limit 
liability   of   vessel   and   cargo   for   collision   failed   to   state    facts,   by 
reason  of  which  exemption  claimed  as  required  by  rule  56,  it  was  in- 
sufficient  to   contest   question   of   vessel's   fault. 

105  U.  S.  454-459,  26  L.  1133,  LOUISIANA  v.  TAYLOR. 

(X,  309.)  Miscellaneous.  Cited  in  Mial  v.  Ellington,  134  N.  C. 
165,  46  S.  E.  973,  65  L.  R.  A.  697,  officer  appointed  to  public  office 
for  definite  time  has  no  contract  or  vested  property  interest  therein 
of  which  legislature  cannot  deprive  him. 

x05  U.  S.  460-466,  26  L.  1067,  WESTERN  UNION  TELEGRAPH  CO. 
V.  TEXAS. 

Svl.  1  (X,  309).     Telegraph  as  instrument  of  commerce. 

Approved  in  Ames  v.  Kirby,  71  N.  J.  L.  445,  59  Atl.  559,  P.  L. 
1898,  p.  812,  prohibiting  poolrooms,  is  violated  by  keeping  resort 
for  gamblers  whose  wagers  are  made  by  telegraph  with  persons  outside 
of  state;  Butner  v.  Western  Union  Tel.  Co.,  2  Old.  248,  37  Pac.  1091, 
upholding  territorial  act  regulating  order  of  receipt  and  trans- 
mission of  telegrams,  but  which  does  not  attempt  to  regulate  delivery 
of  messages  outside  of  territory;  Postal  Tel.  Cable  Co.  v.  Umstadter, 
103   Va.   743,   50   S.   E.   260,   upholding   Code    1887,   §    1291,   imposing 


i091  Notes  on  U.  S.  Eeports.  105  U.  S.  467-526 

penalty  on  telegraph  company  for  failure  to  transmit  message;  dis- 
senting opinion  in  Western  Union  Tel.  Co.  v.  Hughes,  104  Va.  246, 
51  S.  E.  227,  majority  holding  where  points  of  transmission  and 
delivery  of  telegram  were  in  same  state,  fact  that  part  of  trans- 
mission made  through  another  state  does  not  prevent  it  from  being 
subject  to  state  statute  penalizing  delay. 

Syl.  3  (X,  309).     State  tax  on  telegraph  company. 

Approved  in  People  v.  Eeardon,  184  N.  Y.  455,  112  Am.  St.  Rep.- 
644,  77  N.  E.  978,  Laws  1905,  pp.  474,  477,  c.  241,  imposing  tax  on 
transfers  of  stock,  is  valid  and  applies  only  to  transfers  taking  place 
in  state.     See  112  Am.  St.  Rep.  650,  note. 

Syl.  4   (X,  310).     Commerce — State  tax  on   telegrams. 

Approved  in  Western  Union  Tel.  Co.  v.  Village  of  Wakefield,  69 
Neb.  276,  277,  95  N.  W.  6G1,  determining  right  of  village  to  impose 
occupation  tax  on  telegraph  company. 

Distinguished  in  Western  Union  Tel.  Co.  v.  Pennsylvania  R.  R.  Co., 
195  U.  S.  565.  49  L.  321,  25  Sup.  Ct.  133,  telegraph  company  cannot, 
under  act  of  July  24,  1866,  occupy  railroad  right  of  way  for  its  lines 
without  consent  of  railroad. 

105  U.  S.  467-470,  26  L.  949,  THATCHER  v.  ROCKWELL. 

Syl.  2   (X,  312).     Continuance  of  suit  in  bankrupt's  name. 

Approved  in  Griffin  v.  Mutual  Life  Ins.  Co.,  119  Ga.  665,  46  S.  E. 
871,  if  no  trustee  appointed,  bankrupt's  debtor  not  discharged  from 
liability  of  action  pending  at  time  of  adjudication. 

Syl.  3  (X,  312).  Conclusiveness  of  judgment  on  bankruptcy  as- 
signee. 

Approved  in  Christy  v.  Des  Moines  City  Ry.  Co.,  126  Iowa,  436,  102 
N.  W.  197,  where,  after  verdict  for  defendant,  plaintiff  adjudged  bank- 
rupt and  trustee  substituted,  plaintiff  could  prosecute  appeal  on  trus- 
tee's filing  written   consent  thereto. 

105    U.    S.    470-509,    26    L.    1143,    NEWPORT    ETC.    BRIDGE    CO.    v. 
UNITED  STATES. 

Syl.  6   (X,  313).     Bridges— Modification  of  plans — Damages. 

Distinguished  in  United  States  v.  Parkerburg  Branch  R.  Co.,  143 
Fed.  230,  railroad  bridge  over  navigable  stream  built  under  authority 
of  federal  act  containing  no  provision  as  to  repeal  or  modification 
can  only  be  required  to  be  removed  on  payment  of  compensation. 

105  U.  S.  509-526,  26  L.  951,  FRENCH  v.  GAPEN. 

Syl.  2  (X,  313).     Intervention — Failure  to  object. 

Approved  in  Bechtol  v.  Bechtol,  2  Alaska,  399,  wife  cannot  inter- 
vene in  suit  by  father  in  law  against  husband  to  declare  trust  in 
placer  claim;  Flournoy  v.  Bullock,  11  N.  M.  103,  66  Pac.  549,  55  L. 


105  U.  S.  527-538  Notes  on  U.  S.  Eeports.  1092 

E.  A,  745,  where  receiver  appointed  for  partnership,  simple  contract 
creditor  having  no  lien  cannot  intervene  in  suit;  Hockaday  v.  Drye, 
7  Okl.  294,  54  Pac.  477,  where  insolvent  made  general  assignment  and 
before  time  for  filing  inventory  property  sold  under  attachment  and 
proceeds  put  in  custody  of  court  for  distribution,  general  creditors 
may  interplead  in  attachment  and  ask  pro  rata  distribution  by  re- 
ceiver. 

105  U.   S.  527-538,  26  L.   1157,  TEUSTEES  FLA.   INTEENAL  IMP. 
FUND  v.  GEEENOUGH. 

Syl.  1  (X,  313).     No  appeal  from  costs  decree. 

Distinguished  in  Nutter  v.  Brown,  58  W.  Va.  240,  52  S.  E.  90,  1  L. 
E,  A.  (N.  S.)  1083,  decree  respecting  allowance  of  expenses  and  com- 
pensation of  receivers  is  appealable. 

Syl.  3   (X,  314).     Appeal — Decree  for  receiver's  costs. 

Approved  in  Euggles  v.  Patton,  143  Fed.  314,  315,  order  authoriz- 
ing receiver  to  pay  himself  from  funds  in  his  hands  certain  sum  for 
past  services  as  receiver  is  appealable;  Nutter  v.  Brown,  58  W.  Va. 
240,  244,  52  S.  E.  90,  91,  1  L.  E.  A.  (N.  S.)  1083,  decree  respecting 
allowance  of  expenses  and  compensation  of  receivers  is  appealable. 

Syl.  4  (X,  314).     Appeal — Final  decree. 

Approved  in  Cassctt  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  35, 
order  in  action  against  railroad  for  violation  of  interstate  commerce 
act,  requiring  railroad  officials  to  produce  books  containing  informa- 
tion as  to  rebates,  is  final  decision  reviewable  on  error. 

Distinguished  in  Ileiuze  v.  Butte  etc.  Min.  Co.,  129  Fed.  338,  64 
C.  C.  A.  15,  orders  approving  receiver's  monthly  reports  and  direct- 
ing him  to  pay  expenses  incurred  by  him,  made  before  final  account, 
are  not  appealable. 

Syl.  6  (X,  314).     Expenses  payable  out  of  trust  fund. 

Approved  in  Bartholomew  v.  Union  Trust  Co.  (Meyers  v.  Mutual 
Life  Ins.  Co.),  36  Ind.  App.  329,  75  N.  E.  31,  following  rule;  Mc- 
Court  V.  Singers-Bigger,  145  Fed.  114,  stockholder,  who,  by  suit  on 
behalf  of  corporation,  recovers  fund  diverted  by  its  officers,  is  en- 
titled to  payment  of  expenses  of  suit  therefrom,  but  other  stockholders 
who  resist  suit  in  name  of  company  are  not;  Eeceivers  of  Virginia 
etc.  Coke  Co.  v.  Staake,  133  Fed.  721,  66  C.  C.  A.  547,  bankruptcy 
court  may  allow  attachment  creditors,  who  obtained  liens  on  prop- 
erty which  trustee  could  not  otherwise  reach,  attorney's  fees  on  order- 
ing attachment  liens  for  benefit  of  estate;  Cuyler  v.  Atlantic  etc.  E. 
Co.,  132  Fed.  572,  upholding  allowance  of  counsel  fees  to  complainant 
who  as  joint  owner  has  sued  for  preservation  of  property  which  has 
been  brought  into  control  of  court;  The  Gordon  Campbell,  131  Fed. 
967,   allowing   single   docket   fee   to   proctor   in   admiralty   who   repre- 


1093  Notes  on  U.  S.  Reports.  105  U.  S.  527-538 

sents  more  than  one  petitioner;  Lamar  v.  Hall,  129  Fed.  83,  63  C.  C. 
A.  521,  where  lien  creditors  obtained  appointment  of  receiver  for  cor- 
poration, and  petitioner,  as  attorney  for  minority  stockholders,  filed  bill 
alleging  bad  faith  in  bringing  first  suit  and  praying  appointment 
of  receiver,  and  co-receiver  appointed,  but  bad  faith  not  proven  at 
trial  and  sale  was  set  aside  on  petitioner's  motion  and  resale  made 
for  higher  price,  petitioner  not  entitled  to  attorney's  fees  out  of  pro- 
ceeds of  sale;  Estate  of  O'Connor,  2  Cal.  App.  478,  84  Pae.  320,  testa- 
mentary trustee  instituting  proceedings  to  compel  executor  to  account 
and  distribute  estate  is  entitled  to  counsel  fees  on  his  accounting; 
Bradshaw  v.  Bank  of  Little  Rock,  76  Ark.  504,  505,  89  S.  W.  317, 
application  for  fees  of  attorneys  for  plaintiff  in  action  by  single  credi- 
tor to  wind  up  insolvent  corporation  may  be  made  by  attorneys; 
Kimble  v.  Board  of  Commrs.,  32  Ind.  App.  389,  66  N.  E.  1027,  where 
defendants  formed  association  for  collection  of  misappropriated  county 
funds  and  collected  various  sums,  they  are  entitled  to  attorney's 
fees  out  of  funds  recovered;  Louisville  etc.  Seminary  v.  Botto,  117 
Ky.  974,  80  S.  W.  180,  where  effect  of  contest  by  some  of  legatees  to 
set  aside  codicils  was  to  increase  amounts  received  by  other  legatees, 
expenses  of  contest  should  be  paid  out  of  shares  of  all;  Sprague  v. 
Moore,  136  Mich.  431,  99  N.  W.  379,  denying  allowance  out  of  fund  to 
complainant's  solicitor  where  solicitor's  services  in  bill  to  compel  trus- 
tee to  account  are  adverse  to  trust  fund;  Coffman  v.  Gates,  110  Mo. 
App.  488,  85  S.  W.  660,  where  one  holding  interest  in  land  in  fee  and 
rest  as  trustee  expended  money  in  defense  of  ejectment  suit,  he  is 
entitled  to  reimbursement  out  of  trust  property,  but  cannot  hold 
cestui  que  trust  individually  therefor  in  partition  suit;  Park  v. 
Laurens,  68  S.  C.  218,  46  S.  E.  1014,  where  citizen  employed  attor- 
ney to  compel  performance  of  duties  by  city  officials,  and  suit  brought 
funds  into  city  treasury,  city  not  liable  for  attorney's  fees;  Carpen- 
ter V.  U.  S.  Fidelity  etc.  Co.,  123  Wis.  216,  101  X.  W.  407,  county 
court  may,  after  administrator  has  become  defaulter  without  having 
paid  attorney's  fees,  decree  that  value  thereof  should  constitute  lien 
on  assets  of  estate  in  favor  of  attorneys;  Butler  v.  Conwell,  14  Wyo. 
172,  82  Pac.  951,  where  creditors  of  insolvent  consented  to  complain- 
ant's employment  as  their  attorney  to  recover  funds  of  insolvent, 
complainant  has  preferred  claim  on  fund  for  services. 

Syl.  9  (X,  31G).     Attorney's  fees  of  conscrver  of  trust  fund. 

Approved  in  Forrester  v.  Boston  etc.  Mining  Co.,  29  Mont.  411,  74 
Pac.  1094,  in  suit  by  minority  stockholders  to  restrain  and  cancel 
transfer  of  corporation's  property,  value  of  property  and  not  value 
of  plaintiff's  stock  is  considered  in  determining  plaintiff's  counsel 
fees. 

Syl.  11  (X,  316).     Discretion — Costs  and  expenses — Trust  fund. 
Approved  in  Bartholomew  v.  Union  Trust  Co.   (Meyers  v.  Mutual 
Life  Ins.  Co.),  36  Ind.  App.  330,  75  N,  E.  32,  following  rule. 


105  U.  S.  550-599  Notes  on  U.  S.  Reports.  1094 

(X,  313.)  Miscellaneous.  Cited  in  ■Werckmeister  v.  American  Lith. 
Co.,  134  Fed.  323,  68  L.  R.  A.  591,  copyright  is  incorporeal  right  to 
print  and  publish. 

105  U.  S.  550-552,  26  L.  1106,  GUIDET  v.  BROOKLYN. 

Syl.  2  (X,  318).     Patents— Change  in  form. 

Approved  in  Bullock  Electric  Mfg.  Co.  v.  General  Electric  Co.,  149 
Fed.  417,  holding  Reist  patent  No.  508,637,  for  improvement  in  arma- 
ture cores,  void  for  want  of  novelty. 

105  U.  S.  553-558,  26  L.  1166,  GORDON  v.  BUTLER. 

Syl.  2  (X,  318).     Fraud — Opinion  as  to  value. 

Approved  in  Pittsburg  Life  etc.  Co.  v.  Northern  etc.  Ins.  Co.,  140 
Fed.  896,  where  on  sale  of  business  of  life  insurance  company  list 
of  accounts  against  agents  shown,  and  defendant's  secretary  said 
they  had  charged  off  bad  ones  and  that  those  remaining  were  better 
than  ordinary,  there  was  no  basis  of  deceit  because  some  accounts 
disputed;  Kimber  v.  Young,  137  Fed.  749,  70  C.  C.  A.  178,  in  action 
for  deceit  in  sale  of  corporate  bonds,  allegations  that  defendant  said 
he  knew  bonds  were  good  and  would  be  paid  at  maturity  are  insuffi- 
cient; Brown  v.  South  Joplin  Lead  etc.  Co.,  194  Mo.  701,  92  S.  W. 
■704,  action  for  deceit  cannot  be  predicated  on  statement  of  party 
that  body  of  ore  through  which  hole  drilled  is  pay  ore,  though  opin- 
ion afterward  shown  to  be  unwarranted. 

105  tl.  S.  576-578,  26  L.  1176,  CORBIN  v.  VAN  BRUNT. 

Syl.  1  (X,  321).     Removal — Separable  controversj-. 

Approved  in  City  of  Cleveland  v.  Cleveland  etc.  Ry.  Co.,  147  Fed. 
176,  denying  riglit  to  remove  ejectment  suit  in  which  lessor  and 
lessee  joined  as  defendants  where  no  separable  controversy  shown; 
Groel  V.  United  States  Electric  Co.,  132  Fed.  254,  in  determining 
federal  jurisdiction  in  suit  by  stockliolder  on  right  of  action  in  cor- 
poration, latter  aligned  with  complainant  or  defendant  according  to 
facts. 

105  U.  S.  578-580,  26  L.  1176,  EX  PARTE  HOARD, 

Syl.  1  (X,  321).     Mandamus  to  compel  remand. 

Approved  in  Thomas  v.  Great  Northern  Ry.  Co.,  147  Fed.  87,  whtie, 
after  cause  erroneously  removed  over  plaintiff's  objection,  fedeial 
court  sustained  demurrer  of  resident  defendant  to  complaint,  plain- 
tiff did  not  waive  objection  against  removal  by  amending  and  pro* 
ceeding  against  nonresident  defendant. 

105  U.  S.  580-599,  26  L.  1177,  WEBSTER  LOOM  CO.  v.  IIIGGINS. 

Syl.   1    (X,  321).     Patents — When  .specifications   sufficient. 

Approved  in  Thomson-Houston  Elec.  Co.  v.  Black  River  Traction 
Co.,   135   Fed.   763,   68   C.   C.   A.   461,   upholding   and   construing   Van 


1095  Notes  on  U.  S.  Keports.  105  U.  S.  580-599 

Depoele  reissue  No.  11,892,  for  traveling  contact  for  electric  rail- 
ways; Wolfie  V.  Du  Pont  etc.  &  Co.,  134  Fed.  865,  67  C.  C.  A.  488, 
holding  Von  Freedcn  patent  No.  429,516,  for  process  of  making  smoke- 
less powder,  valid  as  to  claim  1,  but  void  as  to  claim  2. 

Syl.  3   (X,  322).     Patent  for  improvement — Specifications. 

Approved  in  National  etc.  S.  Co.  v.  De  Forest  etc.  Tel.  Co.,  140  Fed. 
454,  upholding  Fcssenden  reissue  No.  12,115,  for  receiver  for  wire- 
less telegraph  apparatus;  Chicago  Wooden  Ware  Co.  v.  Miller  etc. 
Co.,  133  Fed.  546,  66  C.  C.  A.  517,  upholding  Miller  patents  No.  343.829, 
for  folding  trestle;  Kip  Armstrong  Co.  v.  King  Philip  Mills,  130  Fed. 
30,  word  "rotary"  in  claim  of  Baker  patent  No.  595,688,  for  warp 
stop-motion  for  looms,  to  describe  element  of  combination,  does  not 
limit  claim  by  reading  into  it  mechanism  for  continuous  rotation. 

Syl.  5   (X,  322).     Patent — Combination  producing  new  result. 

Approved  in  American  Caramel  Co.  v.  Thomas  Mills  &  Bro.,  149  Fed. 
746,  upholding  Hershey  patent  No.  532,554,  for  candy-cutting  machine; 
Cutler  etc.  Co.  v.  Union  Elec.  Mfg.  Co.,  147  Fed.  272,  upholding  Blades 
patent  No.  418,678,  for  electric  switch  for  motors;  Robins  etc.  Belt 
Co.  V.  American  etc.  Mach.  Co.,  145  Fed.  926,  upholding  Robins  patent 
No.  571,604,  claims  5,  6,  for  troughing  idlers  for  belt  conveyors; 
(Jomptograph  Co.  v.  Mechanical  Acct.  Co.,  145  Fed.  337,  upholding 
Felt  patent  No.  465,255,  for  computing  machine,  covering  subtraction 
cutoff;  Koerner  v.  Deuther,  143  Fed.  547,  upholding  Koerner  patent 
No.  392,735,  for  printers'  drying  racks;  International  Time  Recording 
Co.  V.  Dey,  142  Fed.  743,  upholding  Cooper  patent  No.  528,223,  for 
workman's  time  recorder;  Bullock  Elec.  Mfg.  Co.  v.  Crocker-Wheeler 
Co.,  141  Fed.  106,  upholding  Leonard  patent  No.  478,344,  for  system 
of  electrical  distribution ;  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140 
Fed.  171,  upholding  Schrader  patent  No.  592,920,  for  engraving  machine 
for  etching  glass;  Brown  Bag  Filling  Mach.  Co.  v.  Drohen,  140  Fed. 
101,  upholding  Cummings  patent  No.  573,171,  for  paper-bag  filling 
machine;  Capewell  v.  Goldsmith,  138  Fed.  686,  holding  Capewell  patent 
No.  630,972,  for  stick-pin  retainer,  void  in  view  of  prior  act;  Runiford 
Chem.  Wks.  v.  New  York  Baking  Powder  Co.,  134  Fed.  388,  67  C.  C.  A. 
367,  upholding  Catlin  patent  No.  474,811,  for  baking-powder;  Albright 
V.  Langfeld,  131  Fed.  475,  upholding  Albright  patent  No.  439,086,  for 
coin  purse;  Bechtold  v.  Nowacke,  131  Fed.  277,  upholding  Bechtold 
jiatent  No.  682,448,  for  comb  or  hair-retainer;  Thomson-Houston  El. 
Co.  V,  Ohio  Brass  Co.,  129  Fed.  381,  upholding  Van  Depoele  patent 
No.  394,039,  claim  18,  for  insulated  turn-buckle. 

Distinguished  in  New  York  Belting  etc.  Co.  v.  Sierer,  149  Fed.  768, 
holding  Furness  &  Watts  patent  No.  527,961,  for  tile  floor,  void  for  lack 
of  invention  in  view  of  prior  art. 

Syl.  9    (X,  324).     Patents — Defense  of  prior  invention. 
Approved  in  Drewson  v.  Hartje  Paper  etc.  Co.,  131  Fed.  739,  65  C.  C. 
A.  548,  statement,  in  printed  copy  of  patent,  of  date  of  filing  applica- 


105  U.  S.  600-613  Notes  on  U.  S.  Reports.  1096 

tion,  is  prima  facie  evidence  of  such  date,  and  date  of  invention  pre- 
sumed to  be  same. 

105  U.  S.  600-604,  26  L.  1184,  NEW  ORLEANS  v.  MORRIS. 

Syl.  2   (X,  325).     Execution  on  city  waterworks. 

Approved  in  Brockenbrough  v.  Board  of  Water  Commrs.,  134  N.  C. 
17,  46  S.  E.  33,  city  waterworks  transferred  pursuant  to  Priv.  Laws 
1899,  p.  788,  c.  271,  to  commissioners,  not  subject  to  sale  for  city 
debt. 

105  U.  S.  605-611,  26  L.  1186,  OGLESBY  v.  ATTRILL. 

Syl.  1  (X,  325).    Judicial  question — Expediency  of  corporate  action. 

Distinguished  in  Kessler  v.  Ensley  Co.,  129  Fed.  409,  court  will  not 
refuse  to  entertain  suit  by  stockholders  in  behalf  of  corporation  to 
redress  fraud  where  it  appears  directors  in  refusing  to  bring  suit  acted 
from  extraneous  motives. 

Syl.  3   (X,  326).     Collateral  attack  on  compromise. 
Approved  in  Russ  v.  Union  Oil  Co.,  113  La.  205,  36  So.  940,  applying 
rule  in  personal  injury  case. 

105  U.  S.  611-613,  26  L.  1135,  UNITED  STATES  v.  CARLL. 

Syl.  1   (X,  326).     Indictment  in  statutory  words. 

Approved  in  Burton  v.  United  States,  202  U.  S.  373,  50  L.  1067, 
26  Sup.  Ct.  688,  upholding  indictment  under  Rev.  St.,  §  1782,  making 
it  misdemeanor  for  senator  to  receive  compensation  for  services  before 
any  department  in  matter  in  which  government  is  interested;  United 
States  V.  Allen,  150  Fed.  154,  holding  insufficient  indictment  under  Rev. 
St.,  §  4046,  merely  averring  defendant  was  clerk  in  money  order  office 
without  averring  money  converted  came  into  his  hands  by  virtue  of  his 
employment;  United  States  v.  Meyers,  142  Fed.  908,  holding  insufficient 
indictment  under  Rev.  St.,  §  5469,  for  robbing  the  mails;  United  States 
V.  Fifty  Waltham  Watch  Movements,  139  Fed.  301,  forfeiting  mer- 
chandise imported  contrary  to  law;  United  States  v.  Green,  130  Fed. 
(543,  holding  insufficient  under  Rev.  St.,  §  5451,  indictment  charging 
tendering  check  to  federal  officer  with  intent  to  influence  decision;  Miller 
V.  United  States,  136  Fed.  581,  69  C.  C.  A.  355,  holding  insufficient 
indictment  under  Rev.  St.,  §  4746,  for  procuring  presentation  of  false 
paper  to  pension  commissioner,  where  it  does  not  state  manner  of 
presentation  or  name  of  person  procured  to  present  it  or  that  his  name 
is  unknown;  Wong  Din  v.  United  States,  135  Fed.  704,  68  C.  C.  A. 
340,  upholding  indictment  for  conspiracy  to  aid  landing  of  Chinese  in 
United  States,  in  furtherance  of  which  deputy  sherifl:  in  charge  of 
Chinese  was  bribed;  State  v.  Piper,  73  N.  H.  228,  60  Atl.  743,  holding 
insufficient  indictment  against  bank  official  for  making  false  entry. 

Distinguished  in  McNeil  v.  United  States,  150  Fed.  84,  upholding 
sufficiency  of  indictment  charging  bankrupt  unlawfully,  knowingly,  will- 
fully and  fraudulently  concealed  from  trustee  certain  property  belonging 


1097  Notes  on  U.  S.  Reports,  105  U.  S.  614-658 

to  bankrupt  estate,  as  suiBciently  alleging  knowledge  that  property 
belonged  to  estate;  State  v,  Hauser,  112  La.  343,  36  So.  407,  upholding 
indictment  for  forgery  though  bill  not  alleged  to  have  been  published, 
knowing  it  to  be  false  and  counterfeited. 

Syl,  3   (X,  327).     Indictment — Uttering  forged  paper — Knowledge. 

Approved  in  United  States  v.  Green,  136  Fed.  651,  holding  insufficient 
indictment  under  Rev.  St.,  §  5431,  cliarging  tendering  of  defendant's 
personal  check  to  federal  officer  with  intent  to  bribe. 

105  U.  S.  614-618,  26  L.  1189,  LINCOLN  v.  FRENCH. 

Syl.  1  (X,  328).     Presumption  of  trustees'  reconveyance. 

See  100  Am.  St.  Rep.  104,  note. 

Syl.  2   (X,  328).     Presumptions  supply  place  of  facts. 

Ai)provcd  in  Wabash  R.  Co.  v.  De  Tar,  141  Fed.  934,  determining 
extent  of  presumption  as  to  due  care  by  traveler  injured  at  railroad 
crossing. 

105  U.  S.  630-630,  ,20  L.  1194,  THE  POTOMAC. 

Syl.  2  (X,  330).     Collision — Use  of  vessel  during  repstirs. 

Approved  in  The  Loch  Trool,  150  Fed.  431,  where  vessel  injured  by 
collision  on  March  10th  immediately  laid  up  unrepaired,  and  on  August 
3d  she  obtained  charter,  but  contract  for  repairs  not  made  till  October 
17th,  and  during  same  period  other  vessels  of  owners  laid  up,  libelant 
not  entitled  to  damages  for  loss  of  use  during  repairs;  The  North  Star, 
140  Fed.  264,  where  it  is  shown  vessel  injured  in  collision  would  have 
obtained  charter  and  made  earnings  during  time  she  was  detained  for 
repairs,  owner  entitled  to  denmrrage  based  on  probable  net  earnings. 

Syl.  4  (X,  330).     Subrogation  of  insurer  paying  loss. 

Approved  in  North  German  Fire  Ins.  Co.  v.  Adams,  142  Fed,  442, 
upholding  admiralty  jurisdiction  over  action  in  personam  to  enforce 
payment  of  fire  policy  on  ship;  The  Livingstone,  130  Fed.  749,  65  C. 
C.  A.  610,  where  ship  sunk  by  collision  and  abandoned  to  insurer  is 
insured  by  valued  policy  and  stipulated  sum  paid  to  owner,  who  subse- 
quentljr  recovers  actual  value  from  vessel  at  fault,  insurer  is  entitled 
to  reimbursement  from  such  sum  to  amount  it  has  paid  with  interest. 

(X  329.)  Miscellaneous.  Cited  in  Standard  etc.  Ins.  Co.  v.  Nome 
Beach  Lighterage  etc.  Co.,  133  Fed.  646,  67  C.  C,  A,  602,  valuation  in 
policy  is  conclusive  of  all  rights  under  policy. 

105  U.  S.  647-658,  26  L.  1200,  EX  PARTE  BOYD. 

Syl.  1  (X,  331).     Federal  judgment — Supplementary  proceedings. 

Cited  in  In  re  Alphin  etc.  Cotton  Co.,  134  Fed.  480,  arguendo. 

Syl.  4  (X,  332).     Where  discovery  compelled  in  equity. 

Approved  in  United  States  v.  Bitter  Root  etc.  Co.,  133  Fed.  280,  66 
C.  C.  A.  652,  denying  federal  equity  jurisdiction  of  suit  for  discovery 


105  U.  S.  659-C96  Notes  on  U.  S.  Keports.  109S 

and  for  final  relief  which  consists  of  enforcement  of  purely  legal  de- 
mand; Brown  v.  McDonald,  130  Fed.  969,  refusing  to  entertain  hill  of 
discovery  to  ascertain  names  of  stockholders  of  corporation  against 
whom  complainant  desires  to  bring  suit  for  collection  of  assessment. 

105  U.  S.  659-667,  26  L.  1136,  CORBIN  v.  COUNTY  OF  BLACKHAWK. 

Syl.  1  (X,  332).     Federal  suit  by  assignee. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  380,  26  Sup.  Ct. 
220,  appfying  rule  to  foreclosure  of  trust  deed. 

Syl.  2   (X,  332).     Federal  suit  by  assignee  on  contract. 

Approved  in  Gorman-Wright  Co.  v.  "Wright,  134  Fed.  365,  67  C.  C. 
A.  345,  pledgee  of  stock  cannot,  on  account  of  diversity  of  citizenship 
between  himself  and  corporation,  sue  latter  in  federal  court  for  appoint- 
ment of  receiver  where  pledgor  is  citizen  of  same  state  as  corporation; 
Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  120,  121,  66  C.  C.  A.  179, 
suit  by  assignee  of  oral  contract  to  recover  money  due  thereon  cannot  be 
maintained  in  federal  court  unless  assignor  could  sue  therein. 

105  U.  S.  667-671,  26  L.  1204,  POST  v.  KENDALL  COUNTY. 

Syl.  3  (X,  334).    Following  state  decisions  as  to  validity  of  statutes. 

Distinguished  in  Great  Southern  etc.  Hotel  Co.  v.  Jones,  193  U.  S. 
546,  48  L,  786,  24  Sup.  Ct.  576,  independent  judgment  as  to  validity  of 
mechanic's  lien  law  under  state  constitution  exercised  by  federal  court, 
irrespective  of  state  decisions  rendered  prior  to  commencemcut  of  suit 
but  after  rights  of  parties  fixed  by  contract. 

105  U.  S.  671-691,  26  L.  1206,  HARVEY  v.  UNITED  STATES. 

Syl.  3    (X,  335).     Eeformation  of  government  contract. 

Distinguished  in  United  States  v.  Milliken  Imprinting  Co.,  202  U.  S. 
175,  50  L.  983,  26  Sup.  Ct.  572,  refusing  to  reform  government  contract 
for  printing  revenue  stamps  by  incorporating  clauses  in  prior  com- 
munication from  internal  revenue  commissioner  to  contractors  then  en- 
gaged on  work. 

Syl.  4  (X,  335).     Conclusiveness  of  findings. 

Cited  in  United  States  v.  Milliken  Imprinting  Co.,  202  U.  S.  174, 
50  L.  983,  26  Sup.  Ct.  572,  arguendo. 

105  U.  S.  691-696,  26  L.  1108,  SWIFT  CO.  v.  UNITED  STATES. 

Syl.  2   (X,  335).     Contemporaneous  statutory  construction. 

Approved  in  Houghton  v.  Payne,  194  U.  S.  100,  48  L.  891,  24  Sup. 
Ct.  590,  books  complete  in  themselves  and  published  at  stated  intervals 
and  in  consecutive  numbers  are  not  entitled  to  second-class  postal  rates 
under  Comp.  St.  1901,  p.  2646;  Knight  v.  Shelton,  134  Fed.  434,  deter- 
mining legality  of  adoption  of  proposed  amendment  to  Arkansas  con- 
stitution. 


1099  Notes  on  U.  S.  Reports.  105  U.  S.  696-739 

105  U.  S.  696-701,  26  L.  1213,  EX  PAETE  MASON. 

Syl.  1   (X,  336).     Habeas  corpus — Order  of  court-martial. 

Distinguished  in  United  States  v.  Praeger,  149  Fed.  485,  decision  of 
court-martial  that  questions  put  to  civilian  witness  are  proper  is  not 
conclusive  on  civil  courts  on  question  of  contempt  in  refusing  to  answer. 

Syl.  3   (X,  336).     Court-martial — Punishment. 

Approved  in  In  re  Stubbs,  133  Fed.  1015,  court-martial  may  sentence 
soldier  convicted  of  violation  sixty-second  article  of  war  to  five  years' 
imprisonment. 

105  U.  S.  701-703,  26  L.  1109,  CRANE  IRON  CO.  v.  HOAGLAND. 

Syl.  2  (X,  336).     Writ  of  error  as  supersedeas — Service. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  490,  upholding  right  of 
removal  of  criminal  case  where  defendant  discriminated  against  in 
selection  of  jury;  Cresat  v.  Cresat,  54  W.  Va.  584,  46  S.  E.  584,  date 
of  decree  as  shown  by  record  marks  time  from  which  statute  of  limita- 
tions governing  appeal  therefrom  commences  to  run. 

105  U.  S.  709-718,  26  L.  1139,  MARSH  v.  McPHERSON. 

Syl.  2  (X,  337).     Sales — Mitigation  of  damages — Acceptance  of  goods. 

Approved  in  Thomas  China  Co.  v.  C.  W.  Raymond  Co.,  135  Fed.  28, 
G7  C.  C.  A.  629,  where  contract  for  sale  of  machinery  contained  general 
warranty  of  fitness  for  purpose  intended,  and  there  is  further  agreement 
;o  replace  defective  parts,  where  part  of  machine  broke,  purchaser  could 
repair  or  replace  same  and  recover  cost  thereof  from  seller  under  genera) 
warranty. 

105  U.  S.  728-733,  26  L.  957,  COUNTY  OF  RALLS  v.  DOUGLASS.   • 

Syl.  1   (X,  337).     Bonds  issued  by  de  facto  county. 

Approved  in  Monahan  v.  Lynch,  2  Alaska,  134,  uphohling  appointment 
of  poundmaster  by  de  facto  councilmen. 

Syl.  4  (X,  338).    Bondholders'  rights — Decisions  at  issuance. 

Approved  in  Gamble  v.  Rural  etc.  School  Dist.,  146  Fed.  117,  where, 
after  issuance  of  negotiable  school  bond  fraudulently  issued  and  con- 
taining recitals  entitling  bona  fide  purchaser  to  recover  full  face  value, 
statute  passed  limiting  recovery  on  negotiable  paper  procured  by  fraud 
to  amount  paid  thereof,  such  statute  did  not  affect  subsequent  purchaser 
with  knowledge  of  fraud  from  bona  fide  holder. 

105  U.  S.  733-739,  26  L.  1220,  RALLS  COUNTY  COURT  v.  UNITED 
STATES. 

Syl.  2   (X,  339).     County  bonds  merged  in  judgment. 

Approved  in  State  v.  Board  of  Commrs.,  162  Ind.  597,  08  N.  E.  301, 
where  railroad's  right  to  receive  public  aid  previously  voted  and  for 
which  tax  levied  is  determined  by  judgment,  such  matters  are  not  attack- 
able on  mandamus;  Ward  v.  Piper,  09  Kan.  776,  77  Pac  700,  fact  that 


105  U.  S.  766-772  Notes  on  U.  S.  Keports.  1100 

interest  coupons  on  township  bonds  merged  in  judgment  does  not  affect 
right  of  holder  to  have  funds  raised  by  taxation  to  pay  interest  on  bonds 
applied  to  judgment;  Atchison  etc.  E.  K.  Co.  v.  Territory,  11  N.  M.  676, 
72  Pac.  16,  court  may  inquire  into  judgment  against  county  to  ascer- 
tain if  claim  legally  payable  out  of  taxes  sought  to  be  applied  to  it. 

Syl.  3  (X,  339).     County  bonds — Authority  to  tax  to  redeem. 

Approved  in  Eose  v.  McKie,  145  Fed.  590,  591,  authority  given  town 
by  statute  to  contract  debt  carries  vdth  it  authority  to  tax  for  payment 
of  such  debt;  City  Council  etc.  of  Denver  v.  Board  Co.  Commrs.  Adams 
Co.,  33  Colo.  7,  77  Pac.  860,  city  council,  after  service  of  alternative 
mandamus  ordering  it  to  levy  tax  for  certain  purpose,  cannot  defeat 
mandamus  by  making  annual  levy  and  omitting  therefrom  levy  it  was 
ordered  to  make. 

Syl.  4  (X,  340).    Debt  limit— Special  bond  tax. 

Approved  in  McKie  v.  Eose,  140  Fed.  148,  where  town  authorized 
by  statute  to  appropriate  certain  amount  for  construction  of  steamboat 
and  issue  notes  therefor,  it  is  no  defense  to  mandamus  to  compel  levy 
of  tax  to  pay  judgment  recovered  for  portion  of  boat  that  town  had 
issued  notes  to  limit  and  used  proceeds. 

Syl.  5   (X,  340).     Limiting  taxing  power — Contract  obligations. 

Approved  in  City  of  Ft.  Madison  v.  Ft.  Madison  Water  Co.,  134  Fed. 
216,  67  C.  C.  A.  142,  Code  Iowa  1897,  §  1305,  providing  for  assessment 
of  property  at  quarter  of  actual  value,  is  void  in  so  far  as  it  affects 
ability  of  city  to  meet  prior  contract  for  water  rentals  made  when 
property  required  to  be  assessed  at  true  cash  value. 

(X,  339.)  Miscellaneous.  Cited  in  School  Dist.  No.  1  v.  School 
Dist.  No.  7,  33  Colo.  51,  78  Pac.  692,  as  instance  of  grant  of  alternative 
mandamus  commanding  payment  from  moneys  already  raised  or  to 
levy  tax  to  raise  more. 

105  U.  S.  766-772,  26  L.  959,  UNION  PAPER  BAG  MACHINE  CO.  v. 
NIXON. 

Syl.  4  (X,  342).    No  appeal  as  to  costs  alone. 

Distinguished  in  Western  Coal  etc.  Co.  v.  Petty,  132  Fed.  606,  federal 
decree  dismissing  action  at  law  and  denying  prevailing  party  his  costs 
is  reviewable  on  error;  Nutter  v.  Brown,  58  W.  Va.  240,  52  S.  E.  90, 
1  L.  E.  A.  (N.  S.)  1083,  decree  allowing  expenses  and  compensation 
of  receiver  is  appealable. 


CVI  UNITED  STATES. 


106  U.  S.  3-4,  27  L.  73,  BOSTWICK  v.  BRINKEEHOFF. 
Syl,  1  (X,  343).  Review — Judgment  on  merits  only. 
Approved  in  The  Chief,  142  Fed.  351,  order  denying  intervening 
petition  under  admiralty  rule  43  not  final;  Heinze  v.  Butte  etc.  Min. 
Co.,  129  Fed.  340,  64  C.  C.  A.  15,  order  approving  receiver's  reports 
and  directing  payment  of  expenses  not  final;  Stahl  v.  Stahl,  220  111.  190, 
77  N.  E.  68,  decree  declaring  conveyances  fraudulent  and  referring  to 
master  for  accounting  is  final. 

106  U.  S.  5-7,  27  L.  78,  EX  PARTE  BALTIMORE  &  OHIO  R.  R. 

Syl.  1   (X,  345).     Jurisdiction — Joinder  of  decrees. 

Approved  in  The  Joseph  B.  Thomas,  148  Fed.  767,  dismissing  appeal 
as  to  several  libelants  in  admiralty  for  wages;  Feely  v.  Bryan,  55  W. 
Va.  593,  47  S.  E.  311,  rule  applied  where  several  creditors  attack  mort- 
gage as  preference. 

106  U.  S.  17-29,  27  L.  91,  THE  NORTH  STAR. 

Syl.  1   (X,  347).     Both  vessels  in  fault,  each  pays  half. 

Approved  in  Erie  etc.  Co,  v.  Erie  R.  Co.,  142  Fed.  13,  nonliability  of 
one  vessel  to  her  cargo  owners  does  not  exonerate  her  from  contribution 
to  cargo  liability  of  other;  The  C.  R.  Hoyt,  136  Fed.  C77,  holding  rule 
should  be  applied  independent  of  degree  of  fault. 

Syl..  4   (X,   348).     Admiralty — Related  cases  consolidated. 

Approved  in  Erie  etc.  Co.  v.  Erie  R.  Co.,  142  Fed.  14,  holding  damages 
should  be  apportioned  in  single  adjudication;  Betts  v.  Udited  States, 
132  Fed.  234,  65  C.  C.  A.  452,  holding  defendant  tried  on  a  number 
of  indictments  together  is  entitled  to  as  many  sets  of  pere.i-ptory  chal- 
lenges as  indictments. 

(X,  347.)  Miscellaneous.  Cited  in  Erie  etc.  Co.  v.  Erie  R.  Co.,  142  Fed, 
12,  holding  independent  libel  may  be  brought  for  contribution. 

106  U.  S.  30-38,  27  L.  65,  PHOENIX  INS.  CO.  v.  DOSTER. 

Syl.  1    (X,  348).     Withdrawing  case  from  jury. 

Approved  in  Semet-Solway  Co.  v.  Wilcox,  143  Fed.  840,  in  action  for 
breach  of  contract  of  employment,  question  of  servant's  discharge  rightly 
left  to  jury;  International  T.  Book  Co.  v.  Heartt,  136  Fed.  133,  69  C.  C. 
A.  127,  holding  action  for  slander  should  have  been  taken  from  jury; 
Neeley  v.  Southwestern  etc.  Oil  Co.,  13  Okl.  362,  75  Pac.  539,  64  L,  R.  A. 
145,  holding,  in  action  for  personal  injuries,  questions  of  negligence 
and  contributory  negligence  improperly  withdrawn  from  jury;  Woolf  v. 

XI  in  1 J 


106  U.  S.  47-108  Notes  on  U.  S.  Reports.  1102 

Washington  etc.  Nav.  Co.,  37  Wash.  503,  79  Pac.  999,  reversing  verdict 
of  jury  and  holding  one  killed  in  crossing  railroad  tracks  guilty  of  con- 
tributory negligence. 

Syl.  2  (X,  349).     Waiver — Customarily  receiving  overdue  premiums. 

Approved  in  Rutherford  v.  Prudential  Ins.  Co.,  34  Ind.  App.  540,  73 
N.  E.  205,  holding  no  forfeiture  where  agent  failed  to  call  for  pre- 
mium; Aetna  Life  Ins.  Co.  v.  Fallow,  110  Tenn.  729,  77  S.  W.  930,  rule 
applied  where  accident  insurance  premium  was  paid  after  accident. 
See  notes,  107  Am.  St.  Rep.  106;  107  Am.  St.  Rep.  145. 

Syl.   3    (X,   350).     Courts  liberal  to  avoid  forfeitures. 

Approved  in  Washburn  v.  Union  etc.  Ins.  Co.,  143  Ala.  489,  38  So.  1012, 
retention  of  overdue  premium  note  and  insistence  on  payment  held 
waiver. 

Syl.  4   (X,  350).     Insurance — Notice — Time  to  pay  premium. 

Distinguished  in  Leonhard  v.  Provident  etc.  Soc,  130  Fed.  291,  64 
C.  C.  A.  533,  holding  giving  of  notice  useless  where  policy  was  sur- 
rendered. 

106  U.  S.  47-85,  27  L.  47,  CHICAGO  ETC.  R.  R.  v.  FOSDICK. 

Syl.  8  (X,  353).     Mortgage- — Request  must  precede  foreclosure. 
Approved  in  Cochran  v.  Pittsburg  etc.  R.  Co.,  150  Fed.  682,  reaffirm- 
ing rule. 

(X,  351.)  Miscellaneous.  Cited  in  Hill  v.  Denton,  74  Ark.  466,  86  S. 
W.  404,  sale  under  foreclosure  decree  devests  trustor  of  all   interest. 

106  U.  S.  89-95,  27  L.  79,  COTTON-TIE  CO.  v.  SIMMONS. 

Syl.   1    (X,   355).     Patents— Using   old  parts. 

Approved  in  National  Cash  Reg.  Co.  v.  Grobet,  148  Fed.  387,  holding 
adding  patented  printing  debase  to  cash  register  no  infringeilient ; 
Wagner  Typewriter  Co.  v.  Webster  Co.,  144  Fed.  411,  holding  replacing 
tyjiewriter  spool  not  reconstruction  and  no  infringement ;  Morrin  v. 
Robert  etc.  Works,  138  Fed.  76,  refitting  tubes  in  steam  generator  held 
reconstruction   and   infringement. 

Syl.  2  (X,  355).     Patented  parts  may  be  replaced. 
Approved  in  Wagner   Typewriter  Co.   v.  Webster   Co.,   144  Fed.   412, 
holding   typewriter  ribbon  and  spool  may   be  replaced. 

Svl.  3   (X,  356).     Contributory  infringement — Vendor. 
Approved  in  Cortelyou  v.  Chas.   Enen  Johnson  &  Co.,   138   Fed.   117, 
holding  notice   on  rotary   neostyle  of   restrictive  use   binds   purchaser. 

106  U.  S.  99-108,  27     L.  69,  BACON  v.  RIVES. 

Syl.  1    (X,  356).     Nominal  party  does  not  prevent  removal. 

Approved  in  Cella  v.  Brown,  136  Fed.  442,  reaffirming  rule;  Boatmen's 
Bank  v.  Fritzlen,  135  Fed.  658,  68  C.  C.  A.  288.  rule  applied  holding 
prior   mortgagee   not   necessary   party   to   suit   to    foreclose  junior   mort- 


1103  Notes  on  U.  S.  Eeports.  106  U.  S.  118-141 

gage;  Groel  v.  United  Elec.  Co.,  132  Fed.  254,  in  action  by  stockholder 
on  behalf  of  corporation,  corporation  is  necessary  party. 

Syl.  3  (X,  357).     Statute  runs  against  disavowed  trusts. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  42,  66  Pac.  565,  55  L.  R. 
A.  670,  rule  applied  to  verbal  promise  to  share  profits  of  mining  claims. 

(X,  356.)  Miscellaneous.  Cited  in  Murray  v.  Farrell,  2  Alaska,  363, 
law  of  forum  governs  unless  statute  provides  otherwise. 

106  U.  S.  118-123,  27  L.  87,  STEAMSHIP  CO.  v.  TUGMAN. 

Syl.  1    (X,  358).     Jurisdiction — Eesidence  of  corporation. 

Approved  in  Thomas  v.  Board  of  Trustees,  195  U.  S.  210,  49  L.  164,  25 
Sup.  Ct.  24,  holding  board  of  university  trustees  created  by  special 
legislative   act    not   a    corporation. 

Syl.  3  (X,  359).     Filing  petition  and  bond  removal  complete. 

Approved  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  653,  68  C.  C.  A. 
288,  reaffirming  rule;  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co., 
196  U.  S.  245,  49  L.  464,  25  Sup.  Ct.  251,  eminent  domain  action  under 
state  statute  is  removable;  Chicago  etc.  Ey.  Co.  v.  Stone,  70  Kan.  709,  79 
Pac.  655,  amended  petition  demanding  less  than  $2,000  does  not  prevent 
removal. 

Distinguished  in  Corporation  Commission  v.  Eailroad  Co.,  135  X.  C. 
81,  47  S.  E.  232,  holding  pleading  does  not  show  statutory  amount. 

Syl.  4  (X,  301).     Eemoval — Compelled  defense  no  waiver. 
Approved  in  Illinois  etc.  E.  E.  Co.  v.  Whitworth,  115  Ky.  292,  73  S.  W. 
768,  holding  [ileading  under  protest  no  waiver. 

106  U.  S.  124-141,  27  L.  104,  PEITCHAED  v.  NOETOX. 

Syl.  3   (X,  361).     Law  incorporated  in  contract  controls. 

Approved  in  Supreme  Lodge,  Knights  of  Pythias  v.  Meyer,  198  L^.  S. 
517,  49  L.  1149,  25  Sup.  Ct.  754,  Dowagie  Mfg.  Co.  v.  Lochren,  143  Fed. 
216,  and  Perry  v.  Eubber  Tire  Wheel  Co.,  138  Fed.  837,  all  holding  lex 
fori  governs  right  to  compel  witness  to  answer;  Anglo-American  etc. 
Co.  V.  Wood,  143  Fed.  6S4,  as  to  what  actions  against  stockholders  may 
be  united,  lex  fori  controls;  Midland  etc.  Co.  v.  Solomon,  71  Kan.  187, 
79  Pac.  1078,  applying  rule  to  express  stipulation  that  bond  be  governed 
by  law  of  another  state;  Creston  Nat.  Bank  v.  Salmon,  117  Mo.  App. 
513,  93  S.  W.  289,  allowing  equitable  defenses  to  promissory  note  after 
negotiation,  lex  loci  contractus  controls;  Seely  v.  Manhattan  etc.  Ins.  Co., 
72  X.  H.  56,  55  Atl.  427,  lex  fori  controls  admissibility  of  affidavit  of 
mailing  notice  of  insurance  premiums  unpaid;  Clark  v.  Eltinge,  38 
Wash.  382,  383,  107  Am.  St.  Eep.  858,  80  Pac.  559,  applying  rule  to  stat- 
utory exemptions  of  wife. 

Syl.  4  (X,  363).     Eight  of  action  is  property. 

Approved  in  Merchants'  Xat.  Bank  v.  East  Crand  Forks,  94  Minn. 
25U,  102  X.  W.  704,  upholding  act  of  legislature  curing  delects  'ui  con- 


106  U.  S.  142-162  Notes  on  U.  S.  Eeports.  1104 

tracts  for  street  work;  Kingsley  v.  Merrill,  122  Wis.  192,  99  N.  W.  1046, 
67  L.  K.  A.  203,  holding  mortgages  and  notes  of  solvent  debtor's  taxable 
property. 

Syl.  7  (X,  364).     Construction — Law  upholding  contract. 

Approved  in  Home  Land  etc.  Co.  v.  McNamafa,  145  Fed.  19,  that  one 
jurisdiction  upholds  provision  for  liquidated  damages  not  enough  to 
control;  Davis  v.  Tandy,  107  Mo.  App.  448,  81  S.  W.  460,  applying  rule 
to  note  usurious  under  laws  of  one  state. 

(X,  361.)  Miscellaneous.  Cited  in  United  States  v.  Milwaukee  etc.  Co,. 
145  Fed.  1007,  question  whether  assignee  can  sue  in  his  own  name  cannot 
be  raised  by  plea  in  bar  after  trial. 

106  U.  S.  142-147,  27  L.  110,  WING  v.  ANTHONY. 

Syl.   1    (X,   364).     Patent — Reissue   differing   from  original. 

Approved  in  Cleveland  etc.  Co.  v.  Detroit  etc.  Co.,  131  Fed.  744,  where 
original  application  for  gas-burner  is  for  mechanism  only,  subsequent 
process  claim  void. 

106  U.  S.  147-154,  27  L.  85,  JESSUP  v.  UNITED  STATES. 

Syl.  3   (X,  364).     Validity  of  bond  not  required  by  statute. 

Approved  in  Commissioners  of  Logan  Co.  v.  Harvey,  6  Okl.  632,  52 
Pac.  403,  bond  of  register  of  deeds,  not  required  by  statute,  is  void 
R-here  extorted. 

106  U.  S.  154-160,  27  L.  149,  THE  NEVADA. 

Syl.  4  (X,  365).     Negligence — Oceqn  steamer. 

Approved  in  Quinette  v.  Bisso,  136  Fed.  832,  69  C.  C.  A.  825,  steam 
tug  traversing  thickly  settled  river  in  a  fog  must  slow  down. 

Sj'l.  5   (X,  365).     Collision — Insufficient  lookout. 

Approved  in  New  York  &  Oriental  etc.  Co.  v.  New  York  etc.  Co., 
143  Fed.  994,  holding  if  duty  of  one  lookout  compelled  him  to  watch 
piers,  there  should  have  been  another. 

(X,  365.)  Miscellaneous.  Cited  in  The  North  Star,  132  Fed.  147,  to 
effect  that  suction  may  cause  collision. 

106  U.  S.  100-162,  26  L.  128,  UNITED  STATES  v.  ABATOIR  PLACE. 

Syl.   1    (X,  366).     Eeview — Seizure — Certificate   reasonable   cause. 

Approved  in  United  States  v.  83  Sacks  of  Wood,  147  Fed.  749,  dis- 
trict court  should  not  grant  certificate  unless  clearly  warranted  by 
evidence;  Ag-new  v.  Haymes,  141  Fed.  637,  holding  Eev.  St.,  §  970,  not 
in  conflict  with  Eev.  St.,  §  989;  Anglo-American  etc.  Co.  v.  Cheshire 
Prov.  Inst.,  134  Fed.  155,  revoking  order  staying  execution  because 
possibly  not  reviewable. 


1105  Notes  on  U.  S.  Eeports.  106  U.  S.  163-195 

lOG  U.  S.  163-1G6,  26  L.  129,  MASON  v.  NOETHWESTERN  INS.  CO. 

Syl.  1   (X,  366).     Mortgages — Equity  of  redemption. 

Approved  in  Logan  Co.  v.  McKinley  etc.  Trust  Co.,  70  Neb.  414,  101 
N.  W.  993,  right  to  redemption  exists  from  judicial  tax  sale. 

106  U.  S.  166-178,  27  L.  134,  CLOUGH  v.  BARKER. 

Syl.  1  (X,  366).     Patents— Oil-burners. 

Approved  in  Cleveland  Foundry  Co.  v.  Kauffman,  13.5  Fed.  362,  6S 
C.  C.  A.  658,  upholding  Jeavous  oil-burner  as  employing  new  method 
of  dislodgment. 

Syl.  2  (X,  366).     Patents — Accidental  anticipation. 

Apiiroved  in  United  Shirt  &  Collar  Co.  v.  Beattic,  149  Fed.  740, 
ujiholding  patent  for  successful  machine  for  folding  cuff  edges  in 
spite  of  prior  unsuccessful  macliine;  Cliisholm  v.  Fleming,  133  Fed. 
O.'IO,  apjilying  rule  to  macliine  for  hulling  peas  on  the  vines;  Petti- 
bone  V.  Pennsylvania  Steel  Co.,  133  Fed.  738,  applying  rule  to  pat- 
ent for  railroad  switch-stand. 

Distinguished  in  American  Sales  Booli  Co.  v.  Carter-Crume  Co.,  150 
Fed.  336,  Beck  patent  No.  647,934,  for  mauifolding  sulesbook  and  holder, 
was  anticipated. 

lOG  U.  S.  183-187,  27  L.  90,  SCHOOL  DISTRICT  v.  STONE. 

Syl.  2   (X,  368).     Municipalities — Estoppel  to  contest  bonds. 

Approved  in  Piatt  v.  Hitchcock  Co.,  139  Fed.  933,  applying  rule 
to  precinct  bonds  issued  by  board  of  county  commissioners  in  Ne- 
braska. 

Syl.  3  (X,  368).     Municipalities — Estoppel — Express  recital. 

Approved  in  Green  Co.  v.  Shortell,  116  Ky.  126,  75  S.  W.  254,  ap- 
plying rule  to  bonds  issued  by  county  in  subscription  to  railroad 
stock  containing  no  recitals  of  preliminary  requisites;  Graves  v.  Com- 
missioners, 135  N.  C.  56,  47  S.  E.  136,  applying  rule  to  township 
bonds  in  aid  of  railroad  containing  no  recitals  of  regularity. 

106  U.  S.  188-190,  27  L.  156,  SCHWED  v.  SMITH. 

Syl.  1  (X,  369).     Appeal — .lurisdictional  amount — Separate  claims. 

Approved  in  Feely  v.  Bryan,  55  W.  Va.  591,  595,  47  S.  E.  310,  312, 
applying  rule  to  several  creditors  attacking  a  mortgage  as  a  prefer- 
ence. 

106  U.  S.  191-195,  27  L.  131,  FRASER  v.  JEMISON, 

Syl.  2    (X,  370).     Removal  of  causes — Separate   controversy. 

Approved  in  Perkins  v.  Lake  Superior  etc.  Ry.  Co.,  140  Fed.  910, 

in    railroad   condemnation   proceedings,   diverse    citizenship    of    owner 

of  one  piece  of  land  no  ground  for  removal;  Boatmen's  Bank  v.  Fritz- 

)en,  135  Fed.  663,  68  C.  C.  A.  288,  action  to  avoid  prior   mortgagea 

70 


IOC  U.  S.  196-251  Notes  on  U.  S.  Kcportg.  1106 

for  fraud  and  action  to  foreclose  junior  mortgage  separable;  Groel 
V.  United  States,  132  Fed.  254,  in  suit  in  equity  by  stockholder  of 
New  Jersey  corporation,  corporation  should  be  classed  as  a  defendant 
and  removal  refused;  Laden  v.  Meek,  130  Fed.  879,  65  C.  C.  A.  361, 
in  action  for  specific  performance  of  contract  of  sale  of  land  the  al- 
legation of  diverse  citizenship  insufficient. 

106  U.  S.  196-251,  27  L.  171,  UNITED  STATES  v.  LEE. 

Syl.  4  (X,  371).     Useless  tender  unnecessary. 

Approved  in  Memphis  City  Bank  v.  Smith,  110  Tenn.  355,  75  S.  W. 
1070,  refusal  by  bank  to  surrender  pledged  property  except  on  pay- 
ment of  other  unsecured  debts  waives  necessity  for  tender. 

Syl.  7  (X,  372).     Sovereignty  not  suable  without  consent. 

Approved  in  State  v.  Mortensen,  69  Neb.  385,  95  N.  W.  834,  deny- 
ing mandamus  to  compel  state  board  of  public  buildings  to  perform 
contract  for  hiring  convict  labor.     See  108  Am.  St.  Eep.  832,  note. 

Sy^.  9  (X,  374).     Ejectment  against  federal  officer. 

Approved  in  Burton  v.  United  States,  202  U.  S.  368,  50  L.  1066, 
26  Sup.  Ct.  688,  upholding  enactment  making  it  a  misdemeanor  for 
United  States  senator  to  receive  compensation;  Wadsworth  v.  Boy- 
sen,  148  Fed.  780,  applying  rule  to  injunction  against  Indian  agent 
from  obstructing  prospector  on  reservation;  Eosenberger  v.  Harris, 
J3(j  Fed.  1003,  granting  injunction  pendente  lite  restraining  "fraud 
order"  of  postoffice  department  classing  advertising  scheme  as  a 
lottery;  O'Reilly  De  Caraara  v.  Brooke,  135  Fed.  388,  holding  military 
governor  of  Cuba  not  exempt  from  liability  for  tort  committed  un- 
der his  civil  administration;  Kirk  v.  United  States,  131  Fed.  339,  ac- 
tion to  enjoin  United  States  and  marshal  frona  unlawful  seizure,  dis- 
missed as  to  United  States,  granted  as  to  marshal;  dissenting  opinion 
in  International  Postal  Supply  Co.  v.  Bruce,  194  U.  S.  608,  612,  48 
L.  1138,  1140,  24  Sup.  Ct.  820,  majority  holding  postmaster  cannot  be  en- 
joined from  using  patented  stamp-canceling  machine.  See  108  Am. 
St.  Eep.  835,  839,  notes. 

Distinguished  in  International  Postal  Supply  Co.  v.  Bruce,  194  U. 
S.  605,  48  L.  1137,  24  Sup.  Ct.  820,  holding  United  States  postmaster 
cannot  be  enjoined  from  using  patented  stamp-canceling  machines ; 
Sanders  v.  Saxton,  182  N.  Y.  479,  481,  108  Am.  St.  Eep.  826,  75  N. 
E.  529,  530,  in  suit  against  officer  to  cancel  tax  deed  and  quiet  title 
against  state,  the  state  held  real  party  in  interest  and  rights  to  sue 
denied. 

Syl.  10  (X,  374).     Government  not  bound  by  suit  against  officer. 

Approved  in  Sanders  v.  Saxton,  182  N.  Y.  480,  108  Am.  St.  Eep.- 
826,  75  N.  E.  530,  suit  against  officer  to  cancel  tax  deed  is  suit  against 
state. 


1107  Notes  on  U.  S.  Eeports.  106  U.  S.  252-285 

(X,  371.)  Miscellaneous.  Cited  in  Northern  Securities  Co.  ▼. 
United  States,  193  U.  S.  350,  48  L.  706,  24  Sup.  Ct.  436,  upholding 
power  of  Congress  to  regulate  interstate  commerce. 

IOC  U.  S.  252-255,  27  L.  145,  RICHARDSON  v.  HARDWICK. 

Syl.  1  (X,  375).     Parol  evidence  to  vary  writing. 

Approved  in  Farnham  Co.  v.  Southeastern  Const.  Co.,  144  Fed.  990, 
parol  agreement  to  transfer  stock  in  consideration  of  promises  con- 
tained in  written  contract  held  inadmissible;  Standiford  v.  Thomp- 
son, 135  Fed.  998,  68  C.  C.  A,  425,  construing  instrument  as  option 
to  purchase  coal  lands  and  refusing  to  decree  specific  performance; 
Lillard  v.  Kentucky  Distilleries  etc.  Co.,  134  Fed.  182,  67  C.  C.  A. 
74,  cited  in  opinion  of  court  below,  reversed,  court  above  holding 
evidence  of  usage  and  custom  admissible. 

Syl.  2  (X,  375).     Option  vests  no  present  estate. 

Approved  in  Phcnix  Ins.  Co.  v.  Kerr,  129  Fed.  727,  64  C.  C.  A. 
251,  66  L.  R.  A.  569,  option  gives  sole  and  unconditional  owner  with- 
in meaning  of  fire  insurance  policy;  Sheehy  v.  Scott,  12S  Iowa,  556, 
104  N.  W.  1141,  holding  interest  of  vendor  subject  to  attachment 
prior  to  execution  of  deed. 

Syl.  3   (X,  375).     Option,  when  binding — Consideration. 

Ap])roved  in  Kirby-Carpenter  Co.  v.  Burnett,  144  Fed.  637,  option 
to  purchase  land,  without  consideration,  unenforceable. 

106  U.  S.  260-264,  27  L.  147,  WALLACE  v.  PEXFIELD. 

Syl.  1  (X,  376).     Gift  to  wife  not  fraudulent. 

Approved  in  Savage  v.  Savage,  141  Fed.  350,  gift  to  wife  made 
while  solvent  good  against  subsequent  creditors  in  bankruptcy. 

100   U.  S.   265-271,  27   L.   115,  FARMERS'   LOAN  &   TRUST   CO.   v. 
WATERMAN. 

Syl.  2   (X,  377).     Appeal — Jurisdictional  amount — Joinder. 

Approved  in  Feily  v.  Bryan,  55  W.  Va.  592,  47  S.  E.  310,  apply- 
ing rule  to  several  creditors  attacking  mortgage  as  a  preference. 

106  U.  S.  272-285,  27  L.  196,  FINK  v.  O'NEIL. 

Svl.  1  (X,  378).     Government  bound  by  homestead  exemption. 

Approved  in  dissenting  opinion  in  State  v.  Marsh,  134  N.  C.  192. 
47  S.  E.  9,  67  L.  R.  A.  179,  majority  holding  state  can  correct  fatally 
defective  indictment  after  close  of  term.  See  101  Am.  St.  Rep.  151, 
182,  notes. 


106  U.  S.  2S6-360  Notes  on  U.  S.  Eeports.  1108 

106  U.  S.  286-314,  27  L.  117,  MILTENBEEGEE  v.  LOGANSPOET 
EY. 

Syl.  6  (X,  380).  Eailroads — Preserving  expenses  precede  mort- 
gage. 

Approved  in  In  re  Erie  Lumber  Co.,  150  Fed.  828,  applying  rule 
and  granting  priority  to  receiver's  certificates  for  operating  expenses 
of  sawmill;  Cunningham  v.  Zinc  etc.  Min.  Co.,  103  Mo.  App.  400,  76 
S.  W.  4S8,  holding  labor  claims  entitled  to  priority  in  receivership 
of  mining  corporation;  People's  Nat.  Bank  v.  Virginia  etc.  Co.,  104 
Va.  37,  51  S.  E.  156,  applying  rule  and  allowing  priority  to  operat- 
ing expenses  of  receiver  of  textile  factory;  dissenting  opinion  in 
Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  192,  193,  195,  196,  49  L. 
720,  721,  25  Sup.  Ct.  415,  majority  holding  supplies  for  preservation 
of  road  but  not  necessary  for  business  have  no  priority. 

Distinguished  in  Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  187, 
49  L.  718,  25  Sup.  Ct.  415,  holding  supplies  for  preservation  but  not 
necessary  for  business  of  road  have  no  priority;  Security  Trust  Co. 
V.  Goble  E.  Co.,  44  Or.  374,  74  Pac.  921,  holding  services  and  sup- 
plies not  furnished  in  furtherance  of  railroad  business. 

106  U.  S.  327-337,  27  L.  151,  UNITED  STATES  v.  EEIE  EY.  CO. 

Syl.  1  (X,  383).     Assessment  of  foreign  bondholders. 

Approved  in  Metropolitan  Life  Ins.  Co.  v.  Board  of  Assessors,  115 
La.  706,  39  So.  849,  holding  Act  No.  170  of  1898,  making  bills  re- 
ceivable due  nonresidents  assessable,  is  not  unconstitutional. 

106  U.  S.  350-360,  27  L.  222,  ST.  CLAIE  v.  COX. 

Syl.  2  (X,  386).     Process — Agent  of  foreign  corporation. 

Approved  in  Kibbler  v.  St.  Louis  etc.  E.  Co.,  147  Fed.  881,  denying 
jurisdiction  over  foreign  corporation  not  having  agent  within  judi- 
cial district ;  Cella  Com.  Co.  v.  Bohlinger,  147  Fed.  422,  holding  ser- 
vice of  summons  on  state  auditor  for  foreign  corporation  not  due 
process  of  law;  Wilson  v.  American  Palace  Car  Co.,  65  N.  J.  Eq. 
734,  55  Atl.  998,  holding  court  without  jurisdiction  over  foreign  cor- 
poration not  personally  served. 

Syl.   3    (X,   386).     Foreign   corporations — Eeasonable    restrictions. 

Approved  in  Old  Wayne  etc.  Assn.  v.  McDonough,  164  Ind.  328, 
73  N.  E.  705,  upholding  statute  requiring  foreign  insurance  corpora- 
tion to  stipulate  that  service  may  be  made  on  commissioner;  Bruning 
V.  Brotherhood  Ace.  Co.,  191  Mass.  116,  77  N.  E.  711,  upholding  stat- 
ute permitting  service  on  foreign  insurance  corporation  to  be  made 
upon  state  auditor;  Groel  v.  United  Elec.  Co.,  69  N.  J.  Eq.  411,  412, 
60  Atl.  827,  upholding  jurisdiction  over  foreign  corporation  on 
service  on  its  process  agent;  Hunter  v.  Mutual  Eeserve  etc.  Ins.  Co., 
184  N.  Y.  144,  76  N.  E.  1074,  holding  statutory  power  of  attorney  to 


1109  Notes  on  U.  S.  Eeports.  106  U.  S.  350-360 

insurance  commissioner  irrevocable  only  while  foreign  corporation 
continues  doing  business;  dissenting  opinion  in  Security  etc.  Ins.  Co. 
V.  Prewitt,  202  U.  S.  261,  50  L.  1020,  26  Sup.  Ct.  619,  majority  hold- 
ing state  may  revoke  license  of  foreign  insurance  company  for  re- 
moving cause  to  federal  court. 

Syl.  5  (X,  387).     Process — Agent  of  foreign  corporation. 

Approved  in  Pennsylvania  etc.  Ins.  Co.  v.  Meyer,  197  U.  S.  413,  49 
L.  814,  25  Sup.  Ct.  483,  foreign  insurance  company  sending  loss  ad- 
justers into  state  is  "doing  business"  there;  Kibbler  v.  St.  Louis 
etc.  E.  Co.,  147  Fed.  882,  holding  foreign  corporation  not  suable  in 
federal  court  where  county  of  resident  agent  is  in  another  district; 
Buffalo  Glass  Co.  v.  Manufacturers'  Glass  Co.,  142  Fed.  274,  vacat- 
ing process  on  foreign  corporation  without  place  of  business  where 
served  on  president  temporarily  within  state;  Buffalo  etc.  Brick  Co. 
V.  American  etc.  Mach.  Co.,  141  Fed.  212^  setting  aside  serwe  and 
summons  on  foreign  corporation  not  doing  business  in  state  made  on 
president  temporarily  within  state;  Johnson  v.  Computing  Scale  Co., 
139  Fed.  340,  service  on  officer  of  foreign  corporation  casually  within 
state  void;  Brush  Creek  etc.  Co.  v.  Morgan  G.  etc.  Co.,  136  Fed.  506, 
507,  service  on  officer  of  foreign  corporation  within  state  to  adjust 
difference  with  plaintiff  is  good;  Wells  v.  Clark,  136  Fed.  465,  hold- 
ing rightful  jurisdiction  of  state  court  cannot  be  lost  by  removal  to 
federal  court;  Jameson  v,  Simonds  Saw  Co.,  2  Cal.  App.  585,  84  Pac. 
290,  single  transaction  is  not  "doing  business"  so  as  to  authorize 
service  on  foreign  corporation;  Eeeves  v.  Southern  Ey.  Co.,  121  Ga. 
565,  49  S.  E.  676,  following  rule  and  holding  immaterial  whether  ac- 
tion originated  without  state;  Williams  v.  Metropolitan  etc.  Ey.  Co., 
68  Kan.  21,  74  Pac.  602,  64  L.  E.  A.  794,  foreign  corporation  is 
"out  of  the  state"  and  cannot  avail  itself  of  statute  of  limitations; 
Zelnicker  Supply  Co.  v.  Cotton  Oil  Co.,  103  Mo.  App.  97,  77  S.  W. 
322,  holding  service  void  on  president  of  foreign  corporation  not 
doing  business  in  state;  Territory  v.  Baker,  12  N.  M.  459,  78  Pac. 
625,  denying  jurisdiction  over  foreign  corporation  not  doing  busi- 
ness in  state  on  service  on  president  while  passing  on  train;  Berger 
V.  Pennsylvania  E.  E.  Co.,  27  E.  I.  585,  65  Atl.  262,  solicitation  of 
business  by  agents  of  foreign  corporation  is  not  "doing  business" 
within  the  state. 

Distinguished  in  Groel  v.  United  Elec.  Co.,  69  N.  J.  Eq.  422,  60 
Atl.  831,  upholding  P.  L.  1896,  p.  307,  relating  to  appointment  of 
process  agent  by  foreign  corporation. 

Syl.  6  (X,  389).     Foreign  corporations — Eecord  of  service. 

Approved  in  Jackson  v.  Delaware  etc.  Co.,  131  Fed.  134,  holding 
marshal's  return  insufficient  which  does  not  show  corporation  was 
doing  business  in  state;  Scott  v.  Stockholders  Oil  Co.,  129  Fed.  617, 
princi[)al  case  referred  to  as  stating  rule  as  to  wiint  must  ap[iear 
on  record;   Hilbebrand  v.   United  Artisans,  46  Or.   139,  79   Pac.   349, 


106  U.  S.  360-399  Notes  on  U.  S.  Eeports.  1110 

holding  record  of  service  on  foreign  corporation  insufficient  where 
complaint  fails  to  show  where  action  accrued;  In  re  Box's  Will,  127 
Wis.  270,  106  N.  W.  1065,  denying  jurisdiction  to  admit  foreign  will 
to  probate  where  record  of  original  probate  deficient. 

106  U.  S.  360-370,  27  L.  201,  VAN  WYCK  v.  KNEVALS. 

Syl.  2   (X,  390).     Kailroad  grant  prevents  state  grant. 

Approved  in  Knepper  v.  Sands,  194  U.  S.  481,  48  L.  1084,  24  Sup. 
<^t.  744,  holding  title  in  state  as  trustee  until  it  disposes  of  land; 
Tascaden  v.  Dunbar,  2  Alaska,  412,  locator  of  mining  claim  gains 
present  title  which  can  be  defeated  only  by  subsequent  failure  to 
comply  with  statute. 

Syl.  3  (X,  390).     Filing  definite  location  fixes  route. 
Approved  in  Eastern  Or.  L.  Co.  v.  Brosnan,  147  Fed.  812,  applying 
rule   to   military  wagon   road. 

106  U.  S.  371-379,  27  L.  232,  EX  PARTE  CURTIS. 

Syl.  2   (X,  393).     Congress  may  prohibit  political  donations. 
Approved  in  Fox  v.  Willis,  114  Ky.  947,  72  S.  W.  332,  minister  to 

foreign   country   cannot   collect   fee   for   services   in   prosecuting   claims 

against  government. 

Syl.  4  (X,  393).     Habeas  corpus — What  reviewable. 

Approved  in  Cuyler  v.  Atlantic  etc.  R.  Co.,  131  Fed.  99,  discharg- 
ing defendant  on  habeas  corpus  where  judgment  of  contempt  exceeded 
jurisdiction  of  court. 

106  U.  S.  379-390,  27  L.  157,  GEEKIE  v.  KIRBY  CARPENTER  CO. 

Syl.  2  (X,  393).     Tax  deed— Statutory  limitations. 

Approved  in  Simoneaux  v.  White  Castle  Lumber  etc.  Co.,  112  La. 
224,  36  So.  329,  lapse  of  statutory  period  cures  failure  of  tax  col- 
lector  to    offer   part   before   whole. 

106  U.  S.   391-395,  27   L.   219,  LANSDALE   v.   SMITH. 

Syl.  1  (X,  394).     Equity  refuses  relief  for  laches. 

Approved  in  Tliurmond  v.  Chesapeake  etc.  Ry.  Co.,  140  Fed.  699, 
sustaining  demurrer  to  bill  to  enforce  specific  performance  for  laches; 
Cole  V.  Birmingham  Union  Ry.  Co.,  143  Ala.  434,  39  So.  405,  holding 
stockholder's  suit  to  set  aside  ultra  vires  transfer  barred  by  laches; 
Patterson  v.  Hewitt,  11  N.  M.  23,  42,  66  Pac.  558,  654,  55  L.  R.  A.  658, 
holding  action  to  enforce  trust  in  mine  barred  by  laches. 

106  U.  S.  395-399,  27  L.  60,  KING  v.  CORNELL. 

Syl.  1   (X,  396).     Statute — Repeal  by  implication. 

Approved  in  Pratt  Institute  v.  City  of  New  York,  183  N.  Y.  157, 
75  N.  E.  1121,  holding  general  tax  law  exempting  educational  in- 
stitutions repeals  special  exempting  act. 


1111  Notes  on  U.  S.  Eeports.  106  U.  S.  399-437 

Syl.  2   (X,  397).     Removal  of  causes — Alien  defendants. 

Approved  in  O 'Conor  v.  Texas,  202  U.  S.  507,  50  L.  1126,  26  Sup. 
Ct.  726,  reaffirming  rule;  Iowa  etc.  Min.  Co.  v.  Bliss,  144  Fed.  457, 
liolding  action  against  guaranty  company  separable  from  action  against 
principal  and  removable;  Laden  v.  Meek,  130  Fed.  879,  65  C.  C.  A. 
361,  petition  for  removal  must  show  that  each  party  is  citizen  of 
some  state. 

106  U.  S.  399-408,  27  L.  245,  IIEillNGWAY  v.  STANSELL. 

Syl.  1  (X,  398).     Action — Change  in  municipal  officers. 

Approved  in  State  v.  Woodruff,  83  Miss.  114,  36  So.  80,  holding 
under  Laws  1876,  p.  174,  auditor  and  treasurer  can  be  sued  as  suc- 
cessors of  levee   commissioners. 

106  U.  S.  408-413,  27  L.  169,  HODGES  v.  EASTON. 

Syl.   3    (X,   399).     Waiver   of   jury   not   presumed. 

Approved  in  Swift  &  Co.  v.  Jones,  145  Fed.  492,  holding  circuit 
court  had  no  power  to  refer  issues  of  fact  in  case  at  common  law 
to  master;  Allen  v.  Parmalee,  142  Fed.  363,  reversing  directed  ver- 
dict in  trespass  to  try  title  and  remanding  to  jury;  Chessman  v. 
Hale,  31  Mont.  591,  79  Pac.  258,  holding  right  to  jury  not  waived  in 
action  for  damages  and  injunction. 

106  U.  S.  429-432,  27  L.  237,  GRANT  v.  PHOENIX  INS.  CO. 

Syl.  1  (X,  400).     Appeal — What  is  final  decree. 

Approved  in  Norris  Safe  &  Lock  Co.  v.  Manganese  etc.  Co.,  150 
Fed.  578,  order  requiring  payment  of  money  into  court  not  final; 
Stahl  V.  Stahl,  220  111.  190,  77  N.  E.  68,  holding  decree  that  certain 
conveyances  absolute  in  form  are  in  trust  and  referring  to  master 
for  accounting  is  final. 

106    U.    S.    432-437,    27    L.    230,    WOODENWAEE    CO.    v.    UNITED 
STATES. 

Syl.  1   (X,  401).     Damages  for  removal  of  timber. 

Approved  in  United  States  v.  Coughanour,  133  Fed.  225,  66  C.  C.  A. 
278,  reaffirming  rule;  United  States  v.  Bitter  Root  etc.  Co.,  133  Fed. 
278,  66  C.  C.  A.  652,  sustaining  demurrer  to  bill  in  equity  for  damages 
for  removing  timber,  remedy  existing  at  law;  Trustees  Dartmouth  Col. 
V.  International  etc.  Co.,  132  Fed.  95,  106.  holding,  where  trespass 
not  willful,  measure  of  damages  is  stumpage  value  at  time  of  cut- 
ting; Anderson  v.  Besser,  131  Mich.  486,  91  N.  W.  739,  and  Texas  etc.  Ry. 
Co.  V.  .Tones,  34  Tex.  Civ.  95,  77  S.  W.  956,  both  applying  rule  for 
measure  of  damage  where  timber  cut  by  trespasser  in  good  faith; 
Peyton  v.  Desmond,  129  Fed.  7,  63  C.  Ct  A.  651,  arguendo. 


106  U.  S.  437-457  Notes  on  U.  S.  Eeports.  1112 

106  U.  S.  437-445,  27  L.  208,  MINTUEN  v.  UNITED  STATES. 

Syl.   2    (X,   403).     Negligence — Officers   of   government. 

Approved  in  United  States  v.  Guest,  143  Fed.  458,  surety  on  dis- 
tiller's bond  not  relieved  from  tax  on  lost  spirits  though  loss  caused  by 
negligence  of  collector. 

106  U.  S.  447-457,  27  L.  226,  STEEL  v.  SMELTING  CO. 

Syl.  3   (X,  404).     Land  patent— Collateral  attack. 

Approved  in  Brown  v.  Gurney,  201  U.  S.  193,  50  L.  722,  26  Sup. 
Ct.  509,  rulicgs  of  Land  Department  on  lode  mining  claim  not  sub- 
ject to  collateral  attack  after  final  entry;  Le  Marchel  v.  Teegarden, 
133  Fed.  827,  holding  one  seeking  to  attack  patents  must  plead  and 
prove  evidence  from  which  mistake  resulted;  Peyton  v.  Desmond, 
129  Fed.  9,  63  C.  C.  A.  651,  proceedings  leading  to  patent  cannot  be 
reviewed;  Gurney  v.  Brown,  32  Colo.  480,  77  Pac.  359,  judgment  of 
Land  Department  on  adverse  claims  to  mining  location  cannot  be 
collaterally  attacked;  Quinn  v.  Baldwin  Star  Coal  Co.,  19  Colo.  App. 
506,  76  Pac.  555,  decision  of  Interior  Department  canceling  entry  on 
coal  land  and  permitting  amendment  of  entry  not  subject  to  collateral 
attack;  Adams  v.  Couch,  1  Okl.  40,  26  Pac.  1017,  action  of  Land 
Department  on  homestead  settlement  not  reviewable  on  action  of 
ejectment;  Paine  v.  Foster,  9  Okl.  230,  53  Pac.  114,  findings  of  laud 
officers  on  controverted  questions  of  fact  conclusive;  Board  of  Educa- 
tion V.  Mansfield,  17  S.  D.  78,  81,  82,  106  Am.  St.  Eep.  771,  95  N. 
W.  288,  289,  townsite  patent  issued  by  land  office  cannot  be  col- 
laterally attacked  by  locators  of  mining  claims;  Welsh  v.  Callvert, 
34  Wash.  255,  75  Pac.  873,  refusing  to  entertain  claim  by  applicant 
that  lands  granted  as  tide  lands  were  oyster  lands  as  collateral  at- 
tack; Laramie  Nat.  Bank  v.  Steinhoff,  11  Wyo.  308,  71  Pac.  994, 
prior  to  issuance  of  patent  court  may  determine  right  to  possession 
but   not   title. 

Syl.   6    (X,   407).     Land   patent   passes   legal   title. 

Approved  in  Boekfinger  v.  Foster,  10  Okl.  502,  62  Pac.  803,  hold- 
ing townsite  trustees  who  have  not  convej^ed  title  by  deed  cannot 
be  declared  by  court  of  equity  to  hold  as  trustees  for  claimant. 

Syl.  7  (X,  407).     Patent— Attack  for  fraud. 

Approved  in  Oklahoma  City  v.  Hill  Bros.,  6  Okl.  125,  50  Pac.  215, 
holding  unauthorized  deed  by  townsite  trustees  void  in  action  to 
recover  rlamages  for  ejectment;  Keyes  v.  Brackett,  187  Mass.  308, 
72  N.  E.  987,  granting  equitable  relief  for  fraud  practiced  in  bonding 
against  mechanic's  lien. 

Syl.   10    (X,  409).     Improvements — Estoppel — Knowledge. 

Approved  in  Lydiek  v.  Gijl,  68  Xtb.  2S1,  94  N.  W.  112,  holding 
estoppel  to  assert  title  though  party  acting  without  intent  to  de- 
ceive. 


1113  Notes  on  U.  S.  Eeports.  106  U.  S.  458-504 

106  U.  S.  458-464,  27  L.  216,  GEORGIA  v.  JESUP. 

Syl.  1   (X,  409).     Conflict  of  laws— Taxes. 

Approved  in  Ingraliam  v.  National  Salt  Co.,  139  Fed.  689,  refus- 
ing to  enjoin  on  behalf  of  attaching  creditor  in  federal  court  re- 
ceiver under  state  insolvency  statute. 

106  U.  S.  464,  465,  27  L.  302,  CLARK  v.  KEITH. 

Syl.  1   (X,  410).     Appeal — Law  of  the  case. 

Approved  in  United  States  v.  Denver  etc.  R.  R.  Co.,  11  N.  M.  154, 
66  Pac.  552,  holding  previous  decision  that  acts  of  Congress  constitute/ 
grant  to  party  to  suit  precludes  inquiry  into  validity  of  act. 

106  U.  S.  46G,  407,  27  L.  267,  MORRILL  v.  JONES. 

Syl.  1    (X,  411).     Department  regulations  cannot  alter  law. 

Approved  in  United  States  v.  Matthews,  146  Fed.  308,  holding  stat- 
ute declaring  it*crime  to  violate  regulation  of  Department  of  Interior 
void ;  Powell  v.  United  States,  135  Fed.  882,  upholding  regulations  of 
Internal  Revenue  Department  governing  claims  for  rebate;  United 
States  V.  Hoover,  133  Fed.  952,  holding  Secretary  of  Agriculture  with- 
out power  to  make  rules  governing  transportation  of  animals  with  in- 
fectious diseases,  violation  of  which  would  constitute  crime. 

Distinguished  in  Stratton  v.  Oceanic  Steamship  Co.,  140  Fed.  834, 
holding  department  regulation  requiring  deposit  of  head  tax  on  land- 
ing of  alien  valid;  Borden  v.  United  States,  132  Fed.  206,  upholding 
customs  regulation  requiring  registry  of  pedigree  of  animals  imported 
for  breeding  purposes. 

106  U.  S.  468-487,  27  L.  279,  BRANCH  v.  JESUP. 

Syl.  3   (X,  412).     Railroad— Sale  of  franchise. 

Approved  "in  City  of  Lincoln  v.  Lincoln  St.  R.  Co.,  67  Neb.  480,  93 
N.  W.  769,  holding  corporation  organized  to  construct  street  railway 
may  purchase  one  already  constructed.  See  notes,  99  Am.  St.  Rep. 
257;  103  Am.  St.  Rep.  560. 

Syl.  4    (X,  412).     Estoppel— Receiving  dividend. 

Approved  in  Weed  v.  Gainesville  R.  E.  Co.,  119  Ga.  596,  46  S.  E. 
894,  bondholders  could  not  attack  contract  as  ultra  vires  or  in  re- 
straint of  trade;  Breslin  v.  Fries-Breslin  Co.,  70  N.  J.  L.  283,  58  Atl. 
317,  holding  consenting  stockholder  precluded  from  setting  up  irregu- 
larity in  declaring  dividend. 

106  U.  S.  487-504,  27  L.  238,  PARKERSBURG  v.  BROWN. 

Syl.  1   (X,  413).     Equity — Adequate  remedy  at  law. 

Approved  in  General  Elec.  Co.  v.  Westinghouse  Elec.  &  Mfg.  Co., 
144  Fed.  466,  refusing  injunction  restraining  violation  of  contract  for 
manufacture  and  sale  of  electrical  appliances. 


106  U.  S.  505-525  Notes  on  U.  S.  Eeports.  1114 

Distinguished  in  Southern  Pac.  R.  Co.  v.  United  States,  133  Fed. 
657,  66  C.  C.  A.  581,  upholding  equity  jurisdiction  over  suit  by  United 
States  against  railroad  and  its  mortgagees  to  determine  title  to  land 
erroneously  patented. 

Syl.  2   (X,  413).     Municipalities — Expenditure  for  public  purpose. 

Approved  in  Castner  v.  City  of  Minneapolis,  92  Minn.  87,  99  N.  W. 
361,  holding  reimbursement  of  defeated  candidate  for  expenses  of  elec- 
tion contest  illegal. 

Syl.  3  (X,  414).     Municipal  corporations — Ultra  vires  bonds. 

Approved  in  In  re  Waterloo  Organ  Co.,  134  Fed.  344,  67  C.  C.  A. 
255,  holding  ultra  vires  bonds  not  allowable  claims  on  bankruptcy  court ; 
In  re  Waterloo  Organ  Co.,  134  Fed.  348,  67  C.  C.  A.  327,  holding  bank 
having  advanced  money  on  pledged  bonds  could  prove  claim  in  bank- 
ruptcy. 

Syl.  4   (X,  414).     Unauthorized  bonds — Repayment  of  money. 

Approved  in  Chelsea  Sav.  Bank  v.  City  of  Ironwood,  130  Fed.  412, 
413,  66  C.  C.  A.  230,  where  illegal  bonds  assigned,  assignee  could  re- 
cover from  city;  People's  Bank  v.  Dalton,  2  Okl.  483,  37  Pac.  809, 
unholding  statute  providing  for  recovery  of  usurious  interest;  Luther 
v.  Wheeler,  73  S.  C.  95,  52  S.  E.  878,  though  note  of  city  invalid, 
holder  may  recover  on  quantum  meruit  for  municipal  building  erected. 

106  U.  S.  505-519,  27  L.  139,  CLARKSON  v.  STEVENS. 

Syl.   2    (X,   415).     Contract   for  vessel — When   title   passes. 

Distinguished  in  In  re  McDonald,  138  Fed.  466,  determining  title  to 
uncompleted  vessels  in  shipyards  at  time  of  bankruptcy,  aa  between 
trustee  and  persons  for  whom  built. 

106  U.  S.  519-521,  27  L.  265,  PATTERSON  v.  LYNCE. 

Syl.  3   (X,  416).     Creditor's  remedy  on  unpaid  subscriptions. 

Approved  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  388,  provi- 
sion of  Kansas  constitution  governing  stockholder's  liability  in  absence 
of  statute  enforceable  by  suit  in  equity  for  benefit  of  all  creditors; 
Rawson  v.  Taylor,  69  Neb.  486,  95  N.  W.  1037,  holding  action  can  be 
maintained  by  beneficiary  under  bond  given  to  secure  return  of  assets 
of  insolvent  corporation;  Macbeth  v.  Banfield,  45  Or.  564,  106  Am.  St. 
Rep.  670,  78  Pac.  696,  value  of  property  for  which  directors  issued 
stock  as  fully  paid  up  may  be  inquired  into  by  creditors;  Hazlett  v. 
Woodhcad.  27  R.  I.  512,  63  Atl.  954,  holding  declaration  on  stock- 
holder's liability  bad  for  failure  to  include  nonresident  stockholders. 

106  U.  S.  523-525,  27  L.  268,  YOUNGSTOWN  BANK  v.  HUGHES. 

Syl.   1    (X,   417).     Appeal — Amount   must   be   money. 

Approved  in  Scheurich  v.  Southwest  etc.  Light  Co.,  183  Mo.  499,  81 
S.  W.  1227,  denying  jurisdiction  over  appeal  from  order  denying  in- 
junction abating  a  dam. 


1115  Notes  on  U.  S.  Keports.  106  U.  S.  525-585 

106  U.  S.  525-532,  27  L.  163,  UNITED  STATES  v.  STONE. 

Syl.  2   (X,  418).     Evidence — Treasury  transcript. 

Approved  in  United  States  v.  Pierson,  145  Fed.  817,  admitting  treas- 
ury transcript  certified  by  register  of  treasury  in  action  on  bond  of 
Indian  agent;  United  States  v.  McCoy,  193  U.  S.  599,  48  L.  808,  24 
Sup.  Ct.  528,  certified  account  from  books  of  auditor  for  postoffice  de- 
partment admissible  in  action  on  mail  carriage  contract  bond. 

106  U.  S.  537-542,  27  L.  300,  DETROIT  v.  DEAN. 

Syl.  1    (X,  419).     Jurisdiction  obtained  by  collusion. 

Approved  in  Dawson  v.  Columbia  Avenue  etc.  Trust  Co.,  197  U.  S.  181, 
49  L.  716,  25  Sup.  Ct.  420,  applying  rule  in  suit  against  municipality  by 
mortgagee  making  mortgagor  a  party  defendant;  Woodside  v.  Vasey, 
142  Fed.  619,  holding  no  jurisdiction  where  claims  assigned  for  collec- 
tion only  to  make  jurisdictional  amount;  Kemmerer  v.  Haggerty,  139 
Fed.  696,  holding  no  jurisdiction  where  nonresident  stockholders  brought 
Buit  to  compel  corporation  to  sue  third  party  in  federal  court;  Grocl  v. 
United  Elec.  Co.,  132  Fed.  258,  in  suit  by  stockholder  upon  right  of 
action  in  his  eorjjoration,  the  corporation  aligned  with  defendants. 

Distinguished  in  Doctor  v.  Harrington,  196  U.  S.  587,  49  L.  010,  25 
Sup.  Ct.  355,  holding  though  ultimate  interest  of  corporation  defendant 
is  same  as  of  complaining  stockholders,  court  has  jurisdiction  where 
no  collusion. 

Syl.  2   (X.  420).     Stockholder's  suit  for  corporate  rights. 

Ap])rovcd  in  McCampbell  v.  Fountain  Head  R.  R.  Co.,  Ill  Tcnn.  69, 
102  Am.  St.  Rep.  731,  77  S.  W.  1073,  holding  stockholder  could  main- 
tain suit  in  equity  to  set  aside  ulla-a  vires  subscrijjtion  for  stock  of 
land  company. 

106  U.  S.  546-551,  27  L.  254,  PIERCE  t.  INDSETII. 

Syl.  2   (X,  421).     Seals  of  notary — Judicial  notice. 

Ajiproved  in  Clement  v.  United  States,  149  Fed.  320,  taking  judicial 
notice  of  seal  of  comptroller  of  currency. 

Syl.  5  (X,  421).     Evidence  of  foreign  statute. 
See  113  Am.  St.  Rep.  883,  note. 

100  U.  S.  578-583,  27  L.  249,  ELGIN  v.  MARSHALL. 

Syl.  2   (X,  424).     Jurisdiction — Amount  in  controversy; 

Approved  in  Morris  v.  Bean,  146  Fed.  429,  in  suit  concerning  water 
rights,  thing  in  controversy  as  determining  jurisdiction  is  right  to  use 
water. 

106  U.  S.  583-585,  27  L.  207,  PACE  v.  ALABAMA. 

Syl.  2   (X,  426).     Constitutional  law — Equal  protection. 

Approved  in  In  re  Finley,  1  Cal.  Ap]).  211,  81  Pac.  1016,  upjholding 
statute  punishing  with  death  assault  with  deadly  weapon  by  life  con- 
Tic  t. 


106  U.  S.  586-644  Notes  on  U.  S.  Keports.  1116 

106  U.  S.  586-589,  27  L.  306,  HAYDEN  v.  MANNING. 

Syl.  1  (X,  426).     Jurisdiction — Collusive  party  plaintiff. 

Approved  in  Turnbull  v.  Eoss,  141  Fed.  652,  denying  jurisdiction 
•where  cause  of  action  assigned  to  nonresident  to  obtain  jurisdiction. 

106  U.  S.  589-593,  27  L.  298,  THOMPSON  v.  PEEEINE. 

Syl.  4   (X,  427).     Jurisdiction — Bondholder  proper  plaintiff. 

Distinguished  in  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  122,  66  C. 
C.  A.  179,  denying  jurisdiction  over  suit  by  assignee  of  parol  contract 
unless  assignor  nonresident. 

106  U.  S.  596-605,  27  L.  251,  EED  'ROCK  v.  HENEY. 

Syl.  1   (X,  427).     Statutes — Eepeal  by  implication. 

Approved  in  City  of  Wichita  v.  Old  Colony  Trust  Co.,  132  Fed.  648, 
66  C.  C.  A.  19,  telephone  franchise  for  twenty  years  not  repealed  by 
ordinance  granting  rights  for  five  years;  Territory  v.  Neville,  10  Okl. 
100,  60  Pac.  796,  Indian  appropriation  act  reserving  land  for  county 
seat  purposes  does  not  avoid  territorial  statute  granting  county  right 
to  change  county  seat. 

106  U.  S.  613-620,  27  L.  295,  ALBEIGHT  v.  TEAS, 

Syl.  1  (X,  429).     Jurisdiction — Suits  on  patents. 

Distinguished  in  Harrington  v.  Atlantic  etc.  Co.,  143  Fed.  336,  holding 
federal  court  has  jurisdiction  where  infringement  involved  as  well  as 
contract  rights. 

100  U.  S.  622-623,  27  L.  311,  COUNTY  OP  MADISON  v.  WARREN. 

Syl.  1   (X,  430).     Review — Written  waiver  of  jury. 

Approved  in  Shields  v.  Mongollon  etc.  Co.,  137  Fed.  544,  70  C.  C. 
A.  123,  holding  oral  waiver  in  open  court  entered  upon  minutes  suffi- 
cient. 

106  U.  S.  629-644,  27  L.  290,  UNITED  STATES  v.  HARRIS. 

Syl.  2   (X,  431).     Unconstitutionality  must  be  clearly  shown. 

Approved  in  United  States  v.  Scott,  148  Fed.  433,  holding  statute 
relating  to  intersta,te  carriers  as  employers  void ;  United  States  v. 
Moore,  129  Fed.  633,  holding  rights  of  citizens  to  organize  in  unions 
not  a  right  secured  by  federal  constitution. 

Syl.  3    (X,  431).     Constitutional  law — Due  process. 

Approved  in  Cella  Com.  Co.  v.  Bohlinger,  147  Fed.  423,  holding  ser- 
vice of  summons  on  state  auditor  for  foreign  corporation  not  due 
process. 

Distinguished  in  Ex  parte  Riggins,  134  Fed.  407,  415,  holding  ab- 
duction of  prisoner  from  jail  and  murdering  him  violation  of  constitu- 
tional protection  of  ' '  due  process. ' ' 


1117  Notes  on  U,  S.  Reports.  106  U.  S.  644-702 

(X,  430.)  Miscellaneous.  Cited  in  United  States  v.  Ju  Toy,  198  U. 
S.  263 ,  49  L.  1044,  25  Sup.  Ct.  644,  court  wiU  not  modify  statute  but 
declare  it  valid  or  void  as  a  whole;  Smiley  v.  Kansas,  196  U.  S.  455,  49 
L.  550,  25  Sup.  Ct.  289,  federal  court  follows  interpretation  placed  ob 
statute  by  highest  state  court. 

106  U.  S.  644-046,  27  L.  303,  ROGERS  v.  DUEAXT. 

Syl.  1  (X,  431).     Lost  document — Secondary  evidence. 

Approved  in  Brown  v.  Harkins,  131  Fed.  66,  65  C.  C.  A.  301,  holding 
evidence  of  search  for  lost  document  insufficient  to  permit  secondary 
evidence. 

106  U.  S.  048-660,  27  L.  211,  FITZPATEICK  v.  FLANXAGAN". 

Syl.  3   (X,  433).     Surviving  partner — Control  over  assets. 

Approved  in  People's  National  Bank  v.  Wilcox,  136  Mich.  577,  100 
N.  W.  27,  29,  upholding  mortgage  by  surviving  partner  on  partnership 
property. 

106  U.  S.  672-679,  27  h.  271,  HAYWOOD  v.  AXDREWS. 

Syl.  1   (X,  435).     Equity — Action  by  assignee. 

Approved  in  Vant-Wond  Rubber  Co.  v.  Sternan,  145  Fed.  108.  hold- 
ing allegations  of  assignment  of  rights  insufficient  in  suit  for  infringe- 
ment of  patent. 

106  tr.  S.  679-G99,  27  L.  2.-6,  GAY  v.  PAEPAET. 

Syl.  8   (X,  438).     Equity  will  not  enforce  incomplete  decree. 

Approved  in  Harding  v.  Harding,  198  U.  S.  335,  49  L.  1074,  25  Sup. 
Ct.  679,  holding  consent  decree  for  separate  maintenance  of  court  of 
another  state  res  judicata. 

106  U.  S.  700-702,  27  L.  266,  GEAND  TRUXK  RY.  v.  CUMMIXGS. 

Syl.  1   (X,  438).     Refusal  to  direct  verdict— Waiver. 

Approved  in  Columbia  etc.  R.  Co.  v.  Means,  136  Fed.  83,  68  C.  C.  A. 
651,  holding  right  to  review  overruling  motion  to  direct  verdict  waived; 
Carle  v.  Oklahoma  W.  Mills,  16  Okl.  522,  86  Pac.  68,  holding  plaintiff 
waived  erroneous  holding  as  to  measure  of  damages  by  amendment  to 
pleading, 

Syl.  2   (X,  438).     Negligence — Master  and  fellow-servant. 

Approved  in  The  Hamilton,  146  Fed.  727,  applying  rule  to  injuries 
to  crew  caused  by  marine  collision;  The  Luckenbach,  144  Fed.  981, 
seaman  thrown  overboard  by  defective  trip-line  improi)erly  handled  by 
fellow-servant;  Shugart  v.  Atlanta  etc.  Ey.,  133  Fed.  511,  66  C.  C.  A. 
379,  death  of  fireman  caused  by  fault  of  engineer  and  defective  road- 
bed; Gibson  v,  Canadian  Pacific  etc.  Co.,  1  Alaska,  419,  applying  rule 
to  longshoreman  injured  by  negligence  of  mate  and  defective  appli- 
ances; Tanner  v.  Harper,  32  Colo.  164,  75  Pac.  406,  afijdying  rule  where 
miner  injured  through  negligence  of  Irauiuiur  and  dcfcolive  appliances; 


107  U.  S.  3-20  Notes  on  U.  S.  Eeports.  1118 

Farrell  v.  Eastern  Machinery  Co.,  77  Conn.  492,  107  Am.  St.  Rep.  45, 
59  Atl.  614,  68  L.  E.  A.  239,  applying  rule  to  defective  material  pro- 
vided by  employer  and  selected  by  fellow-servant;  Gordon  v.  Chicago 
etc.  Ey.  Co.,  129  Iowa,  753,  106  N.  W.  179,  action  by  brakeman  for 
injuries  caused  by  defective  road  and  couplings;  Campbell  v.  Railway 
Trans.  Co.,  95  Minn.  379,  104  N.  W.  549,  anterior  negligence  in  im- 
properly closing  doors  does  not  excuse  railroad  for  failure  to  inspect; 
St.  Louis  etc.  Ry.  Co.  v.  Swinney,  34  Tex.  Civ.  220,  78  S.  W.  548,  fire- 
man may  recover  though  engineer  guilty  of  contributory  negligence  in 
railroad  collision;  Hicks  v.  Southern  Pac.  Co.,  27  Utah,  532,  76  Pac. 
627,  determining  liability  of  railroad  for  injuries  to  section-hand 
caused  by  negligent  orders  of  foreman. 


CVII  UNITED  STATES. 


107  U.  S.  3-20,  27  L.  346,  EMBRY  v.  PALMER. 

Svl.  1   (X,  441).     Estoppel  of  appellant  by  acceptance  of  amount. 

Approved  in  Hodges  v.  Smith,  34  Tex.  Civ.  639,  640,  79  S.  W.  330, 
331,  appellant  not  estopped  to  prosecute  appeal  by  acceptance  of 
amount  of  judgment  which  appellee  concedes  to  be  due,  appeal  involv- 
ing only  right  to  further  recovery. 

Distinguished  in  In  re  Sachleben,  106  Mo.  App.  312,  80  S.  W.  739, 
where  determination  of  amount  of  cash  in  guardian's  hands  at  time  of 
final  account  involved  ward 's  claim  of  exorbitant  compensation  to 
guardian,  and  failure  of  guardian  to  account  for  rents,  ward's  receipt 
for  amount  due  on  allowance^  of  account  precludes  appeal  from  ac- 
count as  allowed;  In  re  Black's  Estate,  32  Mont.  54,  79  Pac.  555,  where 
after  appeal  by  distributees  from  decree  of  distribution,  but  before  ap- 
peal heard,  appellants  gave  receipts  for  award  under  decree  and  it 
was  satisfied  and  administrator  discharged ,   appeal  dismissed. 

Syl.  4   (X,  442).     Equitable  relief  against  judgment. 

Approved  in  Brown  v.  Pegram,  149  Fed.  520,  judgment  debtor  not 
debarred  from  enjoining  its  collection  on  allegation  of  setoffs  against 
beneficial  owners  which  would  render  enforcement  inequitable  because 
setoffs  are  unliquidated,  where  defendants  are  nonresidents  of  United 
States  or  insolvent;  Nelson  v.  Meehan,  2  Alaska,  493,  vacating,  on 
motion,  judgment  obtained  by  fraud  and  perjury;  Farmers'  etc. 
Warehouse  Co.  v.  Pridemore,  55  W.  Va.  463,  47  S.  E.  263,  refusing  to 
enjoin  judgment  at  law  because  it  was  based  on  forged  documentary 
evidence  and  no  reason  shown  why  forgery  not  i)roven  at  trial  other  than 
surprise. 


1119  Notes  on  U.  S.  Reports.  107  U.  S.  20-38 

107  U.  S.  20-38,  27  L.  359,  BURGESS  v.  SELIGMAX. 

Syl.  1   (X,  443).     Liability  of  pledgee  of  stock  as  stockholder. 

Approved  in  Colonial  Trust  Co.  v.  McMillan,  188  Mo.  572,  107  Am. 
St.  Rep.  335,  87  S.  W.  941,  under  Rev.  St.  1899,  §  1324,  one  holding 
stock  as  collateral  security  is  not  liable  as  stockholder. 

Syl.  5   (X,  444),     Following  state  decisions. 

Approved  in  Treat  v.  City  of  Chicago,  130  Fed.  444,  64  C.  C.  A.  645, 
following  state  decision  upholding  and  construing  Illinois  local  improve- 
ment statute;  Graves  v.  Commissioners,  135  N.  C.  54,  47  S.  E.  136,  Code, 
§  1996,  providing  that  county  commissioners  may  subscribe  to  railroad 
stock,  does  not  authorize  issuance  of  township  bonds  in  aid  of  road  not 
yet  begun. 

Syl.  6   (X,  446).     Following  state  decision  contrary  to  federal. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  7G3,  764,  apply- 
ing rule  where  at  time  county  railroad  aid  bonds  issued  there  was  no 
state  decision  construijig  constitutional  pro\ision  which  it  was  later 
claimed  was  violated  by  statute  under  which  bonds  issued ;  Harrison  v. 
Remington  Paper  Co.,  140  Fed.  388,  holding  void  Laws  Kan.  1898,  c. 
10,  p.  27,  repealing  prior  statute  giving  stockholder  individual  action 
to  enforce  stockholder's  double  liability  and  substituting  therefor  ac- 
tion by  receiver,  as  applied  to  contracts  made  prior  to  its  passage. 

Syl.  7  (X,  446).     State  statutory  construction — Federal  courts. 

Approved  in  Mead  v.  Portland,  200  U.  S.  163,  50  L.  420,  26  Sup.  Ct. 
171,  following  state  decision  construing  statute  as  legislative  change 
of  grade;  Tampa  Waterworks  Co.  v.  Tampa.  199  U.  S.  244,  50  L.  173, 
26  Sup.  Ct.  23,  following  state  decision  that  city,  by  contract  with 
water  company,  could  not  deprive  itself  of  right  to  regulate  rates  con- 
formably with  state  statute  passed  to  carry  into  effect  constitutional 
provision  in  force  when  contract  made;  Xorthwestern  Sav.  Bank  v. 
Centreville  Station,  143  Fed.  85,  in  action  on  town  bonds  by  bona  fide 
purchaser,  state  decisions  holding  bonds  invalid,  rendered  after  issu- 
ance and  sale  of  bondo  in  controversy,  to  which  plaintiff  not  party,  do  not 
govern  his  rights;  Mankato  v.  Barber  Asphalt  Pav.  Co.,  142  Fed.  337,  re- 
fusing to  follow  state  decision  holding  city  street  improvement  contract 
void  where  decision  rendered  after  performance  of  contract;  Westing- 
house  Air  Brake  Co.  v.  Kansas  City  So.  Ry.  Co.,  137  Fed.  35,  under  Mo. 
Rev.  St.,  §§  4239  et  seq.,  one  furnishing  materials  to  railroad  without 
state  is  entitled  to  lien  on  its  property  in  state;  Wicomico  Co.  Commrs. 
V.  Bancroft,  135  Fed.  983,  construing  Code  Md.  1888,  art.  23,  §§  187, 
188,  providing  for  reorganization  of  railroad  sold  on  foreclosure,  with 
reference  to  exemption  from  taxation;  Farmers'  Loan  etc.  Co.  v.  Sioux 
Falls,  131  Fed.  909,  determining  power  of  municipality  to  issue  bonds 
under  South  Dakota  constitutional  provision  limiting  indebtedness;  Co- 
lumbia Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130  Fed.  166,  applying  rule  in 
determining  validity  of  contract  by  city  for  annual  hydrant  rental  for 
term  of  years;  York  v.  Washburn.  Il'O  Vol.  Sf^H.  (U  C  ('.  A.  !."/_'.  fchrnl 
courts   bound  by  state  decisional  to  whether  oral  contract  for  leaau  of 


107  U.  S.  38-97  Notes  on  U.  S.  Eeports.  1120 

realty  for  more  than  year  not  complying  with  statute  of  frauds  is  void  or 
unenforceable  at  election  of  parties;  Great  Southern  Fire  Proof  Hotel  Co. 
V.  Jones,  193  U.  S.  542,  544,  547,  48  L.  785,  786,  787,  24  Sup.  Ct.  576, 
upholding  Ohio  Eev.  St.,  §§  3184-3185a,  relating  to  mechanics'  liens; 
Julian  V.  Central  Trust  Co.,  193  U.  S.  103,  48  L.  635,  24  Sup.  Ct.  399, 
state  decision  that  property  covered  by  blanket  mortgage  of  railroad 
remains  liable  after  federal  foreclosure  sale  for  debts  thereafter  accru- 
ing against  mortgagor  is  not  conclusive  on  federal  courts;  dissenting 
opinion  in  Muhlker  v.  New  York  etc.  E.  E.  Co.,  197  U.  S.  574,  49  L. 
879,  25  Sup.  Ct.  522,  majority  holding  owner  of  realty  abutting  on  city 
street  who  acquired  title  when  state  courts  had  decided  that  oue  so  situ- 
ated had  contract  right  to  light  and  air  is  protected  against  impair- 
ment of  easements  by  change  of  railroad  to  elevated  road  in  compli- 
ance with  subsequent  statute. 

Distinguished  in  Yocum  v.  Parker,  134  Fed.  213,  67  C.  C.  A.  227, 
will  devising  land  to  son  absolutely,  with  understanding  that  if  he  die 
without  legal  issue  lands  shall  pass  to  others,  gave  son  fee  simple  di- 
vestable  on  his  dying  without  living  issue. 

(X,  443.)  Miscellaneous.  Cited  in  Parkey  v.  Eamsey,  111  Tenn.  308, 
76  S.  W.  813,  effect  of  mistake  on  estoppel. 

107  U.  S.  38-59,  27  L.  370,  TUENEE  v.  MA'EYLAND. 

Syl.  1   (X,  449).     Commerce — State  inspection  act. 

Approved  in  Bazemore  v.  State,  121  Ga.  621,  49  S.  E.  701,  upholding 
act  regulating  sale  of  seeded  cotton. 

(X,  449.)  Miscellaneous.  Cited  in  Territory  v.  Denver  etc.  E.  E.  Co., 
12  N.  M.,  434,  78  Pac.  76,  upholding  hide  inspection  act  of  1901. 

107  U.  S.  59-03,  27  L.  383,  PEOPLE    v.    COMPAGNIE    GENEEALE 
TEANSATLANTIQUE. 

Syl.  4   (X,  451).     Inspection  law — Title  of  act. 

Limited  in  Territory  v.  Denver  etc.  E.  E.  Co.,  12  N.  M,  434,  78  Pac. 
76,  upholding  hide  inspection  act  of  1901. 

107  U.  S.  90-97,  27  L.  367,  HALL  v.  MacNEALE. 

Syl.  1  (X,  452).     Patents— Prior  use. 

Approved  in  Eastman  v.  Mayor  etc.  of  New  York,  134  Fed.  858,  69 
C.  C.  A.  628,  determining  use  of  improvement  in  pumps  for  fire  engines 
by  inventor  who  placed  device  on  engine  of  which  he  was  engineer  as 
not  experimental. 

Distinguished  in  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140  Fed.  173, 
upholding  Shrader  patent  No.  592,920,  for  machine  for  etching  glass, 
as  not  having  been  abandoned  by  sale  of  its  product. 


1121  Notes  on  U.  S.  Reports.  107  U.  S.  98-110 

107  U.  S.  98-102,  27  L.  413,  GREEN  BAY  ETC.  R.  R.  CO.  v.  UNION 
ETC.  CO. 

Syl.   1    (X,  452).     Liability  on  ultra  vires  contract. 

Approved  in  Fidelity  Trust  Co.  etc.  v.  Louisville  Gas.  Co.,  118  Ky. 
594,  111  Am.  St.  Rep.  302,  81  S.  W.  929,  gas  company  charter  providing 
that  it  may  is.sue  bonds  for  certain  sum  and  give  mortgage  to  secure 
them  does  not  prohibit  it  from  guaranteeing  bonds  for  much  larger  sum 
sold  by  it  after  it  had  lawfully  acquired  them.  See  111  Am.  St.  Rep. 
310,  note. 

Syl.  2    (X,  453).     Railroad   authorized  to  run  steamers — Hiring. 

Approved  in  State  v.  Canadian  Pac.  Ry.  Co.,  100  Me.  206,  60  Atl. 
902,  determining  right  to  tax  railroad  under  Rev.  St.  18?.3,  c.  6,  §  42, 
as  amended  in   1901. 

107  U.  S.  102-110,  27  L.  325,  MYRICK  v.  MICHIGAN  CENTRAL  E. 
R.  CO. 

Syl.  1    (X,  454).     Carriers — Duty  as  to  through  freight. 

Approved  in  Pittsburg  etc.  Ry.  Co.  v.  Bryant,  36  Ind.  App.  345,  75 
N.  E.  831,  instrument  given  by  railroad's  agent  to  shipper  reciting  de- 
livery of  goods  to  be  shipped  according  to  directions  subject  to  con- 
ditions of  bill  of  lading  did  not  constitute  contract  to  ship  goods ; 
Eekles  v.  Missouri  etc.  Ry.  Co.,  112  Mo.  App.  250,  87  S.  W.  102,  carrier 
receiving  through  freight  to  be  forwarded  over  certain  connecting  lines 
and  receiving  charges  for  entire  shipment  is  liable  for  loss  not  on  own 
line  though  contract  provided  it  should  be  liable  for  carriage  only  on 
own  line;  Fremont  etc.  R.  Co.  v.  New  York  etc.  R.  Co.,  66  Neb.  165,  92 
N.  W.  133,  59  L.  R.  A.  939,  railroad  having  joint  traffic  agreement 
with  other  company  may  enter  into  express  contract  with  shipper 
limiting  liability  to  transportation  over  own  line.  See  106  Am.  St. 
Rep.  609,  note. 

Syl.  2    (X,   455).     Carrier's  liability  beyond  line. 

Approved  in  dissenting  opinion  in  Hutchins  v.  Pennsylvania  R.  R.  Co., 
181  N.  Y.  195,  106  Am.  St.  Rep.  537,  73  N.  E.  976,  majority  holding 
where  passenger  asks  for  through  ticket  and  agent  gives  him  one  with- 
out notifying  him  of  conditions  limiting  liability  for  injury  to  baggage 
on  connecting  line,  initial  carrier  is  liable  for  loss  by  connecting  carrier. 
See  notes,  105  Am.  St.  Rep.  361;  106  Am.  St.  Rep.  606. 

Syl.  3    (X,  455).     Carrier's  receipt  of  consignment  beyond  line. 

See  106  Am.  St.  Rep.  607,  note.  Distinguished  in  Northern  Pac. 
Ry.  Co.  v.  American  Trading  Co.,  195  U.  S.  459,  49  L.  278,  25  Sup.  Ct. 
84,  special  agreement  by  carrier  to  transport  through  shipment  by  vessel 
of  connecting  carrier  sailing  on  certain  results  from  acceptance  of 
through  rate  for  shipment  via  such  vessel. 
71 


107  U.  S.  110-161  Notes  on  U.  S.  Reports,  1122 

107  U.  S.  110-123,  27  L.  354,  BUSH  v.  KENTUCKY. 

Syl.  1    (X,  456).     Removal — Quashal  of  indictment. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  485,  determining  right  of 
removal  where  defendant  in  criminal  prosecution  discriminated  against 
in  selection  of  Jurors. 

Syl.  2   (X,  456).     Setting  aside  panel — Exclusion  of  negroes. 
Approved  in  State  v.  West,  116  La.    628,  40  So.  921,  following  rule. 

Syl.  3   (X,  456).     Indictment  of  negro — Grand  jury  of  whites. 

Approved  in  Kentucky  v.  Powers,  201  U.  S.  30,  50  L.  647,  26  Sup. 
Ct.  387,  reversing  139  Fed.  480,  486,  492,  determining  right  to  remove 
criminal  prosecution  where  defendant  discriminated  against  in  selection 
of  jurors. 

(X,  456.)  Miscellaneous.  Cited  in  Kentucky  v.  Powers,  139  Fed. 
454,  as  assuming  validity  of  Rev.  St.,  §  641. 

107  U.  S.  123-126,  27  L.  437,  KENDALL  v.  UNITED  STATES. 

Syl.   1    (X,  457).     Limitations — Suit  against  government — Disability. 

Approved  in  Walker  v.  United  States,  139  Fed.  410,  in  case  of  suit  by 
marshal  for  fees,  limitation  prescribed  by  C'omp.  St.  1901,  p.  752,  begins 
to  run  as  to  each  item  from  time  service  rendered  and  not  from  expira- 
tion of  plaintiff's  term  of  office. 

107  U.  S.  147-161,  27  L.  431,  MONTCLAIR  v.  RAMSDELL. 

Syl.  1  (X,  458).     All  parts  of  statute  given  effect. 

Approved  in  In  re  Thorp,  130  Fed.  376,  where  lien  on  bankrupt's' 
property  was  void  as  to  creditors  under  state  law  by  reason  of  failure 
to  record  it,  it  was  void  as  to  trustee  under  Bankr.  Act,  §§  67a.  67d; 
Lewis  v.  Territory,  7  Ariz.  55,  60  Pac.  694,  under  Pen.  Code,  par.  2040, 
defendant  testifying  in  own  behalf  as  to  circumstances  of  homicide  and 
his  whereabouts  before  and  after  killing  cannot  be  asked  whether  he 
was  ever  convicted  of  felony. 

Syl.  2  (X,  458).     Statutes — One  subject  embraced  in  title. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  451,  50  L.  823,  26  Sup.  Ct. 
427,  upholding  Illinois  Acts  1859,  1801,  and  1865,  concerning  horse  rail- 
ways in  Chicago;  Ex  parte  Loving,  178  Mo.  205,  77  S.  W.  510,  uphold- 
ing Sess.  Acts  1903,  p.  213,  relating  to  treatment  and  control  of  neg- 
lected children  in  certain  counties. 

Syl.  3  (X,  458).     Statute  embracing  over  one  subject. 

Approved  in  Pioneer  Irr.  Dist.  v.  Bradley,  8  Idaho,  318,  101  Am. 
St.  Eep.  201,  68  Pac.  297,  upholding  Sess.  Laws  1901,  p.  191,  relating 
to  reclamation  and  irrigation  of  desert  lands;  In  re  Schley,  71  Kan. 
269,  80  Pac.  632,  upholding  Gen.  St.  1901,  §  6521,  relating  to  in- 
quests in  lunacy. 


1123  Notes  on  U.  S.  Ecports.  107  U.  S.  162-173 

107  U.  S.  1G2,  1G3,  27  L.  43G,  MOXTCLAIR  v.  DAXA. 

Syl.  1   (X,  45S).     Direction  of  verdict. 

Approved  in  Cliicago  etc.  Ey.  .Co.  v.  Andrews,  130  Fed.  74,  (54  C. 
C.  A.  399,  holding  plaintiff  stepj)ing  on  to  railroad  crossing  directly  in 
front  of  moving  train  contributorily  riiegligent. 

107  U.  S.  163-173,  27  L.  397,  RUSSELL  v.  ALLEX. 

Syl.  1  (X,  461).     Charitable  trusts — Details  of  trust  omitted. 

Approved  in  Biscoe  v.  Thwcatt,  74  Ark.  549,  86  S.  W.  433,  uphold- 
ing devise  to  vestrymen  of  church  and  to  their  successors  with  power 
to  sell  and  dispose  of  property. 

Syl.  4  (X,  4G1).     Charity  for  indefinite  number. 

Approved  in  Tincher  v.  Arnold,  147  Fed.  670.  upholding  bequest 
to  create  fund  to  establish  school  for  boys  resident  in  Illinois  be- 
tween ages  of  twelve  and  eighteen  years  who  are  unable  to  educate 
themselves;  Gidley  v,  Lovenberg,  35  Tex.  Civ.  211,  79  S.  W.  836, 
upholding  devise  of  fund  to  be  used  in  organizing  and  maintaining 
home  for  bettering  conditions  of  unfortunate  widows  and  orphans  of 
certain  city. 

Distinguished  in  Miller  v.  Ahrcns,  150  Fed.  657,  under  laws  of 
West  Virginia,  devise  in  trust  for  benefit  of  association  of  indi- 
viduals who  are  unnamed  and  whose  membership  was  not  and  could 
not  be  known  is  void  for  uncertainty. 

Syl.  5  (X,  461).     Bequest  for  charity  not  yet  existing. 

Approved  in  Tincher  v.  Arnold,  147  Fed.  G69.  upholding  bequest 
of  residuary  estate  to  trustees  to  accumulate  till  it  reaches  certain 
sum,  part  of  principal  and  future  income  to  be  then  devoted  to  cer- 
tain charity;  Codman  v.  Brigham,  187  Mass.  313,  72  N.  E.  1009,  pro- 
vision of  will  creating  charitable  trust  for  accumulation  is  valid 
though  it  requires  fund  to  be  held  for  period  beyond  time  prescribed 
by  rule  against  perpetuities;  dissenting  opinion  in  Danforth  v.  Osh- 
kosh,  119  Wis.  306,  97  N.  W.  274,  arguendo, 

Syl.  7   (X,  4G2).     Charitable  bequest. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed. 
519  528,  67  C.  C.  A.  393,  upholding  will  directing  executors  to  man- 
age residuary  estate  for  twenty-five  years  and  pay  certain  legacies 
from  income  and  add  balance  to  principal  and  at  expiration  of 
term  to  form  corporation,  to  whom  estate  to  be  transferred,  to  be 
used  for  founding  hospital  for  indigent  sick;  Estate  of  Merchant, 
143  Cal.  543,  77  Pac.  477,  upholding  bequest  to  trustees  for  bene- 
fit of  Oakland  Eed  Cross  Society  of  California, 


107  U.  S.  174-191  Notes  on  U.  S.  Eeporta.  1124 

1G7  U.  S.  174-191,  27  L.  401,  JONES  v.  HABERSHAM. 

Syl.  9   (X,  464).     Charitable  devise — Indigent  widows. 

Approved  in  Grant  v.  Saunders,  121  Iowa,  82,  100  Am.  St.  Eep.  310, 
95  N.  W.  411,  bequest  in  trust  for  poor  to  be  given  to  objects  and 
such  persons  as  trustee  thinks  best  to  help  is  charitable  bequest. 

Syl.  10   (X,  464).     Devise  to  charity  and  then  over. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed. 
519,  67  C.  C.  A.  393,  upholding  will  directing  executors  to  manage  re- 
siduary estate  for  twenty-five  years  and  pay  certain  legacies  from 
income  and  add  balance  to  principal,  and  at  expiration  of  term  to 
form  corporation,  to  whom  estate  to  be  transferred,  to  be  used  for 
founding  hospital  for  indigent  sick;  Codman  v.  Brigham,  187  Mass. 
313,  72  N.  E.  1009,  upholding  will  creating  charitable  trust  and  de- 
vising residuary  estate  to  be  invested  and  accumulated  for  term 
of  years  beyond  time  prescribed  by  rule  against  perpetuities;  Mac- 
Kenzie  v.  Trustees  of  Presbytery  of  Jersey  City,  67  N.  J.  Eq.  670, 
61  A.tl.  1035,  69  L.  R.  A.  (N.  S.)  227,  upholding  trust  for  public 
worship  and  instruction  for  benefit  of  indefinite  number  of  persons 
of  Presbyterian  faith. 

Syl.  12  (X,  465).  Corporations — Restriction  as  to  amount  of  prop- 
erty. 

Approved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Ted. 
527,  67  C.  C.  A.  393,  where  by  special  act  state  has  enlarged  capacity 
of  charitable  corporation  to  enable  it  to  accept  gift,  power  of  cor- 
poration in  that  respect  cannot  be  questioned. 

Syl.  13   (X,  465).     Corporation's  power  to  execute  charitable  trust. 

Approved  in  Speer  v.  Colbert,  200  U.  S.  145,  50  L.  412,  26  Sup.  Ct. 
201,  Georgetown  College  has  power  to  take  bequest  to  be  used  as 
endowment  for  prosecution  of  research  in  colonial  history  of  Mary- 
land and  District  of  Columbia;  Biscoe  v.  Thweatt,  74  Ark.  549,  86 
S.  W.  433,  upholding  devise  to  vestrymen  of  church  and  their  suc- 
cessors with  power  to  sell  and  dispose  of  lands  as  they  may  deem 
best;  Stearns  v.  Newport  Hospital,  27  E.  I.  316,  62  Atl.  135,  cor- 
poration authorized  to  maintain  hospital  to  receive,  care  for  and  heal 
"sick  or  hurt"  may  accept  trust  for  care  of  "sick,  hurt,  injured  or 
infirm  poor  persons." 

Syl.  16  (X,  466).     Charitable  devise  to  church  to  be  erected. 
.     Approved  in  Gidley  v.  Lovenberg,  35  Tex.  Civ.  211,  79  S.  W.  836, 
upholding  devise  of  fund  to  be  used  in  organizing  and  maintaining 
home  for  bettering  condition  and  comforting  unfortunate  widows  and 
orphans  of  certain  city. 

(X,  463.)  Miscellaneous.  Cited  in  Tincher  v.  Arnold,  147  Fed.  677, 
federal  courts  follow  state  decisions  as  to  validity  of  charitable  be- 
quests; Sioux  City  v.  Chicago  etc.  Ry.  Co.,  129  Iowa,  704,  106  N.  W. 


1125  Notes  on  U.  S.  Keports.  107  U.  S.  192-215 

187,  lUle  to  accreted  or  reclaimed  land  goes  with  fee  of  land  to  which 
it  is  annexed. 

107  U.  S.  192  205,  27  L.  438,  ATLANTIC  WORKS  v.  BRADY. 

Syl.  2   (X,  4G0).     Patents— Monopoly  of  ideas. 

Approved  in  New  York  Belting  etc.  Co.  v.  Sierer,  149  Fed.  770, 
holding  Furness  &  Watts  patent  No.  527,961,  for  tiled  floor,  void  in 
view  of  prior  art;  Gates  Iron  Wks.  v.  Overland  etc.  Min.  Co.,  147 
Fed.  702,  Hoyt  patent  No.  525,419,  for  improvement  in  gyrating  stone- 
crushers,  is  void;  Western  Elec.  Co.  v.  Rochester  Tel.  Co.,  145  Fed.  42, 
Scribner  &  McBerty  patent  No.  559,411,  for  signaling  apparatus,  is 
void  in  view  of  prior  art;  Western  Elec.  Co.  v.  Rochester  Tel.  Co., 
142  Fed.  775,  Scribner  patent  No.  427,021,  for  improvements  in  tele- 
l)hone  switchboards,  is  void  in  view  of  prior  art;  Daylight  etc.  Mfg. 
Co.  V.  American  etc.  L.  Co.,  140  Fed.  182,  holding  void  Cummings 
patents  Nos.  695,283,  695,284,  and  710,434,  for  method  of  making 
prismatic  glass  windows;  Dodge  Coal  Storage  Co.  v.  New  York  etc. 
R.  R.  Co.,  139  Fed.  985,  Piez  &  Beaumont  patents  No.  668,960  and 
No.  688,111,  for  improvements  in  storage  apparatus,  are  void  for  lack 
of  novelty;  Sloan  Filter  Co.  v.  Portland  Gold  Min.  Co.,  139  Fed. 
26,  Sloan  patent  No.  587,874,  for  barrel  filter  for  use  in  filtration  of 
precious  metal  solutions,  is  void  for  lack  of  invention;  McKenzie 
Furnace  Co.  v.  Green  Eng.  Co.,  138  Fed.  832,  holding  Green  &  Gent 
patent  No.  676,606,  for  improvement  in  fire-arches  for  furnaces,  void 
in  view  of  prior  art;  Wilce  v.  Bush  Temple  of  Music  Co.,  134  Fed. 
391,  67  C.  C.  A.  371,  Wilce  &  Burnham  patent  No.  531,711,  for  im- 
provements in  flooring,  is  void  in  view  of  prior  art;  National  Tube 
Co.  v.  Spang,  135  Fed.  358,  68  C.  C.  A.  59,  Patterson  patent  No. 
581,251,  for  improvement  in  method  of  manufacturing  of  tubing,  is 
void  for  lack  of  invention. 

107  U.  S.  205-215,  27  L.  484,  NEW  YORK  GUARANTY  CO.  v.  MEM- 
PHIS WATER  CO. 

Syl.  3   (X,  470).     Equity — Adequate  law  remedy. 

Approved  in  General  Elec.  Co.  v.  Westinghouse  Elec.  &  Mfg.  Co., 
144  Fed.  466,  refusing  to  restrain  violation  of  contract  for  manufac- 
ture and  sale  of  apparatus,  providing  that  in  case  of  violation  guilty 
party  should  pay  other  fifty  per  cent  of  price  at  which  appliance 
regularly  sold;  Kane  v.  Luckman,  131  Fed.  618,  denying  jurisdiction 
to  decree  specific  performance  of  contract  for  sale  of  number  of  cows 
at  certain  price  per  head,  where  cows  had  no  peculiar  value;  Miller 
V.  Schwarner,  130  Fed.  562,  denying  equity  jurisdiction  over  suit  for 
infringement  of  patent  where  process  not  issued  till  six  days  prior  to 
expiration  of  patent  and  was  returnable  thereafter  and  preliminary 
injunction  not  applied  for. 


107   U.  S.  221-264  Notes  on  U.  S.  Eeports.  1126 

107  U.  S.  221-251,  27  L.  506,  KEING  v.  MISSOURI. 

Syl.  1  (X,  471).     Murder — Change  in  law — Ex  post  facto. 

Approved  in  United  States  v.  Owens,  2  Alaska,  484,  where  one  in- 
dicted for  murder  in  first  degree  was  convicted  of  murder  in  second 
degree  and  conviction  reversed  on  appeal,  he  cannot  again  be  tried 
for  murder  in  first  degree;  State  v.  Tyree,  70  Kan.  208,  78  Pac.  526, 
where  one  convicted  prior  to  intermediate  sentence  law  of  1903  was 
sentenced  under  such  law,  and  former  law  provided  credits  for 
good  behavior  and  latter  did  not,  latter  act  was  ex  post  facto  as  to 
defendant. 

Distinguished  in  Trono  v.  United  States,  199  U.  S.  532,  50  L.  296.  26 
Sup.  Ct.  121,  it  IS  not  double  jeopardy,  within  act  of  1902,  for  gov- 
ernment of  Philippines,  to  be  convicted  of  homicide  in  Island  su^ireme 
court  on  appeal  by  accused  from  judgment  of  trial  court  which  on 
acquittal  of  murder  convicted  him  of  assault. 

Syl.  4  (X,  472).     What  is  ex  post  facto  law. 

Approved  in  State  v.  Eooney,  12  N.  D.  151,  95  N.  W.  515,  where 
after  conviction  of  murder,  place  of  execution  changed  from  county 
jail  to  state  prison,  sentence  under  new  law  does  not  make  statute 
ex  post  facto;  dissenting  opinion  in  Slater  v.  Mexican  National  E.  E. 
Co.,  194  U.  S.  132,  48  L.  905,  24  Sup.  Ct.  581,  majority  denying  juris- 
diction over  action  founded  on  liability  for  death  by  wrongful  act 
created  by  Mexican  laws  which  demand  damages  awarded  to  be 
periodical  payments  subject  to  modification  from  time  to  time. 

107  U.  S.  251-264,  27  L.  3S6,  BOWDEN  v.  JOHNSON. 

Syl.  1  (X,  473).     Transfer  of  stock  to  irresponsible  party. 

Approved  in  McDonald  v.  Dewey,  134  Fed.  532,  67  C.  C.  A.  408, 
following  rule;  McDonald  v.  Dewey,  202  U.  S.  520,  524,  529,  536,  538, 
50  E.  1133,  1134,  1136,  1139,  1140,  26  Sup.  Ct.  731,  holding  national 
bank  stockholder  liable  for  debts  of  bank  where  he  transferred  shares 
to  person  financially  irresponsible  when  he  knew  bank  insolvent; 
Muir  V.  Citizens'  Nat.  Bank,  39  Wash.  59,  80  Pac.  1008,  national  bank 
after  voluntary  liquidation  not  required  to  register  subsequent  transfer 
of  its  stock  and  to  issue  new  stock  to  transferee, 

Syl.  8  (X,  475).     Appeal  by  old  receiver — Dismissal. 

Approved  in  Sykes  v.  Beck,  12  N.  D.  252,  96  N.  W.  846,  denying 
motion  to  dismiss  appeal  on  ground  that  appellant  assigned  subject 
matter  of  action  after  judgment  and  before  appeal  where  appeal  taken 
and  prosecuted  by  assignee. 

Distinguished  in  Fred  Macey  Co.  v.  Macey,  135  Fed.  729,  68  C.  C. 
A.  363,  where  proposed  amendment  to  show  jurisdiction  is  not  one 
which  could  be  made  in  circuit  court,  it  cannot  be  made  in  appellate 
court,  though  parties  consent. 


1127  Notes  ou  U.  S.  Reports.  107  U.  S.  205  3G1 

107  U.  S.  265-318,  27  L.  552,  EX  PAETE  WALL. 

Syl.  4  (X,  476).     Attorney — Character  required  to  practice. 

Approved  in  State  v.  Mosher,  128  Iowa,  99,  103  N.  W.  Ill,  fact 
that  attorney  had  ceased  to  be  of  good  moral  character  is  ground  for 
ilisbarmcnt,  though  such  is  not  given  as  ground  for  revocation  of 
license  by  Code,  §  324. 

Syl.   5    (X,  476).     Disbarment — Indictable   offense — Answer. 

Approved  in  In  re  Snow,  27  Utah,  275,  75  Pac.  745,  determining 
right  to  disbar  attorney  for  filing  answer  containing  matter  charging 
supreme  justice  with  conspiracy. 

Syl.  6  (X,  476).     Disbarment  proceedings — Jury. 

Approved  in  Kirkland  v.  State,  72  Ark.  177,  105  Am.  St.  Rep.  25, 
78  S.  "W,  772,  65  L.  R.  A.  76,  upholding  act  1899,  providing  for  sum- 
mary proceedings  for  abatement  of  public  nuisance  without  jury; 
State  V.  Mosher,  128  Iowa,  89,  103  N.  W.  107,  and  State  v,  McRae, 
49  Fla.  395,  38  So.  607,  both  holding  depositions  of  absent  witnesses 
are  admissible  in  disbarment  proceedings;  In  re  Brown,  2  Okl.  594, 
39  Pac.  470,  defendant  in  disbarment  proceedings  is  not  entitled  to 
the  twenty  days'  time  allowed  to  answer  ordinary  summons. 

Syl.  9   (X,  478).     What  is  due  process. 

Approved  in  In  re  Francis,  136  Fed.  913,  upholding  appointment 
of  receiver  before  adjudication  in  bankruptcy  without  notice  to 
incarcerated  defendant  where  other  defendants  had  absconded  and  in- 
debtedness created  through  fraud. 

Syl.  12  (X,  478).     Disbarment,  when  exercised. 

Approved  in  In  re  Snow,  27  Utah,  279,  75  Pac.  746,  determining 
right  to  disbar  attorney  for  filing  answer  containing  matter  charging 
supreme  justice  with  conspiracy. 

107  U.  S.  325-335,  27  L.  319,  STANDARD  OIL  CO,  v.  VAN  ETTEN. 

Syl.  4  (X,  480).     Account  rendered,  when  becomes  stated. 

Approved  in  Burlee  Dry  Dock  Co.  v.  Morris  etc.  Dredging  Co.,  145 
Fed.  741,  determining  liability  for  repairs  to  scow. 

Limited  in  Sharp  v.  Behr,  136  Fed.  798,  where  plaintiff  entitled  to 
dollar  for  royalty  on  ore,  and  defendant  wrote  as  to  necessity  for 
reduction  of  royalty  to  fifty  cents,  and  plaintiff  did  not  reply  thereto 
nor  to  account  crediting  him  with  royalties  at  fifty  cents,  but  refused 
to  accept  check  sent  ten  weeks  later  as  full  payment,  he  is  not  pre- 
cluded from  claiming  contract  rate. 

107  U.  S.  348-361,  27  L.  378,  CHAPMAN  v.  COUNTY  OF  DOUGLAS. 

Syl.  2  (X,  481).     Restitution  by  county — Unauthorized  receipt. 

Approved  in  Oilman  v.  Fernakl,  141  Fed.  944,  where  town  having 
power  to  borrow  but  not  to  issue  negotiable  bonds  borrowed  muuey  on 


107  U.  S.  3G1-378  Notes  on  U.  S.  Eeports.  1128 

its  void  bonds,  which  it  used,  lender  may  recover  sum  lent;  Chelsea 
Sav.  Bank  v.  City  of  Ironwood,  130  Fed.  412,  413,  66  C.  C.  A.  230, 
where  city  issued  bonds  subsequently  declared  void  for  irregularity 
in  issuance  and  sold  same  to  firm,  which  paid  part  of  price  and 
resold  them,  city  is  liable  to  holders  for  consideration  paid  to  exclusion 
of  receiver  for  original  purchaser;  Howard  County  v.  Lambright,  72 
Ark.  334,  80  S.  W.  149,  county  not  liable  for  value  of  bridge  built 
on  public  road  without  county's  authority  where  bridge  not  shown 
to  have  been  taken  or  used  by  public;  City  of  Guthrie  v.  Territory, 
1  Okl.  198,  31  Pac.  193,  11  L.  E.  A.  418,  upholding  statute  providing 
for  payment  by  village  corporation  succeeding  provisional  govern- 
ment of  debts  of  latter;  State  v.  Knoxville,  115  Tenn,  184,  90  S.  W. 
292,  where  city  board's  census  enumerators  made  false  reports  of 
scholastic  population,  whereby  city  schools  received  state  moneys  in 
excess  of  its  share,  state  could  recover  such  moneys;  Criswell  v. 
Board  of  Directors,  34  Wash.  432,  75  Pac.  987,  where  contractor  for 
school  building  made  changes  without  consent  of  board,  and  district 
accepted  and  used  building,  it  is  liable  for  reasonable  value  of  build- 
ing. 

Syl.  3  (X,  482).  Unauthorized  purchase  by  county — Vendor's  rem- 
edy. 

Approved  in  In  re  Waterloo  Organ  Co.,  134  Fed.  344,  67  C.  C.  A. 
255,  where  corporation  president  gave  purchaser  of  stock  his  personal 
note  for  stock,  and  latter  indorsed  note  to  secretary,  who  gave  him 
order  for  bonds,  and  note  never  collected,  bonds  were  ultra  vires, 
and  not  allowable  against  corporation's  bankrupt  estate. 

(X,  481.)     Miscellaneous.     Cited  in  111  Am.  St.  Eep.  457,  note. 

107  U.  S.  361-365,  27  L.  495,  JAFFEAY  v.  McGEHEE. 

Syl.  3   (X,  484).     Following  state   statutory  construction. 

Approved  in  In  re  Wood,  147  Fed.  878,  under  Wisconsin  laws  home- 
stead of  bankrupt  is  exempt,  though  purchased  by  him  while  in- 
solvent from  proceeds  of  nonexempt  property. 

107  U.  S.  365-378,  27  L.  419,  WIGGINS  FEEEY  CO.  v.  EAST  ST. 
LOUIS. 

Syl.  2   (X,  485).     State  ferry  license — Eiver  boundary. 

Approved  in  Commonwealth  v.  Ayer  etc.  Tie  Co.,  117  Ky.  169,  77 
S.  W.  688.  home  port  of  vessel  engaged  in  interstate  commerce  is  its 
situs  for  taxation  though  owner  resides  in  different  state. 

Syl.  3   (X,  486).     Licensing  power  is  police  power. 

Approved  in  Wallace  v.  Mayor  etc.  of  Eeno,  27  Nev.  86,  73  Pac. 
533,  63  L.  E.  A.  337,  liquor  license  may  be  revoked  without  notice 
to  licensee  where  there  is  reason  to  believe  business  is  nuisance; 
Norfolk   etc.   Ey.   Co,   v.   Suffolk,   103   Va.   501,   49   S.   E.    659,   under 


1129  Notes  on  U.  S.  Eeports.  107  U.  S.  378-413 

Suffolk   Town  Charter,  §   IS,  providing  for  occupation   tax  ordinance 
imposing  license  tax  on  railroad  doing  business  in  town,  is  valid. 

107  U.  S.  378-402,  27  L.  G09,  KOUNTZE  v.  OMAHA  HOTEL  CO. 

Syl.   1   (X,  486).     Scope  of  liability  on  appeal  bond. 

Approved  in  Cook  v.  Smith,  67  Kan.  55,  72  Pac.  525,  under  petition 
on  bond  conditioned  for  payment  of  damages  occasioned  by  stay  of 
proceedings  in  action  for  money  judgment,  allegation  that  judgment 
debtor  insolvent  when  judgment  rendered,  substantial  damages  not 
recoverable. 

Syl.  4  (X,  488).     Mortgage  foreclosure — Receiver  for  rents. 

Approved  in  Baker  v.  Hill,  100  Md.  140,  59  Atl.  276,  appointing 
receiver  to  collect  rents  for  mortgagee  where  bill  for  dissolution  of 
loan  association,  which  was  mortgagor,  filed  and  no  rent  collected. 

107  U.  S.  402-406,  27  L.  527,  IIAHN  v.  UNITED  STxVTES. 

Syl.  1  (X,  488).     Contemporaneous  statutory  construction. 

Approved  in  Avery  v.  Pima  Co.,  7  Ariz.  32,  60  Pac.  703,  county 
sheriff  caring  for  federal  prisoners  is  not  entitled  to  extra  compen- 
sation; Henry  v.  State,  87  Miss.  59,  39  So.  872,  upholding  Code  1892, 
§  3201,  providing  for  working  convicts  on  farm  leased  for  that  pur- 
pose; Pitts  V.  Logan  County,  3  Old.  740,  41  Pac.  591,  territorial 
act  regulating  accounting  of  fees  received  by  clerks  of  district  courts 
of  territory  is  void;  Mann  v.  County  Court,  58  W.  Va.  660,  52  S.  E. 
779,  Code  1899,  c.  114,  §  2,  does  not  prohibit  circuit  or  county  courts 
from  adjourning  to  distant  day;  dissenting  opinion  in  Bates  etc.  Co. 
v.  Payne,  194  U.  S.  Ill,  48  L.  896,  24  Sup.  Ct.  595,  majority  upholding 
postmaster  general's  refusal  to  admit  as  second-class  matter  musical 
publication,  each  issue  of  which  treats  of  work  of  single  musician 
and  is  complete  in  itself. 

107  U.  S.  407-413,  27  L.  592,  CAMPBELL  v.  UNITED  STATES. 

Syl.  1  (X,  489).     Tariff — Treasury  regulations  as  to  rebate. 

Approved  in  United  States  v.  Hyams,  146  Fed.  18,  upholding  cir- 
cuit court's  jurisdiction  over  claim  for  tobacco  rebate  granted  by 
Comp.  St.  Supp.  1905,  p.  445,  though  no  contractual  liability  involved; 
United  States  v.  Foreman,  5  Okl.  257,  48  Pac.  98,  one  suing  in  terri- 
torial court  exercising  federal  jurisdiction  for  moneys  paid  on  lands 
erroneously  entered  and  for  which  entry  canceled  need  not  show  sur- 
render of  duplicate  receipt  and  execution  of  relinquishment  of  claim 
to  land  as  provided  by  act  of  Congress  of  June  16,  1880. 

Syl.  2  (X,  489).     Regulations  as  to  procedure  to  recover  rebates. 

Approved  in  United  States  v.  Hyams,  146  Fed.  19,  ruling  of  interna! 
revenue  commissioner  denying  claim  for  rebate  is  not  conclusive  on 
courts;  Stratton  v.  Oceanic  Steamship  Co.,  140  Fed.  832,  upholding 
immigration   rule    requiring    master   or   owner    of   vessel    bringing    in 


107  U.  S.  414-463  Notes  on  U.  S.  lieports.  1130 

alien  for  purpose  of  proceeding  directly  to  foreign  country,  to  de- 
posit amount  of  head  tax  before  landing  to  be  refunded  on  alien  pass- 
ing out  of  country;  Powell  v.  United  States,  135  Fed.  882,  upholding 
revenue  commissioners  rules  of  April  28,  1902,  for  claims  for  rebate 
of  taxes  on  manufactured  tobacco  and  snuff. 

107  U.  S.  414-417,  27  L.  542,  WOOD  v.  UNITED  STATES. 

Syl.  1  (X,  490).     Change  in  pay  of  retired  officer. 

Distinguished  in  Eeed  v.  Sehon,  2  Cal.  App.  59,  83  Pac.  79,  retired 
army  officer  is  not,  by  reason  of  retirement,  ineligible  to  civil  state 
office  under  Const.,  art.  4,  §  20. 

107  U.  S.  437-444,  27  L.  531,  MERRIAM  v.  UNITED  STATES. 

Syl.  1  (X,  491).  ConsLruction  of  contracts — Surrounding  circum 
stances. 

Approved  in  Armour  Packing  Co.  v.  Metropolitan  "Water  Co.,  130 
Fed.  855,  65  C.  C.  A.  335,  where  ordinance  granting  water  franchise 
provided  rates  should  not  exceed  those  given  to  other  city  to  which 
company  furnished  water,  it  related  to  prices  charged  by  corporation 
and  not  to  prices  charged  by  such  city  after  it  had  purchased  plant; 
French  v.  Sparrow  Kroll  Lumber  Co.,  135  Mich.  430,  97  N.  W.  963, 
construing  deed  containing  exception  of  "certain  pine  trees  standing 
on  land";  Kitching  v.  Brown,  180  N.  Y.  420,  73  N.  E.  242,  70  L.  E. 
A.  742,  where  covenant  in  deed  executed  in  1873  prohibited  use  ot 
property  for  tenement  house,  expert  evidence  admissible  to  determine 
whether  it  embraces  "apartment  house." 

107  U.  S.  445-453,  27  L.  537,  COOK  COUNTY  NAT.  BANK  v.  UNITED 
STATES. 

Syl.   2    (X,  492).     Trustee's  setoff  against  trust  funds. 

Distinguished  in  Smith  v.  Perry,  197  Mo.  452,  459,  95  S.  W.  340,  343, 
where  estate  of  cestui  que  trust  was  insolvent,  trustee's  estate  in 
action  for  accounting  ma}'  set  off  in  equity  claims  held  by  trustee 
individually  against  cestui  que  trust. 

Syl.  5   (X,  493).     National  bank  act  exclusive. 

Approved  in  Cogswell  v.  Second  National  Bank,  76  Conn.  255,  56 
Atl.  576,  upholding  equity  jurisdiction  to  enforce  rights  of  solvent 
national  bank  against  those  guilty  of  mismanagement  of  its  affairs; 
In  re  Burke,  25  R.  I.  303,  55  Atl.  826,  arguendo. 

107  U.  S.  454-463,  27  L.  605,  WABASH  RY.  CO.  v.  McDANIELS. 

Syl.  2   (X,  493).     Master — Safe  appliances. 

Approved  in  Neeley  v.  Southwestern  etc.  Oil  Co.,  13  Okl.  373,  75 
Pac.  543,  64  L.  E.  A.  145,  applying  rule  where  employee  in  cotton-oil 
mill  injured  by  breaking  of  defective  ladder;  Norfolk  etc.  Ry.  Co. 
V.  Wade,  102  Va.  143,  45  S.  E.  916,  holding  railroad  liable  for  injury 


1131  Notes  on  U.  S.  Ecports.  107  U.  S.  4G3-478 

to   servant  from  hidden   defect  in  handle   of  handcar  which  railroad 
could  have  discovered. 

Syl.  3   (X,  494).     Ordinary  care  as  between  master  and  servant. 

Approved  in  Virginia  Portland  Cement  Co.  v.  Luck,  103  Va.  445, 
49  S.  E.  583,  determining  master's  lia,bility  for  injury  to  servant 
engaged  in  trucking  cement  in  factory  and  was  injured  while  passing 
over  board  placed  in  floor  opening. 

Syl.  4    (X,  495).     Negligence — Ordinary   care   defined. 

Approved  in  dissenting  opinion  in  The  Tresco,  134  Fed.  823,  67 
C.  C.  A.  465,  majority  holding  where  stevedore  injured  by  pulling 
out  of  splicing  in  cable  and  day  prior  only  visual  inspection  of  cable 
made,  whereas  removal  of  covering  of  splice  would  have  shown  defect, 
ship  was  negligent. 

Denied  in  Southern  Pac.  Co.  v.  Hetzer,  135  Fed.  2S2,  283,  68  C.  C.  A. 
26,  reasonable  care  is  that  care  which  prudent  railway  officials  exercise 
under  like   circumstances  in  selection  of  competent  servants. 

Syl.  5   (X,  495).     Care  exercised  by  master  for  jury. 

Approved  in  Hilton  v.  Fitchburg  R.  E.  Co.,  73  N.  H.  117,  59  Atl. 
626,  where  blacksmith  usually  assisted  by  left-handed  helper  and 
was  furnished  right-hander,  who  was  unskillful  in  striking  left- 
handed,  and  injured  blacksmith,  master  not  liable. 

107  U.  S.  4G3-466,  27  L.  526,  BALDWIN  v.  STARK. 

Syl.  2  (X,  495).     Conclusiveness  of  land  decision. 

Approved  in  Estcs  v.  Timmons,  12  Okl.  544,  73  Pac.  305,  and  Adams 
V.  Couch,  1  Okl.  34,  26  Pac.  1015,  both  following  rule;  Miller  v. 
Margerie,  149  Fed.  697,  under  Comp.  St.  1901,  p.  1467,  relating  to 
trial  of  Alaska  townsite  contests  before  trustee,  decision  of  trustee 
is  final  as  to  questions  of  fact  except  in  case  of  fraud  or  mistake; 
Cagle  V.  Dunham,  14  Okl.  615,  78  Pac.  562,  refusing  to  set  aside  Land 
Department  decision  rendered  on  notice  and  full  hearing,  on  allega- 
tion of  perjury  committed  before  department;  Paine  v.  Foster,  9 
Okl.  231,  262,  53  Pac.  114,  60  Pac.  25,  applying  rule  to  decision  of 
townsite  trustees;  King  v.  Thompson,  3  Okl.  64S,  39  Pac.  467,  refusing 
to  charge  holder  of  legal  title  as  trustee  for  petitioner  for  town  lot 
awarded  by  townsite  board  where  no  fraud  charged  to  have  been 
practiced  on  board  by  prevailing  party  and  findings  of  board  not 
set  out. 

107  U.  S.  466-478,  27  L.  408,  CLOSE  v.  GLENWOOD  CEMETERY. 

Syl.  4   (X,  498).     Reserved  power  to   amend   corporate   charter. 

Approved  in  McKee  v.  Chautauqua  Assembly,  130  Fed.  540,  65 
C.  C.  A.  8,  upholding  statute  consolidating  corporation  with  others 
organized  for  different  purposes  and  requiring  it  to  assume  their  lia- 


107  U.  S.  478-52G  Notes  on  U.  S.  Reports.  1132 

bilities,  where  such  other  corporations  have   been   unrler  sole  control 
of  its  own  board  of  trustees. 

(X,  496.)  Miscellaneous.  Cited  in  Clark  v.  Eahway  Cemetery 
Co.,  69  N.  J.  Eq.  640,  61  Atl.  263. 

107  U.  S.  478-4S4,  27  L.  529,  WILLIAMS  v.  JACKSON. 

Syl.  1  (X,  498).     Deed  from  trustee  in  trust  deed. 

Approved  in  Chesapeake  Beach  Ey.  Co.  v.  Washington  etc.  R.  R. 
Co.,  199  U.  S.  251,  50  L.  178,  26  Sup.  Ct.  25,  deed  from  trustee  in 
mortgage  conveys  whatever  title  he  had,  though  it  recites  decree  of 
foreclosure;  Havighorst  v.  Bowen,  214  111.  96,  73  N.  E.  404,  where 
record  beneficiary  of  trust  deed  acquired  fee  by  deed  from  grantor 
of  trust  deed  and  trustee  released  deed  before  notes  secured,  which 
were  held  by  another  as  collateral,  were  due,  fact  that  record  shows 
notes  not  due  does  not  charge  subsequent  lienholder  with  notice  of 
improper  discharge;  Marling  v.  Nommensen,  127  "Wis.  370,  106  N.  W. 
846,  where  assignment  of  mortgage  to  plaintiff  not  recorded  till  after 
sale  by  owner,  and  at  time  of  sale  mortgagee  released  mortgage  on 
payment  of  debt,  and  absconded,  plaintiff  estopped  to  enforce  mort- 
gage against  purchaser;  dissenting  opinion  in  Wasserman  v.  Metzger, 
105  Va.  769,  771,  54  S.  E.  901,  where  A  executed  two  notes  secured 
by  trust  deed,  and  on  payment  of  one  it  was  returned  to  him  un- 
canceled, and  B,  colluding  with  A,  went  to  trustee  and  demanded 
sale  under  such  note,  and  on  getting  trustee's  deed  B  made  trust  deed 
to  another  and  conveyed  land  to  A's  wife,  she  assuming  last  debt, 
which  she  did  not  pay,  she  was  not  bona  fide  purchaser  for  value. 

(X,  498.)  Miscellaneous.  Cited  in  Marling  v.  Nommensen,  127 
Wis.  367,  106  N.  W.  845,  maker  of  negotiable  note  can  satisfy  it  onl}' 
by  payment  to  owner  at  that  time  or  to  his  authorized  agent,  whether 
note  secured  by  mortgage  or  not. 

107  U.  S.  485-511,  27  L.  337,  SUN  MUTUAL  INS.  CO  v.  OCEAN 
INS.  CO. 

Syl.  1   (X,  499).     Conclusiveness  of  findings. 

Approved  in  Anglo-American  Land  etc.  Co.  v.  Lombard,  132  Fed. 
734,  68  C.  C.  A.  89,  determining  conclusiveness  of  findings  of  fact 
in  law  action  tried  to  court. 

107  U.  S.  519-526,  27  L.  618,  DISTRICT  OF  COLUMBIA  v.  ARMES. 

Syl.  3   (X,  500).     Lunatic  as  witness. 

Approved  in  City  of  Guthrie  v.  Shaffer,  7  Okl.  467,  54  Pac.  701, 
following  rule. 

Syl.  3  (X,  501).     Cities — Frequency  of  accidents  at  particular  place. 

Approved  in  Yates  v.  Covington,  119  Ky.  232,  83  S.  W.  593,  apply- 
ing rule  in  action  against  city  for  injuries  caused  by  defective  side- 
walk;  Nashville  E.  E.  Co.  v.  Howard,  112  Tenn.  115,  78  S.  W.  1100, 


1133  Notes  on  U.  S.  Reports.  107  U.  S.  529-580 

64  L.  E.  A  437,  in  action  for  injuries  to  street-car  passenger  owing 
to  sudden  jolting  of  car  caused  by  defective  track,  evidence  of 
others  that  they  had  been  nearly  thrown  from  car  at  that  point 
on  other  occasions  is  admissible;  Powell  v.  Nevada  etc.  Ry.,  28 
Nev.  63,  78  Pac.  979,  in  action  for  injuries  caused  by  fall  from 
cart  when  horse  frightened  by  defendant's  steam  whistle,  evidence 
of  frightening  of  other  team  admissible;  Smith  v.  Seattle,  33  Wash. 
485,  74  Pac.  675,  evidence  that  others  at  other  times  had  fallen  on 
obstruction  in  street  by  which  plaintiff  injured  was  admissible. 

107  U.  S.  529-546,  27  L.  424,  PANA  v.  BOWLEE. 

Syl.  6   (X,  504).     Law  governing  interest  on  coupons. 

•  Approved  in  The  Mary  N.  Bourke,  145  Fed.  911,  under  contract  for 
repairing  vessel  made  in  state  where  repairs  made,  interest  on  cost 
computed  according  to  laws  of  such  -state. 

107  U.  S.  546-548,  27  L.  583,  MYERS  v.  SWANN. 

Syl.   1   (X,  505).     Eemoval  for  local  prejudice — Citizenship, 

Distinguished    in    Boatiucn 's    Bank    v.    Fritzlen,    133    Fed.    664,    6S 

C.   C.   A.   288,   defendant  who  is  citizen  of   state   other   than   that   in 

which  suit  brought  may   remove   for   local  prejudice,   though   plaintiiV 

and   some   of  defendants,  are   citizens   of   state   where   action   brought. 

107  U.  S.  557-567,  27  L.  578,  MILLS  COUNTY  v.  EAILEOAD  COS. 

Syl.  2    (X,  506).     Swamp  land  fund. 

Approved  in  State  v.  Bryan,  50  Fla.  373,  39  So.  954,  Laws  1905,  c. 
5384,  does  not  conflict  with  act  of  Congress  of  July  2,  1862,  donating 
to  state  fund  for  establishment  of  college,  because  c.  5384  provides 
for  teaching  of  military  tactics  in  college. 

107  U.  S.  568-580,  27  L.  414,  EEAD  v.  PLATTESMOUTH. 

Syl.  2   (X,  507).     Eequiring  municipality  to  pay  debt — Eetroactivc. 

Approved  in  Gilman  v.  Fernald,  141  Fed.  944,  where  town  having 
power  to  borrow  money  but  not  to  issue  negotiable  bonds  borrowed 
money  on  its  void  negotiable  bonds,  which  it  used,  lender  may  re- 
cover sum  lent;  Chelsea  Sav.  Bank  v.  City  of  Ironwood,  130  Fed. 
412,  66  C.  C.  A.  230,  city  which  issued  and  sold  bonds  for  lawful 
purpose,  but  which  were  held  invalid  for  irregularity  in  issuance  is 
liable  for  consideration  received;  School  Dist.  No.  1  v.  School  Dist. 
No.  7,  33  Colo.  47,  78  Pac.  691,  upholding  Sess.  Laws  1901,  pp.  137, 
138,  as  amended  in  1903,  relating  to  apportionment  and  appraise- 
ment of  property  of  school  district  lying  partly  in  Denver  and  partly 
in  Arapahoe  County;  School  City  of  Eushville  v.  Hayes,  162  Ind.  197, 
70  N.  E.  136,  successful  bidders  who  have  deposited  amount  required 
by  trustees  for-  bid  for  school  bonds,  and  which  board  refused  to 
return  on  refusal  of  bidders  to  take  bonds  on  ground  of  invalidity, 
may  contest  validity  of  statute  under  which  bonds  issued. 


107  U.  S.  581-591  Xotcs  on  U.  S.  Reports.  1134 

Syl.  3   (X,  507).     Legalizing  void  bonds. 

Approved  in  Leavenworth  v.  Leavenworth  etc.  Water  Co.,  69  Kan.  96, 
76  Pac.  455,  upholding  Laws  1883,  c.  34,  legalizing  ordinances  passed  by 
cities  of  first  class;  State  v.  Brown,  97  Minn.  422,  106  N.  W.  485,  up- 
holding Gen.  Laws,  1905,  c.  76,  77,  legalizing  school  bonds  theretofore 
voted  by  cities  for  schools;  Merchants'  Nat.  Bank  v.  East  Grand  Forks, 
94  Minn.  251,  102  N.  W.  705,  upholding  Laws  1903,  c.  382,  relating 
to  levy  of  taxes  and  issuance  of  evidences  of  indebtedness  of  cities  to 
defray  cost  of  public  improvements  theretofore  made. 

107  U.  S.  581-585,  27  L.  518,  MEMPHIS  &  CHARLESTON  R.  R.  CO. 
V.  ALABAMA. 

Syl.  1  (X,  508).     Removal — Citizenship  of  adopted  corporation. 

Approved  in  Dodd  v.  Louisville  Bridge  Co.,  130  Fed.  196,  determining 
citizenship  of  corporation  incorporated  in  several  states  and  formed  by 
consolidation  of  corporations  of  said  states;  Russell  v.  St.  Louis  etc.  Ry. 
Co.,  71  Ark.  454,  457,  75  S.  W.  727,  728,  railroad  organized  in  sister 
state  and  complying  with  Acts  1889,  p.  43,  may  exercise  power  of  eminent 
domain. 

Distinguished  in  Lee  v.  Atlantic  etc.  R.  Co.,  150  Fed.  794,  795,  796, 
determining  citizenship  of  corporation  merged  with  corporation  of  an- 
other state  which  has  become  domesticated  byreincorporation. 

107  U.  S.  586-591,  27  L.  322,  AMBLER  v.  CHOTEAU. 

Syl.  1   (X,  509).     Equity — Adequate  remedy  at  law. 

Approved  in  United  States  v.  Bitter  Root  Development  Co.,  200  U.  S. 
472,  50  L.  560,  26  Sup.  Ct.  318,  denying  equity  jurisdiction  over  suit 
for  wrongful  cutting  and  conversion  of  timber  from  public  domain 
though  act  of  tort-feasor  to  cover  up  tracks  makes  it  difficult  for  govern- 
ment to  prove  case;  General  Elec.  Co.  v.  Westinghouse  Elec.  &  Mfg.  Co., 
144  Fed.  466,  refusing  to  restrain  violation  of  contract  for  manufacture 
and  sale  of  goods  when  it  provides  that,  on  violation  thereof,  violator  shall 
pay  as  liquidated  damages  fifty  per  cent  of  regular  price  sale  of  goods; 
(iarside  v.  Nerval,  1  Alaska,  23,  24,  where  one  cotenant  of  mining  claim, 
acting  as  agent  of  other,  sells  his  interest  to  third  party,  equity  suit  for 
accounting   does   not  lie. 

Distinguished  in  Southern  Pac.  R.  Co.  v.  United  States,  133  Fed.  657, 
658,  66  C.  C.  A.  581,  upholding  equity  jurisdiction  over  suit  by  United 
States  against  railroad  and  its  mortgagees  to  determine  what  portion  of 
lands  erroneously  patented  had  been  sold  to  bona  fide  purchasers,  and 

to  cancel  patents  to  lands  not  so  disposed  of. 

V 
Syl.  3  (X,  510).     Accounting  of  profits  of  corporation — Parties. 

Approved  in  Glucose  Sug.  Ref.  Co.  v.  St.  Louis  Syrup  etc.  Co.,  135 
Fed.  543,  president  of  corporation  not  insolvent  cannot  be  joined  with 
corporation  as  defendant  in  bill  for  injunction  and  accounting  for  in- 
fringement of  patent  by  corporation  merely  because  he  directs  corpora- 
tion's business. 


1135  Kotcs  on  U.  S.  Eeports.  107  U.  S.  591-616 

107  U.  S.  591-595,  27  L.  488,  UNION  TRUST  CO.  v.  SOUTHER. 

Syl.  1  (X,  510).     Receivership  pending  foreclosure — Payment  of  labor. 

Approved  in  Atchison  etc.  Ry.  Co.  v.  Osborn,  148  Fed.  610,  holders  of 
unsecured  claims  for  damages  arising  from  negligence  of  mortgaged 
railroad  prior  to  receivership  have  no  priority  over  mortgagees  on  fore- 
closure. 

Distinguished  in  Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  187,  49 
L.  719,  25  Sup.  Ct.  415,  claim  for  ties  necessary  to  preservation  of  rail- 
road, furnished  wdfliin  six  months  of  receivership,  is  not  preferred  over 
mortgage  lien  recorded  before  contract  under  which  ties  furnished  was 
made. 

107  U.  S.  59G,  27  L.  490,  UNION  TRUST  CO.  v.  WALKER. 

Syl.  1  (X,  513).  Receivers — Preference  of  assigned  claim  for  ex- 
penses. 

Distinguished  in  Norman  v.  Edington,  115  Tenn.  314,  89  S.  W.  745, 
assignee  of  laborer's  claim  cannot  perfect  inchoate  lien  given  by  Shan- 
non 's  Code,   §   3580,  by  giving  notice  there  provided. 

107  U.  S.  597-601,  27  L.  574,  DAVIS  v.  SOUTH  CAROLINA. 

Syl.  1   (X,  513).     Removal  of  prosecutions  against  federal  officers. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  485,  upholding  removal 
of  criminal  prosecution  under  Rev.  St.,  §  641,  where  defendant  discrim- 
inated in  selection  of  jurors;  Virginia  v.  Felts,  133  Fed.  96,  arguendo. 

107  U.  S.  602-616,  27  L.  500,  BASKET  v.  HASSELL. 

Syl.  1    (X,  514).     Necessary  parties  to  appeal. 

Approved  in  Amadco  v.  Northern  Assur.  Co.,  201  U.  S.  201,  50  L. 
726,  26  Sup.  Ct.  507,  death  of  insured  after  judgment  for  insurer  in 
action  on  policy  does  not  require  dismissal  of  writ  of  error,  where,  to 
meet. averment  that  plaintiff  had  no  interest  in  action,  caption  of  declara- 
tion was  amended  to  show  action  was  brought  for  use  of  corporation  and 
averment  inserted  to  show  assignment  of  policy  to  corporation. 

Syl.  2  (X,  514),     Gift  causa  mortis. 

Approved  in  Allen-West  Com.  Co.  v.  Grumbles,  129  Fed.  290,  63 
C.  C.  A.  401,  where  owner  of  stock  in  corporation  delivered  assignment 
of  interest  in  its  business  to  wife,  but  retained  certificate,  voted 
shares  and  received  dividends  thereon,  and  four  years  later  indorsed 
certificates  to  her,  delivery  of  assignment  was  not  gift;  Ragan  v.  Hill, 
72  Ark.  308,  80  S.  W.  150,  loan  by  one  not  expecting  to  live  long  of 
money  to  firm,  which  gave  receipt  agreeing  to  give  money  to  another  in 
case  of  lender's  death,  not  gift  causa  mortis.  See  99  Am.  St.  Rep.  892, 
note. 

Syl.  4  (X,  515).     Gift  causa  mortis — Delivery  of  order. 
Approved  in  Allen-West  Com.  Co.  v.  Grumbles,   129   Fed.   291,  63  C. 
C.  A.  401,  where  owner  of  stock  in  corporation  delivered  assignment  of 


107  U.  S.  625-648  Notes  on  U.  S.  Reports.  1136 

interest  in  its  business  to  wife,  but  retained  certificate,  voted  shares  and 
received  dividends  thereon,  and  four  years  later,  when  indebted,  in- 
dorsed certificate  to  her,  delivery  of  assignment  was  not  gift;  Phinney  v. 
State,  36  Wash.  248,  78  Pac.  931,  68  L.  R.  A.  119,  where  one  in  fear  of 
impending  death  gave  check  to  payee  with  statement  that  he  wanted 
payee  to  get  his  money,  and  he  died  before  check  collected,  there  was 
valid  gift  causa  mortis.     See  99  Am.  St.  Eep.  897,  note. 

Syl.  5  (X,  515).     Gift  causa  mortis — Retention  of  control. 

Approved  in  Allen-West  Com.  Co.  v.  Grumbles,  129  Fed.  295,  63  C. 
C.  A.  401,  where  owner  of  stock  in  corporation  delivered  assignment 
of  interest  in  its  business  to  wife,  but  retained  certificate,  voted  shares 
and  received  dividends  thereon,  and  four  years  later  indorsed  certificate 
to  her,  delivery  of  assignment  was  not  gift;  Noble  v.  Garden,  146  Cal. 
229,  79  Pac.  885,  where  assignments  of  stock  certificates  filled  out  by 
owner  and  corporation  secretary  given  certificates  with  directions  to  de- 
liver them  to  assignees  on  owner's  impending  death,  there  was  no  gift 
causa  mortis;  Industrial  Trust  Co.  v.  Scanlon,  26  R.  I.  230,  58  Atl. 
787,  where  bank  deposit  redeposited  in  names  of  original  depositor  and! 
brother,  and  brother,  though  not  present  at  deposit,  was  given  book  and 
told  it  was  his,  brother  entitled  to  deposit  on  death  of  original  depositor. 

107  U.  S.  625-028,  27  L.  543,  SCHELL  v.  COCHRAN. 

Syl.  2   (X,  517).     Interest  on  judgment — Penalty. 

Approved  in  Agnew  v.  Haymes;  141  Fed.  638,  where  revenue  officer 
wrongfully  seizes  property  and  court  certifies  probable  cause  and  goods 
are  returned  intact,  officer  is  not  liable. 

107  U.  S.  620-630,  27  L.  601,  SCHELL  v.  DODGE. 

Syl.  1  (X,  517).     Change  of  judgment  after  term. 

Approved  in  United  States  v.  Four  Lorgnette  Holders,  132  Fed.  565, 
judgment  of  forfeiture  of  imported  merchandise  for  attempt  to  de- 
fraud custom's  laws  not  vacatable  after  term,  for  irregularities  in  pro- 
cedure. 

107  U.   S.   640-648,   27  L.   601,  GAGE  v.  HERRING. 

Syl.  1    (X,  519).     Patent  reissue — Different  claims. 

Approved  in  Rawson  etc.  Mfg.  Co.  v.  Hunt  Co.,  147  Fed.  240,  following 
rule;  Thomson-Houston  Elec.  Co.  v.  Black  River  Tr.  Co.,  135  Fed.  766, 
68  C.  C.  A.  461,  upholding  Van  Depoele  reissue  No.  11,872,  for  traveling 
contract  for  electric  railways. 

(X,  519.)  Miscellaneous.  Cited  in  Johnson  v.  Foos  Mfg.  Co.,  141 
Fed.  89,  Rev.  St.,  §  973,  denying  costs  where  no  disclaimer  filed,  does 
not  apply  to  costs  on  appeal  where  dismissal  of  infringement  suit  was 
erroneous. 


1137  Notes  on  U.  B.  Keports.  107  U.  S.  649-671 

107  U.  S.  (J49-G55,  27  L.  57G,  SLAWSON  v.  GRAND  STREET  R.  E. 

Syl.  1  (X,  521).     Dismissal  of  infringement  suit — Void  patent. 

Approved  in  Thomas  v.  St.  Louis  R.  Co.,  149  Fed.  754,  question  of 
validity  of  patent  on  its  face  may  be  raised  by  demurrer  in  action  for 
its  infringement;  Conderman  v.  Clements,  147  Fed.  917,  court  must  dis- 
miss suit  to  restrain  infringement  of  patent  where  structure  is  not 
patenlable  though  defense  not  set  up  in  answer. 

Syl.  4    (X,  522).     Patentable   novelty. 

Approved  in  New  York  Belting  e'tc.  Co.  v.  Sierer,  149  Fed.  769,  Fur- 
ness  &  Watts  patent  No.  529,961,  for  tiled  floor,  is  void  in  view  of 
prior  art;  Baker  v.  Duncombe  Mfg.  Co.,  146  Fed.  748,  Baker  patents  No. 
726,  812,  and  No.  736,346,  for  process  for  treating  coffee,  are  void  in 
view  of  prior  art. 

107  U.  S.  655-671,  27  L.  520,  UNITED  STATES  v.  BRITTON. 

S}-1.  4  (X,  524).     Banks — Indictment  for  false  entries. 

Approved  in  United  States  v.  Francis,  144  Fed.  524,  where  indictment 
charged  conspiracy  to  commit  offense  against  government  on  April  18, 
1904,  and  evidence  showed  defendant  came  into  conspiracy  in  October, 
1902,  and  indictment  found  June  15,  1905,  offense  not  barred  by  limita- 
tion under  Rev.  St.,  §  1004;  United  States  v.  Eastman,  132  Fed.  554, 
upholding  indictment  against  national  bank  officer  under  Rev.  St.,  § 
5209,  for  misapplication  of  funds. 

Syl.  5  (X,  524).     Indictment  in  language  of  statute. 

Approved  in  Miller  v.  United  States.  136  Fed.  581,  69  C.  C.  A.  355, 
holding  insufticieut  indictment  under  Rev.  St.,  §  4746,  for  procuring 
presentation  of  false  pension  affidavit. 

Syl.   6   (X,  524).     Misapplication   of  bank's   funds. 

Approved  in  Clement  v.  United  States,  149  Fed.  319,  upholding  suffi- 
ciency of  evidence  against  national  bank  president  for  misapplication 
of  funds  under  Rev.  St.,  §  5209;  United  States  v.  Martindale,  146  Fed. 
292,  where  indictment  under  Rev.  St.,  §  5209,  charged  drawing  of  checks 
and  obtaining  payment  when  officer  had  no  money  on  deposit,  and  evi- 
dence showed  apparent  credit  on  books,  government  cannot  impeach  credit 
by  showing  deposit  previously  entered  was  false;  United  States  v.  Green, 
136  Fed.  643,  holding  insufficient  indictment  under  Rev.  St.,  §  5451,  for 
bribery  of  government  officer;  United  States  v.  Eastman,  132  Fed.  552, 
553,  upholding  indictment  of  national  bank  officer  under  Rev.  St.,  § 
5209,  for  nusapplie-ation  of  funds. 

Distinguished  in  United  States  v.  Howard,  132  Fed.  354,  indictment 
under  Rev.  St.,  §  5393,  for  subornation  of  perjury,  alleging  that  defend- 
ant knew  at  time  of  subornation  that  testimony  to  be  given  was  false, 
willful  and  contrary  to  oath,  is  bad. 

72 


107  U.  S.  671-711  Notes  on  U.  S.  Reports.  •  1138 

Syl.   7    (X,  525).     Banks — Indictment  for  false  entries. 

Approved  in  State  v.  Piper,  73  N.  H.  229,  60  Atl.  744,  indictment 
against  bank  oflScial  for  making  false  entry  of  moneys  of  bank  paid  out, 
alleging  that  defendant  as  assistant  cashier  had  not  paid  out  money,  is 
insufficient. 

107  U.  S.  671-676,  27  L.  534,  UNITED  STATES  v.  CUBTIS. 

Syl.  1  (X,  526).     Notary  public — Oath  to  bank  officials. 

Approved  in  In  re  Pancoast,  129  Fed.  645,  under  Bankr.  Act,  §  20, 
notary  public  could  administer  oath  to  proof  of  claim. 

107  U.  S.  676-678,  27  L.  592,  NATIONAL  BANK  OF  XEXIA  v. 
STEWART. 

Syl.  1   (X,  526).     National  bank's  loan  on  own  stock. 
■    Approved  in  Waterbury  v.  McKinnon,  146  Fed.  739,  that  lender,  who 
was  resident  of  Montana,   procured   note   and   mortgage   securing   same 
to  be  executed  in  name  of  plaintiff,  who  was  Canadian,  in  order  to  evade 
taxation,  is  no  defense  to  foreclosure. 

107  U.  S.  678-691,  27  L.  442,  ESCANABA  CO.  v.  CHICAGO. 

Syl.  2   (X,  527).     Navigable  waters — State  regulation. 

Approved  in  The  Nonpareil,  149  Fed.  523,  railroad  maintaining  bridge 
over  Erie  canal  with  piers  resting  on  submerged  unprotected  cribs  extend- 
ing beyond  piers  on  canal  side  is  liable  for  injury  to  canal  boat  and 
cargo  caused  by  collision  with  crib ;  United  States  v.  Union  Bridge  Co., 
143  Fed.  391,  upholding  right  of  United  States  to  require  alteration  of 
bridge  erected  under  lawful  state  authority,  where  it  has  become  an 
obstruction  to  navigation;  Corrigan  Transit  Co.  v.  Sanitary  Dist.,  137 
Fed.  857,  70  C.  C.  A.  381,  regulation  of  current  introduced  into  Chicago 
river,  lying  wholly  within  Illinois,  by  improvements  of  Chicago  sanitary 
district,  is  A-alid  except  as  to  Congress;  Minnesota  Canal  etc.  Co.  v. 
Koochiching  Co.,  97  Minn.  442,  107  N.  W.  410,  denying  right  to  with- 
draw water  from  navigable  stream  by  canals  and  discharge  it  in  different 
drainage  area,  thereby  impairing  navigability;  Kansas  City  etc.  R.  R. 
Co.  V.  Wiygul,  82  Miss.  231,  33  So.  967,  61  L.  R.  A.  578,  Comp.  St. 
1901,  p.  3540,  does  not  deprive  railroad  which,  under  state  grant,  has 
constructed  bridge  over  navigable  stream  from  making  repairs. 

Syl.  3   (X,  529).     Limiting  power  of  territory — Admission. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  478,  50  L.  278,  26  Sup. 
Ct.  127,  provision  of  South  Carolina  constitution  that  all  navigable 
waters  shall  forever  remain  public  highways  does  not  prevent  legislature 
from  authorizing  dam  across  stream  to  drain  lowlands. 

107  U.  S.  691-711,  27  L.  584,  TRANSPORTATION  CO.  v.  PARKERS- 
BURG. 

Syl.  5  (X,  531).     Wharfage  and  tonnage  distinguished. 

Approved  in  Conradt  v.  Miller,  2  Alaska,  439,  incorporated  Ala:-l-.a 
towns  have  no  power  to  grant  franchise  to  build  wharves  on  public  btrctta 


^39  Notes  on  U.  S.  Eeports.  107  U.  S.  711-769 

and  navigable  waters  abutting  thereon  and  to  collect  tolls  from  public 
for   use   of   same. 

Syl.  6   (X,  531).     Wharfage  niu^t  be  reasonable. 

Approved  in  Weems  S.  B.  Co.  v.  People's  S.  B.  Co.,  141  Fed.  457,  458, 
459,  where  wharf  built  on  bank  of  navigable  stream  in  country  where  it 
constitutes  only  means  by  which  people  can  reach  river  and  use  means 
of  commerce  on  same,  it  cannot  be  converted  into  private  property  by 
single  carrier  leasing  same. 

Syl.  10  (X,  532).     State  regulation  of  wharves. 

Approved  in  People  v.  Reardon,  184  N.  Y.  457,  112  Am.  St.  Rep.  646, 
77  N.  E.  979,  upholding  Laws  1905,  pp.  474,  477,  imposing  tax  on 
transfers  of  corporate  stock;  State  v.  Faudre,  54  W.  Va.  123,  102  Am. 
St.  Rep.  927,  46  S.  E.  270,  63  L.  R.  A.  877,  West  Virginia  cannot  punish 
one  acting  under  Ohio  franchise  to  operate  ferry  over  Ohio  river  for 
charging  one  coming  from  Ohio  more  ferriage  than  allowed  by  West 
Virginia  law. 

(X,  530.)  Miscellaneous.  Cited  in  The  Nonpareil,  149  Fed.  523,  rail- 
road which  maintained  bridge  over  Erie  canal  with  piers  resting  on 
submerged  unprotected  cribs  extending  beyond  piers  on  canal  side  is 
liable  for  injury  to  canal  boat  caused  by  collision  with  crib. 

107  U.  S.  711-709,  27  L.  448,  LOUISIANA  v.  JUMEL. 

Syl.   4    (X,   534).     Suit   against   state   officer. 

Approved  in  Sanders  v.  Saxton,  182  N.  Y.  480,  481,  482,  108  Am. 
St.  Rep.  826,  75  N.  E.  530,  state  being  necessary  party  to  action  by 
land  owner  against  land  commissioner  and  state  comptroller  to  have 
tax  deeds  to  state  declared  void,  action  not  maintainable;  Buchanan  v. 
State  Treasurer,  68  S.  C.  420,  47  S.  E.  686,  denying  jurisdiction  over 
Tiiandamus  to  compel  comptroller  general  to  issue  salary  warrant  where 
there   is   no   statute   fixing   salary   and   no   appropriation   therefor.     See 

108  Am.  St.  Rep.  837,  note. 

Distinguished  in  Graham  v.  Folsom,  200  U.  S.  255,  50  L.  469,  26  Sup. 
Ct.  245,  mandamus  to  compel  county  auditors  and  treasurers  to  levy 
tax  to  pay  judgment  on  township  bonds  is  not  suit  against  state  within 
inhibition  of  federal  constitution. 

Syl.  5  (X,  535).     Mandamus  proceedings  against  state. 
See   108   Am.   St.   Rep.    S38,   note. 

Syl.  7   (X,  536).     Judicial  control  of  state's  financial   agents. 

Approved  in  Smith  v.  Alexander,  146  Fed.  108,  refusing  preliminary 
injunction  in  suit  for  injunction  against  state  commissioners,  real  purpose 
of  which  is  to  enforce  contract  between  complainant  and  state  in  ac- 
cordance with  construction  thereof  by  complainant,  correctness  of  which 
is   denied. 


108  U.  S.  10-29  Notes  on  U.  S.  Keports.  1140 

107  U.  S.  769-812,  27  L.  468,  ANTONI  v.  GREENHOW. 

Syl.  4   (X,  538).     Judicial  control  over  state  financial  agents. 

Approved  in  Smith  v.  Alexander,  146  Fed.  108,  refusing  preliminary 
injunction  in  suit  for  injunction  against  state  commissioners,  real  purpose 
of  which  is  to  enforce  contract  between  complainant  and  state  in  ac' 
cordance  with  construction  thereof  by  complainant,  correctness  of  which 
is  denied;  Buchanan  v.  State  Treasurer,  68  S.  C.  420,  47  S.  E.  686,  deny- 
ing jurisdiction  over  mandamus  to  compel  comptroller  general  to  issue 
salary  warrant  where  there  is  no  statute  fixing  salary  and  no  appropria- 
tion therefor.     See  108  Am.  St.  Eep.  837,  note. 


CVIII  UNITED  STATES. 


108  U.  S.  10-11,  27  L.  631,  BIGELOW  v.  ARMES. 

Syl.  1  (X,  540).     Specific  performance — Purchaser  with  notice. 

Approved  in  Barton  v.  Dunlap,  8  Idaho,  92,  66  Pac.  836,  holding  pur- 
chaser from  vendor  with  notice  of  agreement  to  sell  is  bound  to  convey 
upon  payment  of  purchase   price. 

108  U.  S.  14,  15,  27  L.  634,  FEIBELMAN  v.  PACKARD. 

Syl.  1    (X,  541).     Appeal  by  one  joint  defendant. 

Apjiroved  in  Port  v.  Schloss  Bros.  &  Co.,  149  Fed.  732,  dismissing  writ 
of  error  when  both  defendants  do  not  join  in  it,  where  there  was  a  joint 
judgment. 

108  U.  S.  18-24,  27  L.  636,  CHICAGO  ETC.  R.  R.  v.  WIGGINS  FERRY 
CO. 

Syl.  2  (X,  542).     Federal  collateral  attack  on  state  judgment. 

Approved  in  First  Nat.  Bauk  v.  City  of  Covington,  129  Fed.  804, 
adjudication  in  suit  for  taxes  for  one  year  is  not  conclusive  as  to 
liability  for  next  year  in  federal  court,  as  it  is  not  conclusive  in  state 
court. 

108  U.  S.  24-29,  27  L.  638,  ST.  LOUIS  ETC.  R.  R.  v.  SOUTHERN  EX- 
PRESS  CO. 

Syl.  1   (X,  543).     "What  is  final  appealable  decree. 

Approved  in  Stahl  v.  Stahl,  220  111.  190,  77  N.  E.  68,  holding  decree 
that  certain  conveyances  were  in  trust  and  referring  case  for  accounting 
is  final  as  to  title. 


1141  Notes  on  U.  S.  Reports.  108  U.  S.  30-66 

108  U.  S.  30,  31,  27  L.  640,  MISSOURI  ETC.  RY.  CO.  v.  DINSMORE. 

Syl.  5  (X,  544).     Correcting  defective  record  on  appeal. 

Approved  in  Flickinger  v.  First  Nat.  Bank,  14.5  Fed.  164,  holding 
where  transcript  on  appeal  does  not  contain  all  the  evidence,  proper  pro- 
cedure is  to  suggest  diminution  of  the  record. 

108  U.  S.  32-51,  27  L.  641,  STEBBINS  v.  DUNCAN. 

Syl.  2  (X,  544).     Secondary  evidence  to  prove  lost  instrument. 

Approved  in  Kcely  v.  Moore,  196  U.  S.  41,  49  L.  379,  25  Sup.  Ct.  169, 
holding  testimony  of  subscribing  witnesses,  certificate  of  proof  of  death 
and  genuineness  of  testator's  signature  proved  execution  of  will;  Toledo 
Traction  Co.  v.  Cameron,  137  Fed.  61,  69  C.  C.  A.  28,  holding  when  wit- 
ness cannot  be  produced  at  trial,  a  person  who  heard  him  testify,  and 
took  notes,  at  former  trial  may  testify  as  to  what  the  testimony  was ; 
Brown  v.  Harkins,  131  Fed.  67,  65  C.  C.  A.  301,  denying  admissibility  of 
secondary  evidence  of  contents  of  account-book  where  proof  insufficient 
to  show  exhaustive  search  for  original. 

Syl.  5   (X,  545).     Excluding  deposition. 

Approved  in  Columbus  Ry.  Co.  v.  Patterson,  143  Fed.  250,  holding 
objection  to  deposition  in  federal  court  on  ground  that  it  is  not  shown 
that  witness  is  without  reach  of  subpoena  is  waived  if  not  made  at  the 
time  and  comes  too  late  on  appeal. 

Syl.  8  (X,  545).     Notice  from  recorded  document. 

Approved  in  Cooper  v.  Burns,  133  Fed.  403,  holding  conveyance  by 
guardian  under  order  of  court  and  conveyance  from  purchaser  to  guard- 
ian, when  recorded,  were  notice  to  mortgagee  from  guardian  and  he  was 
not  protected. 

108  U.  S.  51-66,  27  L.  648,  CONNECTICUT  MUTUAL  LIFE  INS.  CO. 
V.  CUSHMAN. 

Syl.  4   (X,  546).     Contracting  with  reference  to  existing  laws. 
Approved  in  Hooker  v.  Burr,  194  U.  S.  420,  48  L.  1050,  1051,  24  Sup.  Ct. 
700,  holding  law  in  force  at  time  of  sale  governs  rights  of  redemptioners. 

Syl.  5  (X,  547).     Judicial  sale — Interest  on  redemption. 

Approved  in  Hooker  v.  Burr,  194  U.  S.  426,  48  L.  1053,  24  Sup.  Ct. 
70(3,  holding  independent  purchaser  at  foreclosure  sale  cannot  question 
validity  of  statute  reducing  rate  of  which  existed  at  date  of  purchase. 
See  99  Am.  St.  Rep.  26,  30,  notes. 

Distinguished  in  Bradley  v.  Lightcap,  195  U.  S.  21,  49  L.  74,  24  Sup. 
Ct.  748,  holding  law  in  force  at  date  of  mortgage  could  be  changed 
without  affecting  rights  of  purchaser  at  foreclosure  sale  who  paid  mort- 
gage debt  in  full. 


108  U.  S.  66-124  Notes  on  U.  S.  Reports.  1142 

108  U.  S.  66-73,  27  L.  654,  MEDSKER  v.  BONEBRAKE. 

Syl,  3  (X,  548).    Loan  by  wife  to  husband. 

Approved  in  Fritz  v.  Fernandez,  45  Fla.  332,  34  So.  320,  holding  when 
wife  pledges  her  separate  estate  for  husband's  debts,  she  has  same  rights 
as  other  creditors. 

108  U.  S.  74,  75,  27  L.  640,  STUCKY  v.  MASONIC  SAVINGS  BANK. 

Syl.  1  (X,  548).     Bankruptcy — Receipt  of  debt  as  preference. 

Approved  in  Hardy  v.  Gray,  144  Fed.  925,  holding  bankrupt  cannot  bo 
denied  discharge  if  he  was  innocent  of  any  wrong  in  giving  preference; 
Off  V.  Hakes,  142  Fed.  365,  In  re  Goodhile,  130  Fed.  475,  and  Turner  v. 
Fisher,  133  Fed.  595,  all  holding  where  creditor  did  not  have  reasonable 
cause  to  believe  debtor  insolvent,  transfer  to  him  was  not  fraudulent ; 
Capital  Nat.  Bank  v.  Wilkerson,  36  Ind.  App.  473,  75  N.  E.  839,  holding 
under  bankruptcy  act  trustee  cannot  recover  of  a  preferred  creditor 
unless  creditor  had  reasonable  cause  to  believe  he  was  preferred ; 
Stevenson  v.  Milliken  etc.  Co.,  99  Me.  326,  59  Atl.  475,  holding  pay- 
ments not  preferences;  Harmon  v.  Walker,  131  Mich.  542,  543,  91  N. 
W.  1026,  holding  information  that  creates  a  suspicion  of  insolvency 
is  not  suflicient  to  show  preference;  Suffel  v.  McCartney  Nat.  Bank,  127 
Wis.  213,  106  N.  W.  839,  holding  taking  additional  security  from  debtor 
by  creditor  is  not  in  violation  of  banki'uptcy  act. 

108  U.  S.  76-91,  27  L.  656,  NEW  HAMPSHIRE  v.  LOUISIANA. 
Syl.  2  (X,  549).     Real  party  in  interest. 
See  101  Am.  St.  Rep.  171,  note. 

108  U.  S.  110-124,  27  L.  669,  OTTAWA  v.  CAREY. 

Syl.  1  (X,  551).     Power  of  municipalities  limited. 

Approved  in  Conradt  v.  Miller,  2  Alaska,  437,  town  councils  in  Alaska 
have  no  power  to  grant  franchise  to  build  wharves  in  public  streets  an<l 
navigable  waters  abutting  thereon;  In  re  Bruno  Munro,  1  Alaska,  280, 
towns  in  Alaska  have  no  power  to  create  courts. 

Syl.  4  (X,  552).     Municipal  corporations  to  issue  aid  bonds. 

Approved  in  Scott  v.  Laporte,  162  Ind.  48,  68  N.  E.  282,  holding 
municipal  ordinance  authorizing  private  corporation  to  furnish  water  to 
city  and  pledging  taxing  power  to  sustain  it  is  void ;  Manning  v.  City 
of  Devil's  Lake,  13  N.  D.  54,  99  N.  W.  53,  holding  city  has  no  authority 
to  construct  bridge  outside  of  its  limits  for  purpose  of  increasing  busi- 
ness of  city. 

Syl.  5   (X,  552).     Exercise  of  legislative  grant. 

Approved  in  Scott  v.  Laporte,  162  Ind.  49,  68  N.  E.  283,  holding 
until  legislature  grants  power  to  a  city,  the  grant  is  inoperative;  Green 
Co.  V.  Shorten,  116  Ky.  126,  75  S.  W.  254,  holding  in  the  absence  of 
recital  in  bond,  county  was  not  estopped  from  showing  noncompliance 
with  preliminaries  necessary  to  their  validity. 


1143  Notes  on  U.  S.  Keports.  108  U.  S.  125-153 

108  U.  S.  125-130,  27  L.  675,  ARTHUR  v.  FOX. 
Syl.  1  (X,  552).     Tariff  on  nonenumerated  articles. 

Approved  in  United  States  v.  Roesseler  &  H.  etc.  Co.,  137  Fed.  773, 

70  C.  C.  A.  346,  holding  under  tariff  act  resemblance  of  articles  and  not 
identity  is  required;  Halm  v.  United  States,  131  Fed.  1001,  holding  for 
])uip()se  of  fixing  duty  intention  of  Congress  must  be  looked  to. 

108  U.  S.  13L*-143,  27  L.  678,  ELLIOTT  v.  SACKETT. 

Syl.  1   (X,  553).     Grantee  of  equity  of  redemption. 

Approved  in  In  re  Shoesmith,  135  Fed.  687,  68  C.  C.  A.  322,  holding 
fraudulent  purchaser  from  bankrupt  of  mortgaged  land  bought  only 
equity  of  redemption;  Gill  v.  Robertson,  18  Colo.  App.  319,  71  Pac.  636, 
holding  grantee  was  not  liable  for  an  assumption  of  mortgage  inserted 
iu  deed  without  knowledge  of  grantee. 

Syl.  2   (X,  553).     Reformation  of  instruments. 

Approved  in  Carroll  v.  McMurray,  136  Fed.  670,  holding  mistake  in 
deed  that  it  carried  rents  would  be  reformed  by  court  of  equity ; 
Marshall  v.  Homier,  13  Okl.  276,  74  Pae.  371,  holding  where  growing 
crops  were  to  be  reserved  but  were  omitted  by  mistake,  deed  would 
be  reformed. 

108  U.  S.  143-153,  27  L.  682,  EWELL  v.  DAGGS. 

Syl.  1   (X,  554).     Limitation  of  actions. 

Approved  in  MacMillan  v.  Clements,  33  Ind.  App.  123,  70  N.  E.  998, 
holding  payment  on  note  secured  by  mortgage,  if  sufficient  to  take  note 
out  of  statute  of  limitations,  takes  mortgage  out  also ;  Hopkins  v.  Clyde, 

71  Ohio  St.  150,  104  Am.  St.  Rep.  737,  72  N.  E.  848,  holding  purchaser 
of  interest  of  heir  of  mortgagor  may  plead  statute  of  limitations ; 
Tinsley  v.  Lombard,  46  Or.  11,  78  Pac.  895,*  holding  first  mortgagee 
cannot  plead  statute  of  limitations  against  foreclosure  of  second  mort- 
gage by  mortgagee  in  cross-complaint. 

Syl.  3   (X,  555).     Effect  of  usury  on  contract. 

Approved  iu  Haggart  v.  Wilczinski,  143  Fed.  27,  holding  sale  under 
foreclosure  by  substituted  trustee  whose  appointment  was  invalid  was 
voidable;  Light  v.  Conover,  10  Okl.  737,  63  Pac.  968,  holding  agreement 
without  consent  of  Indian  agent  for  pasturage  on  Indian  reservations 
is  void;  Kelly  v.  Courter,  1  Okl.  281,  30  Pac.  373,  holding  where  sale 
of  liquor  is  illegal,  failure  of  landlord  to  furnish  ice  to  keep  liquor  cool 
is  not  actionable;  dissenting  opinion  in  McNeill  v.  Railroad  Co.,  135 
N.  C.  733,  47  S.  E.  783,  67  L.  R.  A.  227,  majority  holding  person 
traveling  gn  a  pass  issued  in  violation  of  Laws  1891,  p.  277,  c.  320,  §  4, 
is  a  passenger. 


108  U.  S.  153-207  Notes  on  U.  S.  Eeports.  1144 

108  U,  S.  153-157,  27  L.  685,  THE  BELGENLAND. 

Syl.  3   (X,  556).     Appeal  bond  in  admiralty. 

Approved  in  Perriam  v.  Pacific  Coast  Co.,  133  Fed.  144,  66  C.  C.  A. 
206,  in  admiralty,  sureties  on  stipulation  for  release  of  vessel  are  not 
parties  so  as  to  require  them  to  be  joined  on  appeal. 

(X,  556.)      Miscellaneous.     See  113  Am.   St.   Eep.   872,  note. 

108  U.  S.  161,  162,  27  L.  687,  BAETON  v.  GEILEE. 

Syl.  1  (X,  557).     State  court  decision  on  bankruptcy. 

Approved  in  Eector  v.  City  Deposit  Bank  Co.,  200  U.  S.  411,  50  L. 
529,  26  Sup.  Ct.  289,  holding  action  by  trustee  in  bankruptcy  to  recover 
bankrupt's  assets  presented  federal  question. 

108  U.  S.   165-176,  27  L.  688,  HILTON  v.  DICKINSON. 

Syl.  5  (X,  558).     Pleading — Amount  stated  as  amount  in  dispute. 

Approved  in  Memphis  Keeley  Inst.  v.  Keeley  Co.,  144  Fed.  631,  hold- 
ing duty  of  court  to  dismiss  upon  its  own  motion  a  case  over  which  it 
has  no  jurisdiction;  Gray  v.  Grand  Forks  Merc.  Co.,  138  Fed.  347,  hold- 
ing under  bankruptcy  act  right  of  appeal  is  determined  by  amount  al- 
lowed or  rejected  and  not  of  original  claim;  Phoenix  Ins.  Co.  v.  Moss, 
7  Ariz.  276,  64  Pac.  443,  holding  under  Arizona  Eev.  St.,  par.  593,  judg- 
ment for  less  than  $200  is  not  appealable,  although  greater  sum  was 
asked;  Smith  v.  Chesapeake  etc.  Ey.  Co.,  118  Ky.  828,  82  S.  W.  411, 
holding  jurisdiction  is  determined  by  value  of  matter  in  dispute,  and 
not  by  damages  claimed. 

108  U.  S.  193-199,  27  L.  701,  UNITED  STATES  v.  BEITTON. 

Syl.  2  (X,  561).     Misniipropriation  of  bank  funds. 

Approved  in  United  States  v.  Martindale,  146  Fed.  286,  holding  under 
Eev.  St.,  §  5209,  indictment  charging  that  director  of  bank  between 
certain  dates  misapplied  stated  sum  of  money  is  insufficient. 

Syl.  3    (X,  561).     Knowledge  of  withdrawal   of  deposit. 

Approved  in  United  States  v.  Martindale,  146  Fed.  283,  holding  indict- 
ment charging  that  director  of  bank  misapplied  funds  "of  said  associa- 
tion without  the  knowledge  thereof"  is  not  equivalent  to  saying  that  it 
was  done  without  comment  of  directors. 

108  U.  S.  199-207,  27  L.  698,  UNITED  STATES  v.  BEITTON. 

Syl.   1    (X,  561).     Abandonment  of  conspiracy. 

Approved  in  Hyde  v.  Shine,  199  U.  S.  76,  50  L.  94,  25  Sup.  Ct. 
760,  holding  any  party  to  a  conspiracy  may  abandon  his  design  before 
the   overt  act  is   done   and  avoid   the   penalty. 

Syl.  2   (X,  561).     Indictment  for  conspiracy. 

Approved  in  United  States  v.  MacAndrews  &  Forbes  Co.,  149  Fed. 
831,  holding  under  anti-trust  law  of  July  2,   189U,  indictme'it  for  con- 


1145  Notes  on  U.  S.  Eeports.  108  U.  S.  212-227 

spiracy  in  restraint  of  interstate  commerce  was  sufficient;  United  States 
V.  Bradford,  148  Fed.  417,  423,  holding  under  Eev.  St.,  §  5440,  gist  of 
offense  is  the  conspiracy  and  not  the  overt  act;  Ex  parte  Black,  147 
Fed.  837,  holding  where  overt  act  took  place  after  conspiracy  had  been 
consummated,  it  was  ineffective  to  constitute  offense;  Wilder  v.  United 
States,  143  Fed.  439,  440,  443,  444,  445,  447,  holding  obstructing  admin- 
istration of  justice  in  action  between  private  citizens  is  violation  of  Eev. 
St.,  §  5399;  United  States  v.  Green,  136  Fed.  656,  holding  indictment 
charging  conspiracy  to  defraud  government  must  set  for  the  acts  agreed 
to  be  done;  Wong  Din  v.  United  States,  135  Fed.  704,  68  C.  C.  A.  340, 
holding  indictment  for  conspiracy  in  landing  Chinese  was  sufficient. 

Syl.  4   (X,  562).     Common-law  offenses  against  United  States. 

Approved  in  Barclay  v.  United  States,  11  Okl.  509,  69  Pac.  800, 
holding  stealing  property  in  Indian  Territory  and  carrying  it  into 
Orage  Indian  reservation  does  not  constitute  larceny  under  laws  of 
United  States. 

108  U.  S.  212-218,  27  L.  703,  ST.  PAUL  ETC.  E.  E.  CO.  v.  McLEAN. 

Syl.  1   (X,  562).     Eemoval  of  causes. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  245,  49  L.  464,  25  Sup.  Ct.  251,  holding  upon  filing  petition  for  re- 
moval and  bond  in  proper  case,  in  time,  state  court  loses  jurisdiction. 

108   U.   S.   218-227,   27   L.   706,    MANHATTAN    MEDICINE    CO.    v. 
WOOD. 

Syl.   1   (X,  563).     Trademarks. 

Approved  in  dissenting  opinion  in  Continental  Paper  Bag  Co.  v. 
Eastern  Paper  Bag  Co.,  150  Fed.  755,  majority  holding  Liddell  patent 
No.  558,969,  for  paper-bag  machine,  valid  as  against  patent  No.  598,497. 

Syl.  2   (X,  503).     Assignment  of  trademarks. 

Approved  in  Bulte  v.  Ingleheart  Bros.,  137  Fed.  499,  70  C.  C.  A. 
76,  assignment  of  flour  trademark  independent  of  business  in  which  it 
was  used  was  void. 

Syl.  3  (X,  564).     Fraud  of  trademark  owner. 

Approved  in  Siegert  v.  Gandolfi,  139  Fed.  921,  922,  manufacturer  of 
bitters  who  falsely  holds  out  his  bitters  containing  no  harmful  in- 
gredients is  not  entitled  to  injunction  to  prevent  unfair  competition; 
Eegis  V.  Jaynes,  185  Mass.  462,  70  N.  E.  481,  use  of  trade  name  after 
notice  that  it  is  copied  from  plaintiff's  name  is  strong  evidence  oi 
fraud;  Lemke  v.  Deitz,  121  Wis.  108,  98  N.  W.  93S,  under  Eev.  St. 
1898,  §  1409g,  sale  of  label  on  proprietary  medicines  which  falsely 
states  that  medicine  is  put  up  by  a  physician  will  not  be  protected  by 
injunction;  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  346,  ma- 
jority holding  person  who,  through  conspiracy  of  others,  parts  with 
his  Tiioney  under  belief  he  is  defrauding  others  may  recover  it  from  tiiose 
defrauding  him. 


108  U.  S.  256-305  Notes  on  U.  S.  Reports.  1146 

108  U.  S.  256-259,  27  L.  718,  WILKINS  v.  ELLETT. 

Syl.  4   (X,  567).     Transfer  of  note  by  administrator. 

Approved  in  Coram  ▼.  Ingersoll,  148  Fed.  176,  holding  transfer  of  note 
due  from  a  resident  of  Montana  by  administrator  of  that  state  is 
valid  against  all  other  administrators. 

Syl.  4   (X,  567).     Suit  by  administrator. 

Approved  in  Austin  v.  Snider,  17  Colo.  App.  188,  68  Pac.  127,  holding 
where  sole  heir  is  entitled  to  property,  appointment  of  administrator  is 
not  necessary. 

Syl.  1   (X,  566).     Lex  domicilii  applied  to  administration. 

Approved  in  Bates  Machine  Co.  v.  Norton  Iron  Works,  113  Ky.  379, 
68  S.  W.  425,  holding  debts  are  assets  of  deceased  at  place  of  his 
domicile. 

108  U.  S.  260-267,  27  L.  719,  HAMPTON  v.  PHIPPS. 

Syl.  1  (X,  567).     Right  of  creditor  to  debtor's  indemnity. 

Approved  in  Westbrook  v.  Belton  National  Bank,  97  Tex.  249.  77 
S.  W.  943,  creditor  cannot  take  advantage  of  indemnity  given  to  surety 
by  a  stranger  to  the  debt. 

Syl.  2   (X,  568).     Rights  of  surety. 

Approved  in  Taylor  v.  Skiles,  113  Tenn.  296,  81  S.  W.  1260,  party 
primarily    bound   to    pay    debt   must    devote    his    entire    estate    to    save 

surety. 

108  U.  S.  269-277,  27  L.  719,  ROUNDTREE  v.  SMITH. 

Syl.  2    (X,  568).     Gambling  contracts. 

Approved  in  De  Mary  v.  Burtenshaw,  131  Mich.  333,  91  N.  W.  650, 
in  action  by  grain  broker  against  estate,  where  jury  found  contract  was 
not  a  gambling  one,  verdict  will  not  be  disturbed. 

108  U.  S.  282-287,  27  L.  728,  LEWIS  v.  CITY  OF  SHREVEPORT. 

Syl.  2    (X,  570).     Ratification  of  void  act. 

Approved  in  Pennsylvania  Co.  v.  Cole,  132  Fed.  679,  holding  void  con- 
tract made  by  city  council  for  construction  of  sewer  cannot  be  ratified. 

108  U.  S.  288-291,  27  L.  726,  FARLOW  v.  KELLY. 

Syl.  2    (X,  570).     Contributory  negligence. 

Approved  in  McCord  v.  Atlantic  etc.  R.  R.  Co.,  134  N.  C.  57,  45  S. 
E.  1033,  holding  fact  that  passenger  has  his  arm  extended  beyond 
window  does  not  bar  recovery. 

108  U.  S.  292-305,  27  L.  732,  EXSMINGER  v.  POWERS. 

Syl.  2    (X,  571).     Writ  of  review. 

Approved  in  In  re  Holmes,  142  Fed.  394,  time  within  which  petition 
for  revision  in  matter  of  law  under  bankruptcy  act  may  be  presented 


1147  Notes  on  U.  S.  Reports.  108  U.  S.  317-335 

is  limited  by  time  for  appeal;  Ruley  v.  Foley,  54  W.  Va.  495,  46  S.  E. 
349,  time  to  appeal  runs  from  date  of  bond;  Euley  v.  Foley,  54  W.  Va. 
494,  46  S.  E.  349,  time  of  pendency  of  appeal  is  excluded  when  there 
has  been  no  decision  and  writ  of  review  is  asked  for. 

Syl.  4  (X,  571).     Writ  of  review  pending  appeal. 

Approved  in  First  Nat.  Bank  v.  State  Xat.  Bank,  131  Fed.  431,  65 
C.  C.  A.  414,  after  appeal  from  district  court  has  been  perfected  said 
court  loses  jurisdiction. 

108  U.  S.  317-335,  27  L.  739,  BALTIMORE  ETC.  E.  E.  v.  FIFTH 
BAPTIST  CHURCH. 

Syl.  5   (X,  573).     Lawful  business  may  be  nuisance. 

Approved  in  Muncie  Pulp  Co.  v.  Martin,  164  Ind.  35,  72  N.  E.  883, 
where  nuisance  can  be  abated,  measure  of  damages  is  loss  of  rental 
value  occasioned  by  its  continuance;  Mordhurst  v.  Ft.  Wayne  etc.  Trac- 
tion Co.,  163  Ind.  281,  106  Am.  St.  Rep.  222,  71  X.  E.  646.  66  L.  R. 
A.  105,  railroad  company  liable  for  any  damage  to  abutting  owner  caused 
by  operation  of  its  trains;  Terminal  Co.  v.  Tellyett,  114  Tenn.  395,  85 
S.  D.  887,  authority  to  locate  railroad  yards  did  not  authorize  company 
to  inijiair  use  of  adjoining  property;  Missouri  etc.  Ry.  Co.  v.  Mott,  98 
Tex.  98,  81  S.  W.  288,  under  statute  giving  railroad  company  right  of 
way,  it  had  no  authority  to  erect  cattle-pens  thereon;  Missouri  etc.  Ry 
Co.  V.  Anderson.  36  Tex.  Civ.  132,  81  S.  W.  788,  fact  that  business  of 
maintaining  switchyard  is  lawful  does  not  give  railroad  company  right 
to  do  so  if  it  constitutes  a  nuisance;  Townsend  v.  Norfolk  Ry.  &  L.  Co., 
105  Va.  46,  48.  4  L.  R.  A.  (N.  S.)  87,  52  S.  E.  977,  978.  authority  given 
electric  liglit  eom}iany  by  statute  does  not  authorize  it  to  so  use  its 
railroad  as  to  constitute  a  nuisance. 

Syl.    6    (X.    575).     Authority    to   commit    nuisance. 

Approved  in  Anable  v.  Board  of  Commrs.,  34  Ind.  App.  79.  107  Am. 
St.  Rep.  173,  71  N.  E.  274,  authority  to  erect  pest  house  must  be  ex- 
ercised with  regard  to  rights  of  private  land  owner;  Gosset  v.  Southern 
Ry.  Co.,  115  Tenn.  384,  89  S.  W.  739,  legislative  authority  does  not  effect 
claim  of  private  citizen  for  nuisance  not  experienced  by  public;  Mis- 
souri etc.  Ry.  Co.  v.  Anderson,  36  Tex.  Civ.  131,  81  S.  W.  787,  authority 
to  maintain  railroad  yards  did  not  give  company  right  to  disregard 
rights  of  others;  Townsend  v.  Norfolk  Ry.  &  L.  Co.,  105  Va.  35,  4  L. 
R.  A.  (N.  S.)  87.  52.  S.  E.  974,  holding  authority  granted  electric 
company  did  not  give  it  right  to  maintain  nuisance. 

Syl.  7    (X,  575).     Nuisance  affecting  personal  discomfort. 

Approved  in  United  States  v.  Luce,  141  Fed.  418,  injunction  granted 
where  nauseating  odors  from  fish  factory  made  quarantine  station  un- 
healthy; United  States  v.  Luce,  141  Fed.  408,  existence  of  fish  factories 
causing  nauseating  odors  constitute  a  nuisance. 


108  U.  S.  336-378  Notes  on  U.  S.  Reports,  1148 

Syl.  7   (X,  575).     Private  nuisance. 

Approved  in  Baltimore  etc.  R.  R.  Co.  v.  Sattler,  100  Md.  329,  59 
Atl.  658,  holding  property  owner  may  recover  from  railroad  company 
damages  beyond  incidental  inconvenience  of  constructing  tunnel  and 
operating  trains;  Townsend  v.  Norfolk  Ey.  &  L.  Co.,  105  Va.  32,  4 
L.  R.  A.  (N.  S.)  87,  52  S.  E.  973,  electric  light  company  is  not  liable 
for  incidental  inconvenience  resulting  from  its  operation. 

Distinguished  in  Atchison  etc.  Ry.  Co.  v.  Armstrong,  71  Kan.  373, 
80  Pac.  980,  one  whose  residence  is  rendered  unhealthy  by  smoke  and 
gas  of  engines  cannot  recover  damages  unless  company  has  abused  its 
authority  iu  operating  its  engines. 

(X,  572).  Miscellaneous.  Cited  in  Stewart  v.  Wright,  147  Fed.  328, 
banking  corporation  liable  for  permitting  confidence  man  to  have  fa- 
cilities for  swindling  his  victims. 

108  U.  S.  336-341,  27  L.  746,  UNITED  STATES  v.  AMBROSE. 

Syl.  2   (X,  575).     Perjury — Declaration  and  certificate. 

Approved  in  United  States  v.  Hardison,  135  Fed.  423,  perjury  cum- 
mitted  where  clerk  of  circuit  court  makes  false  statements  in  his  re- 
turns  for   services   rendered. 

108  U.  S.  342,  27  L.  747,  THE  TORNADO. 

Syl.   2    (X,   576).     When   freight   earned. 

Approved  in  Schooner  Arthur  B.,  1  Alaska,  405,  where  vessel  wholly 
failed   to   make  voyage   passengers  may  recover   passage   money. 

108  U.  S.  352-360,  27  L.  751,  THE  CONNEMARA. 

Syl.   5    (X,  577).     Salvage  when  there  is  contract. 

Approved  in  The  Dumper  No.  8,  129  Fed.  99,  63  C.  C.  A.  600,  holding 
contract  by  owner  of  tugs  to  tow  dumpers  to  sea  did  not  prevent  master 
and  crew  of  one  tug  from  claiming  salvage  for  rescuing  dumper  that 
broke  away  from  one  of  the  other  tugs. 

108  U.  S.  361-367,  27  L.  754,  ADRIATIC  FIRE  INS.  CO  v.  TREAD- 
WELL. 

Syl.   1    (X,   577).     Joining  defeii<lants. 

Approved  in  Iowa  etc.  Min.  Co.  v.  Bliss,  144  Fed.  453,  under  Code 
Iowa  1897,  §  3462,  relating  to  parties,  different  parties  liable  on  differ- 
ent causes  of  action  could  not  be  joined  as  defendants  in  one   action. 

108  U.  S.  368-378,  27  L.  756,  SCRUGGS  v.  MEMPHIS  ETC.  R.  R. 

Syl.  1  (X,  578).     Right  to  rents. 

Approved  in  Sunter  v.  Sunter,  190  Mass.  458,  77  N.  E.  499,  where 
beneficiaries  are  required  to  come  into  equity  for  their  estate,  they 
are  entitled  to  an  accounting  for  time  it  was  wrongfully  withheld. 

Distinguished  in  •  Mashassuck  Encampment  v.  Arnold,  25  R.  I.  68, 
54    Atl.    772,    holding    where    lease    provided    that    lessee    should    remain 


1149  Notes  on  U.  S.  Eeports.  108  U.  S.  379-461 

in  possession  after  term  until  appraisement  of  buildings  was  made,  he 
was  entitled  to  rent  from  his  subtenants  up  to  same  time. 

108  U.  S.  379-388,   27  L.   760,   BOESE  v.   KING. 

Syl.  1   (X,  578).     Assignment  under  bankruptcy  act. 

Approved  in  Downer  v.  Porter,  116  Ky.  427,  76  S.  W.  136,  state 
courts  may  enforce  state  statute  regulating  what  property  shall  vest 
in  assignee  under  deed  of  assignment. 

Syl.  2   (X,  578).     Bankruptcy — Suspension  of  state  laws. 

Approved  in  Grunsfeld  Bros.  v.  Brownell,  12  N.  M.  199,  76  Pac.  311, 
act  1889,  preventing  preferences  by  insolvent  debtors,  not  suspended  by 
bankruptcy  act. 

108  U.  S.  389-400,  27  L.  769,  WAEREN  v.  KING. 

Syl.  1   (X,  579).     Eights  of  preferred  stockholderg. 

Apjiroved  in  Ilackett  v.  Northern  Pac.  Ey.  Co.,  140  Fed.  717,  rights 
of  preferred  stockholder  must  be  determined  by  inteudmeuts  of  stock 
certificate. 

108  U.  S.  401-417,  27  L.  764,  DEVOE  MFG.  CO.,  PETITIONEE. 

Syl.   2    (X,   580).     Boundary   between  states. 

Approved  in  Louisiana  v.  Mississippi,  202  U.  S.  50,  50  L.  O.''.!,  26  Sup. 
Ct.  40S,  holding  boundary  between  states  separated  by  navigable  water 
is  middle  thereof. 

108  U.  S.  422-436,  27  L.  775,  HAWKINS  v.  BLAKE. 

(X,  581.)  Miscellaneous.  Cited  in  Anthes  v.  Shroeder,  68  Neb.  376, 
94  N.  W.  613,  holding  where  debtor  has  several  funds,  all  of  which  can 
be  reached  by  one  creditor,  equity  will  require  him  to  take  payment  out 
of  funds  he  can  reach  exclusively. 

108  U.  S.  436-461,  27  L.  780,  CLAEK  v.  BAENAED. 

Syl.   1    (X,  581).     State  as  party  to  action. 

Approved  in  Gunter  v.  Atlantic  etc.  E.  E.  Co.,  200  U.  S.  2S4,  50  L. 
484,  26  Sup.  Ct.  252,  holding  state  by  voluntarily  appearing  in  action 
waives  right  that  it  cannot  be  sued  without  its  consent;  Eailroad  Tax 
Cases,  136  Fed.  237,  where  there  is  a  fund  in  court  to  which  state 
claims  title,  it  may  make  itself  a  party  to  the  action. 

Syl.  3    (X,  581).     Domestication  of  foreign  corporation. 

Approved  in  Eussell  v.  St.  Louis  etc.  Ey.  Co.,  71  Ark.  454,  457,  75 
S.  W.  727,  728,  foreign  railroad  complying  with  Acts  1889,  p.  43,  may 
exercise   power  of   eminent  domain. 

Syl.  7  (X,  582).     Eecovery  on  penal  bond. 

Approved  in  Dieckerhoff  v.  United  States,  13G  Fod.  5)7,  69  C.  C.  A. 
255,  under  bond  given  under  §  2899,  Rev.  St.,  govcnuucut  must  provo 
amount  of  damages. 


108  U.  S.  462-522  Notes  on  U.  S.  Reports.  1150 

Syl.  8  (X,  582).     Amount  of  damages. 

Approved  in  United  States  v.  Dieckerhoff,  202  U.  S.  312,  50  L.  1045, 
26  Sup.  Ct.  604,  holding  double  the  value  of  package  ordered  returned 
by  collector  is  measure  of  recovery. 

108  U.  S.  462-466,  27  L.  793,  MANNING  v.  CAPE  ANN  ISING  GLASS 
ETC.  CO. 

Syl.  1   (X,  582).     Public  use  of  invention. 

Approved  in  Bradley  v.  Eccles,  138  Fed.  914,  915,  where  device  has 
been  in  public  use  for  more  than  two  years  prior  to  filing  petition  for 
patent,   patent   is   void. 

Distinguished  in  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140  Fed.  173, 
where  article  produced  is  perfect  and  machine  is  not,  sale  of  product 
does  not  render  use  of  machine  a  public  use. 

108   U.    S.    466-477,    27    L.    789,    DOWNTON   v.    YEAGER    MILLING 
CO. 

Syl.   1    (X,  583).     Printed  publication   defeating  patent. 

Approved  in  Crown  Cork  etc.  Co.  v.  Standard  Stopper  Co.,  136  Fed. 
204,  69  C.  C.  A.  519,  prior  pviblication  will  not  negative  novelty  of 
invention  unless  it  describes  a  complete  invention  or  contains  such  a  dis- 
closure that  any  omission  would  ordinarily  be  supjilied  by  one  skilled 
in  the  art. 

108  U.   S.   477-490,   27  L.   795,   GROSS  v.  UNITED  STATES  MORT- 
GAGE CO. 

Syl.  1   (X,  583).     Examination  of  state  court's  opinion. 

Approved  in  Carson  v.  Three  States  L.  Co.,  142  Fed.  894,  on  error 
to  state  court  the  opinion  may  be  examined  to  ascertain  what  was 
decided. 

108  U.  S.  498-509,  27  L.  800,  CONNECTICUT  MUTUAL  LIFE  INS. 
CO.  V.  LUCHS. 

Syl.  1   (X,  584).     Insurable  interest. 

Approved  in  Mechanics'  Nat.  Bank  v.  Comins,  72  N.  H.  16,  101 
Am.  St.  Rep.  650,  55  Atl.  193,  partner  has  insurable  interest  in  life  of 
copartner. 

108  U.  S.  514-522,  27  L.  808,  VANCE  v.  VANCE. 

Syl.  1  (X,  586).     Recording  documents  in  certain  time. 

Approved  in  Knights  of  Maccabees  of  the  World  v.  Nitsch,  60  Neb. 
375,  95  N.  W.  627,  statutes  requiring  documents  to  be  recorded  or 
making  priority  depend  on  order  of  recording  are  valid. 

Syl.   2    (X,   580).     Limitation   of   actions — Infants. 
Approved    in    Schauble    v.   Schulz,   137    Feil.   396,   69   C.   C.   A.   5S1, 
minors  are  not  excepted  from  Rev.  Codes  N.  D.  1899,  §  3491a,  relating 


1151  Notes  on  U.  S.  Eeports.  108  U.  S.  526-556 

to  statute  of  limitations;  Boyle  v.  Boyle,  126  Iowa,  168,  101  N.  W. 
748,  Iowa  Code,  §  3349,  providing  that  claims  against  estates  must  be 
filed  in  twelve  months  after  first  publication  of  administrator's  ap- 
pointment, applies  to  infant  creditors. 

Syl.  3   (X,  586).     General  operation  of  statute  of  limitations. 

Approved  in  Schauble  v.  Schulz,  137  Fed.  392,  69  C.  C.  A.  581,  where 
person  is  given  opportunity  to  be  heard,  he  is  not  denied  due  process 
of  law  although  statute  considers  past  acts;  Lamb  v.  Powder  Eiv. 
etc.  Co.,  132  Fed.  439,  442,  65  C.  C.  A.  570,  67  L.  K.  A.  558,  statute 
may  subject  existing  rights  to  limitation  where  none  existed  before 
but  reasonable  time  must  be  given  for  the  exercise  of  right  of  action; 
Pietsch  V.  Milbrath,  123  Wis.  670,  102  N.  W.  346,  unless  statute  of 
limitations  by  exception  saves  rights,  it  applies  to  all  persons.  See  111 
Am.  St.  Eep.  459,  note. 

(X,  586.)  Miscellaneous.  Cited  in  dissenting  opinion  in  Ayres  v. 
Cone,  138  Fed.  786,  majority  holding  creditors  of  bankrupt  who  de- 
sire to  contest  allowance  of  claim  to  other  creditor  must  file  objections 
in  their  own  behalf.* 

108  U.  S.  526-541,  27  L.  812.  RUGGLES  v.  ILLINOIS. 

Syl.  4  (X,  588).     Construction  of  charter. 

Approved  in  Houghton  v.  Payne,  194  U.  S.  100,  48  L.  891,  24  Sup. 
Ct.  590,  holding  in  construing  classification  of  certain  printed  matter, 
plain  language  of  statute  prevailed  over  previous  classification;  Rari- 
tan  Riv.  R.  R.  Co.  v.  Middlesex  etc.  Co.,  70  K  J.  L.  744,  58  Atl.  336, 
where  statute  of  state  violates  constitution,  constitution  is  followed. 

Syl.  2   (X,  587).     Regulating  charges  of  carriers. 

Approved  in  Chicago  v.  Cicero.  210  111.  298,  71  N.  E.  359,  statutes 
regulating  charges  of  public  service  corporations  are  valid. 

108  U.  S.  543-552,  27  L.  820,  HAWLEY  v.  FAIRBANKS. 

Syl.  3   (X,  589).     Taxation  by  municipality. 

Approved  in  Rose  v.  McKie,  145  Fed.  590,  authority  given  town  to 
contract  debt  carries  with  it  authority  to  tax  for  the  payment  of  such 
debt.     See  105  Am.  St.  Rep.  216,  note. 

Syl.   4    (X,   590).     Injunction   against   municipal   ofiicers. 

Approved  in  Feely  v.  Bryan,  55  W.  Va.  593,  47  S.  E.  311,  any  writing 
charging  a  debt  on  property,  though  not  a  formal  mortgage^  is  an 
equitable  mortgage.     See  105  Am.  St.  Rep.  217,  note. 

108  U.  S.  553-556,  27  L.  819,  MEATH  v.  PHILLIPS  COUNTY. 

Syl.  1    (X,  590).     Indebteduess  of  county. 

Approved  in  Folsom  v.  Greenwood  Co.,  130  Fed.  734,  holding  town- 
ship subscribing  for  railroad  bonds  liable  therefor  and  not  the  county. 


108  U.  S.  556-568  Notes  on  U.  S.  Reports.  1152 

108  U.  S.  556-560,  27  L.  811,  EX  PARTE  TOM  TONG. 

Syl.  3    (X,  591).     Nature  of  habeas  corpus  proceedings. 

Approved  in  In  re  Jewett,  69  Kan.  838,  77  Pac.  570,  one  held  undei 
an  order  made  without  jurisdiction,  as  for  contempt,  may  raise  ques- 
tion as  to  jurisdiction  on  habeas  corpus;  dissenting  opinion  in  Rush 
V.  Buckley,  100  Me.  338,  61  Atl.  781,  70  L.  R.  A.  464,  majority  hold- 
ing judge  who  issued  warrant,  arresting  officer  and  complaining  witness 
not  liable  for  false  imprisonment  for  proceeding  under  void  statute. 

Syl.  2  (X,  590).     Civil  and  criminal  proceedings  distinguished. 

Approved  in  Ex  parte  Caldwell,  138  Fed.  488,  habeas  corpus  may 
be  issued  out  of  a  federal  court  to  inquire  into  the  cause  of  a  commit- 
ment under  a  civil  as  well  as  a  criminal  process;  Ex  parte  White,  2 
Cal.  App.  728,  84  Pac.  243,  holding  habeas  corpus  is  a  civil  proceed- 
ing; State  V.  Superior  Court,  32  Wash.  146,  147,  72  Pac.  1041,  on  ap- 
peal from  judgment  denying  habeas  corpus  an  appeal  bond  is  required, 
being  a  civil  proceeding;  State  v.  Chittenden,  127  Wis.  492,  107  N.  W. 
507,  holding  that  writ  of  habeas  corpus  is  original  writ;  dissenting 
opinion  in  United  States  v.  Ju  Toy,  198  U.  S.  272,.  49  L.  1048,  25  Sup. 
Ct.  644,  majority  holding  one  seeking  entrance  into  this  country  is  not 
denied  due  process  of  law,  because  decision  on  right  to  enter  is  rendered 
by  executive  officer. 

108  U.  S.  566-567,  27  L.  812,  EX  PARTE  BALTIMORE  ETC.  R.  R. 
Syl.  2   (X,  592).     Mandamus  not  writ  of  error. 
See  98  Am.  St.  Rep.  892,  note. 

IDS  U.  S.  567,  568,  27  L.  824,  SCARBOROUGH  v.  PARGOUD. 

Syl.  1   (X,  593).     Writ  of  error. 

Approved  in  Rutan  v.  Johnson,  130  Fed.  110,  64  C.  C.  A.  443,  circuit 
court  of  appeals  has  no  jurisdiction  to  review  a  judgment  six  months 
after  entry. 


CIX  UNITED  STATES. 


109  U.  S.  3-62,  27  L.  835,  CIVIL  EIGHTS  CASES. 

Syl.  2   (X,  595).     Fourteenth  amendment — Civil  rights. 

Approved  in  United  States  v.  Scott,  148  Fed.  433,  holding  void  Comp. 
St.  1901,  p.  3210,  making  it  criminal  for  interstate  carrier  to  discrim- 
inate against  servants  because  of  affiliation  with  unions;  Kentucky 
v.  Povi-ers,  139  Fed.  457,  upholding  removal  under  Rev.  St.,  §  G41,  of 
criminal  prosecution  where  defendant  discriminated  in  selection  of 
jurors  and  by  state  decisions  such  rulings  of  trial  court  are  not  review- 
able; United  States  v.  Moore,  129  Fed.  635,  denying  federal  jurisdic- 
tion to  punish  conspiracy  to  intimidate  citizen  to  prevent  him  from  or- 
ganizing miners'  union  in  state,  in  furtherance  of  which  defendants 
assaulted  such  citizen. 

Syl.  3   (X,  595).     Civil  rights — Impairment  by  individuals. 

Approved  in  Barney  v.  New  York,  193  U.  S.  438,  439,  48  L.  740,  24 
Sup.  Ct.  502,  denying  federal  jurisdiction  on  averment  in  bill  to  re- 
strain railroad  tunnel  under  city  street  that  by  its  construction  com- 
plainant, as  abutting  owner,  is  deprived  of  property  without  due  pro- 
cess, where  bill  proceeds  on  theory  that  state  law  prohibits  tunnel. 

Syl.    4    (X,    596).     Thirteenth   amendment— Civil   rights. 

Approved  in  Clyatt  v.  United  States,  197  U.  S.  216,  49  L.  729, 
25  Sup.  Ct.  429,  upholding  Eev.  St.  §§  1990,  5526,  prohibiting  peonage; 
Ex  parte  Eiggins,  134  Fed.  406,  408,  upholding  indictment  for  con- 
spiracy, by  lynching  negro  accused  of  crime,  to  prevent  him,  because 
he  was  a  negro,  from  having  trial  according  to  law. 

Syl.  5    (X,  596).     Civil  rights — ^Eefusal  of  accoimnodations. 

Distinguished  in  Ex  parte  Eiggins,  134  Fed.  415,  persons  taking 
negro  from  custody  of  sheriff  and  lynching  him  to  prevent  bis  trial_ 
according  to  law,  deprive  him  of  equal  civil  rights  under  thirteenth 
amendment. 

109  U.  S.  63-64,  27  L.  860,  POIXDEXTEE  v.  GEEEXHOW. 

(X,  597.)  Miscellaneous.  Cited  in  State  v.  Mortensen,  69  Xeb.  385, 
95  X.  W.  834,  slate  cannot  be  sued  without  consent.  See  108  Am. 
St.  Eep.  832,  note. 

109  U.  S.  65-74,  27  L.  857,  UXITED  STATES  v.  GALE. 

Syl.  2  (X,  597).     Plea  waives  illegal  grand  jury. 

Approved  in  Eodriguez  v.  United  States,  198  U.  S.  164,  49  L.  997, 
25  Sup.  Ct.  617,  query  whether  ol>Jectiou  to  mode  of  selection  of 
73  [1153] 


109  U.  S.  75-84  Notes  on  U.  S.  Reports.  1154 

yrand  jurors  can  be  taken  by  motion  in  arrest;  Queenan  v.  Terri- 
tory, 11  Okl.  271,  71  Pac.  221,  61  L.  E. .  A.  324,  known  ground  of 
disqualification  to  juror  before  or  during  progress  of  trial  is  waived 
by  failing  to  raise  objection  till  after  verdict;  Younger  v.  Hehn, 
12  Wyo.  298,  109  Am.  St.  Eep.  991,  75  Pac.  445,  regularity  of  merhod 
of  drawing  and  summoning  jury  cannot  be  questioned  on  habeas 
corpus. 

Distinguished  in  State  v.  Edwards,  68  S.  C.  322,  47  S.  E.  397, 
defendant  pleading  to  indictment  does  not  waive  right  to  raise  ques- 
tion, on  motion  in  arrest,  that  indictment  found  by  grand  jury  ille- 
gally drawn. 

Syl.  3   (X,  597).     Objections  to  qualifications  of  grand  jurors. 

Approved  in  In  re  Moran,  144  Fed.  605,  denying  habeas  corpus 
where  petitioner  convicted  on  indictment  brought  by  grand  jury 
composed  of  disqualified  persons;  New  Jersey  v.  Corrigan,  139  Fed. 
764,  denying  right  of  removal  of  criminal  case  where  defendant 
indicted  after  impanelment  of  grand  jury  which  contained  disqual- 
ified persons;  State  v.  Taylor,  57  W.  Va.  232,  50  S.  E.  248,  court  has 
discretion  to  allow  plea  in  bar  to  be  withdrawn  and  dilatory  plea 
entered;  State  v.  Pine,  56  W.  Va.  4,  48  S.  E.  207,  plea  in  bar  is  too 
late  when  tendered  after  demurrer  and  plea  of  not  guilty. 

109  U.  S.  75-84,  27  L.  862,  OLIVER  v.  RUMFORD  CHEMICAL 
WORKS. 

Syl.  1   (X,  598).     Grant  of  exclusive  use  of  patented  article. 

Approved  in  Bowers  v.  Lake  Superior  Contr.  etc.  Co.,  149  Fed. 
986,  determining  sufficiency  of  evidence  to  show  that  license  author- 
izing use  of  patented  invention  was  changed  to  permit  its  assign- 
ment; Hartman  v.  Park  &  Sons  Co.,  145  Fed.  368,  upholding  con- 
tracts by  maker  of  proprietary  medicine  binding  wholesalers  to  sell 
only  at  designated  price  and  to  retailers  designated  by  him  and 
between  him,  and  retailers  to  sell  only  at  certain  price  in  consideration 
of  being  designated;  Cortelyou  v.  Chas.  Eneu  Johnson  &  Co.,  138 
Fed.  117,  owner  of  patent  for  rotary  neostyle  may  sell  machines  un- 
der license  restriction  that  they  shall  be  used  only  with  paper  and 
ink  made  by  licensor;  Shepherd  v.  Deitsch,  138  Fed.  84,  licensee, 
under  license  to  manufacture  and  vend  patented  article,  reserving 
right  to  license  anotheP  and  binding  patentee  to  prosecute  infringers, 
is  not   necessary  party  complainant   to   suit  for  infringement. 

Syl.   2    (X,   599).     Patents — License   not   transferable. 

Approved  in  In  re  McBride,  132  Fed.  288,  where  contract  between 
author  and  publisher  provides  that  it  shall  not  be  transferred  without 
author's  consent,  and  on  violation  of  provisions  copyrights  shall 
revert  to  author,  copyrights  cannot  be  sold  by  publisher's  bankruptcy 
trustee. 


1155  Notes  on  U.  S.  Keports.  109  U.  S.  81-162 

109  U.  S.  84-90,  27  L.  865,  PORTER  v.  LAZEAR. 

Syl.   1   (X,  599).     Bankruptcy— Dower  right. 

Approved  in  In  re  McKenzie,  142  Fed.  386,  388,  affirming  132  Fed. 
989,  Bankr.  Act  1898,  §  8,  does  not  confer  dower  right,  but  makes 
right  of  bankrupt's  widow  to  dower  dependent   on  local  law. 

109  U.  S.  99-103,  27  L.  870,  KING  v.  GALLUN. 

Syl.  2  (X,  600).     Patentable  novelty — Judicial  notice. 

Approved  in  Baker  v.  Duncombe  Mfg.  Co.,  146  Fed.  746,  Baker 
patents  No.  726,812  and  No.  736,346,  for  process  of  treating  coffee, 
are  void  in  view  of  prior  art. 

109  U.  S.  104-106,  27  L.  872,  GREEN  COUNTY  v.  CORMESS. 

Syl.   2    (X,  601).     Municipal   aid — Consolidated   railroad. 

Approved  in  Gamble  v.  Rural  etc.  School  Dist.,  146  Fed.  117,  where 
at  time  of  amendment  of  1888  to  Iowa  Code,  §  2114,  providing  that 
holder  of  negotiable  paper  procured  by  fraud  could  only  recover 
amount  paid  therefor,  school  bond  sold  by  innocent  holder  for  less 
than  par  to  one  who  knew  of  fraudulent  character,  statute  did  not 
affect  holder. 

109  U.  S.   132-138,  27  L.  883,  NEWMAN  v.  ARTHUR. 

Syl.   1   (X,  600).     Tariff — Commercial  usage  of  words. 

Approved  in  Waddell  v.  United  States.  135  Fed.  212,  articles  of 
hone  stone  used  in  polishing  marble  and  lithographic  stones  are  not 
free  of  duty  as  "hones"  under  Tariff  Act  1897,  par.  574,  §  2,  Free 
List;  United  States  v.  Bartram,  131  Fed.  835,  65  C.  C.  A.  557,  con- 
struing expression  "testing  by  polariscope"  as  used  in  Tariff  Act 
1897,  par.  209,  sched.  E,  §  1.  - 

109  U.  S.  143-146,  27  L.  885,  UNITED  STATES  v.  FISHER. 

Syl.   2    (X,   607).     Statutes— Legislative   intent. 

Approved  in  Parshall  v.  United  States,  147  Fed.  436,  railway  postal 
clerk  cannot  recover  on  implied  contract  for  expenses  of  bed  and 
board  while  on  regular  run  in  addition  to   fixed  salary. 

109  U.  S.  150-162,  27  L.  888,  HOVEY  v.  McDONALD. 

Syl.  1   (X,  608).     Appeal — Decree  confirming  auditor's  report. 

Approved  in  Bennett  v.  Thorne,  36  Wash.  262,  78  Pac.  939,  68 
L.  R.  A.  113,  in  proceedings  by  receiver  to  assess  stockholders,  decree 
fixing  amount  of  bank's  debts  and  determining  creditor's  right  to 
assessment   is  final   and   appealable. 

Distinguished  in  Heinze  v.  Butte  etc.  Min.  Co.,  139  Fed.  338,  64 
C.  C.  A.  15,  neither  order  approving  monthly  reports  of  receiver  nor 
one  directing  him  to  pay  expenses,  made  before  final  account,  is  final 
appealable   order. 


109   U.  S.  162-185  Kotes  on  U.  S.  Eeporta,  1156 

Syl.  1  (X,  608).     Appeal  as  stay. 

Approved  in  First  Nat.  Bank  v.  State  Nat.  Bank,  131  Fed.  431, 
65  C.  C.  A.  414,  where  appeal  perfected  under  Bankr.  Act,  §  25a, 
from  judgment  allowing  or  rejecting  debt,  district  court  cannot  en- 
tertain motion  for  rehearing  pending  appeal. 

Syl.   3   (X,   609).     Amendment   after   appeal. 

Approved  in  Southern  Pac.  Co.  v.  Western  Pac.  Ey.  Co.,  144  Fed. 
204,  applying  rule  where  injunction  pendente  lite  granted;  State  v. 
Superior  Court,  39  Wash.  121,  80  Pac,  1110,  109  Am.  St.  Eep.  862, 
1  L.  E.  A.  (N.  S.)   554,  arguendo. 

Syl.  7  (X,  609).     Appeal  from  injunction  order  as  stay. 

Approved  in  Elliott  v.  Kuzek,  2  Alaska,  591,  where  judgment  of 
dismissal  entered  after  trial  on  merits  and  preliminary  injunction 
dissolved,  appeal  and  supersedeas  bond  do  not  abate  suit  on  injunc- 
tion bond;  State  v.  Bearing,  180  Mo.  66,  67,  79  S.  W.  458,  where 
circuit  court,  on  merits,  dissolved  injunction  and  dismissed  bill,  it 
could  continue  injunction  in  force  pending  appeal;  State  v.  Superior 
Court,  39  Wash.  117,  118,  109  Am.  St.  Eep.  862,  80  Pac.  1109,  1 
L.  E.  A.  (N.  S.)  554,  pending  appeal  from  injunction  restraining 
continuance  of  shooting-gallery,  defendant  not  entitled  to  supersedeas 
pending  appeal. 

109  U.  S.  162-168,  27  L.  892,  LOUIS  v.  BEOWN  TOWNSHIP, 

Syl.  4   (X,  610).     Decree   concludes  codefendants. 

Approved  in  Georgia  E.  E.  Co.  v.  Wright,  124  Ga.  603,  53  S.  E. 
254,  where  on  judgment  for  plaintiff  codefendant  refused  to  join  in 
appeal,  and  judgment  was  reversed,  codefendant  estopped  in  suit 
against  other  defendant  as  to  all  matters  which  might  have  been 
raised  in  first  suit;  Sioux  City  v.  Chicago  etc.  Ey.  Co.,  129  Iowa, 
702,   106  N.  W.  186,  arguendo. 

109  U.  S.  174-176,  27  L.  894,  EX  PAETE  PENNSYLVANIA. 
Syl.  2   (X,  612).     Prohibition  does  not  correct   error. 
See  111  Am.  St.  Eep.  956,  note. 

109  IT.  S.  180-185,  27  L.  898,  WINTHEOP  lEON  CO.  v.  MEEKEE. 

Syl.  1   (X,  612).     Final  appealable   decree. 

Approved  in  Clement  v.  Ireland,  138  N.  C.  139,  50  S.  E.  571,  decree 
confirming  foreclosure  sale  is  final,  though  subsequent  pleadings, 
whereby  defendant  sought  to  charge  plaintiff  with  rents  of  land, 
allowed  to  be  filed;  Marquam  v.  Eoss,  47  Or.  380,  78  Pac.  700,  decree 
as  prayed  for  on  bill  to  redeem  from  foreclosure  of  trust  deed  la 
final  and  appealable,  though  it  provided  for  accounting  of  rents. 


1157  Notes  on  U.  S.  Eeports.  109  U.  S.  189-258 

109  U.   S.    189-194,  27  L.  901,   SNYDER  v.  MARKS. 

Syl.  1  (X,  614).     Remedy  for  recovery  of  illegal  revenue  taxes. 

Approved  in  Christie  St.  Com.  Co.  v.  United  States,  129  Fed.  508, 
remedy  provided  by  Rev.  St.,  §  3226,  by  appeal  to  internal  revenue 
commissioner,  is  exclusive. 

109  U.  S.  194-200,  27  L.  903,  CRAGIN  v.  LOVELL. 

Syl.  1  (X,  614).     Bill  to  set  aside  default — Knowledge. 

Approved  in  Flannigan  v.  Chapman  etc.  Co.,  144  Fed.  374,  where 
complainant  purchased  land  sold  for  taxes  several  years  after  decree 
confirming  tax  sale,  bill  to  cancel  such  decree  filed  six  years  after 
decree  not  averring  he  did  not  know  of  matter  alleged  in  biU  in  time 
to  assert  same  in  confirmation  proceedings,  is  defective. 

109  U.  S.  205-211,  27  L.  907,  BOOTH  v.  TIERNAN. 
Syl.  1  (X,  615).     Conclusiveness  of  findings. 

Approved  in  Streeter  v.  Sanitary  Dist.  of  Chicago,  133  Fed.   126, 

66  C.  C.  A.  190,  following  rule, 

109  U.  S.  221-229,  27  L.  916,  BOARD  OF  LIQUIDATION  v.  LOUIS- 
VILLE ETC.  E.  E.  CO. 

(X,  616.)     Miscellaneous.     Cited  in  Ridge  v.  Manker,  132  Fed.  601, 

67  C.   C.  A.   596,   as  to   right  of   appellate   court   to   consider   matters 
outside  record  occurring  since  decree  to  prevent  miscarriage  of  justice. 

109  U.  S.  229,  230,  27  L.  914,  KNOX  COUNTY  COURT  v.  UNITED 
STATES. 

(X,  616.)  Miscellaneous.  Cited  in  Rose  v.  McKie,  145  Fed.  590, 
it  is  no  defense  to  mandamus  to  compel  town  ofiicers  to  perform 
statutory  duties  toward  payment  of  judgment  against  town  that 
such  duties  do  not  include  all  acts  requisite  to  full  satisfaction  of 
judgment. 

109  U.  S.  238-243,  27  L.  920,  ARNSON  v.  MURPHY. 

Syl.  3  (X,  619).     Remedy  for  recovery  of  illegal  taxes  exclusive. 

Distinguished  in  Walker  v.  Globe  Newspaper  Co.,  140  Fed.  310, 
right  to  sue  at  law  for  damages  for  infringement  of  copyright  not 
impliedly  taken  away  by  remedies  given  by  Rev.  St.,  §§  490.3,  4970. 

109  U.  S.  244-258,  27  L.  922,  LOUISVILLE  ETC.  R.  R.  CO.  v.  PALMES. 

Syl.  3   (X,  621).     Facts  admitted  by  demurrer. 

See  97  Am.  St.  Rep.  833,  note. 

Syl.  4  (X,  621).     Tax  exemptions  of  old  railroad. 

Approved  in  Lake  Drummond  Canal  etc.  Co.  v.  Commonwealth, 
103  Va.  355,  49  S.   E.   512,   corporation   created  under   Code,  §   1234, 


109  U.  S.  25S-2S5  Notes  on  U.  S.  Eeporta.  1158 

on    purchase    of    property    of    other    corporation    on    foreclosure    sale, 
cannot  claim  tax  immunity  granted   to   original   corporation. 

Syl.  5    (X,  622),     Binding  effect  of  state   decisions. 

Approved  in  Columbia  Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130  Fed. 
166,  state  decision  adjudging  void  contract  of  city  for  payment  of 
Hydrant  rentals  not  binding  on  federal  courts. 

]09  U.  S.  258-267,  27  L.  927,  UNITED  STATES  v.  WALKER. 

Syl.  3   (X,  623).     Action  by  administrator  de  bonis  non. 

Approved  in  Morrow  v.  Fidelity  etc.  Co.,  100  Md.  263,  108  Am. 
St.  Rep.  410,  59  Atl.  736,  administrator  de  bonis  non  cannot  sue 
surety  on  bond  of  deceased  administrator  who  preceded  him  for 
devastavit  committed  by  him;  McCreery  v.  Western  Carolina  Bank, 
55  W.  Va.  670,  47  S.  E.  893,  certificates  of  bank  stock  in  name  of  A 
taken  up  by  bank  and  reissued  in  name  of  his  executor,  and  by 
latter  pledged  in  due  course  of  administration,  cannot  be  recovered 
from  bank  by  administrator  de  bonis  non.  See  108  Am.  St.  Rep. 
421,  429,  note. 

Distinguished  in  Conway  v.  Carter,  11  N.  M.  432,  433,  68  Pac.  943, 
944,  where  allegations  in  suit  against  sureties  of  deceased  administrator 
to  recover  proceeds  of  insurance  policy  collected  by  administrator  are 
admitted,  court  may  render  judgment  on  pleadings. 

109  U.  S.  278-285,  27  L.  932,  GRACE  v.  AMERICAN  CENTRAL  INS. 
CO. 

Syl.  2   (X,  625).     Contracts — Construction  of  ambiguous  words. 

Approved  in  dissenting  opinion  in  Ward  v.  Foley,  141  Fed.  368, 
majority  construing  contract  to  sell  all  interest  in  320  acres  of  land 
at  $14  per  acre  as  providing  for  sale  at  rate  of  $14  for  each  acre  in 
entire  tract;  dissenting  opinion  in  Atlas  Red  Co.  v.  New  Zealand  Ins. 
Co.,  138  Fed.  511,  majority  construing  "loss  payable  clause"  in 
fire  policy. 

Syl.  3   (X,  626).     Custom  to  vary  written  contract. 

Approved  in  Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  173,  182, 
67  C.  C.  A.  74,  evidence  of  custom  is  admissible  to  show  contract 
to  deliver  distillery  slop  at  cattle-feeding  lot  contemplated  lot  to  be 
supplied  with  suitable  pens  and  troughs;  Wisconsin  etc.  Ry.  Co.  v. 
Phoenix  Ins.  Co.,  123  Wis.  319,  101  N.  W.  705,  though  agents  when- 
ever they  received  notice  of  cancellation  of  policies  made  office  record 
thereof  and  delivered  substitute  policies  to  insured,  direction  to  agents 
to  keep  up  insurance  to   original  amount  not  implied. 

Syl.  4   (X,  626).     Federal  jurisdiction  must  affirmatively  appear. 
Approved  in  International  etc.  Tel.  Co.  v.  Fessenden,  131  Fed.  492, 
denying  jurisdiction  over  suit  for  infringement  of  patent  where  bill 


1159  Notes  on  U.  S.  Reports,  109  U.  S.  285-371 

shows  defendant  nonresident  of  district,  and  it  is  not  alleged  infringe- 
ment committed  in  district;  Dodd  v.  Louisville  Bridge  Co.,  130  Fed. 
193,  denying  removal  of  suit  by  Indiana  corporation  against  cor- 
poration incorporated  in  several  states,  including  Illinois  and  Indiana, 
and  formed  by  consolidation  of  corporation  of  said  states;  Illinois 
Cent.  Ry.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W.  485,  where  removal 
petition  shows  removable  controversy,  any  issue  as  to  truth  of  facts 
stated   in   petition  is   determinable   by  federal   court. 

Syl.  5  (X,  627).     Lack  of  jurisdiction  noticed  sua  sponte. 
Approved  in  Kansas   City  etc.   Ry.  Co.  v.  Prunty,  l3^  Fed.   15,  66 
C.  C.  A.  163,  applying  rule  to  circuit  court  of  appeals. 

(X,  625.)  Miscellaneous.  Cited  in  Thompson  v.  Stalmann,  131 
Fed.  811,  where  removal  petition  averred  controversy  between  diverse 
citizens  and  amount  exceeded  $2,000,  circuit  court  to  which  removal 
had  could  permit  amendment  to  petition  to  disclose  citizenship. 

109  U.  S.  285-287,  27  L.  930,  LOUISIANA  v,  MAYOR  OF  NEW  OR- 
LEANS. 

Syl.  2   (X,  628).     Contract — Impairment  of  obligation. 

Approved  in  Wilson  v.  Head,  184  Mass.  519,  69  N.  E.  318,  Stat. 
1890,  p.  479,  permitting  recovery  of  money  paid  on  wagering  con- 
tracts did  not  give  nondivestable  right;  Gaflfney  v.  Jones,  39  Wash. 
589,  81  Pac.  1059,  Laws  1897,  p.  52,  providing  limitation  on  judg- 
ments is  not  void  as  impairing  obligation  of  contracts  as  applied  to 
judgment  in  tort  rendered  prior  to  its  passage. 

109  U.  S.  341-356,  27  L.  956,  BERNARD'S  TOWNSHIP  v.  STEBBINS. 

Syl.    1    (X,   631).     Reformation    of    city    contract. 

Approved  in  Bronk  v.  Standard  Mfg.  Co.,  141  Mich.  685,  105  N.  W. 
35,  though  charter  provided  that  no  city  real  property  should  be 
disposed  of  unless  by  ordinance  or  resolution  of  council,  lease  executed 
pursuant  to  resolution  reformed. 

Syl.  3   (X,  632).     Federal  jurisdiction — Colorable  assignment. 

Approved  in  Woodside  v.  Vasey,  142  Fed.  619,  denying  jurisdiction 
over  suit  against  directors  of  corporation  to  enforce  claims  against 
corporation  which  were  assigned  to  plaintiff,  and  none  of  claims  is 
within  jurisdictional  amount. 

109  U.  S.  357-371,  27  L.  962,  WARNER  v.  CONNECTICUT  MUT.  L. 
INS.  CO. 

Syl.  2  (X,  633).     Devise  for  life  with  power  to  encumber. 

Approved  in  Kirkman  v.  Wadsworth,  137  N.  C.  458,  49  S.  E.  964, 
where  trustee  having  power  to  sell  land  in  fee  by  written  direction 
of  cestui  que  trust  for  life  joins  with  her  in  conveyance  for  valuabla 


109  U.  S.  371-398  Notes  on  U.  S.  Keports.  1160 

consideration,  it  is  valid  execution  of  power,  though  no  written  direc- 
tion given. 

109  U.  S.  371-381,  27  L.  966,  FLASH  v.  CONN. 

Syl.  2  (X,  634).     Stockholder's  liability  enforceable  in  other  state. 

Approved  in  Corry  v.  Baltimore,  196  U.  S.  477,  49  L.  562,  25  Sup. 
Ct.  297,  upholding  Md.  Code  Pub.  Gen.  Laws,  art.  81,  imposing  per- 
sonal liability  on  stockholders  for  taxes  on  stock,  as  applied  to  non- 
resident stockholders;  Knickerbocker  Trust  Co.  v.  Myers,  133  Fed. 
767,  holding  void  Act  Md.  1904,  p.  579,  taking  away  right  of  indi- 
vidual creditor  to  enforce  stockholder's  liability  and  substituting 
therefor  siiit  in  equity  for  benefit  of  all  creditors;  Heinberg  Bros.  v. 
Thompson,  47  Fla.  165,  37  So.  72,  affidavits  made  before  but  filed  after 
issuance  of  corporation's  charter  that  ten  per  cent  of  capital  sub- 
scribed and  paid,  do  not  relieve  stockholder's  liability;  Putnam  v. 
Misochi,  189  Mass.  423,  109  Am.  St.  Rep.  648,  75  N.  E.  957,  where 
stockholder  in  Maine  corporation  was  there  made  to  pay  judgment 
against  it  under  Maine  statute,  he  could  sue  other  stockholders  in 
Massachusetts  for  contribution;  Eoss  v.  Kansas  City  etc.  Ey.  Co., 
34  Tex.  Civ.  587,  79  S.  W.  627,  fact  that  railroad  sued  under  statute 
of  foreign  state  proscribing  limitation  for  enforcement  of  remedy 
given  thereby  was  incorporated  in  state  other  than  that  of  statute 
is  immaterial;  dissenting  opinion  in  McClaine  v.  Eankin,  197  U.  S. 
165,  166,  49  L.  707,  708,  25  Sup.  Ct.  410,  majority  holding  personal  lia- 
bility of  national  bank  stockholders  for  debts  not  contractual  liability 
within  Limitation  prescribed  by  Wash.  Bal.  Code,  §  4800,  subd.  3; 
Miller  v.  Clifford,  133  Fed.  885,  67  C.  C.  A.  52,  arguendo.  See  103 
Am.  St.  Eep.  372,  note. 

Syl.  5  (X,  636).     Stockholder's  liability — Corporation's  bankruptcy. 

Approved  in  Andrews  v.  O'Eeilly,  25  E.  I.  235,  55  Atl.  690,  declara- 
tion in  action  against  stockholder  on  judgment  against  corporation 
alleging  that  latter  insolvent  need  not  allege  issuance  of  execution; 
Bennett  v.  Thorne,  36  Wash.  265,  78  Pac.  940,  68  L.  E.  A.  113,  action 
against  bank  stockholders  for  additional  liability  accrues  on  insol- 
vency of  bank;  Harrison  v.  Eemington  Paper  Co.,  140  Fed.  388,  argu- 
endo. 

109  U.  S.  385-398,  27  L.  971,  MILLER  v.  MAYOR  OF  NEW  YORK. 

Syl.  1   (X,  637).     Waters — Congressional  power  over  obstructions. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  386,  up- 
holding power  of  United  States  to  compel  alteration  of  bridge  al- 
leged to  obstruct  navigation;  Kansas  City  etc.  R.  E.  Co.  v.  Wiygul, 
82  Miss.  231,  33  So.  967,  61  L.  E.  A.  578,  railroad  constructing  bridge 
over  navigable  stream  under  state  authority  may  make  repairs  there- 
to; Seibert  v.  Missouri  Pac.  Ey.  Co.,  188  Mo.  672,  87  S.  W.  999,  70 
L.  E.  A.  72,  erection  of  safety  gates  at  railroad  crossing  not  nuisance 


IIGI  Notes  on  U.  S.  Eeports.  109  U.  S.  398-421 

where    machinery    operating    same   left    unobstructed    space    in    high- 
way.    See  107  Am.  St,  Eep.  221,  222,  notes. 

Syl.  2  (X,  638).     Congressional  statutes — Contingencies. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  387, 
upholding  power  of  United  States  to  compel  alteration  of  bridge  al- 
leged to  obstruct  navigation;  Green  Co.  v.  Shortell,  116  Ky.  134,  75 
S.  W.  257,  upholding  order  of  county  court  directing  clerk  to  make 
subscription  to  railroad  stock  for  county  on  terms  specified  in  order 
submitting  question  to  vote. 

Distinguished  in  United  States  v.  Choctaw  etc.  E.  E.  Co.,  3  Okl. 
498,  41  Pac.  760,  under  Act  Cong.  Feb.  18,  1888,  approval  of  Sec- 
retary of  Interior  as  to  location  of  railroad  is  not  necessary  prerequi- 
site to  location  of  line. 

109  U.  S.  398-401,  27  L.  976,  MEMPHIS  GAS  CO.  v.  SHELBY  CO. 

Syl.   1   (X,  639).     License  tax  on  franchise  as  exemption. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S. 
42,  50  L.  77,  25  Sup.  Ct.  715,  upholding  special  franchise  tax  imposed 
by  N.  Y.  Laws  1899,  c.  712. 

Syl.   2    (X,   639).     Unjust   taxation — Federal   Constitution. 

Approved  in  St.  Louis  etc.  Ey.  Co.  v.  Davis,  132  Fed.  634,  uphold- 
ing assessment  of  railroad  property  by  railroad  assessment  board  of 
Arkansas,  pursuant  to  state  statutes.  See  105  Am.  St.  Eep.  703, 
note. 

Syl.  3  (X,  639).     Tax  exemption  not  implied. 

Approved  in  American  Smelting  etc.  Co.  v.  People,  34  Colo.  253, 
82  Pac.  535,  laws  requiring  foreign  corporations  to  pay  filing  fee  as 
condition  precedent  to  doing  business  do  not  exempt  such  corporations 
from  occupation  tax;  Eochester  v.  Eochester  Ey.  Co.,  182  N.  Y.  113, 
74  N.  E.  957,  70  L.  E.  A.  773,  lessee  of  railroad  exempt  under  stat- 
ute from  contribution  for  new  pavements  is  liable  for  exi^ense  of 
new  pavements  under  later  statute. 

109  U.  S.  401-407,  27  L.  977,  GILFILLAN  v.  UNION  CANAL  CO. 

Syl.  1   (X,  640).     Eights  of  majority  bondholders. 

Approved  in  Cowell  v.  City  Water  Supply  Co.,  130  Iowa,  674,  105 
N.  W.  1017,  where  reorganization  agreement  provided  that  plan 
should  be  binding  on  all  bondholders  unless  majority  thereof  dis- 
sented within  thirty  days,  and  petition  of  dissenter  showed  majority 
did  not  dissent,  he  was  bound. 

109  U.  S.  408-421,  27  L.  979,  FAY  v.  COEDESMAN. 

Syl.  4  (X,  641).     Patent  for  combination — Material  parts. 

Approved  in  National  Cash  Eegister  Co.  v.  Union  etc.  Mach.  Co., 
143  Fed.  344,  construing  Koch  patent  No.  398,625,  for  cash  indicator 


109  U.  S.  421-445  Notes  on  U,  S.  Eeports.  11G2 

and  recorder;  American  Can  Co.  v.  Hickmott  etc.  Co.,  137  Fed.  87, 
Jordan  patent  No.  436,792,  for  can-body  making  machine,  not  in- 
fringed by  machine  of  Eldridge  patent  No.  712,998;  Eembert  etc.  Com- 
press Co.  V.  American  Cotton  Co.,  129  Ted.  369,  64  C.  C.  A.  25,  Rem- 
bert  patent  No.  441,022,  for  method  of  baling  cotton,  limited  and 
not  infringed  by  mechanism  of  Graves  patent  No.  473,144. 

109  U.  S.  421-426,  27  L.  984,  FEIBELMAN  v.  PACKARD. 

Syl.  1  (X,  642).     Removal — Suit  against  marshal. 

Approved  in  Bryant  Bros.  Co.  v.  Robinson,  149  Fed.  324,  suit 
against  postmaster  of  certain  place  for  relief  against  official  acts 
performed  by  him  under  orders  of  postmaster  general,  is  removable 
finder  1  Rev.  St.  Supp.  611. 

Syl.   2   (X,  643).     Bankruptcy — Seizure  of  goods. 
Approved  in  In  re  Knopf,  144  Fed.  253,  following  rule. 

109  U.  S.  426-431,  27  L.  986,  SMITH  v.  McNEAL. 

Syl.  1  (X,  643).     Dismissal  for  want  of  jurisdiction — Limitations. 

Approved  in  Atlanta  etc.  Ry.  Co.  v.  Wilson,  119  Ga.  787,  47  S.  E. 
369,  where  suit  brought  in  court  of  competent  jurisdiction  over  sub- 
ject matter  and  after  bar  of  statute  same  is  dismissed  for  want  of 
jurisdiction  over  person,  action  may  be  renewed  within  six  months 
in  court  of  competent  jurisdiction;  Fay  v.  Costa,  2  Cal.  App.  247,  83 
Pac.   278,   arguendo. 

109  U.  S.  432-440,  27  L.  988,  BAILEY  v.  UNITED  STATES. 

Syl.  1   (X,  644).     Assignment  of  government  claims. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  20,  50  L.  353,  26  Sup.  Ct. 
216,  holding  void  part  of  contract  for  prosecution  of  claim  against 
United  States  making  compensation  for  services  rendered  thereunder 
lien  on  claim  and  on  any  moneys  or  drafts  issued  thereon. 

109  U.  S.  440-445,  27  L.  990,  JACKSON  v.  ROBY. 

Syl.  1  (X,  645).     Miners'  rules. 

Approved  in  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  126,  49  L. 
412  25  Sup.  Ct.  211,  upholding  supplementary  regulations  relating 
to  mineral  locations  prescribed  by  state  in  addition  to  congressional 
regulations.     See  104  Am.  St.  Rep.  690,  note. 

Syl.  2   (X,  645).     Assessment  work — Several  mining  claims. 

Approved  in  Willitt  v.  Baker,  133  Fed.  949,  in  suit  under  Rev. 
St.,  §  2326,  by  adverse  claimant  to  determine  right  of  possession  of 
mining  claim,  defendant  to  get  decree  where  plaintiff's  case  faiJa 
must  show  assessment  work  for  each  year. 


1163  Notes  on  U.  S.  Eeports.  109  U.  S.  446-485 

Syl.  3  (X,  645).     Assessment  work — Claims  held  in  common. 

Distinguished  in  Hain  v.  Mattes,  34  Colo.  351,  83  Pac.  129,  work 
done  in  tunnel  may  be  applied  as  assessment  work  on  mining  loca- 
tion though  continuous  strip  from  portal  of  tunnel  to  boundary  of  lo- 
cation  not  owned. 

Syl.  4   (X,  64G).     Adverse   claims  to   mines — Neither  doing  work. 

Approved  in  Wilson  v.  Freeman,  29  Mont.  475,  75  Pac.  86,  68  L.  R. 
A.  833,  following  rule;  Willitt  v.  Baker,  133  Fed.  948,  where  locators 
were  at  work  on  December  31st  and  left  tools  on  claim  so  as  to  re- 
sume work  in  morning,  one  making  relocation  in  night  acquired  no 
rights;  Brown  v,  Guruey,  201  U.  S.  190,  50  L.  721,  20  Sup.  Ct.  509, 
arguendo. 

109  U.  S.  446-468,  27  L.  992,  CUNNINGHAM  v.  MACON  ETC.  R.  E. 
CO. 

Syl.  2  (X,  646).     Suability  of  state. 

Approved  in  Berman  v.  Minnesota  etc.  Society,  93  Minn.  127,  100 
N.  W.  732,  Minnesota  State  Agricultural  Society  is  immune  from 
suits  for  torts  of  servants;  State  v.  Mortensen,  69  Neb.  385,  95  N.  W. 
834,  denying  jurisdiction  of  action  against  members  of  board  of  pub- 
lic lands  and  buildings  to  compel  specific  performance  of  contract 
fur  leasing  of  convict  labor. 

Syl.  3  (X,  647).     When  state  suable. 

Approved  in  De  Laittre  v.  Board  of  Commrs.,  149  Fed.  802,  refus- 
ing to  compel  state  land  commissioners  to  issue  patents  to  state 
lands;  Smith  v.  Alexander,  146  Fed.  108,  refusing  preliminary  in- 
junction in  suit  for  injunction  against  state  commissioners  to  en- 
force contract  between  state  and  complainant  according  to  latter 's 
construction  thereof,  correctness  of  which  is  denied  by  defendants. 
See  108  Am.  St.  Rep.  837,  note. 

Syl.  4   (X,  648).     Suit  against  state  officers. 

Approved  in  Buchanan  v.  State  Treasurer,  68  S.  C.  420,  47  S.  E.  686, 
denying  mandamus  to  compel  state  comptroller  to  issue  circuit  judge's 
salary  warrant  where  there  is  no  statute  fixing  salary  and  no  appro- 
priation made  therefor.     See  108  Am.  St.  Rep.  832,  840,  notes. 

109  U.  S.  478-485,  27  L.  1003,  RANDALL  v.  BALTIMORE  ETC.  R.  R. 
CO. 

Syl  1    (X,  650).     Direction  of  verdict. 

Approved  in  Riley  v.  Louisville  etc.  R.  Co.,  133  Fed.  906,  66  C.  C. 
A.  598,  following  rule;  Woodward  v.  Chicago  etc.  Ry.  Co.,  145  Fed.  578, 
applying  rule  in  action  against  railroad  for  damages  by  fire  through 
locomotive  sparks;  Parks  v.  Southern  Ry.  Co.,  143  Fed.  277,  upholding 
refusal  to  permit  plaintiff  to  take  nonsuit  and  permitting  direction  of 
verdict   for   defendant;   Swift   v.   Johnson,   138   Fed.   875,   where   action 


109  U.  S.  478-485  Notes  on  U.  S.  Reports.  1164 

for  death  of  minor  son  is  prosecuted  for  sole  benefit  of  father,  who 
abandoned  son  during  minority,  recovery  limited  to  nominal  damages; 
Minahan  v.  Grand  Trunk  etc.  Ry.  Co.,  138  Fed.  47,  70  C.  C.  A.  463, 
reversing  directed  verdict  for  defendant  in  action  for  injuries  to 
passenger  by  derailment  of  car  as  it  passed  over  defective  switch  where 
evidence  conflicted  as  to  cause  of  defect;  Camden  etc.  Ry.  Co.  v.  Rice, 
137  Fed.  328,  69  C,  C.  A.  656,  upholding  refusal  to  direct  verdict  for 
defendant  in  action  for  injuries  to  street-ear  passenger  while  attempting 
to  alight;  International  Text  Book  Co.  v.  Heartt,  136  Fed.  133,  69  C. 
C.  A.  127,  applying  rule  in  action  against  corporation  for  slander  com- 
mitted by  its  agent  who  uttered  words  when  not  engaged  in  perform- 
ance of  duties;  Neeley  v.  Southwestern  etc.  Oil  Co.,  13  Okl.  362,  372, 
75  Pac.  539,  542,  64  L.  R.  A.  145,  reversing  nonsuit  in  action  for  per- 
sonal injuries  to  servant  in  factory  caused  by  defective  appliances; 
Gunn  V.  Union  R.  R.  Co.,  27  R.  I.  327,  329,  62  Atl.  121,  122,  upholding 
Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supreme  court  to  direct  judg- 
ment without  further  trial  by  jury;  Woolf  v.  Washington  etc.  Nav.  Co., 
37  Wash.  503,  79  Pac.  999,  not  presumed  that  one  killed  at  railroad 
crossing  exercised  due  care  where  attendant  facts  show  he  did  not. 

Syl.  4  (X,  653).     Assuming  risks  of  fellow-servant's  negligence. 

Approved  in  Chicago  etc.  Ry.  Co.  v.  Riley,  145  Fed.  140,  location  of 
switch-stand  in  railroad-yard  between  two  tracks  so  close  to  one  that 
switch-handle  would  strike  steps  of  cars  on  other  track  did  not  involve 
question  of  negligence  to  be  passed  on  by  jury;  American  Bridge  Co. 
V.  Seeds,  144  Fed.  608,  where  scaffolding  used  for  rebuilding  bridge 
contained  loose  planks  and  servant  employed  on  it  was  knocked  off  by 
tackle  on  account  of  inopportune  signal  o*f  foreman  to  engineer,  company 
not  liable;  Southern  Ry.  Co.  v.  Logan,  138  Fed.  728,  where  conductor 
in  switchyards  taking  diner  to  Y.  placed  engine  in  rear  and  only  light 
on  car  was  his  lantern,  which  he  held  on  platform,  and  collided  with 
engine,  he  cannot  recover;  Riley  v.  Louisville  etc.  R.  Co.,  133  Fed.  907, 
66  C.  C.  A.  598,  where  railroad-yards  contained  numerous  spring  rail 
frogs,  switchman  injured  by  having  foot  caught  in  one  of  their  excava- 
tions assumed  risk;  Britton  v.  Central  Un.  Tel.  Co.,  131  Fed.  847, 
65  C.  C.  A.  598,  where  telephone  company  did  not  inspect  poles  before 
climbed  by  lineman,  latter  assumed  risks  incident  to  climbing  poles  after 
such  tests  as  his  judgment  indicated  necessary. 

Distinguished  in  McGill  v.  Southern  Pac.  Co.,  4  Ariz.  124,  33  Pac. 
822  section  foreman  is  not  fellow-servant  of  conductor  of  train  on 
which  he  is  carried  to  work. 

Syl.  5  (X,  654).     Who  are  fellow-servants. 

Approved  in  Southern  Pac.  Co.  v.  McGill,  5  Ariz.  41,  44  Pac.  303, 
section  foreman  and  conductor  of  work  train  working  under  common 
supervisor  in  clearing  track  are  fellow-servants;  Chaddick  v.  Lindsay,  5 
Okl.  627  49  Pac.  943,  denying  recovery  to  brakeman  for  injuries  caused 
by  trunk  thrown  near  track  at  place  where  there  was  no  platform. 


11G5  Notes  on  U.  S.  Reports.  109   U.  b.  485-521 

109  U.  S.  485-504,  27  L.  lOOG,  ELLIS  v.  DAVIS. 

Syl.  4  (X,  657).     Equity  court's  probate  jurisdiction. 

Approved  in  O'Callaglian  v.  O'Brien,  199  U.  S.  107,  50  L.  109,  25 
Sup.  Ct.  727,  denying  circuit  court 's  jurisdiction  over  suit  to  set  aside 
probate  of  will  in  state  court.     See  106  Am.  St.  Rep.  643,  note. 

109  U.  S.  504-512,  27  L.  1012,  TOWNSEND  v.  LITTLE. 

Syl.  1  (X,  659).     Possession  as  notice  of  title. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S.  333, 
50  L.  504,  26  Sup.  Ct.  282,  purchaser  from  patentees  for  value,  without 
notice  of  entryman's  fraud,  is  bona  fide  purchaser  under  timber  act  of 
1878,  though  he  acquired  interest  in  lands  under  contract  for  standing 
timber  before  patents  issued;  Reed  v.  Munn,  148  Fed.  756,  refusing 
to  impute  to  corporation  acquiring  legal  title  to  realty  notice  of  out- 
standing equitable  claim  on  part  of  director;  United  States  v.  Detroit 
Timber  etc.  Co.,  131  Fed.  675,  where  vendor  presents  conveyances  to 
himself  prima  facie  valid  and  assures  purchaser  his  title  thereunder 
is  perfect,  buyer  is  under  no  duty  to  investigate  further  in  absence  of 
circumstances  suggesting  investigation ;  Stockton  v.  National  Bank, 
45  Fla.  600,  34  So.  900,  where  one  who  had  been  grantor's  tenant  before 
giving  of  unrecorded  deed  attorned  to  grantee  at  time  it  was  given 
and  remained  in  possession  until  attachment,  possession  is  not  notice  to 
attaching  creditor.     See  104  Am.  St.  Rep.  351,  note. 

Syl.  3  (X,  G59).     Specific  and  general  statutory  provisions. 

Approved  in  Kepner  v.  United  States,  195  U.  S.  125,  49  L.  123,  24 
Sup.  Ct.  797,  Act  1902,  §  5,  for  temporary  civil  government  of  Philip- 
pines, took  away  government 's  right  to  appeal  from  acquittal  in  court 
of  first  instance;  Bealmear  v.  Hutchins,  134  Fed.  2G2,  Rev.  St.  N.  C, 
1837,  c.  42,  §  1,  casts  burden  on  one  claiming  under  such  statute  to  show 
on  face  of  grant  itself  that  land  was  at  time  "vacant  and  unsurveyed"; 
Thomas  v.  Evans,  73  Ohio  St.  146,  76  N.  E.  863,  Rev.  St.  1906,  §  5727, 
giving  probate  .court  jurisdiction  to  issue  habeas  corpus,  is  superseded 
as  to  extradition  cases  'by  Rev.  St.  1906,  §  97;  Carpenter  v.  Russell, 
13  Okl.  282,  73  Pac.  932,  Stat.  1893,  c.  18,  art.  13,  relating  to  appeals, 
is  not  inconsistent  with  act  extending  jurisdiction  of  probate  court; 
Atchison  etc.  R.  R.  Co.  v,  Haynes,  8  Okl.  585,  58  Pac.  741,  Stat.  1893, 
§  5791,  authorizing  county  commissioners  to  levy  school  tax,  is  not  re- 
pealed by  Sess.  Laws  1895,  p.  210,  amending  general  revenue  laws; 
Buchanan  v.  State  Treasurer,  68  S.  C.  415,  47  S.  E.  684,  construing 
salary  reduction  act  of  1893  and  general  appropriation  act  of  same  year 
with  reference  to  salary  of  circuit  judges. 

109  U.  S.  513-521,  27  L.  1015,  UNITED  STATES  v.  JONES. 

Syl.  1   (X,  660),     Eminent  domain  incident  of  sovereignty. 

Approved  in  Jones  v.  North  Georgia  Elec.  Co.,  125  Ga.  624,  54  S.  E. 
88,  upholding  Acts  1897,  p.  68,  conferring  on  owners  of  water  powers 
authority   to   exercise   right   of   eminent   domain;    Ilollister   v.   fcJtate,   9 


109  U.  S.  522-549  Notes  on  U.  S.  Eeports.  1166 

Idaho,  15,  71  Pae.  543,  Idaho  admission  act  does  not  restrict  right  of 
eminent  domain  over  lands  granted  to  state  by  said  act;  dissenting 
opinion  in  Western  Union  Tel.  Co.  v.  Pennsylvania  E.  R.  Co.,  195  U.  S. 
583,  49  L.  328,  25  Sup.  Ct.  133,  majority  holding  Eev.  St.,  §  5263,  did 
not  give  telegraph  companies  right  to  condemn  railway  right  of  way 
for  their  lines. 

Syl.  2  (X,  660).  Eminent  domain — Proceedings  to  determine  com- 
pensation. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  254,  49  L.  468,  25  Sup.  Ct.  251,  upholding  removability  of  pro- 
ceeding in  eminent  domain  authorized  by  Ky.  St.,  §§  835-839,  where 
requisite  diversity  of  citizenship  exists. 

109  U.  S.  522-527,  27  L.  1018,  THOMAS  v.  BROWNVILLE  ETC.  R. 
R.  CO. 

Syl.   1   (X,  661).     Corporation's  contract  with  director. 

Approved  in  Burns  v.  Cooper,  140  Fed.  277,  sale  by  guardian  of 
ward's  realty  under  order  of  court  may  be  set  aside  by  ward  if  guardian 
procures  sale  in  order  to  get  title  himself  and  indirectly  becomes  pur- 
chaser; Young  V.  City  of  Mankato,  97  Minn.  6,  105  N.  W.  970,  3  L.  R. 
A.  (N.  S.)  849,  freeholders  appointed  to  draft  city  charter  cannot 
employ  one  of  their  members  as  counsel  to  prepare  charter  and  give 
advice  with  reference  thereto;  Barnes  v.  Lynch,  9  Okl.  187,  59  Pac. 
1007,  setting  aside  transaction  whereby  officers  of  corporation  divided 
assets  among  themselves  and  merged  property  of  corporation  in  indi- 
vidual estates. 

Distinguished  in  Attalla  Iron  Ore  Co.  v.  Virginia  etc.  Coke  Co.,  Ill 
Tenn.  532,  534,  535,  77  S.  W.  775,  776,  where  managers  of  corporation 
secretly  agreed  with  another  to  form  new  corporation,  in  which  they 
were  to  have  controlling  interest,  and  then  entered  into  contract  with 
new  corporation  on  behalf  of  old  but  without  knowledge  of  directors, 
contract  annulled  at  suit  of  directors. 

109  U.  S.  527-549,  27  L.  1020,  CANADA  SOUTHERN  R.  R.  CO.  v. 
GEBHAED. 

Syl.  2    (X,   662).     Impairment  of  bondholder's  obligation. 

Approved  in  Cochran  v.  Pittsburg  etc.  R.  Co.,  150  Fed.  683,  bond- 
holder may  foreclose  mortgage  without  majority  bondholders  request- 
ing suit  by  trustee  where  bill  shows  trustee  antagonistic  to  foreclosure 
by  reason  of  interest  in  second  mortgage;  Cowell  v.  City  Water  Supply 
Co.,  130  Iowa,  675,  105  N.  W.  1017,  where  corporation  reorganization 
agreement  provided  plan  should  bind  all  bondholders  unless  majority 
dissented  within  thirty  days,  and  petition  by  dissenter  showing  majority 
did  not  dissent,  he  was  bound. 

Syl.  5   (X,  663).     Jurisdiction  over  foreign  corporations. 

Approved  in  Brown  v.  Equitable  Life  Assur.  Soc,  142  Fed.  843,  non- 
resident stockholder  in  New  York  insurance  company  is  bound  by  Laws 


11C7  Notes  on  U.  S.  Keports.  109  U.  S.  550-572 

N.  Y.  1892,  p.  1958,  §  5fi,  prohibiting  appointment  of  receiver  for  or 
directing  accounting  by  insurance  company  unless  on  approval  of  iit- 
torncy  general;  Territory  v.  Baker,  12  N.  M.  459,  78  Pac.  625,  denying 
mandamus  to  compel  judge  to  assume  jurisdiction  over  suit  against 
foreign  railroad  on  whose  president  process  served  while  he  was  on  train 
en  route  through  state. 

109  U.  S.  550^555,  27  L.  1028,  SULLIVAN  v.  IRON  SILVER  MIN.  CO. 

(X,  064,)  Miscellaneous.  Cited  in  Worthen  v.  Sidway,  72  Ark.  225. 
79  S.  W.  781,  valid  mining  location  is  property  cajjable  of  being  trans- 
ferred. 

109  U.  S.  556-572,  27  L.  1030,  EX  PARTE  CROW  DOG. 

Syl.  3  (X,  665).     Territorial  district  court's  jurisdiction. 

Approved  in  Brown  v.  United  States,  146  Fed.  976,  larceny  committed 
on  Indian  reservation  in  Oklahoma  by  one  not  Indian  is  within  juris- 
diction of  territorial  district  courts  exercising  jurisdiction  vested  in 
federal  courts;  Gay  v.  Thomas,  5  Okl.  12,  46  Pac.  582,  upholding  act 
of  1895,  providing  for  taxation  of  cattle  in  unorganized  county  or  reserva- 
tion in  county  to  which  such  county  is  attached  for  judicial  purposes; 
Robinson  v.  Peru  Plow  etc.  Co.,  1  Okl.  149,  31  Pac.  990,  construing  words 
in  petition  incorrectly  describing  action  as  brought  in  federal  side  of 
territorial  court  as  surplusage. 

Syl.  4  (X,  665).     Statutory  construction — Repealed  statutes. 

Approved  in  Goodson  v.  United  States,  7  Okl.  139,  140,  54  Pac.  430, 
upholding  jurisdiction  of  territorial  court  exercising  federal  jurisdiction 
over  prosecution  for  adultery  committed  on  Indian  reservation. 

Syl.  5  (X,  666).    What  is  "  Indian  county." 

Approved  in  Brown  v.  United  States,  146  Fed.  977,  larceny  committed 
on  Indian  reservation  in  Oklahoma  by  one  not  Indian  is  within  juris- 
diction of  territorial  district  court  exercising  federal  jurisdiction;  Herd 
V.  United  States,  13  Okl.  516,  75  Pac.  292,  upholding  jurisdiction  of 
territorial  courts  exercising  federal  jurisdiction  over  larceny  committed 
on  Indian  reservation;  Goodson  v.  United  States,  7  Okl.  131,  54  Pac. 
427,  upholding  jurisdiction  of  territorial  court  exercising  federal  juris- 
diction over  prosecution  for  adultery  committed  on  Indian  reservation, 

Syl.  8  (X,  667).     Special  law  not  repealed  by  general. 

Approved  in  Guthrie  v.  Sparks,  131  Fed.  449,  65  C.  C.  A.  427,  Ky. 
St.  1894,  §  1882,  conferring  power  on  county  fiscal  courts  to  levy  taxes 
for  county  purposes,  except  railway  bond  debts,  not  repealed  by  §  1839. 

(X,  665.)  Miscellaneous.  Cited  in  State  v.  Smokalem,  37  Wash.  95, 
79  Pac.  605,  upholding  state  court's  jurisdiction  over  homicide  com- 
mitted by  Indian  on  another  in  territory  previously  embraced  in  Puyallup 
reservation. 


109  U.  S.  573-G17  Notes  on  U.  S.  Ecports.  11G8 

109  U.  S.  573-577,  27  L.  1036,  YOUNG  v,  DUVALL. 

Syl.  1   (X,  668).     Conclusiveness  of  notarial  certificate. 

Approved  in  Adams  v.  Smith,  11  Wyo.  222,  70  Pac.  1047,  holding 
evidence  insufiicient  to  show  vrife  in  signing  mortgage  did  not  under- 
stand it  to  be  mortgage,  to  impeach  notarial  certificate. 

109  U.  S.  578-607,  27  L.  1038,  PEOVIDENCE  ETC.  N.  Y.  S.  S.  CO.  v. 
HILL  MFG.  CO. 

Syl.  4   (X,  669).     Shipping — Proceeding  to  limit  liability. 
Approved  in  Dowdell  v.  United  States  District  Court,  139  Fed.  445, 
where    limitation    of    liability   proceedings    terminated    by   final    decree, 
court  cannot  reopen  case  to  allow  other  claimants  not  appearing  therein 
to  come  and  prove  claims. 

Syl.  5   (X,  669).     Shipping — Limited  liability  act — Ftules. 

Approved  in  The  Sacramento,  131  Fed.  374,  petition  in  admiralty  to 
limit  liability  failing  to  state  facts  and  circumstances,  by  reason  of 
which  exemption  claimed,  as  required  by  rule  56,  is  sufficient  to  entitle 
petitioner  to  contest  fault  of  vessel. 

109  U.  S.  608-617,  27  L.  1049,  EOBEKTSON  v.  PICKERELL. 

Syl.  1   (X,  671).     Law  governing  realty  transfers. 

Approved  in  Succession  of  Hasling,  114  La.  296,  297,  38  So.  175, 
validity  of  will  made  in  Louisiana  by  citizen  thereof  bequeathing  realty 
in  Mississippi  tested  by  laws  of  latter;  Knight  v.  HoUings,  73  N.  H. 
499,  63  Atl.  40,  arguendo. 

Syl.  3    (X,  571).     Credit  given  foreign  judgments. 

Approyed  in  In  re  Box's  Will,  127  Wis.  270,  106  N.  W.  1065,  county 
court  has  no  jurisdiction  to  admit  to  probate  will  which  had  been  pro- 
bated in  Illinois  and  copy  of  will  and  record  of  probate  not  authenticated 
as  required  by  statute. 

Syl.  6  (X,  671).     Estoppel  by  deed. 

Approved  in  Levi  v.  Mathews,  145  Fed.  157,  one  claiming  title  by 
adverse  possession  not  estopped  by  acceptance  of  deed  from  third  person 
from  denying  title  was  in  latter. 

Syl.  8  (X,  672).     Grantee  estopped  to  deny  grantor's  title. 

Approved  in  Townsend  v.  Kreigh,  133  Mich.  246,  94  N.  W.  733, 
appljdng  rule  where  grantee  gave  purchase  money  mortgage;  GoodeU 
V.  Sanford,  31  Mont.  173,  77  Pac.  526,  beneficiary  vendees  under  trust 
who  assented  thereto,  sold  portions,  and  made  partial  payments  and 
ratified  transaction  between  purchaser  and  vendor  until  sued  for  price, 
are  estopped  to  claim  they  received  no  title. 

Syl.  10  (X,  672).     Estoppel  to  deny  grantor's  title. 

Approved  in  Oregon  etc.  R.  R.  Co.  v.  Quigley,  10  Idaho,  780,  80  Pac. 
405,  applying  rule  to  grant  of  right  of  way  over  public  lands;  Coleman 


1169  Notes  on  U.  S.  Keports.  109  U.  S.  618-659 

V.  Coleman,  71  S.  C.  520,  51  S.  E.  251,  where  tenant  in  common  con- 
veyed fee  to  A  and  children,  and  A  conveyed  fee  to  B,  who  held  ex- 
clusive possession  for  twenty  years,  deed  from  cotenants  of  A's  grantor 
to  B  not  presumed  as  against  A's  children  after  their  majority, 

109  U.  S.  618-620,  27  L,  1053,  SWEENEY  v.  UNITED  STATES. 

Syl.  1   (X,  672).     Building  contract — Certificate  of  officer — Payments. 

t 
Approved  in  Bush  v.  Jones,  144  Fed.  945,  applying  rule  to  contract 

providing  for  payments  only  on  architect's  certificate;  Moore  v.  Corn- 
wall, 144  Fed.  30,  charter  providing  that  captain  to  furnish  charterer's 
certificate  from  charterer's  marine  surveyor  that  vessel  is  seaworthy, 
otherwise  charter,  void,  does  not  justify  refusal  of  certificate  without 
survey  because  of  age  of  vessel;  Guild  v.  Andrews,  137  Fed.  371,  70  C. 
C.  A.  49,  applying  rule  to  contract  for  sewer  making  engineer  arbiter 
of  amount  and  character  of  work  done,  its  conformity  to  contract  and 
compensation  to  be  paid;  Lamson  v.  Marshall,  133  Mich.  266,  95  N.  W. 
83,  difference  of  eight  hundred  yards  between  estimate  of  engineer  and 
rock  actually  excavated  is  not  evidence  of  bad  faith;  Livesley  v.  John- 
ston, 45  Or.  46,  106  Am.  St.  Ecp.  G47,  76  Pac.  949,  65  L.  K.  A.  783, 
upholding  contract  for  sale  of  hops  providing  that  if  in  judgment  of 
buyer  less  quantity  or  in  different  condition  than  agreed  on  delivered, 
buyer  may  take  same  at  difference  in  price  between  contract  and  value 
of  hops  delivered;  Plumbing  Co.  v.  Carr,  54  W.  Va.  276,  46  S.  E.  460, 
applying  rule  to  contract  for  plumbing  providing  for  payment  when  work 
completed  to  satisfaction  of  owner  or  architect. 

Distinguished  in  Merchants'  Nat.  Bank  v.  East  Grand  Forks,  94  Minn. 
252,  102  N.  W.  705,  upholding  curative  act  requiring  city  to  pay  for 
work  done  under  city  contract  providing  for  payments  on  estimate  of 
engineer. 

109  U.  S.  633-640,  27  L.  1058,  ESTEY  v.  BUEDETT. 

(X,  674.)  Miscellaneous.  Cited  in  Ex  parte  National  Enameling 
etc.  Co.,  201  U.  S.  160,  50  L.  708,  26  Sup.  Ct.  404,  decree  in  infringement 
suit  against  single  defendant  dismissing  bill  as  to  claims  held  invalid 
is  not  final  appealable  decree. 

109  U.  S.  654-659,  27  L.  1068,  WYMAN  v.  HALSTEAD. 

Syl.  1  (X,  676).     Venue — Debts  due  decedent. 

Approved  in  Cunnius  v.  Beading  School  Dist.,  198  U.  S.  467,  49  L. 
1129,  25  Sup.  Ct.  721,  upholding  power  of  state  to  confer  jurisdiction 
to  administer  estates  of  absentees;  Bates  Machine  Co.  v.  Norton  Iron 
Works,  113  Ky.  379,  68  S.  W.  425,  where  debtor  is  resident  of  state, 
fact  that  money  about  to  be  collected  by  creditor  and  removed  from 
state  is  sufficient  ground  for  attachment;  Kidd  v.  New  Hampshire  Trac- 
tion Co.,  72  N.  H.  285,  56  Atl.  469,  66  L.  R.  A.  574,  right  of  foreign 
corporation  to  action  against  resident  corporation  is  property  within 
jurisdiction  of  local  courts. 

74 


109  U.  S.  G65-725  Notes  on  U.  S.  Eeports.  1170 

109  U.  S.  665-668,  27  L.  1065,  BENDEY  v.  TOWNSEND. 

Syl.  1   (X,  678).     Indorsement  of  note  before  delivery. 

Approved  in  Camp  v.  First  National  Bank  of  Ocala,  44  Fla.  503, 
103  Am.  St.  Kep.  173,  33  So.  242,  following  rule. 

109  U.  S.  672-702,  27  L.  1070,  POTOMAC  STEAMBOAT  CO.  v.  UPPER 
POTOMAC  S.  CO. 

Syl.  2  (X,  680).     Contracts — Evidence  of  preliminary  negotiations. 

Approved  in  Knitting  Mills  v.  United  States  Fidelity  etc.  Co.,  137 
N.  C.  570,  50  S.  E.  306,  70  L.  R.  A.  167,  legal  effect  of  terms  of  bond 
cannot  be  modified  by  extrinsic  evidence  of  preliminary  negotiations. 

Syl.  4  (X,  680).     Riparian  owner's  right  of  access. 

Approved  in  United  States  v.  Roth,  2  Alaska,  263,  holding  possession 
of  homesteader  coextensive  with  boundaries  of  land,  and  extends  over 
shore  lands  of  navigable  waters  abutting  thereon;  Crawford  Co.  v. 
Hathaway,  67  Neb.  336,  108  Am.  St.  Rep.  655,  93  N.  W.  784,  determin- 
ing riparian  rights  under  irrigation  laws;  Newport  News  etc.  Dry  Dock 
Co.  V.  Jones,  105  Va.  510,  54  S.  E.  316,  arguendo.. 

(X,  680.)  Miscellaneous.  Cited  in  South  Bound  R.  R.  v.  Burton,  67 
S.  C.  520,  46  S.  E.  341,  under  act  of  1876,  under  which  city  of  Columbia 
founded,  abutting  owner  entitled  to  damages  where  council  authorized 
operation  of  railroad  in  street. 

109  U.  S.  702-725,  27  L.  1081,  CHICAGO  ETC.  R.  E.  v.  UNION  ROLL- 
ING MILL  CO. 

Syl.  1  (X,  681).     Dismissal  of  bill  carries  cross-bill. 

Approved  in  Badger  etc.  Mill  Co.  v.  Stockton  Gold  etc.  Co.,  139  Fed. 
840,  dismissal  of  bill  to  quiet  title  to  mining  claim  does  not  carry  with  it 
cross-bill  seeking  to  have  title  quieted  in  defendant  and  which  alleges 
facts  not  in  original  bill;  Gilmore  v.  Bort,  134  Fed.  662,  in  suit  to  cancel 
indemnity  bond,  one  of  defendants,  by  filing  cross-bill  alleging  validity 
of  bond  and  seeking  relief  against  codefendant  on  own  bund,  does  not 
have  right  to  object  to  original  bill ;  Georgia  Pine  etc.  Co.  v.  Bilfinger,  129 
Fed.  132,  complainant  in  infringement  suit  in  which  preliminary  injunc- 
tion issued  cannot  dismiss  without  prejudice  after  proofs  taken  showing 
no   infringement. 

Syl.  2  (X,  681).  Complainant's  right  to  dismiss  bill. 
Approved  in  Gilmore  v.  Bort,  134  Fed.  660,  in  suit  to  cancel  bond 
given  by  complainants  to  indemnify  defendants  for  loss  of  money  of 
one  of  them  deposited  by  other  in  certain  bank,  latter  filing  cross-bill 
alleging  validity  of  bond  and  also  seeking  relief  against  codefendant 
on  own  bond,  cannot  object  to  dismissal  of  original  bill;  Long  v.  Ander- 
son, 48  Fla.  287,  37  So.  219,  after  answer  to  bill  in  equity,  mere  filing 
of  praecipe  for  dismissal  by  plaintiff  without  order  of  court  thereon 
is  not  dismissal  of  bilL 


1171  Notes  on  U.  S.  Eeports.  110  U.  S.  7-15 

109  U.  S.  725-734,  27  L.  1089,  HOWARD  y.  CARUSI. 

Syl.  1  (X,  683).     Devise  with  limitation  over — Power  of  sale. 

Approved  in  Russell  v.  Jones,  135  Fed.  941,  68  C.  C.  A.  487,  holding 
evidence  insufficient  to  show  verbal  contract  by  legatee  to  make  certain 
testamentary  disposition  of  property;  Gannon  v.  Albright,  183  Mo.  252, 
105  Am.  St.  Rep.  471,  67  L.  R.  A.  97,  81  S.  W.  1164,  where  will  gave 
land  to  testator's  sons,  their  heirs  and  assigns  forever,  and  if  either 
should  die  without  issue  property  to  go  to  testator's  heirs,  sons  took 
fee;  Bodmann  German  etc.  "Widows'  Home  v.  Lippardt,  70  Ohio  St.  288, 
290,  294,  71  N.  E,  774,  775,  will  giving  wife  all  estate  with  power  to 
sell  and  after  her  death  all  remaining  to  be  distributed  in  certain  way, 
gives  widow  power  to  convey  fee.     See  106  Am.  St.  Rep.  508,  note. 


CX  UNITED  STATES. 


110  U.  S.  7-15,  28  L.  49,  MARTIN  v.  WEBB. 

Syl.  2   (X,  686).     Implied  authority  of  bank  cashier. 

Approved  in  Blanc  v.  Germania  Nat.  Bank,  114  La.  742,  38  So.  538, 
corporation  is  estopped  from  denying  liability  on  note  executed  by 
secretary  in  due  course  of  business,  although  charter  requires  president 
and  secretary  to  execute  notes,  where  secretary's  acts  have  .been 
recognized;  Smith  v.  Bank  of  New  England,  72  N.  H.  9,  54  Atl.  387, 
directors  of  corporation  are  estopped  from  denying  authority  of  president 
to  execute  contract  when  with  knowledge  they  did  not  disaffirm  it; 
Louchheim  v.  Somerset  B.  &  L.  Assn.,  211  Pa.  503,  60  Atl.  1055,  secretary 
of  building  association  who  collected  dues  from  members  for  years  when 
by-laws  authorized  a  committee  to  do  so  is  deemed  to  have  power  to  do 
so,  and  payments  to  him  were  payments  to  the  association;  Louchheim  v. 
Somerset  B.  &  L.  Assn.,  211  Pa.  506,  00  Atl.  1056,  after  permitting  sec- 
retary to  collect  money  due  building  association  for  twenty  years  it  can- 
not set  up  want  of  authority  in  the  by-laws;  Coolidge  v.  Schering,  32 
Wash.  564,  73  Pac.  685,  where  secretary  and  treasurer  of  company  who 
liad  ehai'ge  of  its  affairs  wrongfully  sold  certain  land  to  innocent  pur- 
chaser, corporation  was  estopped  from  denying  authority  of  officers  when 
corporation  did  not  take  any  steps  for  two  years  after  notice. 

Syl.  3  (X,  687).     Knowledge  of  bank  directors. 

Approved  in  Rankin  v.  Cooper,  149  Fed.  1013,  directors  of  bank  are 
liable  for  loss  sustained  by  reason  of  excessive  loans  by  president  where 
they  had  no  knowledge  of  the  fact  and  took  no  steps  to  reduce  the 
loans;  Clement  v.  Young-McShea  etc.  Co.,  69  N.  J.  Eq.  352,  60  Atl.  421, 
determining  ratification  of  lease  to  corporation  where  made  by  party 
who  was  practically  owner  of  corporation;  Orme  v.  Baker,  74  Ohio 
St.  353,  78  N.  E.  444,  where  board  of  directors  gives  entire  charge  of 


110  -U.  S.  15-26  Notes  on  U.  S.  Reports.  1172 

its  affairs  to  cashier,  it  is  liable  to  depositor  who  deposits  money  day 
before  its  insolvency,  which  resulted  from  fraud  of  its  cashier. 

110  U.  S.  15-26,  28  L.  52,  HOLLAND  v.  CHALLEN. 

Syl.   1    (X,   688).     Bill  of  peace. 

Approved  in  Mathews  S.  Co.  v.  Mathews,  148  Fed.  493,  Rev.  Laws 
Mass.,  c.  159,  sec.  3,  cl.  7,  relating  to  suits  by  creditors,  to  reach  prop- 
erty of  debtor,  does  not  apply  to  federal  court. 

Syl.  2  (X,  688).     Ejectment— Equitable  relief. 

Approved  in  Greenfield  v.  United  States  etc.  Co.,  133  Fed.  786,  787, 
where  plaintiff  is  owner  in  possession  of  real  property,  and  there  is  out- 
standing adverse  claim,  he  is  entitled  to  maintain  suit  to  quiet  title 
without   first   establishing   his   title   by   action  at   law. 

Syl.  3  (X,  688).     Bill  quia  timet. 

Approved  in  United  States  Min.  Co.  v.  Lawson,  134  Fed.  772,  67  C. 
C.  A.  587,  ovrner  of  mining  claim  in  possession  of  its  surface  claiming 
title  to  entire  claim  may  maintain  quiet  title  action,  although  bill  shows 
defendant   has   done   underground   work   and   removed   ore. 

Syl.  4  (X,  688).     State  relief  in  federal  courts. 

Approved  in  Devine  v.  Los  Angeles,  202  U.  S.  333,  50  L.  1053,  26 
Sup.  Ct.  652,  in  order  to  give  federal  court  jurisdiction,  it  is  not  suffi- 
cient that  bill  to  quiet  title  shows  that  defendant's  adverse  title  was 
based  on  erroneous  construction  of  treaty  of  Guadalupe  Hidalgo;  United 
States  Min.  Co.  v.  Lawson,  134  Fed.  771,  67  C.  C.  A.  587,  federal  court 
may  enforce  remedy  given  by  Rev.  -St.  Utah,  1898,  §§  2915,  3511,  relat- 
ing to  actions  to  quiet  title;  Smith  Oyster  Co.  v.  Darbee  etc.  Land  Co., 
149  Fed.  559,  under  Civ.  Code,  Cal.,  §  738,  action  to  quiet  title  may  be 
maintained  against  adverse  claims  without  plaintiff  first  establishing  his 
right  by  action  at  law;  "Willitt  v.  Baker,  133  Fed.  943,  where  state 
statute  authorizes  suit  to  quiet  title  regardless  of  possession,  federal 
court  has  jurisdiction,  in  which  suit  to  support  adverse  claim  to  mining 
grounds  may  be  maintained. 

Syl.   5    (X,    690).     Quieting   title   in   equity. 

Approved  in  Douglas  Jockey  Club  v.  Granger,  146  Fed.  419,  suit  to 
enjoin  officers  of  a  state  from  exercising  powers  conferred  by  state 
statute  on  ground  that  they  are  violating  property  rights  of  complainant 
under  constitution  is  within  jurisdiction  of  federal  court  without  regard 
to  citizenship;  Ames  etc'  Co.  v.  Big  Indian  etc.  Co.,  146  Fed.  173,  175, 
rights  arising  under  Civ.  Code,  Mont.,  §  1891,  relating  to  water  rights, 
may  be  enforced  in  federal  court  where  there  is  diversity  of  citizen- 
ship ;  New  York  etc.  Co.  v.  City  of  New  York,  145  Fed.  662,  federal  court 
will  give  effect  to  statute  of  New  York  giving  tenant  under  lease  for 
more  than  ten  years  right  to  maintain  action  to  remove  cloud  upon  his 
title;  Shewalter  v.  Lexington,  143  Fed.  166,  suit  contesting  validity  of 
tax  bill  for  street  improvements  does  not  involve  title  to  real  estate 
within  meaning  of  constitution  for  purpose  of  giving  supreme  court  of 


1173  Notes  on  U.  S.  Eeporta.  110  U.  S.  27-46 

state  jurisdiction  over  controversies  affecting  titles  to  real  estate ;  Illinois 
Life  Ins.  Co.  v.  Newman,  141  Fed.  453,  federal  court  of  equity  is  with- 
out power  to  enjoin  collection  of  tax  levied  under  state  authority  on 
ground  of  its  illegality;  Courtney  v.  Pradt,  135  Fed.  821,  in  the  absence 
of  statute  authorizing  suit,  against  foreign  executor,  he  cannot  be 
sued  in  state  other  than  where  appointed;  Dawson  v.  Orange,  78  Conn. 
100,  61  Atl.  102,  Pub.  Acts  1893,  p.  237,  c.  66  (Gen.  St.  1902,  §  4053), 
permitting  jury  in  suits  to  determine  adverse  claims  to  realty,  is  valid, 

Syl.  6   (X,  692).     Quieting  title  by  one  out  of  possession. 

Approved  in  First  Baptist  Church  v.  Harper,  191  Mass.  209.  77  N. 
E.  780,  bill  to  remove  cloud  from  land  cannot  be  maintained  unless 
actual  possession  and  legal  title  are  in  plaintiff. 

110  U.  S.  27-42,  28  L.  56,  CEDAR  EAPIDS  ETC.  R.  R.  v.  HERRING. 

Syl.  3  (X,  693).     Railroad  aid  grants. 

Approved  in  Humbird  v.  Avery,  195  U.  S.  508,  49  L.  299,  25  Sup.  Ct. 
123,  court  will  not  determine  in  advance  of  action  of  Land  Department 
respective  rights  of  grantees  from  Northern  Pacific  Railway  Company 
of  land  claimed  to  be  within  indemnity  limits  of  grant  of  July  2,  1864 
(13  Stat,  at  L.  365,  c.  217). 

Syl.   4    (X,   693).     Selection   of   railroad   grants. 

Approved  in  Sjoli  v.  Dreschel,  199  U.  S.  566,  50  L.  312.  note,  26 
Sup.  Ct.  254,  Secretary  of  Interior  has  no  authority  to  withdraw  from 
sale  settlement  lands  within  indemnity  limits  not  previously  selected  to 
supply  deficiencies  within  place  limits  of  company 's  road. 

110  U.  S.  42-46,  28  L.  64,  TAYLOR  v.  BEMISS. 

Syl.  2  (X,  694).     Payment  to  guardian. 

Approved  in  McCoy  v.  Lane,  66  Neb.  852,  92  N.  W.  1012,  guardian  has 
authority  to  bind  estate  of  ward  by  contract  for  services  for  preserva- 
tion of  estate. 

Syl.  3  (X,  694).     Contingent  attorney's  fees. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  21,  50  L.  353,  26  Sup.  Ct.  216, 
illegality,  under  U.  S.  Rev.  St.  §  3477,  U.  S.  Comp.  St.  1901,  p.  2320, 
of  clause  in  contract  for  prosecution  of  claim  against  United  States 
does  not  invalidate  that  part  of  contract  that  provides  for  payment  of 
services  of  sum  equal  to  one-third  of  amount  allowed. 

Syl.  5  (X,  694).     Excessive  contingent  fees. 

Approved  in  Whinery  v.  Brown,  36  Ind.  App.  282,  75  N.  E.  607, 
contract  by  attorney  to  collect  claim  for  damages  for  $10,  if  $50  was 
recovered,  and  if  more,  the  fee  should  be  in  proportion,  is  valid ;  Bailey  v. 
Garrison,  68  Neb.  782,  94  N.  W.  99],  guardian  has  authority  to  bind 
estate  of  his  ward  by  reasonable  contract  for  services  to  preserve  the 
estate. 


110  U.  S,  47-61  Notes  on  U.  S.  Eeports.  1174 

110  U.  S.  47-50,  28  L.  62,  GILMER  v.  HIGLEY. 

Syl.  1  (X,  695).     Cross-examination. 

Approved  in  Resurrection  G.  Min.  Co.  v.  Fortune  G.  Min.  Co.,  129 
Fed.  674,  64  C.  C.  A.  180,  where  witness  for  plaintiff  has  given  part  of 
conversation  on  direct  examination,  fact  that  entire  conversation  con- 
stitutes affirmative  defense  is  no  bar  to  disclosure  on  cross-examination. 

Syl.  2  (X,  695).     Harmless  error  disregarded. 

Approved  in  Sprinkle  v.  United  States,  150  Fed.  59,  typewritten  letter 
purporting  to  have  been  dictated  by  defendant  and  signed  in  his  name 
by  stencil  is  inadmissible  against  him;  Armour  &  Co.  v.  Russell,  144 
Fed.  616,  master's  duty  to  servant  regarding  appliances  is  to  exercise 
ordinary  care  to  provide  servant  with  reasonably  safe  place  and  ap- 
pliances; National  Biscuit  Co.  v.  Nolan,  138  Fed.  9,  70  C.  C.  A.  436, 
error  to  permit  plaintiff  to  testify  that  she  depended  on  herself  for  sup- 
port; Union  Pac.  R.  Co.  v.  Field,  137  Fed.  18,  69  C.  C.  A.  536,  unsworn 
statement  of  irrelevant  facts  by  counsel  in  his  statement  to  jury  is 
fatal;  Resurrection  G.  Min.  Co.  v.  Fortune  G.  Min.  Co.,  129  Fed.  677, 
64  C.  C.  A.  180,  parol  evidence  is  incompetent  to  substitute  in  a  con- 
veyance a  call  for  another  monument  in  place  of  call  for  original  monu- 
ment. 

110  U.  S.  51,  52,  28  L.  67,  UNITED  STATES  v.  CAREY. 

Syl.  1   (X,  695).     Exceptions,  when  taken. 

Approved  in  Montana  Min.  Co.  v.  St.  Louis  etc.  Co.,  147  Fed.  908, 
under  rule  58,  circuit  court,  district  of  Montana,  exceptions  taken  in 
chambers  to  instructions  was  sufficient;  dissenting  opinion  in  Owens 
V.  United  States,  130  Fed.  286,  64  C.  C.  A.  525,  majority  holding  after 
statement  by  court  to  counsel  that  there  was  no  practice  as  to  when 
exceptions  to  instructions  in  criminal  case  should  be  taken,  exceptions 
taken  day  after  jury  retired  were  properly  taken;  Annans  v.  Sewell, 
47  Or.  373,  84  Pac.  395,  under  B.  &  C.  Comp.,  §  169,  Oregon,  relating 
to  exceptions,  an  exception  taken  after  trial  is  too  late. 

110  U.  S.  52,  53,  28  L.  67,  JENNESS  v.  CITIZENS'  NAT.  BANK  OF 
ROME. 

Syl.  1    (X,  696).     Jurisdictional  amount  on  appeal. 

Approved  in  Fredonia  Gas  Co.  v.  Bailey,  72  Kan.  406,  83  Pac.  982, 
in  action  for  $1,349  where  defendant  admits  $1,000  is  due  and  ver- 
dict is  for  $1,094.60,  amount  in  controversy  is  but  $94.60,  and  supreme 
court  has  no  jurisdiction. 

110  U.  S.  59-61,  28  L.  70,  HOLLAND  v.  CHAMBERS. 

Syl.  1  (X,  697).     Practice  on  removal. 

Approved  in  O 'Conor  v.  Texas,  202  U.  S.  507,  50  L.  1126,  26  Sup 
Ct.  726,  alien  nonresident  can  no  longer  claim  privilege  under  U.  S. 
Stat.  1901,  p.  520,  subsec.  1,  removing  to  federal  circuit  court  an  actiou 
commenced  against  him  in  state  court. 


1175  Notes  on  U.  S.  Reports.  110  U.  S.  76-119 

110  U.  S.  76-80,  28  L.  63,  SCHREIBER  v.  SHARPLESS. 

Syl.  1    (X,  698).       Infringing  copyright — Death   of  defendant. 

Approved  in  Walker  v.  Globe  etc.  Co.,  140  Fed.  308,  Rev.  St.,  §  4965, 
is  penal  statute;  Overland  Cotton  Mill  Co.  v.  People,  32  Colo.  265,  105 
Am.  St.  Rep.  74,  75  Pac.  925,  judgment  of  conviction  under  Mills' 
Ann.  St.,  §  413,  for  employing  child  under  fourteen,  abates  on  death 
of  defendant. 

Syl.  2   (X,  699).     Survival  of  actions. 

Approved  in  Walker  v.  Globe  etc.  Co.,  140  Fed.  305,  rights  of  au- 
thors of  charts,  etc.,  under  U.  S.  Comp.  St.  1901,  p.  34U6,  are  not 
taken  away  by  U.  S.  Comp.  St.  1901,  pp.  3414,  3416. 

110  U.  S.  81-97,  28  L.  76,  CLAFLIN  v.  COMMONWEALTH  INS. 
CO. 

Syl.  3    (X,   700).     Presumption  from   fraud. 

Approved  in  Fidelity  etc.  Co.  v.  Bank  of  Timmonsville,  139  Fed. 
103,  under  fidelity  bond  providing  that  any  willful  misstatement  of  a 
fact  by  employer  will  render  bond  void,  mere  belief  that  it  was  imma- 
terial whether  question  was  answered  truthfully  or  not  did  not  make 
answer  immaterial. 

Syl.  4  (X,  700).     False  statements  by  insured  as  to  loss. 

Approved  in  Hall  v.  Western  Underwriters'  Assn.,  106  Mo.  App.  478, 
81  S.  W.  227,  under  policy  providing  any  false  swearing  shall  avoid 
policy,  false  statement  by  insured  that  his  loss  was  largely  in  excess 
of  what  he  knew  it  to  be  he  could  not  recover  at  all;  Meyer  v.  Home 
Ins.  Co.,  127  Wis.  301,  106  N.  W.  1089,  under  terms  of  fire  policy  will- 
ful false  swearii:g  avoided  the  policy. 

110  U.  S.  97-107,  28  L.  83,  HILTON  v.  MERRITT. 

Syl.  4    (X,  701).     Recovery  of  duties. 

Approved  in  Light  v.  Canadian  County  Bank,  2  Okl.  550,  37  Pac. 
1077,  in  proceedings  under  St.  Okl.,  c.  66,  art.  9  (Arrest  and  Bail), 
judgment  debtor  is  not  entitled  to  jury  trial  upon  motion  to  discharge 
order  of  arrest. 

110  U.  S.  108-119,  28  L.  86,  KELLOGG  BRIDGE  CO.  v.  HAMILTON. 

Syl.  2   (X,  702).     Sales — Caveat  emptor. 

Approved  in  Kell  v.  Trenchard,  142  Fed.  21,  in  purchase  of  standing 
lumber  where  inspection  was  rendered  unavailing  by  fraud  of  seller, 
caveat  emptor  does  not  apply. 

Syl.  3  (X,  702).     Warranty  of  sale  of  personalty. 

Approved  in  dissenting  opinion  in  Davis  etc.  Co.  v.  ALallory,  137 
Fed.  341,  69  L.  R.  A.  973,  C!>  < '.  C.  A.  062,  majority  holding  there  is 
no  implied  warranty  that  article  will  be  fit  for  certain  purpose  under 


110  U.  S.  119-156  Notes  on  U.  S.  Eeports.  1176 

contract   to   manufacture   certain   article.     See    102   Am.   St.   Kep.   618, 
note. 

Syl.  4   (X,  702).     Warranty  of  manufacturer. 

Approved  in  Davis  etc.  Co.  v.  Mallory,  137  Fed.  334,  69  L.  R.  A. 
973,  69  C.  C  A.  662,  under  written  contract  to  sell  certain  drill  there 
was  no  implied  warranty  that  drill  would  do  the  work  as  well  as  a 
diamond  drill;  Bunch  v.  Weil,  72  Ark.  347,  80  S.  W.  583,  65  L.  R.  A. 
80,  applying  rule  when  retailer  bought  flour  and  it  turned  out  inferior; 
Nixa  Canning  Co.  v.  Lehmann  etc.  Co.,  70  Kan.  666,  79  Pac.  142,  70 
L.  R.  A.  653,  one  who  puts  up  apples  in  cans  impliedly  warrants  that 
they  are  free  from  latent  defects;  George  v.  Shreveport  etc.  Co.,  114 
La.  505,  38  So.  434,  manufacturer  who  sells  his  product  is  properly 
held  presumptively  to  knowledge  of  qualities  of  thing  he  sells;  Rollins 
Engine  Co.  v.  Forge  Co.,  73  N.  H.  99,  59  Atl.  386,  manufacturer  of 
piston  rod  for  an  engine  is  liable  for  ordinary  care  in  selecting  material 
but  not  for  defects  in  steel  if  not  discoverable  by  such  care.  See  102 
Am.  St.  Rep.  616,  note. 

Distinguished  in  Davis  etc.  Co.  v.  Mallory,  137  Fed.  336,  69  L.  R.  A. 
973,  69  C.  C.  A.  662,  implied  warranty  that  article  will  be  fit  for  par- 
ticular purpose  will  be  inferred  from  contract  to  furnish  it  for  that 
specific  purpose. 

Syl.  5  (X,  703).     Liability  of  original  contractor. 

Approved  in  The  Nimrod,  141  Fed.  216,  acceptance  of  boiler  for  tug 
does  not  exclude  implied  warranty  of  fitness  with  respect  to  defects  dis- 
coverable only  by  use. 

110  U.  S.  119-130,  28  L.  90,  ALLEN  v.  WITHROW. 

Syl.  2  (X,  703).     Filling  in  blanks  in  deed. 

Approved  in  Carr  v.  McColgan,  100  Md.  477,  60  Atl.  608,  mortgagor 
who  accepts  benefits  of  loan  is  estopped  from  excepting  to  sale  on 
ground  that  blanks  in  the  mortgage  were  filled  in  after  execution  by 
scrivener  under  pa^ol  authority. 

110  U.  S.  151-156,  28  L.  101,  HART  v.  SANSOM. 

Syl.  3    (X,   705).     Equity  jurisdiction  in  personam. 

Disapproved  in  York  Co.  Sav.  Bank  v.  Abbot,  131  Fed.  984,  suit  by 
lessee  against  nonresident  lessor  to  enforce  rights  under  lease  may  have 
to  enforce  lien  on  real  property  and  with  jurisdiction  of  circuit  court 
under  U.  S.  Comp.  St.  1901,  p.  513. 

Syl.  4   (X,  707).     Judgment  on  constructive  service. 

Approved  in  Cella  Com,  Co.  v.  Bohlinger,  147  Fed.  422,  Act  Ark.  Feb. 
26,  1901,  Kirby's  Dig.,  §  835,  authorizing  personal  judgment  against 
foreign  corporation  after  service  on  auditor,  is  unconstitutional;  Metro- 
politan Rubber  Co.  v.  Place,  147  Fed.  95,  decree  in  suit  for  dissolution 
of  corporation  barring  all  claims  which  were  not  presented  does  not 
conclude  nonresident  of  state  unless  he  was  personally  served  or  ap- 


1177  Notes  on  U.  S.  Reports.  110  U.  S.  174-200 

pearec];  Kerns  v.  McAulay,  8  Idaho,  565,  69  Pac.  540,  where  summons 
was  published  against  nonresident,  judgment  was  only  valid  as  to  prop- 
erty attached;  Silver  Camp  Mining  Co.  v.  Dickert,  31  Mont.  497,  78 
Pac.  970,  under  Mont.  Code  Civ.  Proc,  §  638,  service  of  summons  by 
publication  on  nonresident  will  not  sustain  judgment  in  personam; 
Hill  V.  Henry,  66  N.  J.  Eq.  155,  57  Atl.  556,  §  10  of  N.  J.  Chancery 
Act  (Revision  1902;  P.  L.,  p.  514),  providing  for  publication  against 
heirs,  does  not  apply  to  suit   to  determine  adverse  claims  to  realty. 

110  U.  S.  174-177,  28  L.  109,  REDFIELD  v.  YSTALYFERA  IRON  CO. 

Syl.  2   (X,  709).     Interest  after  judgment. 

Approved  in  Herold  v.  Shanley,  146  Fed.  24,  where  internal  revenue 
tax  on  legacies  was  illegally  exacted,  interest  was  properly  allowed  in 
suit  to  recover  tax;  The  Eliza  Lines,  132  Fed.  244,  65  C.  C.  A.  538, 
interest  on  adjustment  of  conflicting  claims  in  admiralty  is  in  discre- 
tion of  court. 

110  U.  S.   178-183,   28  L.  Ill,   QUEBEC  BANK  v.   HELLMAN. 

Syl.  1  (X,  710).     Deposit  of  promissory  note. 

Approved  in  American  Fine  Art  Co.  v.  Simon,  140  Fed.  537,  under 
agreement  that  defendant  should  sign  certain  designs  so  that  plaintiff 
might  procure  copyright  and  that  such"  signing  should  not  be  an  order 
for  work,  the  signing  did  not  constitute  order  for  work  done  under 
a  former  contract. 

110  U.  S.  183-191,  23  L.  113,  TVHITE  v.  CROW. 

Syl.  1   (X,  710).     Setting  aside  fraudulent  judgment. 

Approved  in  Keith  v.  Alger,  85  S.  W.  78,  114  Tenn.  28,  where  estate 
had  received  benefit  of  sale  of  land  by  vendee,  it  could  not  maintain 
action  to  set  aside  decree  against  the  estate. 

Syl.  3  (X,  711).     Judgment  on  unauthorized  appearance. 

Approved  in  Bell  v.  Thompson,  147  Cal.  694,  82  Pac.  329,  complaint 
for  relief  against  judgment  fraudulently  procured  which  does  not  state 
facts  showing  defense  on  the  merits  is  insufficient;  Rice  v,  Bolton,  126 
Iowa,  658,  100  N.  W.  635,  premature  appointment  of  guardian  ad 
litem  of  minor  on  petition  for  sale  of  land  of  intestate  could  not  be 
collaterally  attacked. 

110  U.  S.  192-200,  28  L.  116,  JONESBORO  CITY  t.  CAIRO  ETC.  R. 
R.  CO. 

Syl.  2   (X,  711).     Legalizing  unauthorized  municipal  acts. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  452,  50  L.  823,  26  Sup.  Ct. 
427,  authority  of  Chicago  under  111.  Acts  Feb.  14,  1859,  and  Feb.  21, 
1861,  to  fix  terms  under  which  street  railway  companies  should  occupy 
streets,  includes  power  to  fix  term  of  such  occupation. 


110  U.  S.  209-223  Notes  on  U.  S.  Eeports.  1178 

110  U.  S.  209-211,  28  L.  121,  DIMPPELL  v.  OHIO  ETC.  EY. 

Syl.  1  (X,  713).     Laches  of  stockholder. 

Approved  in  McCampbell  v.  Fountain  Head  E.  E.  Co.,  Ill  Tenn.  73, 
102  Am.  St.  Eep.  731,  77  S.  W.  1074,  stockholders  to  ultra  vires  sub- 
scription for  stock  cannot  avoid  same  in  equity. 

Syl.  2   (X,  713).     Eights  of  minority  stockholders. 

Approved  in  Von  Arnim  v.  American  Tube  Works,  118  Mass.  518, 
74  N.  E.  681,  minority  stockholder  in  action  against  officers  of  corpora- 
tion for  misappropriation  must  allege  corporation  refused  to  act  or  that 
application  would  be  useless.     See  97  Am.  St.  Eep.  32,  note. 

Syl.  3   (X,  713).     Stockholders'  suit  against  corporation. 

Approved  in  Bowling  Green  Tr.  Co.  v.  Virginia  etc.  E.  Co.,  132 
Fed.  923,  where  fitness  of  trustee  in  railroad  mortgage  is  not  ques- 
tioned, individual  bondholders  are  not  necessary  parties  to  suit  to 
foreclose;  Home  Fire  Ins.  Co.  v.  Barber,  67  Neb.  658,  108  Am.  St. 
Eep.  726,  727,  93  N.  W.  1029,  purchaser  of  stock  cannot  attack  corpora- 
tion for  prior  mismanagement  unless  the  effects  are  injurious  to  him ; 
Eankin  v.  Southwestern  Brewery  &  Ice  Co.,  12  N.  M.  59,  73  Pac.  614, 
stockholder  acquiring  stock  by  purchase  cannot  complain  of  illegal 
salaries  paid  directors  prior  to  buying  stock.  See  97  Am.  St.  Eep.  40, 
note. 

110  U.  S.  219-221,  28  L.  126,  UNITED  STATES  v.  GRAHAM. 

Syl.  2   (X,  715).     Construction  of  statutes. 

Approved  in  Houghton  v.  Payne,  194  U.  S.  100-99,  48  L.  891,  892,  24 
Sup.  Ct.  590,  in  construing  20  Stat,  at  L.  355,  358,  c.  180  (Stat.  1901, 
p.  2646),  §  10,  relating  to  postage  rates,  custom  of  department  must 
yield  to  positive  language  of  statute;  Knight  v.  Shelton,  134  Fed.  434, 
under  Const.  Ark.  1874,  art.  19,  §  22.  providing  for  submitting  pro- 
posed amendments  thereto  to  the  electors  of  the  state,  approved  by 
majority  of  electors  voting  on  proposition  is  not  sufficient  unless  also 
majority  of  electors  voting  at  the  election. 

Distinguished  in  dissenting  opinion  in  Bates  etc.  Co.  v.  Payne,  194 
U.  S.  Ill,  48  L.  896,  24  Sup.  Ct.  595,  majority  holding  refusal  of 
postmaster  general  to  admit  to  the  mails  as  second-class  matter  monthly 
musical  publication  complete  in  itself,  is  not  so  clearly  erroneous  as  to 
call  for  interference  by  courts. 

110  U.  S.  223,  28  L.  128,  DOWS  v.  JOHNSON. 

Syl.  1   (X,  716).     Jurisdiction  of  supreme  court. 

Api)roved  in  Gray  v.  Grand  Forks  Merc.  Co.,  138  Fed.  347,  under 
Baukr  Act  July  1,  1898,  c.  541,  par.  25a,  30  Stat.  553,  relating  to 
appeals  in  bankruptcy  proceedings,  amount  of  allowance  or  rejection 
determines  amount  in  controversy. 


1179  Notes  on  U.  S.  Eeports.  110  U.  S.  227-287 

110  U.  S.  227-229,  28  L.  127,  PUGH  v.  DAVIS. 

Syl.  1   (X,  717).     Granting  supersedeas. 

Approved  in  In  re  T.  E.  Hill  Co.,  148  Fed.  833,  834,  neither  citation  nor 
bond  are  jurisdictional  requisites  to  appear  in  bankruptcy,  and  defects 
may  be  cured  after  time  for  appeal. 

110  U.  S.  229-238,  28  L.  129,  LAKE  SHORE  ETC.  RY.  v.  CARBRAKE 
ETC.  CO. 

Syl.  3  (X,  717).     Infringement  of  patents. 

Approved  in  American  Can  Co.  v.  Hickmott  etc.  Co.,  142  Fed.  146, 
Holden  and  Brown  patent  No.  598,567  for  can-body  machine,  not  in- 
fringed by  Eldridge  patent  No.  712,998;  O.  H.  Jewell  Filter  Co.  v. 
Jackson,  140  Fed.  344,  carrying  arm  of  sixth  claim  of  letters  patent 
No.  509,126  for  improvements  in  filters,  not  infringed  by  combination 
of  straight  arm  with  other  elements  of  patented  combination;  Kip 
Armstrong  Co.  v.  King  Philip  Mills,  130  Fed.  30,  Baker  patent  No. 
595,688,  for  warp  stop-motion  for  looms,  claim  5,  is  valid. 

110  U.  S.  264-272,  28  L.  141,  FREEMAN  v.  DAWSON. 

Syl.  1    (X,  718).     Jurisdiction  of  supreme  court. 

Distinguished  in  Feely  v.  Bryan,  55  W.  Va.  595,  47  S.  E.  312,  where 
several  creditors  with  separate  demands  attack  a  mortgage  as  a  pref- 
erence, and  a  decree  adjudging  property  for  benefit  of  all  creditors  is 
made,  these  sums  cannot  be  added  to  give  supreme  court  jurisdiction 
for  an  appeal  by  preferred  creditor. 

Syl.  2   (X,  718).     Application  to  set  aside  judgment. 

Approved  in  King  v.  Davis,  137  Fed.  233,  federal  court  has  no  power 
to  vacate  judgment  of  former  term  founded  on  false  return  of  process ; 
Thalheim  v.  Camp  Phosphate  Co.,  48  Fla.  195.  37  So.  525.  under  §  1272, 
Rev.  St.  1892.  filing  of  supersedeas  does  not  have  effect  of  restoring 
to   defendant  personal  property  previously  levied   on. 

110  U.  S.  276-287,  28  L.  145,  KRIPPEXDORF  v.  HYDE. 

Syl.  1   (X,  719).     Possession  by  marshal. 

Approved  in  Hockaday  v.  Drye,  7  Okl.  294,  54  Pac.  477,  478,  where 
insolvent  debtor  has  made  assignment,  and  before  filing  inventory  prop- 
erty is  attached  and  sold,  general  creditors  may  interplead  in  attach- 
ment action. 

Syl.  2    (X,  770).     Ancillary  proceeding  in  federal  court. 

Approved  in  In  re  McMahon,  147  Fed.  685,  court  of  bankruptcy  may 
determine  suit  by  trustee  against  mortgagee  of  property  to  set  aside 
mortgage  given  within  four  months  prior  to  the  bankruptcy;  O'Connor 
V.  O'Connor,  146  Fed.  997,  suit  to  set  aside  judgment  of  dismissal  en- 
tered by  same  court  where  judgment  was  obtained  is  ancillary  to  such 
action;  King  v.  Davis,  137  Fed.  236,  where  at  time  husband  was  sued 
in  ejectment  he  was  in  possession  by  sufferance  of  wife,  who  held  title 


110  U.  S.  288-295  Notes  on  U.  S.  Eeports.  1180 

but  was  not  sued  and  husband  acquired  life  interest  on  death  of  wife 
after  judgment,  he  is  entitled  to  have  judgment  against  him  by  de- 
fault set  aside;  Security  T.  Co.  v.  Union  T.  Co.,  134  Fed.  302,  where 
state  court  has  assumed  jurisdiction  of  suit  to  foreclose  railroad  mort- 
gage and  appointed  a  receiver,  federal  will  not  assume  jurisdiction; 
Hatcher  v.  Hendrie  etc.  Co.,  133  Fed.  270,  68  C.  C.  A.  19,  attachment 
lien  obtained  in  state  court  remains  in  force  upon  removal  of  case  to 
federal  court;  Hampton  Eoads  etc.  Co.  v.  Newport  News  etc.  Co.,  131 
Fed.  536,  where  federal  court  has  jurisdiction  of  assets  of  railroad 
company  operating  through  receiver,  it  has  jurisdiction  of  petition  by 
receiver  to  restrain  competing  company  from  maintaining  gates  across 
a  street,  without  regard  to  question  of  citizenship. 

Syl.  3  (X,  720).     Interest  of  party  in  litgation. 

Approved  in  Miller  &  Lux  v.  Rickey,  146  Fed.  584,  cross-bills  between 
defendants  in  federal  court  to  determine  appropriators'  rights  in  stream 
may  be  filed  where  court  has  jurisdiction  of  suit  by  reason  of  diversity 
of  citizenship;  Ames  etc.  Co.  v.  Big  Indian  etc.  Co.,  146  Fed.  180,  in 
suit  in  federal  court  to  establish  rights  to  water  of  stream  against  sev- 
eral appropriators,  all  of  whom  are  citizens  against  different  states, 
cross-bills  may  be  filed  between  defendants;  In  re  Moody,  131  Fed. 
529,  bankruptcy  court  has  jurisdiction  to  take  possession  by  marshal 
or  receiver  of  property  in  possession  of  claimant,  where  it  has  been 
fraudulently  transferred  by  bankrupt,  and  said  court  has  power  to 
determine  right  of  ownership ;  Louisville  Trust  Co.  v.  Knott,  130  Fed. 
826,  65  C.  C.  A.  158,  state  court  has  jurisdiction  over  action  by  minority 
stockholders  for  inspection  of  books  of  liquidating  corporation,  where 
creditor  of  corporation  collusively  obtained  a  judgment  and  secured  ap- 
pointment of  receiver. 

Syl.  4  (X,  722).     Court's  power  over  process. 

Approved  in  Nelson  v.  Meehan,  2  Alaska,  495,  where  plaintiff  re- 
covered judgment  for  specific  performance  of  contract,  it  would  be  set 
aside  in  same  court  upon  showing  of  fraud  and  perjury. 

110  U.  S.  288-295,  28  L.  149,  AMERICAN  FILE  CO.  v.  GARRETT. 

Syl.  2   (X,  723).     Pledgee  without  notice. 

Approved  in  Tollman  v.  Quincy,  129  Fed.  975,  where  defendant's  note 
was  transferred  to  plaintiff  before  maturity  in  settlement  of  pending  suit, 
plaintiff  was  bona  fide  holder;  Birket  v.  Elward,  68  Kan.  300,  74  Pac. 
1101,  64  L.  R.  A.  568,  indorsee  of  negotiable  note  taken  as  security  for 
prior  debt,  there  being  no  new  consideration,  is  holder  for  value. 

Syl.  3   (X,  723).     Duty  of  assignee  in  bankruptcy. 

Approved  in  First  Nat.  Bank  v.  Lasater,  196  U.  S.  119,  49  L.  409, 
25  Sup.  Ct.  206,  payment  under  §  5198,  Rev.  St.,  by  giving  renewal  note, 
will  not  uphold  recovery  against  bank  on  account  of  usury  in  first  note. 


1181  Notes  on  U.  S.  Eeports.  110  U,  S.  296-317 

110  U.  S.  296-301,  28  L.  152,  WHITESIDE  v.  HASELTON. 

Syl.  2   (X,  724).     Conclusiveness  of  decree. 

Distinguished  in  Mankato  v.  Barber  A.  P.  Co.,  142  Fed.  341,  where 
contractor  in  the  city  was  not  party  to  suit  to  have  contract  adjudged 
void,  it  is  not  bound  by  judgment  because  it  had  knowledge  thereof. 

Syl.  3  (X,  724).     Purchaser  pendente  lite. 

Approved  in  Hargrove  v.  Cherokee  Nation,  129  Fed.  190,  63  C.  C.  A. 
276,  general  rule  that  stranger  cannot  by  purchase  from  defendant 
pendeute  lite  acquire  any  right  not  subject  to  judgment,  applies  to  suit 
by  Indian  tribe  to  recover  lands  held  by  those  claiming  membership  in 
the  tribe. 

Distinguished  in  King  v.  Davis,  137  Fed.  240,  Va.  Code  1887,  §  3566, 
relating  to  filing  lis  pendens,  has  no  application  to  federal  courts  sit- 
ting in  Virginia. 

110  U.  S.  301-304,  28  L.  154,  ILLINOIS  ETC.  R.  R,  v.  TURRILL, 

Syl.  1   (X,  725).     Interest  on  infringer's  profits. 

Approved  in  Doten  v.  City  of  Boston,  138  Fed.  408,  owner  of  patent 
may  recover  from  user  infringing  de\ice  amount  saved  by  substitution 
of  such  device  for  one  previously  used. 

110   U.   S.   305-310,   28   L.    156,   JEFFRIES  v.   MUTUAL   LIFE   INS. 
CO. 

Syl.  2   (X,  725).     Champertous  contract. 

Approved  in  Silverman  v.  Pennsylvania  R.  Co.,  141  Fed.  382,  con- 
tract with  attorney  by  which  he  agrees  to  conduct  suit  on  contingent 
fee  and  advance  disbursements  is  void ;  Duck  v.  Antle,  5  Okl.  156,  47 
Pac.  1057,  error  to  sustain  demurrer  to  answer  on  promissory  note 
where  it  was  alleged  that  note  was  given  as  consideration  to  dismiss 
contest  against  homestead  entry  of  defendant,  which  suit  plaintiff  knew 
he  had  no  right  to  maintain. 

110  U.  S.  311-317,  28  L.  158,  VOGEL  v.  GRUAZ. 

Syl.  1   (X,  726).     Privileged  communications — Action  for  libel. 

Approved  in  Gabriel  v.  McMullin,  127  Iowa,  429,  103  N.  W.  356, 
under  Code,  §  4608,  prohibiting  disclosure  of  confidential  communica- 
tions by  client  to  attorney,  communication  made  by  prosecutor  to 
county  attorney  requesting  arrest  of  accused  is  confidential;  Bee  Pub- 
lishing Co.  V.  Shields,  68  Neb.  753,  94  N.  W.  1030,  occasion  of  privi- 
lege will  not  justify  false  and  groundless  imputations  of  wicked  mo- 
tives against  public  officials;  Schultz  v.  Strauss,  127  Wis.  331,  106  N.  W. 
1068,  statements  by  defendant  as  witness  before  grand  jury  and  to 
district  attorney  during  investigation  of  an  offense  were  privileged. 
See  104  Am.  St.  Rep.  116-126,  note. 

Distinguished  in  Miller  v.  Nuckolls,  77  Ark.  72,  4  L.  R.  A.  (N.  S.) 
149,  91  S.  W.  762,  statement  that  a  single  woman  had  given  birth  to  a 
child  amounted  to  charge  of  fornication  and  was  libelous  per  se. 


no  U.  S.  317-347  Notes  on  U.  S.  Reports.  1182 

110  U.  S.  317-321,  28  L.  161,  CORKER  v.  JONES. 
Syl.  3  (X,  726).  Suit  by  ward  against  guardian. 
See  112  Am.  St.  Rep.  199,  note. 

110  U.  S.  321-325,  28  L.  162,  EAST  ST.  LOUIS  v.  ZERBY. 

Syl.  3    (X,  727).     Discretion  of  municipal  authorities. 

Approved  in  State  ex  rel.  Benedict  v.  New  Orleans,  111  La,  376,  35 
So.  606,  determination  of  what  are  necessary  and  usual  charges  against 
city  is  in  discretion  of  city  authorities;  Helena  W.  W.  Co.  v.  City  of 
Helena,  31  Mont.  247,  78  Pac.  222,  expenditure  to  install  water  system 
is  not  current  expense  within  Sess.  Laws  1903,  p.  42. 

110  U.  S.  330-338,  28  L.  163,  TAYLOR  v.  DAVIS. 

Syl.  1  (X,  727).     Liability  of  trustee. 

Approved  in  Carpenter  v.  Lindauer,  12  N.  M.  396,  78  Pac.  58,  adminis- 
tratrix of  estate  of  deceased  husband  which  is  wholly  community  prop- 
erty is  liable  to  extent  of  such  estate  to  creditors  of  community;  Le 
Roy  V.  Jacobsky,  136  N.  C.  451,  48  S.  E.  798,  67  L.  R.  A.  977,  guardian, 
a  tenant  in  common  with  his  wards,  is  not  personally  bound  where  he 
signed  his  own  name  and  also  as  guardian  to  contract  to  convey  the 
property  where  purchaser  knew  for  whom  he  was  acting. 

110  U.  S.  338-347,  28  L.  168,  UNITED  STATES  v.  BEHAN. 

Syl.  2   (X,  729).     Wrongful  breach  of  contract — Damages. 

Approved  in  Michigan  Yacht  etc.  Co.  v.  Busch,  143  Fed.  934,  measure 
of  damages  for  failure  to  build  boat,  where  payments  have  been  made, 
is  excess  of  payments  made  over  damages  sustained  by  breach;  Jen- 
son  v.  Lee,  67  Kan.  542,  73  Pac.  73,  one  prevented  from  performing 
contract  to  work  on  ranch  for  share  of  profits  may  abandon  contract 
and  sue  on  quantum  meruit  for  value  of  services  rendered;  Chrisholm 
etc.  Mfg.  Co.  V.  U.  S.  Canopy  Co.,  Ill  Tenn.  211,  77  S.  W.  1064,  in 
action  for  damages  for  price  of  certain  patented  brackets,  counterclaim 
for  failure  to  deliver  in  time  was  sustained  as  to  amount  of  brackets 
Bold  to  solvent  customer  and  not  delivered. 

Syl.  3   (X,  729).     Recovery  of  anticipated  profits. 

Approved  in  Lillard  v.  Kentucky  Dist.  etc.  Co.,  134  Fed.  178,  67  C. 
C.  A.  74,  under  agreement  to  deliver  distillery  slop  to  fatten  cattle  at 
time  and  manner  agreed,  failure  to  deliver  entitles  buyer  to  damages 
for  additional  outlay  for  food  and  loss  of  anticipated  profits  from 
failure  to  make  sales;  Lazier  Gas  Engine  Co.  v.  Du  Bois,  130  Fed.  839, 
65  C.  C.  A.  172,  in  action  to  recover  damages  for  failure  to  manufac- 
ture machinery,  where  evidence  showed  profits  during  period  contract 
was  performed,  verdict  for  profits  for  remaining  months  after  breach 
was  not  objectionable;  Spencer  Medicine  Co.  v.  Hall,  78  Ark.  343,  344, 
93  S.  W.  987,  988,  determining  right  to  recover  future  commissions  by 
salesman  for  breach  of  contract;  Choctaw  etc.  R.  R.  Co.  v.  Jacobs,  15 
Qkl.  500,  82  Pac.  504,  loss  of  anticipated  commissions  from  anticipated 


1183  Notes  on  U.  S.  Eeports.  110  U.  S.  347-334 

eales  cannot  be  recovered  in  action  against  railroad  company  for  delay 
in  delivery  of  goods;  Tootle  v.  Kent,  12  Okl.  692,  73  Pac.  315,  in  ac- 
tion by  merchant  for  malicious  acts  of  another,  he  may  recover  for  de- 
preciation of  property  and  loss  sustained  from  closing  of  his  store; 
Barrett  v.  Ealeigh  C.  &  C.  Co.,  55  W.  Va.  402.  47  S.  E.  156.  in  action 
for  failure  to  deliver  bricks,  plaintiff  may  prove  loss  if  profits  shown 
with  reasonable  certainty. 

Syl.  4   (X,  730).     Breach  of  contract — Anticipated  profits. 

Approved  in  In  re  Saxton  Furnace  Co.,  142  Fed.  295,  296,  where 
bankrupt  has  repudiated  contract  for  purchase  of  machinery,  seller 
was  entitled  to  profits  which  he  would  have  made  by  sale,  if  same  can 
be  shown  with  reasonable  certainty. 

Syl.  5   (X,  731).     Breach  of  contract — Damages. 

Approved  in  Richardson  etc.  Co.  v.  Swartzel,  70  Kan.  776,  79  Pac. 
661,  where  contract  between  company  and  agent  for  sale  of  machinery  is 
wrongfully  terminated  after  partial  performance,  agent  may  sue  for 
damages  or  upon  quantum  meruit  for  work  performed ;  Vette  v.  Evans, 
111  Mo.  App.  596,  86  S.  W.  506,  where  insurer  transferred  its  assets  to 
another  company,  a  policy-holder  may  treat  policy  at  an  end  and  de- 
mand damages  sustained;  Griffith  v.  Blackwater  B.  &  L.  Co.,  55  W.  Va. 
629,  48  S.  E.  452,  69  L.  R.  A.  124,  where  money  is  expended  in  carry- 
ing out  contract,  upon  dissolution  thereof  contractor  is  entitled  to  com- 
pensation for  services  and  money  expended  to  date  of  dissolution. 

Syl.   6    (X,   731).     Estoppel   from   denying   damages. 

Approved  in  Terrace  Water  Co.  v.  San  Antonia  etc.  Co.,  1  Cal.  App. 
514,  82  Pac.  564,  where  seller  of  electric  power  wrongfully  puts  an  end 
to  contract,  ho  is  estopped  from  denying  buyer  has  been  damaged  to 
extent  of  actual  loss  and  outlay;  Griffith  v.  Blackwater  B.  &  L.  Co.,  55 
W.  Va.  620,  48  S.  E.  448,  69  L.  R.  A.  124,  where  contract  has  been  en- 
tered into  between  contractor  and  director  of  corporation  with  approval 
of  directors  and  stockholders ,  they  are  estopped  from  denying  liability. 

Syl.  7   (X,  731).     Court  of  claims— Pleading. 

Approved  in  District  of  Columbia  v.  Barnes,  107  IT.  S.  154,  49  L. 
702,  25  Sup.  Ct.  401,  court  of  claims  has  power  to  reform  written  con- 
tract and  award  money  relief  to  claimant  on  contract. 

110  U.  S.  347-3S4,  28  L.  173,  SPRING  VALLEY  WATER  WORKS  v 
SCHATTLER. 

Syl.  1  (X,  732).     Repeal  of  method  fixing  water  rates. 

Approved  in  Tampa  v.  Tampa  Water  Wks.  Co.,  45  Fla.  623,  34  So. 
638,  provisions  of  c.  5070,  p.  240,  Acts  1901,  are  sufficient  to  authorize 
municipality  to  change  water  rates;  Corporation  Com.  v.  Railroad  Co. 
("Railroad  Connection  Case"),  137  N.  C.  18,  49  S.  E.  198,  under  Acts 
1899,  pp.  291,  340,  e.  164,  §§  1,  21,  corporation  commission  has  power 
to  compel  railroad  company  to  operate  trains  so  that  they  will  make 
connections  with  trains  of  other  roads. 


110  U.  S.  389-400  Notes  on  U.  S.  Keports.  1184 

Syl.  2  (X,  732).  Charter  subject  to  subsequent  legislation. 
Approved  in  Tampa  Waterworks  Co.  v.  Tampa,  199  U.  S.  243,  50  L. 
173,  26  Sup.  Ct.  23,  after  letting  contract  with  water  company,  munici- 
pality has  power  to  alter  the  rates;  Omaha  Water  Co.  v.  City  of  Omaha, 
147  Fed.  6,  legislature  may  empower  city  to  suspend  by  contract  for 
reasonable  term  of  years  its  power  to  fix  water  rates;  Eoss  v.  Board  of 
Supervisors,  128  Iowa,  440,  104  N.  W.  511,  where  proceedings  for  con- 
struction of  drainage  ditch  were  commenced  and  statute  under  which 
work  was  done  was  held  unconstitutional  for  failure  to  give  notice  to 
certain  persons,  subsequent  enactment  that  applied  to  all  proceedings 
was  valid;  Leavenworth  v.  Water  Co.,  69  Kan.  88,  76  Pac.  453,  obliga- 
tion to  sell  water  plant  at  valuation  to  be  fixed  by  three  appraisers,  one 
to  be  chosen  by  company,  cannot  be  set  aside  by  statute  requiring  sale 
after  appraisement  where  company  has  no  voice;  Allen  v.  Ajax  Min. 
Co.,  30  Mont.  506,  77  Pac.  50,  in  suit  by  minority  stockholders  to  restrain 
sale  of  corporate  property,  authority  confused  by  Laws  1899,  p.  113,  did 
not  impair  obligation  of  contract;  Eockingham  etc.  Co.  v.  Hobbs,  72 
N.  H.  538,  58  Atl.  49,  66  L.  E.  A.  581.  legislature  may  at  any  time 
alter  or  amend  charter  of  corporation  engaged  in  manufacturing  and 
selling  electricity. 

Syl.  4   (X,  733).     Eegulating  water  rates. 

Approved  in  Chicago  v.  Cicero,  210  111.  299,  71  N.  E.  360,  Hurd's  Eev. 
St.  1901,  p.  347,  §  26,  in  relation  to  duty  of  furnishing  water  by  munic- 
ipality owning  waterworks,  to  municipality  not  owning  waterworks,  L. 
constitutional. 

Syl.  5   (X,  734).     Judicial  duties  of  municipalities. 

Approved  in  Jones  v.  North  Georgia  Elec.  Co.,  125  Ga.  628,  54  S.  E. 
89,  Acts  1897,  p.  68,  Van  Epps'  Code  Supp.,  §§  6454,  6456,  in  relation 
to  right  of  eminent  domain,  is  constitutional. 

110  U.  S.  389-398,  28  L.  186,  CABLE  v.  ELLIS. 

Syl.  3  (X,  735).     Eemoval  of  cause. 

Approved  in  Nash  v.  McNamara,  145  Fed.  543,  parties  brought  into 
action  in  state  court  by  cross-complaint  who  allege  that  they  have  suc- 
ceeded to  interests  of  plaintiff  and  allege  substantially  same  cause  of 
action  against  defendant  as  plaintiff  had,  must  be  considered  as  plain- 
tiff's and  cannot  remove  cause. 

110  U.  S.  398-400,  28  L.  189,  TUPPEE  v.  WISE. 

Syl.  1  (X,  736).  Jurisdiction — Amount  in  controversy — Separate  de- 
mands. 

Approved  in  Feely  v.  Bryan,  55  W.  Va.  593,  47  S.  E.  311,  where 
creditors  with  separate  demands  have  mortgage  set  aside  as  preference 
under  §  2,  c.  74,  Code  1899,  preferred  creditor  cannot  add  sums  of  all 
demands  to  give  jurisdiction  to  supreme  court  on  appeal. 


1185  Notes  on  U.  S.  Eeports.  110  U,  S.  401-498 

110  U.   S.   401-403,   28  L.   190,   BEAN   v.   PATTERSOX. 

Syl.   1    (X,   736).     Printing   transcript  on  appeal. 

Approved  in  United  States  v.  Mason,  129  Fed.  742,  64  C.  C.  A.  270, 
under  Rev.  St.  U.  S.,  §  833,  printing  and  distributing  bankruptcy  forms 
by  clerk  district  court  were  not  properly  chargeable  as  ' '  necessary  ex- 
penses. ' ' 

110  U.  S.  421-470,  28  L.  204,  JUILLIARD  v.  GREENMAN  (LEGAL 
TENDER  CASE). 

Syl.  1  (X,  737),    Constitutional  acts  of  Congress. 

Approved  in  Ex  parte  Riggins,  134  Fed.  410,  when  negro  citizen  is  as- 
sailed by  white  men  with  intent  to  prevent  him  from  enjoying  any 
right  given  by  law  to  white  men,  he  is  deprived  of  freedom  given  him 
by  thirteenth  amendment. 

110  U.  S.  471-489,  28  L.  198,  IOWA  v.  McFARLAND— ILLINOIS  v. 
SAME. 

Syl.  1    (X,  738).     Sale  defined. 

Approved  in  Howell  v.  State,  124  Ga.  699,  52  S.  E.  630,  indictment 
for  unlawful  sale  of  intoxicating  liquor  contrary  to  local  option  law  need 
not  allege  sale  was  for  valuable  consideration. 

Syl.  4  (X,  739).     Contemporaneous  construction  of  statutes. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591,  clerks 
of  district  courts  of  territory  are  required  by  United  States  to  account 
to  Secretary  of  Treasury,  for  fees  earned  as  such,  and  any  act  of  legis- 
lature attempting  to  regulate  them  is  void. 

110  U.  S.  490-498,  28  L.  222,  PENNSYLVANIA  E.  E.  v.  LOCOMOTIVE 
TRUCK  CO. 

Syl.  1   (X,  739).     Patents — Application  of  old  process. 

Approved  in  O'Rourke  Eng.  etc.  Co.  v.  McMulIen,  150  Fed.  349,  350, 
Moran  patent  No.  500,149,  for  air-lock  for  work  carried  on  under  great 
air  pressure  construed,  and  claim  2  not  infringed,  and  claim  3  void  for 
lack  of  invention;  Thomas  v.  St.  Louis  etc.  R.  Co.,  149  Fed.  755,  Thomas 
patent  No.  570,148,  for  lateral  support  for  cars,  is  void  for  lack 
of  patentable  novelty;  American  etc.  Co.  v.  Universal  etc.  Mfg.  Co.,  145 
Fed.  643,  Jones  patent  688,739,  for  method  of  producing  records  for 
talking  machines,  is  void  for  anticipation  in  prior  art;  Daylight  etc. 
Mfg.  Co.  V.  American  Pris.  L.  Co.,  142  Fed.  461,  Cummings  patent  No. 
695,282,  for  machine  for  making  prismatic  glass,  is  void  for  lack  of 
patentable  invention;  Capewell  v.  Goldsmith,  138  Fed.  686,  Capewell 
patent  No.  636,972,  for  stick-pin  retainer,  is  void  for  want  of  patentable 
invention;  North  Jersey  St.  Ry.  Co.  v.  Brill,  134  Fed.  584,  67  C.  C.  A. 
380,  BriU  patents  Nos.  627,898  and  627,900,  for  car  trucks,  void  for  lack 
of  invention  in  view  of  Thyng  patent  No.  4,276. 

75 


110  U.  S.  499-516  Notes  on  U.  S.  Ecporta.  11S6 

110  U.  S.  499-516,  28  L.  225,  IRWIN  v.  WILLIAR. 

Syl.  2  (X,  742).  , Scope  of  partnership. 

Approved  in  Standard  Wagon  Co.  v.  Few  &  Co.,  119  Ga.  296,  46  S.  E. 
110,  one  taking  partnership  note  in  payment  of  goods  supplied  t»  one 
partner  takes  with  notice  and  cannot  recover  on  note. 

Syl.  3  (X,  742).     Partnership  business — Question  for  jury. 

Approved  in  Cassidy  &  McFadden  v.  Saline  Co.  Bank,  14  Okl.  534, 
78  Pac.  325,  whether  act  of  one  partner  in  transferring  certain  moneys 
from  partnership  account  to  his  personal  account  was  within  scope  of 
partnership  was  question  of   fact. 

Syl.  5    (X,  743).     Valid  sale— Future  delivery. 

Approved  in  Cleage  v.  Laidley,  149  Fed.  351,  where  speculator  dealt  in 
14,000,000  bushels  of  grain,  and  less  than  two  per  cent  was  delivered, 
and  made  contracts  for  purchase  of  grain  for  future  delivery  through 
brokers,  and  became  indebted  to  them  for  balances  on  account,  contract 
was  not  void  where  he  testified  he  did  not  intend  to  deliver  or  receive 
unless  forced  to  do  so;  Pratt  &  Co.  v.  Ashmore,  224  111.  591,  79  N.  E.  953, 
under  Hurd  's  Eev.  St.  1905,  pp.  698,  699,  c.  38,  §  130,  relating  to  options 
to  buy  or  sell  at  future  time,  all  contracts  are  void  where  parties  under- 
stood that  purchase  or  sale  should  be  settled  on  differences;  Beidler  etc. 
Co.  V.  Coe  Com.  Co.,  13  N.  D.  646,  102  N.  W.  882,  contract  for  sale 
of  grain  to  be  delivered  at  future  date  is  valid  where  parties  intended 
that  property  is  to  be  delivered  by  seller  and  paid  for  at  contract  price. 

Syl.  6   (X,  743).     Void  sale — Future  delivery. 

Approved  in  Berry  v.  Chase,  146  Fed.  630,  order  to  buy  or  sell  stock 
on  New  York  stock  exchange  when  executed  is  valid  contract  unless  both 
parties  agree  that  there  shall  be  no  delivery,  but  merely  payment  of 
difference  between  market  and  contract  price;  Hocker  v.  Western  Union 
Tel.  Co.,  45  Fla.  367,  34  So.  902,  deposit  of  margin  for  protection  of 
broker  buying  on  stock  exchange  does  not  imply  that  contract  is  one  where 
no  goods  are  to  be  delivered,  but  difference  in  price  is  to  be  paid ; 
Western  Union  Tel.  Co.  v.  State,  165  Ind.  510,  76  N.  E.  107,  requirement 
of  board  of  trade  that  every  applicant  for  market  quotations  shall  ob- 
ligate himself  not  to  use  them  for  bucket-shop  purposes  is  reasonable; 
State  V.  McGinnis,  138  N.  C.  727,  51  S.  E.  51,  "dealing  in  futures"  is 
gambling  contract  and  punishable,  and  is  within  police  power  of  state 
and  not  prohibited  by  fourteenth  amendment;  State  v.  Clayton,  138  N.  C. 
735,  50  S.  E.  867,  under  Laws  1889,  p.  233,  c.  221,  prohibiting  all 
wagering  contracts  or  betting  on  rise  or  fall  in  prices,  dealer  in  whole- 
sale merchandise  who  purchases  pork  on  margin  with  no  intention  of 
actual  delivery  is  indictable;  Wheeler  v.  Metropolitan  Stock  Exch.,  72 
N.  H.  318,  56  Atl.  756,  where  parties  do  not  intend  to  make  actual 
delivery  under  a  contract,  same  is  mere  wager  and  therefore  null  and 
void;  MacDonald  v.  Gessler,  208  Pa.  St.  181,  57  Atl.  362,  there  is  no 
gambling  transaction,  where  broker  shows  that  it  was  intention  to  pur- 


1187  Notes  on  U.  S.  Reports.  110  U.  S.  516-558 

•chase  tlie  stock  and  that  he  was  ready  and  able  to  so  deliver  on  demand, 
although  purchaser  did  not  intend  to  pay  outright;  Scales  v.  State,  46 
Tex.  Cr.  304,  108  Am.  St.  Rep.  1014,  81  S.  W.  950,  66  L.  R.  A.  730, 
the  burden  is  upon  state  to  show  that  both  parties  engaged  in  wagering 
contract  in  order  to  convict  under  an  indictment  for  selling  fixtures. 

Syl.  7   (X,  744).     Brokers — Particeps  criminis. 

Approved  in  Stewart  v.  Wright,  147  Fed.  335,  where  plaintiff  was  in- 
duced to  enter  into  scheme  by  which  he  was  to  wager  certain  money  on 
a  fraudulent  footrace,  which  he  knew  to  be  fraudulent,  for  the  purpose 
of  getting  money  of  others,  he  may  recover  what  he  thus  had  wagered; 
dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  339,  majority  holding 
that  where  plaintiff  was  party  to  fraudulent  footrace  wager,  where  he 
thought  he  was  defrauding  others,  but  in  fact  was  being  defrauded,  he 
was  not  in  pari  delicto  with  his  supposed  confederates, 

Syl.  8   (X,  745).     Gaming  contracts — American  rule. 

Approved  in  dissenting  opinion  in  Stewart  v.  Wright,  147  Fed.  340,  344, 
majority  holding  plaintiff,  who  was  defrauded  by  fraudulent  footrace 
while  he  believed  he  was  defrauding  others,  may  recover  the  money  so 
lost  by  him. 

Syl.  9    (X,   745).     Evidence   of  custom. 

Approved  in  Citizens'  State  Bank  v.  Chambers,  129  Iowa,  421,  105  N. 
W.  695,  in  suit  to  foreclose  mortgage  issued  on  an  application  "at  five 
and  one  per  cent  per  annum,"  evidence  of  custom  in  use  of  quoted 
words  was  inadmissible  in  absence  of  knowledge  of  defendant;  Bixby  v. 
Bruce,  69  Neb.  81,  95  N.  W.  35,  in  action  to  recover  for  bricks  furnished, 
custom  among  masons  to  charge  for  air  spaces  between  walls  was  inad- 
missible where  it  was  not  shown  that  custom  was  general  and  notorious; 
Pennsylvania  etc.  R.  R.  Co.  v.  Naive,  112  Tenn.  257,  79  S.  W.  128,  64 
L.  R.  A.  443,  it  was  error  in  action  against  carrier  for  t^i mages  for 
failure  to  delay  in  delivering  dressed  goods  to  exclude  evidence  of 
custom  to  suspend  business  on  4th  of  July. 

(X,  741.)  Miscellaneous.  Cited  in  Chase  v.  Soule,  76  Vt.  357,  57 
Atl.  755,  agreement  by  one  of  two  ex-owners  of  personalty  to  indemnify 
other  against  loss  if  he  would  refuse  to  offer  to  purchase  is  without  con- 
sideration, 

110  U.  S.  516-558,  28  L.  232,  IIURTADO  v.  PEOPLE  OF  CALIFORNIA. 

Syl.  1   (X,  746).     Construction  of  constitution. 

Approved  in  West  v.  Louisiana,  194  U.  S.  264,  48  L.  970,  24  Sup.  Ct. 
650,  question  whether  deposition  in  criminal  action  may  be  read  is 
within  province  of  state  court,  and  no  federal  question  is  involved. 

Syl.  2  (X,  746).     Due  process — Fifth  amendment. 

Approved  in  State  v.  Jack,  69  Kan.  393,  76  Pac.  913,  1  L.  R.  A.  (N. 
S.)  167,  proceeding  before  district  court  upon  written  application  of 
county  attorney  under  ^  10,  c.  265,  p.  485,  Laws  1897,  to  take  testimony 


110  U.  S.  516-558  Notes  on  U.  S.  Eeports.  1188 

of  witness  in  reference  to  violation  of  "anti-trust  law,"  is  due  process 
of  law;  dissenting  opinion  in  Dorr  v.  United  States,  195  XJ.  S.  157,  49 
L.  136,  24  Sup.  Ct.  808,  majority  holding  under  §§  7,  8,  of  Libel  Act 
of  Philippine  Commission,  defendant  is  not  entitled  to  jury  trial. 

Syl.  3   (X,  746).     Due  process — Fourteenth  amendment. 

Approved  in  Dorr  v.  United  States,  195  U.  S.  144,  49  L.  131,  24 
Sup.  Ct.  808,  Congress  has  power  to  pass  laws  for  the  government  of  the 
Philippine  Islands,  which  do  not  give  the  right  to  trial  by  jury;  Ex 
parte  Moebus,  137  Fed.  156,  petition  for  writ  of  habeas  corpus  which 
shows  that  petitioner  since  his  extradition  from  another  state  has  been 
confined  in  a  penitentiary  for  five  years  on  only  governor's  warrant,  states 
case  for  jurisdiction  of  federal  court;  Ex  parte  Eiggins,  134  Fed.  418, 
citizen  is  deprived  of  due  process  of  law  when  he  is  taken  from  custody 
of  state  authorities  and  murdered;  Jamison  v.  Wimbish,  130  Fed.  358, 
person  sentenced  to  punishment  as  that  described  in  the  opinion  does 
not  obtain  "due  process  of  law"  within  the  meaning  of  the  constitu- 
tion; McKinster  v.  Sager,  163  Ind.  685,  106  Am.  St.  Eep.  268,  72  N.  E. 
856-859,  68  L.  E.  A.  273,  Acts  1903,  p.  276,  c.  153,  preferring  classes  of 
creditors,  is  void,  being  in  violation  of  fourteenth  amendment;  State  v. 
Miller^  71  N.  J.  L.  532,  60  Atl.  203,  it  was  not  erroneous  to  allow  jail 
physician  to  testify  to  wounds  on  defendant's  hands,  although  he  had 
defendant  removed  to  a  private  room  and  his  clothes  removed;  State  v. 
Stimpson,  78  Vt.  133,  62  Atl.  17,  1  L.  E.  A.  (N.  S.)  1153,  V.  S.  1867, 
as  amended  Acts  1898,  p.  34,  No.  46,  and  Acts  1904,  No.  64,  providing 
that  state 's  attorney  may  prosecute  by  information  certain  crimes,  is 
not  unconstitutional. 

Syl.  4   (X,  746).     Due  process — Prosecution  by  information. 

Approved  in  Ex  parte  Moran,  144  Fed.  603,  selection  of  grand  jury  in 
way  not  authorized  by  statute  of  territory  and  receipt  of  indictment 
from  such  grand  jury  do  not  entitle  defendant  to  release  on  habeas 
corpus;  State  v.  Eudolph,  187  Mo.  83,  85  S.  W.  587,  Const.  U.  S.,  Amend. 
5,  prohibiting  prosecution  for  felony  except  on  presentment  or  indictment, 
limits  federal  power,  but  does  not  prevent  state  from  prosecuting  for 
felony  on  information ;  State  v.  Niebekier,  184  Mo.  222,  83  S.  W.  526,  it 
is  no  ground  for  objection  to  conviction  for  murder  that  defendant  was 
subject  of  Austria  and  was  tried  by  information  and  not  by  indictment; 
State  v.  Guglielmo,  46  Or.  252,  262,  79  Pac.  578,  80  Pac.  103,  convic- 
tion of  murder  charged  by  information  under  Laws  1899,  p.  99,  B.  & 
C.  Comp.,  §§  1258-1264,  was  not  in  violation  of  fourteenth  amendment; 
State  V.  Nichols,  27  E.  I.  83,  60  Atl.  768,  under  Acts  1838,  p.  981,  c.  8, 
§  8,  providing  for  punishment  for  crimes,  offense  punishable  by  im- 
prisonment for  one  year  is  "infamous  crime,"  and  must  be  tried  on  in- 
dictment  or   information, 

Syl.  5  (X,  749).     Due  process — Prosecution  by  information. 
Cited  in  Beavers  v.  Henkel,  194  U.  S.  84,  48  L.  886,  24  Sup.  Ct.  605, 
defendant  indicted  for  having  received  money  for  procuring  contract 


1189  Notes  on  U.  S.  Keports.  110  U.  S.  558-590 

with  government,  -while  one  of  its  oflScers  may  be  arrested  in  one  dis- 
trict and  delivered  to  another  district  for  trial. 

110  U.  S.  558-567,  28  L.  249,  WASHER  v.  BULLITT  CO. 

Syl.   1    (X,   749).     Amended  pleadings. 

Approved  in  Johnson  v.  Thomas,  197  U.  S.  619,  49  L.  909,  25  Sup. 
Ct.  797,  following  rule. 

Syl.  2   (X,  749).     Maintenance  of  bridge  by  county. 

Approved  in  Dodge  Co.  v.  Saunders  Co.,  70  Neb.  451,  100  N.  W.  934, 
under  §  87,  c.  78,  Comp.  St.  1901,  county  may  be  compelled  to  contriliute 
toward  repair  of  bridge  abutting  in  such  county,  although  it  is  located 
mainly  in  another  county. 

110  U.  S.  568-574,  28  L.  246,  KILLIAN  v.  EBBINGHAUS. 

Syl.  1   (X,   750).     Bill  of  interpleader — Necessary  allegations. 

Approved  in  Stephenson  v.  Burdett,  56  W.  Va.  114,  48  S.  E.  848, 
where  owners  of  adjoining  tracts  of  land  could  not  agree  on  boundary 
line,  purchasers  of  timber  on  said  land  could  not  maintain  suit  in  inter- 
pleader against  land  owners  for  purpose  of  adjudicating  the  dividing 
line, 

Syl.  3  (X,  750).     Equity — Adequacy  of  law  remedy. 

Approved  in  Southern  Pac.  R.  R.  Co.  v.  United  States,  200  U.  S. 
349,  50  L.  510,  26  Sup.  Ct.  296,  equity  suit  may  be  maintained  by 
government  to  recover  from  railroad  company  value  of  land  erroneously 
patented  and  sold  where  objection  that  there  is  plain  remedy  at  law  is 
raised  for  first  time  on  appeal;  General  Elec.  Co.  v.  Westinghouse  Elec.  & 
Mfg.  Co.,  144  Fed.  466,  where  contract  for  manufacture  of  electric 
equipment  provided  that  in  case  of  violation  the  guilty  party  should 
pay  certain  damages,  complainant  was  not  entitled  to  injunction  to  re- 
strain defendant's  violation  of  contract;  Southern  Pac.  R.  Co.  v.  United 
States,  133  Fed.  655,  66  C.  C.  A.  581,  court  of  equity  has  jurisfliction 
of  suit  by  government  against  railroad  company  to  determine  what  por- 
tion of  land  erroneously  patented  has  been  sold  to  bona  fide  purchasers  and 
others;  Glenn  v.  West,  103  Va.  524,  49  S.  E.  672,  holder  of  equitable 
title  to  land  out  of  possession  cannot  maintain  bill  to  quiet  title  against 
party  in  possession  under  tax  title;  dissenting  opinion  in  Barnes  v. 
Newton,  5  Okl.  458,  460,  49  Pac.  1080,  1081,  majority  holding  one  in 
whose  favor  judgment  has  been  rendered  before  Land  Department  can- 
not maintain  injunction  to  obtain  possession  of  part  of  premises  af- 
fected by  decision,  of  which  he  has  never  been  in  possession. 

110  U.  S.  574-590,  28  L.  262,  HOPT  v.  UTAH. 

Syl.  2  (X,  752).     Commencement  of  criminal  trial. 

Approved  in  Nichols  v.  Territory,  3  Okl.  625,  41  Pac.  109,  defendants 
jointly  indicted  may  have  separate  trials,  but  demand  therefor  must  be 
made  before  impaneling  begins;  dissenting  opinion  in  Kepner  v.  United 
States,  195  U.  S.  135,  49  L.  126,  24  Sup.  Ct.  797,  majority  holding  undef 


110  U.  S.  574-590  Notes  on  U.  S.  Eeports.  1190 

§  5  of  Act  of  July  i,  1902,  establishing  civil  government  in  Philippine 
Islands,  accused  shall  not  be  put  twice  in  jeopardy  for  same  offense; 
dissenting  opinion  in  Schick  v.  United  States,  195  U.  S.  83,  84,  49  L.  108, 
24  Sup.  Ct.  826,  majority  holding  written  waiver  by  defendant  in  action 
by  government  to  recover  penalty  under  §  11,  Act  of  1886,  as  amended  by 
Act  of  May  9,  1902,  is  not  in  conflict  with  constitution  and  laws  of 
United  States;  dissenting  oj^inion  in  Howard  v.  Commonwealth,  118  Ky. 
17,  80  S.  W.  216,  majority  holding  not  ground  for  reversal  that  during 
impaneling  of  jury  in  felony  trial  with  defendant's  consent,  juror  ex- 
amined in  his  absence. 

Distinguished  in  Trono  v.  United  States,  199  U.  S.  533,  50  L.  297, 
26  Sup.  Ct.  121,  where  accused  is  tried  for  murder  and  found  guilty 
of  assault  and  appeals,  upon  reversal  of  judgment  he  may  be  again  tried 
for  murder. 

Syl.  3  (X,  752).  Presence  of  accused  at  trial. 
*  Approved  in  Ward  v.  Territory,  8  Okl.  13,  56  Pac.  704,  under 
laws  of  Oklahoma,  it  is  not  necessary  for  defendant  charged  with 
felony  to  be  present  on  hearing  of  motion  for  new  trial;  Day  v.  Ter- 
ritory, 2  Okl.  411,  37  Pac.  806,  record  must  show  affirmatively  that 
defendant  on  trial  for  felony  was  personally  present  during  entire  trial ; 
State  v.  Stimpson,  78  Vt.  129,  62  Atl.  16,  1  L.  E.  A.  (N.  S.)  1153, 
prosecutions  for  rape  under  laws  of  Vermont,  by  information,  are  valid. 

Syl.  4   (X,  752).     Hearsay  testimony. 

Approved  in  State  v.  Egbert,  125  Iowa,  445,  101  N.  W.  191,  declara- 
tions of  prosecutrix  in  prosecution  for  rape  made  when  defendant  was 
brought  before  her  that  he  was  the  assailant  are  not  admissible. 

Distinguished  in  Thompson  v.  United  States,  144  Fed.  20,  it  was  not 
error  to  allow  witness  who  had  identified  accused  in  court  to  state  his 
name  which  she  had  heard  others  call  him  since  the  transaction. 

Syl.  5   (X,  753).     Degree  of  murder — Question  for  jury. 

Approved  in  Lawson  v.  Territory,  8  Okl.  9,  56  Pac.  701,  in  prosecution 
for  murder  where  homicide  was  committed  while  parties  were  having 
a  personal  difference,  it  was  error  for  court  to  instruct  jury  that  crime 
was  murder  or  nothing. 

Syl.  6  (X,  753).     Confession. 

Approved  in  Smith  v.  Au  Gres  Twp.,  150  Fed.  264,  affidavit  of  bank- 
rupt that  he  owed  township  certain  amount  of  money  which  he  had 
misapplied  was  not  obtained  by  threats  where  they  were  made  three 
months  before  the  affidavit;  Sorenson  v.  United  States,  143  Fed.  823, 
where  officer  of  the  government  authorized  to  investigate  commission 
of  offenses  tells  accused  that  government  has  a  good  case  against  him 
and  that  he  had  better  plead  guilty  and  throw  himself  on  the  mercy 
of  the  court,  a  confession  so  obtained  is  not  admissible ;  McNish  v. 
State,  47  Fla.  74,  36  So.  177,  fact  that  accused  was  chained  and  officer 
having  him  in  charge  bad  a  pistol  in  his  pocket  did  not  render  confession 


1191  Notes  on  U.  S.  Eeports.  110  U.  S.  608-630 

inadmissible;  State  v.  Westcott,  130  Iowa,  7,  104  N.  W.  343,  whether 
confession  made  by  defendant  after  he  had  been  examined  by  coroner 
as  a  witness  and  had  spent  night  with  sheriff,  who  told  him  before  re- 
tiring to  tell  him  all  about  the  matter,  and  where  on  following  morning 
he  made  a  statement  after  being  advised  by  county  attorney  that  he 
was  not  compelled  to  sign  it,  is  question  for  jury;  State  v.  Nagle, 
25  E.  I.  110,  105  Am.  St.  Rep.  864,  54  Atl.  1065,  where  defendant  was 
in  custody  on  way  to  jail  and  officer  told  her  she  ought  to  tell  the  truth 
and  that  he  would  prefer  it  if  it  were  his  case,  and  where  officer  told 
her  there  was  ample  evidence  that  she  bought  the  revolver,  confession 
made  under  these  circumstances  was  not  voluntary. 

Syl.  10  (X,  754).     Ex  post  facto  laws. 

Approved  in  Goode  v.  State,  50  Fla.  47,  39  So.  462,  under  §  3,  p.  58, 
c.  4930,  Laws  1901,  relating  to  sale  of  intoxicating  liquors,  burden  was 
on  defendant  to  prove  liquors  sold  did  not  belong  to  him;  Boise  Irr. 
etc.  Co.  V.  Stewart,  10  Idaho,  59,  77  Pac.  31,  legislature  has  authority 
to  provide  that  certain  statements,  maps  and  plats  should  be  accepted 
as  evidence  on  trial  of  action  to  establish  water  rights ;  State  v.  Rooney, 
12  N.  D.  151,  95  N.  W.  515,  chapter  99,  Laws  1903,  substituting  peni- 
tentiary for  county  jail  for  place  of  execution,  does  not  operate  to  in- 
crease punishment  and  is  not  ex  post  facto  as  to  one  convicted  before 
its  passage. 

110  U.  S.  608-619,  28  L.  258,  NORTHERN  BANK  v.  PORTER  TOWN- 
SHIP. 

Syl.  3  (X,  757).     Purchasers  of  municipal  bonds. 

Approved  in  City  of  Guthrie  v.  New  Vienna  Bk.,  4  Okl.  217,  38  Pac. 
11,  c.  14,  St.  Okl.,  which  attempts  to  impose  provisional  debt  of  Guthrie, 
East  Guthrie,  Capitol  Hill  and  "West  Guthrie  upon  Guthrie,  is  void  for 
conflict  with  provisions  of  §  4,  c.  818,  which  prohibits  municipal  cor- 
porations in  territories  from  becoming  indebted  in  excess  of  four  per 
cent  on  assessed  value  of  property. 

110  U.  S.  619-630,  28  L.  269,  McDONALD  v.  HOVEY. 

Syl.  1   (X,  758).     Statute  of  limitatibns. 

Approved  in  Scallon  v.  Manhattan  Ry.  Co.,  185  N.  T.  367,  78  N.  E. 
285  286,  where  infancy  exists  when  cause  of  action  first  accrues,  time 
for  commencing  action  is  extended  for  certain  period,  but  if  statute 
has  commenced  to  run  against  ancestor,  it  is  not  interrupted  by  hia 
death  and  supervening  disability  of  minor  heirs. 

Syl.  4   (X,  760).     Construction  of  statutes. 

Approved  in  Hemple  v.  Raymond,  144  Fed.  799,  term  "12  per 
centum,"  mentioned  in  Carter's  Alaska  Code,  pt.  5,  c.  27,  §  255,  pro- 
viding for  rates  of  interest,  means  "per  annum";  Walker  v.  Globe 
etc.  Co.,  140  Fed.  307,  vested  rights  in  author  to  maps,  etc.,  under  U.  S. 
Comp.  St.  1901,  p.  3406,  are  not  taken  away  by  U.  S.  Comp.  St.  1901, 
pp.  3414,  3416;   Schmidt  v.  United  States,  133  Fed.   260,  66  C.   C.  A. 


110  U.  S.  633-667  Notes  on  U.  S.  Reports.  1192 

389,  provisions  of  U.  S.  Comp.  St.  Supp.  1903,  p.  191,  relating  to  perjury 
in  naturalization  proceedings,  were  not  intended  to  lessen  jurisdiction 
under  §  5395,  Rev.  St.;  Jarvis  v.  Hitch,  161  Ind.  220,  67  N.  E.  1058, 
1059,  words  "locomotive  engine"  used  in  Acts  1893,  p.  294,  c.  191, 
will  be  construed  to  have  same  meaning  as  those  words  had  in  English 
employer's  liability  act  of  1880. 

110  U.  S.  633-651,  28  L.  279,  MITCHELL  v.  CLARK. 

Syl.  4  (X,  761).     Statute  of  limitations. 

Approved  in  In  re  Thompson  etc.  Co.,  144  Fed.  316,  attorney's  fee 
provided  for  in  a  note  payable  in  case  of  default  is  not  a  fixed  liability 
owing  at  time  of  filing  petition  in  bankruptcy,  and  is  not  provable 
against  bankrupt's  estate;  People  v.  Johnson,  185  N.  Y.  229,  77  N.  E. 
1167,  Code  Cr.  Proc,  §  392,  permitting  testimony  of  child  under  twelve 
years  of  age  in  criminal  action,  did  not  deprive  defendant  of  due  process 
of  law. 

110  V.  S.  651-667,  28  L.  274,  EX  PARTE  YARBROUGH. 

Syl.  3   (X,  762).     Habeas  corpus. 

Approved  in  dissenting  opinion  in  Rush  v.  Buckley,  100  Me.  338, 
61  Atl.  781,  70  L.  R.  A.  464,  majority  holding  where  plaintiff  was  com- 
mitted for  violating  an  unconstitutional  ordinance  of  Augusta  for  driv- 
ing a  public  carriage  without  a  license,  neither  prosecutor,  judge  nor 
process  server  is  liable  for  false  imprisonment. 

Syl.  4  (X,  763).     Conspiracy. 

Approved  in  Ex  parte  Riggin.s,  134  Fed.  421,  where  negro  is  assaulted 
by  white  men  with  intent  to  deprive  him  of  any  civil  right,  it  is  a 
violation  of  rights  guaranteed  him  by  the  thirteenth  amendment. 

Syl.  5  (X,  764).     Construction  of  statute — Implications. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  451,  50  L. 
265,  26  Sup.  Ct.  110,  state  may  control  sale  of  liquor  by  dispensary 
system,  but  it  is  not  exempted  from  operation  of  taxing  power  of 
national  government;  Ex  parte  Harlan,  1  Okl.  50,  27  Pac.  921,  de- 
fendant having  been  convicted  of  perjury  cannot  have  conviction  re- 
viewed on  habeas  corpus;  Ex  parte  Anderson,  46  Tex.  Cr.  380,  81  S. 
W.  976  city  court  has  no  jurisdiction  to  try  accused  for  violation  of 
state  statute  prohibiting  sales  on  Sunday. 

Syl.  6  (X,  764).     Elections — Qualifications  of  voters. 

Approved  in  Knight  v.  Shelton,  134  Fed.  426,  action  to  recover  dam- 
ages for  preventing  plaintiff  from  voting  for  member  of  Congress  arises 
under  federal  constitution;  Anthony  v.  Burrow,  129  Fed.  788,  court  of 
equity  has  no  jurisdiction  to  enjoin  state  officer  from  issuing  certificate 
of  nomination  to  a  candidate  for  Congress. 


1193  Wotes  on  U.  S.  Reports.  110  U.  S.  667-701 

110  U.  S.  667-686,  28  L.  291,  ATCHISON  ETC  R.  R.  v,  DENVER  ETC. 
R.  R. 

Syl.  1  (X,  765).     Discrimination  by  carriers. 

Approved  in  Adams  Express  Co.  v.  State,  161  Tnd.  346,  67  N.  E, 
1039,  Acts  1901,  p.  149,  prohibiting  discrimination  by  express  company 
against  other  express  companies,  is  not  void. 

Syl.  2   (X,  765).     Connecting  carriers. 

Approved  in  Atchison  etc.  Ry.  Co.  v.  Kansas  City  etc.  Ry.  Co.,  67 
Kan.  575,  70  Pac.  942,  §  14,  c.  286,  Laws  1901,  confers  jurisdiction 
npon  board  of  railroad  commissioners  only  in  cases  of  crossings  and 
uniting  of  tracks  of  two  railways. 

Syl.  4  (X,  766).     Carrying  beyond  own  lines. 

Approved  in  Southern  Pac.  Co.  v.  Interstate  Com.  Commission,  200 
U.  S.  554,  50  L.  593,  26  Sup.  Ct.  301,  carrier  need  not  contract  to  carry 
goods  beyond  its  own  line,  but  if  it  does  it  may  do  so  upon  such  lines 
as  it  chooses;  Graham  v.  Macon  etc.  R.  R.  Co.,  120  Ga.  759,  49  S.  E. 
76,  contract  by  which  railroad  company  agreed  with  firm  that  latter 
was  to  operate  steamboat  and  each  party  was  to  deliver  its  freight 
to  the  other  at  regular  rates,  in  consideration  of  which  railroad  com- 
pany agreed  to  erect  a  hoist,  is  not  void;  Hedding  v.  Gallagher,  72  N. 
H.  382,  57  Atl.  227,  64  L.  R.  A.  811,  common  carriers  of  baggage  in 
city  have  no  right  to  enter  railroad  station  to  solicit  business. 

Syl.  5   (X,  767).     Railroad  regulations. 

Approved  in  Hedding  v.  Gallagher,  72  N.  H.  388,  57  Atl.  230,  64  L. 
R.  A.  811,  right  to  permit  common  carriers  of  parcels  in  a  city  to  solicit 
business  in  railroad  depot  is  within  legislative  control,  and  until  legis- 
lature has  acted  no  such  privilege  exists. 

Syl.  6  (X,  767).     Railroad  rates. 

Approved  in  Louisville  etc.  R.  R.  Co.  v.  West  Coast  Naval  etc.  Co., 
198  U.  S.  497,  49  L.  1140,  25  Sup.  Ct.  745,  common  carrier  owning 
wharf  which  it  uses  for  transportation  of  goods  shipped  to  end  of  its 
line  may  grant  to  its  own  agents  exclusive  privilege  of  access  thereto. 

110  U.  S.  688-695,  28  L.  286,  UNITED  STATES  v.  BRINDLE. 

Syl.  2    (X,  768).     Receivers  of  public  moneys. 

Distinguished  in  Finley  v.  Territory,  12  Okl.  644,  73  Pac.  280,  probate 
judges  are  entitled  to  retain  from  fees  and  compensation  the  maximum 
salary  allowed  by  law,  and  excess  must  be  paid  into  treasury,  and  this 
applies  to  all  fees  received  while  acting  in  townsite  matters. 

110  U.  S.  695-701,  28  L.  289,  RICE  v.  SIOUX  CITY  ETC.  R.  R.  CO. 

Syl.  1  (X,  769).     Swamp  act  of  1850, 

Approved  in  Kittel  v.  Trustees  etc.  Improvement  Fund,  139  Fed.  947, 
Bwamp  land  act  of  1850  operated  as  a  grant  in  praesenti  to  the  states 
of  all  swamp  lands  in  their  jurisdictions. 


110  U.  S.  701-741  Notes  on  U.  S.  Reports.  1194 

110  U.  S.  701-710,  28  L.  298,  CHEELY  v.  CLAYTON. 

Syl.   1    (X,    770).     Divorce— Domicile. 

Approved  in  dissenting  opinion  in  Haddock  v.  Haddock,  201  U.  S.  630, 
50  L.  894,  26  Sup.  Ct.  25,  majority  holding  that  where  husband  and  wife 
were  domiciled  in  New  York,  and  husband  left  and  acquired  domicile  in 
Connecticut,  where  he  after^^ard  obtained  a  divorce  on  constructive  ser- 
vice, such  judgment  was  not  a  bar  to  action  brought  by  wife  in  New 
York. 

Syl.  3   (X,  770).     Separate  domiciles  after  desertion. 

Approved  in  dissenting'  opinion  in  Haddock  v.  Haddock,  201  U.  S. 
612,  50  L.  887,  26  Sup.  Ct.  525,  majority  holding  if  wife  is  living 
separate  from  husband,  without  cause,  his  domicile  is  her  domicile,  and 
he  may  obtain  divorce,  although  in  fact  she  never  resided  there. 

Syl.  3  (X,  770).     Divorce — Notice  to  defendant. 

Approved  in  Wallace  v.  Wallace,  65  N.  J.  Eq.  363,  54  Atl.  434,  fact 
that  plaintiff  came  into  state  for  purpose  of  securing  divorce,  although 
she  intended  to  remain  there  permanently,  is  not  a  controlling  factor  in 
the  action. 

Syl.  4   (X,  770).     Publication  of  summons. 

Approved  in  Johnson  v.  Hunter,  147  Fed.  138,  under  Laws  1893,  pp. 
24,  119,  Laws  1895,  p.  88,  for  enforcement  of  payment  of  levee  taxes,  an 
affidavit  alleging  that  defendant  is  a  nonresident  of  county,  is  absent 
therefrom,  and  that  land  is  unoccupied,  is  prerequisite  to  service  by 
publication. 

110   U.   S.   710-720,   28   L.   301,   FREEDMAN'S   ETC.   TRUST   CO.   v. 
EARLE. 

Syl.  4   (X,  771).     Judgment  lien. 

Approved  in  First  Nat.  Bank  v.  Hirschkowitz,  46  Fla.  597,  35  So.  25, 
filing  bill  by  creditor  against  married  woman  for  purpose  of  subjecting 
her  separate  property  to  payment  of  her  debts  and  appointment  of  re- 
ceiver, gives  such  creditor  priority  over  other  creditors, 

110  U.  S.  729-741,  28  L.  308,  UNITED  STATES  v.  RYDER. 
Syl.   1    (X,   772).     Rights   of  surety. 
See  99  Am.  St.  Rep.  487,  note. 

Syl.  2   (X,  773).     Bail  in  criminal  case. 
See  99  Am.  St.  Rep.  498,  note. 

Syl.  5   (X,  773).     Construction  of  statutes. 

Approved  in  United  Shoe  M.  Co.  v.  Duplessis  etc.  Co.,  133  Fed.  933, 
Act  March  3,  1897,  c.  395,  29  Stat.  695,  providing  that  suits  for  in- 
fringements of  patents  should  be  brought  in  district  in  which  defendant 
is  inhabitant,  applies  only  to  defendants  who  are  inhabitants  of  some 


1195  Notes  on  U.  S.  Reports.  Ill  U.  S.  1-38 

district  and  not  to  aliens;  Scliiiii<lt  v.  United  States,  133  Fed.  260,  66 
C.  C.  A.  389,  Act  March  3,  1903,  c.  1012,  §  39,  32  Stat.  1222,  providing 
for  punishment  of  perjury  in  naturalization  proceedings,  did  not  lessen 
jurisdiction  under  §  5395,  U.  S.  Comp.  St.  1901,  p.  3654.  See  99  Aou 
St.  Eep.  497,  note. 


CXI  UNITED  STATES. 


Ill  U.  S.  1-17,  28  L.  331,  OTOE  CO.  v.  BALDWIN. 

Syl.  3  (X,  774).     Validating  municipal  bonds. 

Approved  in  Potter  v.  Lainhart,  44  Fla.  668,  33  So.  258,  upholding 
Acts  1901,  c.  4912,  validating  county  bonds  issued  for  public  improve- 
ments, 

Syl.  4   (X,  774).     Statutes— One  subject. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  452,  50  L.  823,  26  Sup.  Ct.  427, 
upholding  Illinois  Acts  1859,  1861,  1865,  relating  to  street  railways  in 
Chicago. 

Ill  U.  S.  17-22,  28  L.  337,  LAMMON  v.  FEUSIER. 
Syl.  1  (X,  775).  Liability  of  marshal's  sureties — Wrongful  seizure. 
Approved  in  Gray  v.  Noonau,  6  Ariz.  39,  53  Pac.  7,  unsatisfied  judg- 
ment against  sheriff  for  wrongful  taking  of  property  under  writ  does 
not  bar  action  against  sheriff  and  sureties;  Conway  v.  Carter,  11  N.  M. 
433,  68  Pac.  944,  upholding  recovery  by  beneficiary  under  insurance 
policy  against  sureties  of  deceased  administrator  who  had  collected 
policy. 

Distinguished  in  Dysart  v.  Lurty,  3  Okl.  606,  41  Pac.  725,  sureties 
on  marshal's  bond  not  liable  for  acts  of  deputy  seizing  goods  without 
process  or  knowledge   of   principal. 

Ill  U,  S.  22-31,  28  L.  341,  SWIFT  CO.  v.  UNITED  STATES. 

Syl.  2   (X,  776),     Payment  of  tax  under  pressure. 

Approved  in  Lewis  v.  San  Francisco,  2  Cal.  App.  116,  82  Pac.  1107, 
where  county  clerk  refused  to  file  inventory  unless  illegal  fees  paid, 
payment  of  fees  under  protest  was  involuntary;  American  Brewing  Co. 
V.  St.  Louis,  187  Mo.  377,  86  S.  W.  132,  upholding  recovery  of  excess 
rate  paid  for  water  where  ordinance  required  procurement  of  six  months ' 
license  and  payment  for  water  in  advance;  State  v.  Murphy,  128  Wis, 
212,  107  N.  W,  474,  determining  question  of  immunity  from  prosecu- 
tion of  witness  before  grand  jury. 

Ill  U,  S.  31-38,  28  L.  338,  WALSH  v,  MAYER, 
Syl,  3   (X,  777),     Recovery  of  usury  in  other  state. 
Approved  in  Gunby  v,  Armstrong,  133  Fed.  434,  435,  66  C.  C.  A.  627, 

Louisiana  statute  giving  right  to  recover  usury  paid  cannot  be  enforced 


Ill  U.  S.  38-97  Notes  on  U.  S.  Eeporta.  1196 

in  federal  court  unless  action  brought  within  time  fixed  thereby;  First 
Nat,  Bank  v.  McCarthy,  18  S.  D.  231,  100  N.  W.  16,  in  action  by 
national  bank  on  usurious  contract,  limitations  applies  to  counterclaim 
for  usurious  interest. 

Ill  U.  S,  38-42,  28  L.  344,  UNITED  STATES  v.  UBRICL 
Syl.  2  (X,  778).     Internal  revenue — Lien  on  seized  goods. 
Distinguished   in   United   States   v.   United    States   Fidelity    etc.    Co., 

144  Fed.  867,  where  distillery  forfeited  and  sold  for  violation  of  revenue 

laws,   sureties   are  not  entitled  to   have  proceeds   applied  to   taxes   on 

product  of   distillery. 

Ill  U.  S.  53-61,  28  L.  349,  BURROW  ETC.  LITHOGRAPHIC  CO.  t. 
SARONY. 

Syl.  2  (X,  779).     Contemporary  legislative  construction. 

Approved  in  State  v.  Northern  Pac.  Ry,  Co.,  95  Minn.  47,  103  N.  W. 
732,  foreign  railway  doing  business  in  state  is  entitled  to  deduct  bona 
fide  indebtedness  for  taxable  credits,  though  it  failed  to  list  such  credits; 
Ex  parte  Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987,  city  court  has  no 
jurisdiction  to  try  accused  for  violation  of  state  penal  statute. 

Syl.  3  (X,  779).     Copyright. 

Approved  in  Whit©  etc.  Pub.  Co.  v.  Apollo  Co.,  139  Fed.  430,  copy- 
right of  printed  musical  composition  not  infringed  by  perforated  record 
for  use  on  mechanical  instrument. 

Syl.  4   (X,  779).     Copyright  of  photographs. 

Approved  in  American  Mutoscope  etc.  Co.  v.  Edison  Mfg.  Co.,  137 
Fed.  265,  upholding  copyright  of  photograph  taken  for  moving  picture 
machine;  Werckmeister  v.  American  Lith.  Co.,  134  Fed.  330,  68  L.  E.  A. 
591,  arguendo. 

Ill  U.  S.  66-83,  28  L.  354,  CANAL  BANK  v.  HUDSON. 

Syl.  4  (X,  780).     Purchase  at  judicial  sale — Outstanding  claims. 

Approved  in  Sunter  v.  Sunter,  190  Mass.  458,  77  N.  E.  499,  in  action 
by  two  wards  against  third  to  avoid  indirect  sale  to  guardian  who 
afterward  conveyed  to  defendant,  plaintiffs  may  set  off  share  of  rents 
during   guardian's   occupation    against   latter 's   improvements. 

Ill  U.  S.  83-97,  28  L.  360,  DIXON  CO.  v.  FIELD. 

Syl.  2   (X,  780).     Estoppel  of  county  by  recitals  in  bonds. 

Distinguished  in  Piatt  v.  Hitchcock  Co.,  139  Fed.  932,  933,  where 
county  commissioners  having  power  to  issue  precinct  bonds  up  to  ten 
per  cent  of  last  assessment  issued  bonds  reciting  issuance  according 
to  statutes,  made  assessment  five  days  prior  to  issuance  which  it  could 
have  modified  later,  recitals  estop  county  from  asserting  falsity  ia 
against  bona  fide  purchaser. 


1197  Notes  on  U.  S.  Eeports.  Ill  U.  S.  110-122 

Syl.  4  (X,  783).  Municipal  bonds — Debt  limit — Recitals, 
Approved  in  Sauer  v.  Gillett,  20  Colo.  App.  372,  78  Pac.  1070, 
under  Mills  Ann.  St.,  §  4403,  subd.  6,  demand  bonds  issued  under 
ordinance  not  providing  for  levy  are  invalid  in  hands  of  bona  fide 
holders;  Martin  v.  Territory,  5  Okl.  194,  48  Pac.  108,  holding  void  city 
warrants  issued  under  court  decree  where  at  time  of  issuance  city  debt 
exceeded  statutory  limit;  City  of  Guthrie  v.  New  Vienna  Bank,  4  Okl. 
211,  216,  218,  38  Pac.  10,  11,  12,  holding  void  St.  Okl.,  c.  14,  attempting 
to  impose  provisional  debts  of  certain  towns  on  city  of  Guthrie,  as  violat- 
ing statute  limiting  city  debts. 

Ill  U.  S.  110-117,  28  L.  368,  TAYLOR  v.  BOWKER. 

Syl.  2  (X,  784).     Limitations — Judgment  creditors  of  corporation. 

Approved  in  Blackwell  v.  Hatch,  13  Okl.  173,  73  Pac.  934,  limitations 
on  action  in  nature  of  creditor's  bill  runs  for  return  of  execution  nulla 
bona  and  not  from  date  of  fraudulent  transfer. 

Syl.   3    (X,   784).     Equity — Creditors — Exhaustion   of   legal   remedies. 

Approved  in  State  Bank  v.  Belk,  68  Neb.  519,  94  N.  W.  619,  upholding 
creditor's  suit  by  judgment  creditor  where  judgment  debtor  has  fraud- 
ulently conveyed  property. 

Ill  U.  S.  117-120,  28  L.  373,  MOORE  v.  PAGE. 

Syl.  1,  (X,  785).     Fraudulent  conveyance — Gift  to  wife. 

Approved  in  Aldous  v.  Olverson,  17  S.  D.  200,  95  N.  W.  920,  con- 
veyance by  husband  to  wife  not  made  to  defraud  subsequent  creditors 
cannot  be  complained  of  by  them,  though  intended  to  defraud  existing 
creditors. 

Ill  U.  S.  120-122,  28  L.  371,  GARRETSON  v.  CLARK. 

Syl.  1  (X,  786).     Patent  improvement  infringement — Profits. 

Approved  in  Force  v.  Sawyer-Boss  Mfg.  Co.,  143  Fed.  900,  Baker  v. 
Crane  Co.,  138  Fed.  61,  70  C.  C.  A.  486,  and  New  York  Bank  Note  Co.  v. 
Hamilton  Bank  Note  Co.,  180  N.  Y.  296,  73  N.  E.  53,  all  following 
rule;  Eastern  Paper  Bag  Co.  v.  Continental  etc.  Bag  Co.,  142  Fed.  519, 
where  patent  infringed  by  machines  made  and  used,  but  not  sold,  and 
product  of  machine  has  no  superiority  giving  it  increased  value,  savings 
by  use  of  patented  device  are  only  profits  recoverable;  Fox  v.  Knicker- 
bocker Eng.  Co.,  140  Fed.  715,  both  profits  and  damages  are  recoverable 
in  infringement;  Westinghouse  v.  New  York  Air  Brake  Co.,  140  Fed. 
549,  552,  applying  rule  in  accounting  for  profits  for  infringement  of 
Westinghouse  patent  No.  376,837,  for  quick  action  triple  valve  for 
air-brakes  where  complete  brakes  only  sold;  Brinton  v.  Paxton,  134 
Fed.  80,  67  C.  C.  A.  204,  where  profit  made  on  patented  part  alone 
shown  separate  from  that  on  machine  as  whole  and  no  substitute  on 
market,   complainant   may  recover  such  profits. 

Distinguished  in  Regis  v.  Jaynes,  191  Mass.  251,  77  N.  E.  777,  de- 
termining damages  on  accounting  for  profits  of  defendants  who  had  been 
restrained  from  infringing  trademark. 


Ill  U.  S.  125-185  Notes  on  U.  S.  Eeports.  1198 

111  U.  S.  125-134,  28  L.  374,  PHOENIX  BANK  v.  EISLEY. 

Syl.  2   (X,  787).     Bank  deposits — Eclation  of  debtor  and  creditor. 

Approved  in  Schinotti  v.  Whitney,  130  Fed.  781,  money  deposited  in 
bank  in  New  York  at  interest  and  subject  to  check  is  ' '  money  lent ' ' 
to  banker  within  Civ.  Code  La.,  art.  3538,  prescribing  limitations  for 
recovery  thereof. 

Ill  U.  S.  138-148,  28  L.  379,  NEW  ENGLAND  MUT.  LIFE  INS.  CO. 
V.   WOODWORTH. 

Syl.  4  (X,  789).     Jurisdiction — Foreign  corporation  doing  business. 

Approved  in  Kibbler  v.  St.  Louis  etc.  R.  Co.,  147  Fed.  881,  882,  foreign 
corporation  which  under  state  law  can  be  sued  in  counties  where  it  does 
business  can  be  sued  in  federal  court  only  if  it  does  business  in  one  of 
counties  of  district;  Groel  v.  United  Elec.  Co.,  69  N.  J.  Eq.  419,  60 
Atl.  830,  determining  that  foreign  corporation  was  doing  business  in  state 
so  as  to  be  sued  by  service  on  process  agent. 

Ill  U.  S.  148-155,  28  L.  382,  COOPER  v.  SCHLESINGER. 

Syl.   2    (X,  790).     Avoidance  of  contract — False  statements. 

Approved  in  United  States  v.  Bradford,  148  Fed.  424,  applying  rule 
in  prosecution  for  conspiracy  to  defraud  government  out  of  land  scrip, 
in  furtherance  of  which  pretended  administrator  falsely  procured  to  be 
appointed  for  estate  of  one  to  whom  land  claim  confirmed;  Pittsburg 
Land  etc.  Co.  v.  Northern  etc.  Ins.  Co.,  140  Fed.  893,  where  in  examina- 
tion of  insurance  company  prior  to  sale  of  its  business  printed  list  of 
policies  used  which  had  been  prepared  for  and  used  by  company,  errors 
in  list  are  not  basis  for  action  for  deceit;  Kimber  v.  Young,  137  Fed. 
748,  70  C.  C.  A.  178,  false  statements  on  sale  of  bonds  that  seller  knew 
bonds  good  and  that  they  would  be  paid  at  maturity  do  not  form  basis 
for  action  for  deceit. 

Ill  U.  S.  156-170,  28  L.  285,  MOORES  v.  CITIZENS'  NAT.  BANT:v. 

Syl.  1    (X,   790).     Stock  certificate  as   estopping  corporation. 

Approved  in  Westminster  Bank  v.  New  England  etc.  Works,  73  N.  H. 
475,  111  Am.  St.  Rep.  640,  62  Atl.  973,  where  stock  certificate  recites 
person  to  whom  issued  is  owner  of  fully  paid  stock,  corporation  cannot 
deny  title  of  bona  fide  purchaser  on  ground  that  stockholder  paid  noth- 
ing, and  law  prohibits  issuance  of  stock  till  fully  paid. 

Syl.  3  (X,  791).     Liability  of  corporation  for  acts  of  officer. 

Approved  in  Hier  v.  Miller,  68  Kan.  266,  75  Pac.  79,  63  L.  R.  A.  952, 
where  bank  cashier  paid  debts  by  entering  credit  on  depositor 's  book 
and  permitted  him  to  check  out,  bank  may  recover  of  creditor  moneys  so 
paid  out. 

Ill  U.  S.  176-185,  28  L.  390,  COVELL  v.  HEYMAN. 

Syl.  2   (X,  792).     Property  attached — Interference  by  other  court. 
Approved  in  Fountain  v.  624  Pieces  of  Timber,  140  Fed.  381,  follow- 
ing rule;   In  re  Mertens,  131   Fed.  515,  where  bankrupt's  trustee  took 


1199  Notes  on  U.  S.  Eeports.  Ill  U.  S.  185-196 

possession  of  property  in  hands  of  bankrupt  at  time  of  petition,  and 
seller  to  bankrupt  did  not  elect  to  rescind  for  fraud  till  after  proceedings, 
trustee  not  liable  to  him  for  conversion;  Beardslee  v.  Ingraham,  183 
N.  Y.  418,  76  N.  E.  477,  where  federal  court  issued  attachment  for 
corporation's  property,  which  was  filed  in  oflSce  of  clerk  of  district 
where  property  located,  state  court  in  which  suit  to  dissolve  corporation 
filed  could  not  enjoin  marshal  from  selling  property  on  execution ; 
French  v.  White,  78  Vt.  96,  62  Atl.  36,  2  L.  R.  A.  (N.  S.)  804,  property 
vesting  in  bankruptcy  trustee  is  not  attachable  in  state  court. 

Syl.  4  (X,  794).     Conflicting  state  and  federal  jurisdiction. 

Approved  in  Security  Trust  Co.  v.  Union  Trust  Co.,  130  Fed.  302, 
federal  court  refuses  to  enforce  lien  on  rolling  stock,  where  state  court 
has  appointed  receiver  on  foreclosure  and  ordered  sale;  Guaranty  Trust 
Co.  V.  North  Chicago  St.  R.  Co.,  130  Fed.  807,  65  C.  C.  A.  65,  pendency 
of  federal  creditor's  suit  against  railroad  for  which  receiver  appointed, 
but  which  road  is  operated  under  lease  by  receiver  of  lessee,  does  not 
exclude  state  suit  by  stockholders  to  enjoin  delivery  of  amended  lease. 

Ill   U.  S.  185-196,  28  L.  395,  ROSENTHAL  v.  WALKER. 

Syl.  1    (X,   795).     Limitations — Bankruptcy — Fraudulent  transfer. 

Approved  in  New  England  Ins.  Co.  v.  Swain,  100  Md.  574,  60  Atl. 
472,  in  action  against  insurance  company  for  damages  for  fraudulent 
conduct  of  agent,  it  is  for  jury  to  say  whether  plaintiff  sued  within 
three  years  after  he  could  with  reasonable  diligence  have  discovered 
fraud;  Mullen  v.  Walton,  142  Ala.  173,  39  So.  99,  where  testator  created 
trust  in  favor  of  minor  child,  appointing  widow  as  trustee,  and  later 
widow  wrote  child  she  liad  lost  money  left  to  child  and  would  leave  it 
her  property,  child  could  maintain  bill  against  widow's  administrator  for 
settlement  of  trust ;  dissenting  opinion  in  Atchison  etc.  Ry.  Co.  v.  Grain 
Co.,  68  Kan.  597,  75  Pac.  1055,  majority  holding  averment  in  action  for 
violation  of  agreement  against  discriminations,  that  defendant  succeeded 
in  concealing  fact  of  discriminations  until  eighteen  months  prior  to  suit, 
does  not  suspend  limitations;  dissenting  opinion  in  Eauch  v.  Millers 
Mut.  Fire  Ins.  Co.,  131  Mich.  2S4,  91  N.  W.  161,  majority  holding  where 
insured  writes  insurer  that  he  has  taken  out  additional  insurance  and  that 
if  it  conflicts  with  policy  to  advise  him,  and  insurer  does  not  answer,  he 
is   estopped   to   avoid   policy. 

Syl.  4   (X,  796).     Presumption  for  mailing  of  letter. 

Approved  in  Davidson  S.  S.  Co.  v.  United  States,  142  Fed.  318,  apply- 
ing rule  to  mailing  of  marine  notice;  Christensen  Engineering  etc.  Co. 
V.  Westinghouse  Air-brake  Co.,  135  Fed.  777,  6S  C.  C.  A.  476,  upholding 
sufliciency  of  service  by  mail  of  injunction  against  infringement  of 
patent;  Sherrod  v.  Farmers'  etc.  Ins.  Assn.,  139  N.  C.  169,  51  S.  E. 
911,  where  insurer  shows  notice  of  assessment  mailed,  properly  addressed 
and  stamped,  law  presumes  its  receipt. 


Ill  U.  S.  216-242  Notes  on  U.  S.  Reports.  1200 

111  IT.  S.  216-223,  28  L.  406,  BURLEY  v.  GERMAN-AMER.  BANK. 

Syl.  2   (X,  798).     Answer — Denial  of  allegations. 

Distinguished  in  Berry  v.  Barton,  12  Okl.  238,  71  Pac.  1080,  66  L.  R. 
A.  513,  where  note  payable  to  person  named  or  order  is  not  paid,  answer 
denying  payee  who  sues  thereon  is  owner  and  alleging  he  is  not  real  party 
in  interest,  states  no   defense. 

(X,  798.)  Miscellaneous.  Cited  in  Bishop  Co.  v.  Shelhorse,  141 
Fed.  646,  upholding,  under  Virginia  practice,  declaration  alleging  in 
one  count  separate  acts  of  negligence,  either  one  of  which  is  sufficient 
basis  for  action. 

Ill  U.  S.  228-242,  28  L.  410,  HAYES  v.  MICHIGAN  CENT.  R.  R. 

Syl.  2   (X,  799).     Ordinance  granting  right  of  way. 

Approved  in  Heidt  v.  Southern  Tel.  Co.,  122  Ga.  480,  50  S.  E.  364, 
ordinance  granting  telephone  franchise  requiring  space  of  three  feet 
where  wires  cross  electric  light  wire,  and  imposing  cost  of  expense 
of  raising  or  lowering  wires  and  placing  guards  on  company  doing 
latest  construction,  imposes  duty  of  placing  guards  on  latter. 

Distinguished  in  Seymour  v.  Union  Stockyards  Co.,  224  111.  586,  79 
N.  E.  951,  upholding  exclusion  of  city  ordinance  in  action  for  injuries 
to  child  by  train  where  it  was  attracted  to  right  of  way  by  clay  piled 
thereon. 

Syl.  3  (X,  799).     Ordinance  regulating  railroad  operation. 

Approved  in  Shellaberger  v.  Fisher,  143  Fed.  939,  absence  of  operator 
for  automatic  elevator  in  city  where  duty  to  employ  operator  imposed 
by  ordinance  is  actionable  where  child  injured. 

Distinguished  in  Clemans  v.  Chicago  etc.  Ry.  Co.,  128  Iowa,  397,  104 
N.  W.  432,  city  railroad  speed  ordinance  is  inapplicable  in  favor  of 
trespasser  injured  by  train  within  city  limits;  Memphis  St.  Ry.  Co.  v. 
Haynes,  112  Tenn.  720,  81  S.  W.  375,  holding  failure  to  comply  with 
ordinance  requiring  street-car  men  to  keep  vigilant  lookout  and  to 
stop  on  first  appearance  of  danger,  not  negligence  per  se;  dissenting 
opinion  in  Sluder  v.  St.  Louis  Transit  Co.,  189  Mo.  166,  167,  88  S.  W. 
663,  664,  majority  holding  breach  of  city  ordinance  requiring  motorman 
to  keep  vigilant  watch  for  vehicles,  and  to  stop  on  first  appearance  of 
danger,  is  negligence. 

Syl.  5  (X,  800).     Negligence  of  railroad — Proximate  cause. 

Approved  in  Shellaberger  v.  Fisher,  143  Fed.  941,  applying  rule  where 
city  ordinance  imposed  duty  of  employing  elevator  operator  and  child 
injured  by  automatic  elevator;  Sbugart  v.  Atlanta  etc.  Ry.,  133  Fed. 
510,  66  C.  C.  A.  379,  where  derailment  of  engine  on  which  plaintiff 
•working  would  not  have  happened  but  for  defects  in  track,  whether 
defects  were  proximate  cause  is  for  jury,  though  speed  of  train  might 
have  contributed  to  accident;  Meisner  v.  City  of  Dillon,  29  Mont.  122, 
74  Pac.  131,  city  is  liable  where  horse  becoming  frightened  comes  in 


1201  Notes  on  U.  S.  Reports.  Ill  U.  S.  242-276 

contact  with  defect  in  street  negligently  left  unrepaired.     See  113  Am. 
St.   Rep.   988,   note. 

Ill  U.  S.  242-252,  28  L.  415,  TEAL  v.  WALKER. 

Syl.  1  (X,  801).  Answer  as  waiving  erroneous  overruling  of  de- 
murrer. 

Approved  in  Williamson  v.  Liverpool  etc.  Ins.  Co.,  141  Fed,  58,  where 
motion  to  strike  out  portion  of  petition  erroneously  sustained,  error  not 
waived  by  filing  amended  petition  omitting  parts  stricken  out. 

Syl.   2    (X,  802).     Absolute  deed  as  mortgage. 

Approved  in  Weiseham  v.  Hockcr,  7  Okl.  253,  54  Pac.  465,  following 
rule. 

Ill  U.  S.  252-263,  28  L.  419,  BORS  v.  PRESTON. 

Syl.  2    (X,  804).     Federal  jurisdiction  must  affirmatively  appear. 

Approved  in  Edelstein  v.  United  States,  140  Fed.  639,  where  after 
debtor  adjudged  bankrupt  he  applied  for  discharge,  adjudication  not 
collaterally  attackable  in  proceeding  against  bankrupt  for  taking  false 
oath,  for  defects  in  petition;  Dodd  v.  Louisville  Bridge  Co.,  130  Fed.  193, 
denying  removability  of  suit  against  corporation  formed  by  consolidation 
of  corporations  of  several  states. 

Syl.  3  (X,  804).  Exclusiveness  of  supreme  court's  jurisdiction — 
Consuls. 

Approved  in  Higgins  v.  Tax  Assessors  of  Pawtucket,  27  R.  L  408, 
63  Atl.  37,  Practice  Act  1905,  p.  4,  §  12,  giving  superior  court  juris- 
diction to  issue  extraordinary  writs,  does  not  violate  Const.  Amend., 
art.  12,  giving  sujireme  court  power  to  issue  prerogative  writs. 

Ill  U.  S.  264-276,  28  L.  423,  LOVELL  v.  ST.  LOUIS  MUT.  LIFE  INS. 
CO. 

Syl.  4  (X,  805).     Dissolution  of  corporation. 

Approved  in  In  re  Imperial  Brewing  Co.,  143  Fed.  582,  adjudication 
in  bankrui)tcy  is  not  repudiation  by  bankrupt  of  contract  to  {)urchase 
products  during  term  of  years  so  as  to  give  seller  right  to  prove  dam- 
ages against  estate  where  time  of  performance  has  not  arrived;  Mutual 
etc.  Life  Assn.  v.  Ferrenbach,  144  Fed.  343,  346,  347,  where  policy 
wrongfully  canceled  for  nonpayment  of  assessments,  and  pending  action 
plaintiff  died,  damages  are  amount  of  policy  less  cost  of  carrying  it  to 
maturity;  Summers  v.  Mutual  Life  Ins.  Co.,  12  Wyo.  390,  109  Am. 
St.  Rep.  1005,  75  Pac.  942,  66  L.  R.  A.  812,  where  plaintiff  gave  note 
for  which  insurer  was  to  execute  policy  within  stated  time,  and  insurer 
received  proceeds  of  note  but  failed  to  deliver  policy,  insured  may 
recover  money  advanced. 

Lnnited   in   Vette    v.    Evans,    111    Mo.    595,    86    S.    W.    506,    wliero    in- 
surance company  sold  assets  some  time  after  issuance  of  policy,  insured 
76 


Ill  U.  S.  276-313  Notes  on  U.  S/Keports.  1202 

relieved  from  liability  on  premium  note  only  to  extent  of  value  of  in- 
surance for  time  subsequent  to  transfer. 

Syl.  f  (X,  805).     Prevention  of  performance  of  executory  contract. 

Approved  in  Barker  etc.  Lumber  Co.  v.  Edward  Hines  L.  Co.,  137 
Fed.  308,  construing  contract  for  sawing  logs;  Cooley  v.  Moss,  123 
Ga.  709,  51  S.  E.  626,  where  land  owner  agrees  to  sell  certain  lot,  but 
deed  not  to  be  made  till  other  land  sold,  and  lot  sold  before  other  land, 
action  for  breach  maintainable  though  other  land  not  sold;  Merrick  v. 
Northwestern  Nat.  Life  Ins.  Co.,  124  Wis.  226,  109  Am.  St.  Rep.  931, 
102  N.  W.  594,  where  insurer  wrongfully  forfeited  policy,  beneficiary 
may,  during  insured's  life,  recover  value  of  policy  at  time  of  forfeiture. 

Ill  U.  S.  276-293,  28  L.  427,  RECTOR  v.  GIBBON. 

Syl.  1    (X,  806).     Estoppel  to  deny  landlord's  title. 

Approved  in  Harvin  v.  Blaekman,  112  La.  31,  36  So.  215,  following 
rule;  Hagar  v.  Wikoff,  2  Okl.  588,  39  Pac.  283,  applying  rule  to  lease 
of  townsite  lot. 

Syl.  2   (X,  806).     Trespasser  on  public  lands. 

Approved  in  Downman  v.  Saunders,  3  Okl.  234,  41  Pac.  107,  one  who 
forcibly  enters  into  the  possession  of  another  on  townsite  and  ejects  him 
cannot  defeat  prior  settler  because  of  meagerness  of  improvements; 
Knepper  v.  Sands,  194  U.  S.  485,  48  L.  1086,  24  Sup.  Ct.  744,  arguendo. 

Syl.  4    (X,   806).     Conclusiveness  of  land  decision. 

Approved  in  McDonald  v.  Union  P.  R.  Co.,  70  Neb.  350,  97  N.  W. 
441,  denying  jurisdiction  to  compel  conveyance  of  homestead  lands  to 
one  denied  privilege  of  entry  by  Land  Department;  Tvfine  v.  Carey, 
2  Okl.  254,  37  Pac.  1098,  refusing  to  review  decision  of  townsite 
trustees;  Smith  v.  Townsend,  1  Okl.  122,  29  Pac.  82,  where  land  officials 
draw  legal  conclusion  from  known  facts  and  issue  patent,  equity  may 
entertain  suit  to  decree  patentee  a  trustee  and  to  compel  conveyance  of 
legal  title. 

Syl.  5   (X,  806).     Legal  as  trustee  for  equitable  owner. 

Approved  in  Brown  v.  Parker,  2  Okl.  266,  39  Pac.  569,  following 
rule;  Thompson  v.  Ferry,  6  Ariz.  307,  56  Pac.  743,  where  cotenant's 
mortgage  foreclosed  and  premises  bought  by  mortgagee,  who  sold  interest 
to  grantee,  who  relocated  same  and  obtained  patent  and  sold  same, 
other  cotenants  estopped  from  claiming  interest  after  ten  years. 

Ill  U.  S.  293-313,  28  L.  433,  COCHRANE  v,  BADISCHE  ANILIN 
ETC.  FABRIK. 

Syl.  5   (X,  807).     Process  patent. 

Approved  in  Victor  Talk.  Mach.  Co.  v.  American  Graph.  Co.,  145 
Fed.  192,  limiting  Berliner  patent  No.  548,623,  for  duplicate  sound 
records  and  method  of  making  same;  Societe  Fabriques  v.  Lueders, 
135  Fed.  103,  Baur  patent  No.  451,847,  for  artificial  musk,  is  void  in 
view  of  disclaimer  of  process  of  patent  No.  416,710    to  same  inventor; 


1203  Notes  on  U.  S.  Reports,  111  U.  S.  313-319 

American  Tube  Wis.  v.  Bridgewater  Iron  Co.,  132  Fed.  17,  65  C.  C. 
A.  636,  holding  Adams  jjatent  No.  24,915,  for  cast  copper  tubes, 
anticipated. 

Ill  U.  S.  313-319,  28  L.  440,  ARMOUR  v.  HAHN. 

Syl.  1   (X,  808).     Master — Providing  safe  place  to  work. 

Apjiroved  in  Gans  Salvage  Co.  v.  Byrnes,  102  Md.  244,  62  Atl.  157, 
master  not  liable  for  injuries  to  wrecker  where  brick  shaft  left  standing 
after  burning  of  building  was  apparently  safe;  Ziegenmeyer  v.  Goetz 
Lime  etc.  Co.,  113  Mo.  App.  336,  88  S.  W.  141,  where  servant  em- 
ployed in  quarry  knew  of  danger  from  falling  rocks  and  on  being 
warned  stepped  into  known  defective  chimney  and  was  injured  by  fall- 
ing rock,  master  not  Liable;  Smith  v.  Hecla  Min.  Co.,  38  Wash.  461, 
80  Pac.  781,  master  not  liable  for  injuries  to  mine  laborer  engaged 
in  removing  rock  thrown  down  in  blasting;  CuUv  v.  Northern  Pac.  Ry. 
Co.,  35  Wash.  247,  77  Pac.  203,  applying  principle  where  railroarl 
workman  employed  in  taking  gravel  from  bank  and  loading  it  on  cars; 
Kalte  V.  Wisconsin  Central  Ry.  Co.,  121  Wis.  514,  99  N.  W.  221,  rail- 
road not  liable  for  injuries  to  engineer  running  engine  on  to  known 
burning  bridge,  though  other  employees  failed  to  put  out  signals. 

Distinguished  in  Chambers  v.  American  Tin  Plate  Co.,  129  Fed.  562, 
64  C.  C.  A.  129,  building  contractor  employing  boss  carpenter  to  build 
scaffold  for  bricklayers  is  liable  for  injury  to  bricklayer  by  negligent 
construction;  Rigsby  v.  Oil  Well  Supply  Co.,  115  Mo.  App.  319,  91  S. 
W.  460,  master  liable  to  servant  injured  by  falling  of  pile  of  planks 
piled  negligently  by  other  servants. 

Syl.  2   (X,  808).     Negligence  of  fellow-servant — Defective  appliance. 

Approved  in  American  Bridge  Co.  v.  Seeds,  144  Fed.  613,  master 
not  liable  for  injuries  to  servant  where  false  work  for  rebuilding  bridge 
constructed  with  uncovered  spaces  and  servant  was  knocked  off  by  crane- 
because  of  inopportune  signal  of  foreman;  Deye  v.  Lodge  etc.  Tool  Co., 
137  Fed.  484,  70  C.  C.  A.  64,  company  piling  up,  imder  direction  of 
foreman,  lathe  beds  until  wanted  not  liable  for  injuries  to  servant  by 
slipping  of  casting  on  account  of  negligence  in  piling;  Galow  v.  Chicago 
etc.  Ry.  Co.,  131  Fed.  243,  65  C.  C.  A.  507,  where  plank  partition  erected 
by  workmen  to  separate  stone  and  sand  dumped  under  trestle  in  making 
concrete,  broke,  master  not  liable  for  injury  to  servant;  Southern  In- 
diana Ry.  Co.  V.  Harrell,  161  Ind.  698,  68  N.  E.  265,  63  L.  R.  A.  460, 
where  railroad  bridge  workman  sat  down  during  tem|)orary  resjiite  from 
work  and  was  injured  by  rock  being  negligently  raised  by  derrick,  master 
not  liable;  Meehan  v.  St.  Louis  etc.  K.  K.  Co.,  114  Mo.  App.  4(i;!,  !)i) 
S.  W.  104,  master  no't  liable  to  servant  injured  in  laying  railrond  track 
because  of  looseness  of  track;  Herbert  v.  Wiggins  Ferry  Co.,  107  Mo. 
App.  300,  80  S.  W.  981,  master  not  liable  for  injuries  to  servant  wlicre 
one  of  them  selected  worn  rope  to  hold  wheel  which  they  were  dia- 
mantling. 


Ill  U.  S.  335-346  Notes  on  U.  S.  Eeports.  1204 

Distinguished  in  McGill  v.  Southern  Pac.  Co.,  4  Ariz.  124,  33  Pac. 
822,  section  foreman  is  not  fellow-servant  of  conductor  of  work  train 
on  which  he  is  carried  to  work. 

Ill  U.  S.  335-346,  28  L.  447,  MOULOR  v.  AMERICAN  LIFE  INS.  CO. 

Syl.  3  (X,  SIO).    Insurance — Statement  in  application  as  warranties. 

Approved  in  Doll  v.  Equitable  Life  Assur.  Society,  138  Fed.  707, 
representations  in  application  as  to  insured's  family  history  as  to  con- 
sumption and  as  to  his  health  history  are  warranties. 

Syl.  4   (X,  810).     Insurance  policy  construed  against  insurer. 

Approved  in  Mutual  Reserve  Ins.  Co.  v,  Dobler,  137  Fed.  55G,  70  C. 
C.  A.  134,  where  insured  stated  in  application  that  he  had  not  con- 
sulted physician  for  years,  fact  that  physician  friend  had  examined  him 
on  physician's  own  initiative  without  cost  does  not  show  answer  untrue; 
O'Connor  v.  Grand  Lodge  A.  O.  U.  W.,  146  Cal.  491,  80  Pac.  691, 
holding  literal  truthfulness  of  answers  in  medical  examination  for  mem- 
bership in  benefit  society  not  required;  German- American  Ins.  Co.  v. 
Yengley,  163  Ind.  659,  71  N.  E.  900,  applying  rule  where  fire  policy 
provided  for  avoidance  in  case  of  encumbrances,  agent  accepting 
premiums  with  knowledge  of  mortgage  waives  forfeiture;  Offineer  v. 
Brotherhood  of  American  Yeomen,  109  Mo.  App.  75,  83  S.  W.  68,  mis- 
representation in  application  must  be  materia^  to  avoid  risk;  Guthrie 
Nat.  Bank  v.  Fidelity  etc.  Co.,  14  Okl.  640,  79  Pac.  103,  construing 
statements  in  application  for  fidelity  insurance  not  to  be  warranties ; 
Woodmen  of  the  World  v.  Gilliland,  11  Okl.  404,  67  Pac.  491,  con- 
struing provision  as  to  intemperate  use  of  drugs;  Tucker  v.  Colonial 
Fire  Ins.  Co.,  58  W.  Va.  36,  51  S.  E.  88,  provision  in  policy  for  in- 
ventory at  least  once  a  year  gives  assured  one  year  from  date  of  policy 
to  take  inventory  though  policy  runs  one  year  only;  dissenting  opinion 
in  Atlas  Red.  Co.  v.  New  Zealand  Ins.  Co.,  138  Fed.  511,  majority  con- 
struing "loss  payable"  indorsement  on  insurance  policy. 

Distinguished  in  Mutual  Life  Ins.  Co.  v.  Arhelger,  4  Ariz.  277.  2?.^, 
36  Pac.  896,  answers  of  insurance  aiiplicant  that  he  has  not  consulted 
physician  since  childhood,  and  does  not  remember  name,  are  warranties. 

Syl.  5   (X,  812).     Insurance  policy  controls  application. 

Approved  in  Briguac  v.  Pacific  Mutual  Life  Ins.  Co.,  112  La.  586, 
587,  36  So.  599,  66  L.  R.  A.  322,  and  Logan  v.  Provident  etc.  Assur- 
ance Society,  57  W.  Va.  388,  393,  50  S.  E.  530,  533,  both  following  rule; 
Supreme  Conclave  v.  Wood,  120  Ga.  336,  47  S.  E.  941,  where  application 
covenants  truth  of  statements  to  medical  examiner,  and  they  are  made^ 
part  of  contract,  policy  cannot  be  avoided  for  falsity  thereof  unless  they 
are  material  and  change  risk;  Aetna  Life  Ins.  Co.  v.  Rehlaender,  68 
Neb.  292  94  N.  W.  132,  statement  signed  by  assured  at  agent's  request 
■to  obtain  revival  of  policy  as  to  health  is  representation  merely. 


1205  Notes  on  U.  S.  Keports.  Ill  U.  S.  347-373 

111  U.  S.  347-350,  28  L.  451,  UNITED  STATES  v.  CARPENTEB. 

Syl.  1   (X,  812).     Withdrawal  of  Indian  lands  by  treaty. 

Approved  in  Winters  v.  United  States,  143  Fed.  748,  grantees  of 
lands  outside  of  Ft.  Belknap  Indian  reservation  did  not  acquire  ex- 
elusive  rights  to  waters  of  Milk  river  for  irrigation  under  desert  land 
act  as  against  Indians. 

Ill  U.  S.  350-356,  28  L.  452,  CHAMBERS  v.  HARRINGTON. 

Syl.  1  (X,  813).     Jurisdiction — Contest  over  mining  claim. 

Approved  in  Nome-Sinook  Co.  v.  Simpson,  1  Alaska,  584,  adverse 
suit  by  applicant  for  mining  patent  is  maintainable  in  district  court  of 
Alaska ;  Nome-Sinook  Co.  v.  Simpson,  1  Alaska,  583,  municipal  cor- 
poration, though  not  adverse  claimant  in  land  office  proceedings,  may 
intervene  in  suit  against  adverse  claimant  by  applicant  for  patent  and 
protect  its  property  within  location  by  showing  neither  complied  with 
law. 

Syl.  3   (X,  813).     Assessment  work  by  co-owners  of  several  claims. 

Distinguished  in  Hain  v.  Mattes,  34  Colo.  352,  353,  83  Pac.  129,  130, 
work  done  in  tunnel  may  be  applied  as  work  on  mining  location  though 
person  working  does  not  own  continuous  strip   from  portal  to  location. 

Ill  U.  S.  356,  357,  28  L.  454,  FILERS  v.  BOATMAN. 

Syl.  1   (X,  814).     Sufficiency  of  notice  of  location  question  of  fact. 

Approved  in  Price  v.  Mcintosh,  1  Alaska,  301,  where  junior  loc:itor 
attempts  to  relocate  excess  in  area  in  placer  claim,  he  must  locate  some 
portion  of  excess  not  actually  occupied  by  senior  locator;  Redden  v. 
Harlan,  2  Alaska,  407,  and  Bulette  v.  Dodge,  2  Alaska,  431,  both 
arguendo. 

Syl.  2  (X,  814).     Conclusiveness  of  territorial  court's  findings. 

Distinguished  in  De  La  Rama  v.  De  La  Rama,  201  U.  S.  309,  50  L. 
7G7,  26  Sup.  Ct.  485,  reviewing  sufficiency  of  evidence  in  divorce  on 
appeal  from  Philippine  supreme  court  taken  under  Act  of  July  1,  1902, 
§  10. 

Ill  U.  S.  358-361,  28  L.  455,  HOUSTON  ETC.  RY.  v.  SHIRLEY. 

Syl.  3   (X,  815).     Removal  where  trustees  substituted. 

Approved  in  Nash  v.  McNamara,  145  Fed.  543,  parties  brought  in 
by  cross-complaint  alleging  they  claim  interest,  who  file  complaint  alleg- 
ing- succession  to  rights  of  plaintiff,  cannot  remove  as  defendants. 

Ill  U.  S.  3G3-373,  28  L.  457,  BLAIR  v.  CUMING  COUNTY. 

Syl.  2    (X,  815).     County  bonds  signed  by  chairman  and  clerk. 

Approved  in  Potter  v.  Lainhart,  44  Fla.  659,  33  So.  255,  upholding 
county  bonds  signed  by  chairman  of  couuty  commissioners,  attested  by 
clerk  and  countersigned  by  county  treasurer,  and  reciting  tiicy  are 
county    bonds;    dissenting    opinion    in    Wright    v.    East    Riverside    Irr. 


Ill  U.  S.  379-389  Notes  on  U.  S.  Keports.  120G 

Dist.,  138  Fed.  326,  majority  holding  where  coupons  on  bonds  issued 
under  Cal.  St.  1887,  p.  35,  §  35,  -were  signed  by  predecessor  of  secretary 
in  office  when  delivered,  they  were  void. 

Ill  U.  S.  379-389,  28  L.  462,  MANSFIELD  ETC.  EY.  v.  SWAX. 

Syl.  1   (X,  816).     Removal — Citizen  of  territory. 

Approved  in  Kansas  City  etc.  Ey.  Co.  v.  McGinty,  76  Ark.  362,  88  S. 
W.  1003,  action  for  death  by  wrongful  act  of  citizen  of  Indian  Terri- 
tory against  citizen  of  state  is  not  removable. 

Syl.  3  (X,  816).    Diverse  citizenship  must  appear  in  record. 

Approved  in  Southern  Ey.  Co.  v.  Thomason,  146  Fed.  974,  contro- 
versy partly  between  citizens  of  same  state  is  not  removable  for  local 
prejudice;  International  etc.  R.  Co.  v.  Hoyle,  149  Fed.  182,  where  action 
against  two  joint  defendants  is  removed,  it  may  be  remanded  at  instance 
of  any  party  where  it  is  not  removable  for  want  of  seimrable  contro- 
versy; Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  121,  66  C.  C.  A.  179, 
assigiiee  of  oral  contract  cannot  sue  in  federal  court  to  recover  money 
due  thereon  where  assignor  could  not  sue  therein. 

Syl.  4   (X,  817).     Eeversal  sua  sponte — Citizenship. 

Approved  in  Minnesota  v.  Northern  Securities  Co.,  194  IT.  S.  63,  48  L. 
877,  24  Sup.  Ct.  598,  Perez  v.  Fermandez,  202  U.  S.  100,  50  L.  949, 
26  Sup.  Ct.  561,  and  Kansas  City  etc.  Ey.  Co.  v.  Prunty,  133  Fed.  15, 
66  C.  C.  A.  163,  all  following  rule;  Kentucky  v.  Powers,  201  U.  S.  35, 
50  L.  649,  26  Sup.  Ct.  387,  nonrecognition  by  state  courts  of  pardon 
pleaded  in  bar  does  not  make  removable  cause  under  Rev.  St.,  §  641; 
Thomas  v.  Ohio  State  University  Trustees,  195  U.  S.  211,  49  L.  164,  25 
Sup.  Ct.  24,  denying  sufficiency  of  allegation  of  citizenship  of  Ouio 
university  trustees  where  statute  creating  board  did  not  confer  corporate 
powers  on  it;  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  117,  66  C.  C.  A. 
179,  objection  to  circuit  court's  jurisdiction  because  action  based  on 
assigned  contract  and  it  does  not  appear  assignor  could  sue  therein,  need 
not  appear  in  assignment  of  errors;  Myers  v.  Berry,  3  Okl.  617,  41 
Pac.  582,  denying  equity  jurisdiction  to  auuul  final  action  of  towusite 
trustees. 

Syl.  6   (X,  818).     Costs  for  wrongful  removal. 

Approved  in  Kansas  City  etc.  Ey.  Co.  v.  Prunty,  133  Fed.  16,  66  C. 
C.  A.  163,  and  Knight  v.  Lutcher  etc.  Lumber  Co.,  136  Fed,  406,  09 
C.  C.  A.  248,  both  following  rule. 

Syl.    7    (X,   818).     Costs   on   dismissal   of   appeal. 

Approved  in  Frye  v.  Miley,  54  W.  Va.  334,  46  S.  E.  139,  party  suing 
in  equity  court  having  no  jurisdiction  and  obtaining  decree  which  is  re- 
versed is  not  entitled  to  costs  in  appellate  court. 

Syl.  9   (X,  819).     Eemoval — Reversal  and  remand  with  costs. 
Approved  in  Alexander  v.  Crollott,  199  U.  S.  581,  50  L.  317.  2f^  Sup. 
Ct.  161,  void  judgment  may  be  reversed  on  appeal;  Ebyne  v.  MancheoUT 


1207  Notes  on  U.  S.  Reports.  Ill  U.  S.  389-412 

Assur.  Co.,  14  Okl.  558,  78  Pac.  559,  party  appealing  to  district  court 
from  probate   court  may  question   former  court's  jurisdiction, 

111  U.  S.  389-395,  28  L.  468,  HOENBUCKLE  v.  STAFFORD. 

Syl.  2   (X,  819).     Judgments — Parol  to  show  issues. 

Approved  in  Security  Trust  Co.  v.  Robb,  142  Fed.  84,  applying  rule 
in  action  against  indemnitor  of  surety  and   forthcoming  replevin   bond, 

111  U.   S.  395-400,   28   L.   46G,  GAINES  v,   MILLER. 

Syl.  2  (X,  820),  Action — Money  received  for  other's  benefit. 
Approved  in  Cosmopolitan  Life  Ins.  Co.  v.  Koegel,  104  Va.  632,  52 
S.  E.  171,  beneficiary  in  benefit  certificate  after  death  of  member  may 
sue  one  who  agreed  with  society  to  pay  its  debts  in  consideration  of 
transfer  of  its  assets;  Langhorne  v.  McGhee,  103  Va.  288,  49  S.  E.  46, 
where  partner  executed  note  in  satisfaction  of  liability  on  firm  debt 
and  reduced  it  from  individual  estate,  trustee  for  payment  of  firm's 
debts,  who  paid  more  than  amount  due  on  notes,  could  recover  overplus 
from   payee. 

Distinguished  in  Southern  Pac.  R.  Co.  v.  United  States,  133  Fed. 
658,  66  C.  C.  A.  581,  upholding  equity  jurisdiction  over  suit  by  United 
States  against  railroad,  its  mortgagees,  and  others  to  determine  rights 
to  lands  erroneously  patented  to  company  under  grant,  rights  of  bona 
fide  purchasers  and  accounting  from  company  for  lands  sold, 

Syl.  3  (X,  820).  Equity^ — Adequacy  of  law,  remedy. 
Approved  in  Barchcnt  v.  Snyder,  128  Wis.  425,  107  N.  W.  329,  deny- 
ing equity  jurisdiction  where  plaintiff  deeded  land  as  security  under 
agreement  for  reconveyance  on  payment  of  loan  and  defendant  wrong- 
fully sold  and  prayed  that  contract  be  declared  mortgage,  and  for  ac- 
counting  for   difference   between   debt  and  price. 

Syl.  5   (X,  820).     Judgment  presumed  paid  from  limitations. 

Approved  in  Chiler  v.  School  District,  103  Mo.  Ai)p.  246,  77  S.  W.  S3, 
following  rule;  Cobb  v.  Houston,  117  Mo.  App.  6.15,  94  S.  W.  802, 
absence  of  judgment  debtor  from  state  does  not  affect  running  of  time 
in   favor  of  presumjition   of   payment. 

(X,  820.)      Miscellaneous.  Cited  in  State  v.  Bradley,  193  Mo.  44,  91 

S.   W.  4SG,  where  attorneys  A,   B,  &   C   prosecuted  action   for   which   B 

collected   fee,   in   suit   by   A  against   B,   for   his   share,   C   not   necessary 
party, 

111  U.  S.  400-412,  28  L.  470,  CLAIBORXE  COUNTY  v.  BROOKS. 

Syl.   1    (X,  820).     Issuance  of  commercial  paper  by  counties. 

Approved  in  Oklahoma  etc.  College  v.  Willis,  6  Okl.  599,  52  Pac.  923, 
40  L.  R.  A.  677,  agricultural  and  mechanical  college  cannot  be  sucrl; 
Luther  v.  Wheeler,  73  S.  C.  91,  93,  52  S.  E.  876,  877,  where  officers  of 
town  of  less  than  one  thousand  inlialiitaiifs  under  resolution  give  noli' 
for  money  for  public  building,  holder  may  recover  amount  used  by  lovvu 
though  note  void. 


Ill  U.  S.  412-486  Notes  on  U.  S.  Ecports.  1208 

111  U.  S.  412-440,  28  L.  316,  SLIDELL  v.  GEANDJEAN. 

Syl.  4   (X,  823).     Treaty— Protection  of  titles. 

Cited  in  Corkran  Oil  etc.  Co.  v.  Arnaudet,  111  La.  577,  35  So.  753, 
arguendo. 

Syl.  6  (X,  823).     State  grants  construed  against  grantee. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  473,  50  L.  831,  26  Sup. 
Ct.  427,  construing  Chicago  street  railway  franchise  acts;  Knoxville 
Water  Co.  v.  Knoxville,  200  U.  S.  34,  50  L.  359,  26  Sup.  Ct.  224, 
municipal  grant  of  waterworks  franchise  does  not  impliedly  devest  city 
of   power   to   construct   own  waterworks. 

Syl.  7   (X,  824).     Confirmation  of  land  grant. 

Approved  in  Catron  v.  Laughlin,  11  N.  M.  632,  72  Pac.  32,  following 
rule. 

Ill  U.  S.  449-472,  28  L.  482,  AMES  v.  KANSAS. 

Syl.  4   (X,  826).     Investment  of  inferior  courts  with  jurisdiction. 

Approved  in  Higgins  v.  Tax  Assessors  of  Pawtucket,  27  R.  I.  408,  63 
Atl.  37,  Practice  Act  1905,  p.  4,  §  12,  giving  superior  court  jurisdiction 
of  extraordinary  writs,  does  not  violate  Const.  Amend.,  art.  12,  ci^'^^'^S 
supreme   court   power   to   issue   prerogative   writs. 

Syl.  5    (X,  826).     Eemoval  of  quo  warranto  by  state. 

Approved  in  Southern  Ey.  Co.  v.  State,  165  Ind.  617,  75  N.  E.  273, 
action  in  name  of  state  by  prosecuting  attorney  against  railroad  for 
recovery  of  statutory  penalties  is  not  removable. 

Ill  U.  S.  472-477,  28  L.  491,  ALLEY  v.  NOTT. 

Syl.  1   (X,  826).     Eemoval — Demurrer  as  trial. 

Approved  in  Park  etc.  Co.  v.  Bruen,  139  Fed.  699,  failure  to  expressly 
state  that  dismissal  was  on  merits  does  not  permit  new  suit  for  same 
cause  of  action,  without  examination  as  to  whether  dismissal  was  on 
merits;  Atlanta  etc.  Ry.  Co.  v.  Southern  Ey.  Co.,  131  Fed.  661,  66  C. 
C.  A.  601,  hearing  of  motion  to  dissolve  restraining  order  on  ex  parte 
affidavits,  in  chambers,  does  not  preclude  removal;  State  v.  District  Court, 
32  Mont.  42,  79  Pac.  548,  submission  of  motion  for  judgment  on  plead- 
ings is  trial  within  Code  Civ.  Proc,  §  1004,  subd.  1,  providing  for 
dismissal  at  any  time  before  trial. 

(X,  826.)  Miscellaneous.  Cited  in  Morris  v.  Dunbar,  149  Fed.  407,  as 
to    practice    when    demurrer   sustained. 

Ill  U.  S.  479-486,  28  L.  478,  ANDERSON  v.  PHILADELPHIA  WAEE- 
HOUSE  CO. 

Syl.  3   (X,  828).     Pledgee's  liability  as  stockholder. 

Approved  in  Hulitt  v.  Ohio  Val.  Nat.  Bank,  137  Fed.  464,  69  C.  C.  A. 
609,  where  defendant  holding  national  bank  stock  as  pledgee  caused 
stock  to  be  transferred  on  books  to  employee  after  death  of  pledgor,  and 


1209  Notes  on  U.  S.  Ecports.  Ill  U.  S.  486-522 

collected  from  estate  balance  of  debt  after  deducting  amount  indutotsj 
on  note  secured,  defendant  liable  for  assessment. 

Ill  U.  S.  486,  487,  28  L.  481,  TEXAS  ETC.  E.  E.  CO.  v.  KIEK. 

Syl.  1  (X,  829).     Amendment  of  writ  of  error  wrongly  attested. 

Apin-oved  in  Long  v.  Farmers'  State  Bank,  147  Fed.  362,  refusing  to 
dismiss  writ  of  error  attested  by  judge  and  clerk  of  district  court. 

Ill  U.  S.  488-490,  28  L.  492,  TEXAS  ETC.  EY.  v.  MUEPHY. 

Syl.   1    (X,   829).     Rehearing  as  stay. 

Approved  in  Klein  v.  Southern  Pac.  Co.,  140  Fed.  214,  mere  filing  ot 
motion  for  new  trial  in  due  time  without  order  of  court  does  not  carry 
matter   over    term. 

Ill  U.  S.  499-505,  28  L.  496,  UNITED  STATES  v.  BEYANT. 

Syl.  2   (X,  830).     Costs  bond  by  United  States. 

Distinguished  in  United  States  v.  Choctaw  etc.  E.  E.  Co.,  3  Okl.  454, 
41  Pac.  746,  Eev.  St.  U.  S.,  §  1001,  relating  to  bond  for  costs  by 
United  States,  does  not  apply  to  case  brought  from  territorial  district 
court  to  supreme  court  of  teritory. 

Ill  U.  S.  505-522,  28  L.  498,  PACIFIC  E.  E.  v.  MISSOURI  PAC.  E.  E. 

Syl.  2   (X,  830).     Demurrer  to  bill,  good  in  part. 

Approved  in  Hume  v.  Laurel  Hill  Cemetery,  142  Fed.  563,  holding 
void  ordinance  prohibiting  burials  within  entire  county,  embracing  large 
tracts  of  unoccupied  land. 

Syl.    4    (X,    S31).     Laches — Setting   aside    fraudulent    foreclosure. 

Approved  in  Nelson  v.  Meehan,  2  Alaska,  490,  judgment  obtained  by 
fraud  and  perjury  may  be  set  aside  after  term  and  after  affirmance  on 
appeal. 

Syl.  5,  (X,  831).     Federal  ancillary  jurisdiction — Citizenship. 

Approved  in  O'Connor  t.  O'Connor,  146  Fed.  997,  in  equity  suit  to 
set  aside  dismissal  of  law  action,  service  may  be  made  on  dcfentlants 
though  they  reside  out  of  district;  Hatcher  v.  Ilendrie  etc.  Supply  Co., 
133  Fed.  270,  68  C.  C.  A.  19,  applying  rule  to  equity  suit  to  enforce 
attachment  lien  obtained  in  former  action,  and  to  subject  attached 
property  to  satisfaction  of  judgment;  Manning  v.  Berdan,  132  Fed.  383, 
384,  385,  bill  in  federal  equity  court  to  enjoin  law  action  by  non- 
resident defendant  in  latter  against  plaintiff  and  nonresident  corpora- 
tion which  is  not  party  is  not  ancilhuy  so  as  to  give  jurisdiction  over 
corporation  by  service  on  its  attorneys,  or  on  corporation  outside  dis- 
trict; Hampton  Eoads  Ey.  etc.  Co.  v.  Newport  News  etc.  Elec.  Co.,  I'M 
Fed.  536,  federal  court  appointing  receiver  to  operate  railroad  for 
creditors  has  ancillary  jurisdiction  of  petition  by  receiver  to  rostiaia 
maintenance  of  gates  across  highway,  thereby  destroying  railroad's  prop- 
erty,  irrespective   of   citizenship. 


Ill  U.  S.  542-584  Notes  on  U.  S.  Eeporta.  1210 

111  U.  S.  542-548,  28  L.  512,  SPINDLE  v.  SHREVE. 

Syl.    1    (X,    834).     Assignment   for   creditors. 

Approved  in  In  re  Jersey  Island  Packing  Co.,  138  Fed.  627,  2  L.  R. 
A.  (N,  S.)  560,  where  corporation  executed  trust  deeds  to  secure  debts 
not  due,  interest  remaining  in  grantor  passed  to  bankruptcy  trustee. 

Ill  U.  S.  556-565,  28  L.  517,  CARROLL  CO.  v.   SMITH. 

Syl.   1    (X,  835).     Recitals  in  railroad  aid  bonds. 

Approved  in  Green  Co.  v.  Shortell,  116  Ky.  126,  75  S.  W.  254,  where 
county  aid  bonds  contained  no  recitals  as  to  performance  of  preliminaries 
requisite  to  issuance,  county  not  estopped  to  plead  noncompliance  with 
conditions. 

Syl.  8   (X,  835).     Following  state  decisions. 

Approved  in  Great  Southern  etc.  Hotel  Co.  v.  Jones,  193  XT.  S.  544, 
48  L.  785,  24  Sup.  Ct.  576,  upholding  Ohio  statutes  relating  to  me- 
chanics' liens;  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  where  at  time 
county  bonds  issued  there  was  no  state  construction  of  constitutional 
provision  violated  by  statute  under  which  bonds  issued,  holder  of 
coupons  entitled  to  federal  court's  independent  construction,  irrespective 
of  subsequent  state  decision;  Davis  v.  Commonwealth  Land  etc.  Co.,  141 
Fed.  717,  refusing  to  follow  state  decision  rendered  pending  several  suits 
involving  boundaries  where  some  of  them  had  been  decided  by  federal 
court;  dissenting  opinion  in  United  States  Savings  &  L.  Co.  v.  Convent 
of  St.  Rose,  133  Fed.  360,  majority  holding  where  borrowing  stock- 
holder for  eight  years  made  monthly  payments  in  accordance  with  con- 
tract, court  will  not  make  different  rule  for  application  of  payments 
because  stockholder  believed  different  application  should   be   made. 

Syl.  4  (X,  836).     Elections— Majority  of  voters. 

Approved  in  Cronly  v.  Tucson,  6  Ariz.  239,  56  Pac.  877,  applying  rule 
under  Act  Cong.  March  4,  1898,  authorizing  municipalities  to  issue 
bonds ;  dissenting  opinion  in  Rice  v.  Palmer,  78  Ark.  450,  453,  96  S.  W. 
401,  403,  majority  holding  under  Kirby's  Dig.,  §  718,  majority  of 
electors  voting  at  election  and  not  on  proj^osition  required  to  pass  con- 
stitutional amendment. 

Distinguished  in  Knight  v.  Shelton,  134  Fed.  427,  431,  433,  under 
Arkansas  constitution,  approval  of  amendment  by  majority  of  electors 
voting  at  election  is  necessary  and  not  on  proposition. 

Ill   U.   S.   566-584,   28   L.   520,   COLT   v.   COLT. 

Syl.   1    (X,   837).     Collateral   attack   on   demurrer. 

Approved  in  Vicksburg  etc.  R.  R.  Co.  v.  Tibbs,  112  La.  58,  36  So. 
225,  where  by  consent  appeal  taken  by  administrator  was  dismissed,  fact 
that  administrator  was  discharged  before  dismissal  is  no  ground  for 
collateral  attack  on   dismissal. 


1211  Notes  on  U.  S.  Eeports.  Ill  U.  S.  584-612 

111  U.  S.  584-597,  28  L.  527,  MOBILE  ETC.  R.  R.  CO.  v.  JUREY. 

Syl.  1  (X,  837).     Parol  to  vary  bill  of  lading. 

Approved  in  Lillard  v.  Kentucky  Distilleries  etc.  Co.,  134  Fed.  183, 
67  C.  C.  A.  74,  as  to  admissibility  of  evidence  of  custom  to  explain 
written  contract. 

Syl.  2   (X,  837).     Parol  transportation  contract. 

Approved  in  Missouri  etc.  Ry.  Co.  v.  Patrick,  144  Fed.  633,  where  on 
delivery  of  goods  to  railroad  plaintiff  obtained  unsigned  bill  of  lading, 
paper  was  evidence  of  contract  actually  made  in  absence  of  contrary 
evidence. 

Syl.  5    (X,   838).     Subrogation  of  insurer  paying  loss. 

Approved  in  H.  C.  Judd  &  Root  v.  New  York  etc.  Co.,  130  Fed.  992,  in 
action  by  insurer  who  has  paid  loss  against  third  party,  its  own  declara- 
tions are  inadmissible  against  right  of  insured ;  Cunningham  v.  Seaboard 
Air  Line  Ry.  Co.,  139  N.  C.  436,  51  S.  E.  1031,  2  L.  R.  A.  (N.  S.)  921, 
where  insurer  in  fire  policy  pays  loss,  insurer  can  and  insured  cannot  sue 
one   responsible    for   loss. 

Distinguished  in  The  Livingstone,  130  Fed.  750,  65  C.  C.  A.  610, 
neither  abandonment  to  insurer  of  vessel  sunk  in  collision  nor  bill  of  sale 
conveying  same   vests  right  of  action  against  vessel  in  fault. 

Syl.  6   (X,  838).     Measure  of  damages — Goods  lost  in  transit. 

Approved  in  Chesapeake  etc.  Ry.  Co.  v.  Stock,  104  Va.  104,  51  S.  E. 
163,  following  rule. 

Syl.  7   (X,  839).     General  exception — Charge  partly  good. 

Approved  in  Ball  v.  United  States,  147  Fed.  43,  ajiplyiug  rule  in  crim- 
inal case. 

Ill  U.  S.  597-604,  28  L.  534,  GIBES  ETC.  MFG.  CO.  v.  BRUCKER. 

Syl.  2   (X,  839).     Contract  made  on  Sunday  valid. 

Approved  in  Rodman  v.  Robinson,  134  N.  C.  513,  101  Am.  St.  Rep.  877, 
47  S.  E.  22,  65  L.  R.  A.  682,  und^r  Code,  §  3782,  contract  entered  into 
on  Sunday  for  conveyance  of  land  is  not  void. 

Ill  U.  S.  604-608,  28  L.  532,  PHILLIPS  v.  DETROIT. 

Syl.  1   (X,  839).     Patentable  novelty — Judicial  notice. 

Approved  in  Baker  v.  Buncombe  Mfg.  Co.,  146  Fed.  746,  holding 
void  Baker  patents  Nos.  726,812  and  736,346,  for  process  of  treating 
coffee. 

Ill  U.  S.  609-612,  28  L.  540,  CARVER  v.  UNITED  STATES. 

Syl.   1    (X,  840).     Recovery  back  of  fine  paid. 

Approved  in  Houtz  v.  Board  of  Comiiirs.,  IJ  VVyo.  182,  70  Pac.  847, 
where  one  brought  before  justice  of  peace  was  fined,  and  paid  fine,  pay- 
ment not  under  duress,  though  justice  had  no  jurisdiction  save  as  exam- 
ining magistrate. 


Ill  U.  S.  612-G84  Notes  on  U.  S.  Eeports.  1212 

111  U.  S.  612-624,  28  L.  536,  CONNECTICUT  MUT.  LIFE  INS.  CO.  ▼. 
LATHROP. 

Syl.  2   (X,  841).     Opinions  of  nonexpert  ■witnesses. 

Approved  in  Watts  v.  State,  99  Md.  37,  57  Atl.  545,  following  rule. 

Syl.  3    (X,  841).     Insanity — Opinion  of  nonexperts. 

Approved  in  Grimshaw  v.  Kent,  67  Kan.  466,  73  Pac.  93,  applying 
rule  in  suit  where  mental  capacity  of  one  to  enter  into  contract  in  issue; 
State  V.  Lyons,  113  La.  979,  37  So.  897,  in  murder  prosecution  where 
defense  is  insanity,  opinions  of  nonexpert  to- prove  sanity  are  inad- 
missible in  rebuttal;  Pattee  v.  Whitcomb,  72  N.  H.  251,  56  Atl.  461,  on 
issue  as  to  whether  testator  was  unduly  influenced  by  wife  to  execute 
will,  evidence  of  his  susceptibility  to  her  influence  was  competent. 

Ill  U.  S.  624-640,  28  L.  542,  ROBB  v.  CONNOLLY. 

Syl.  1  (X,  842).     Extradition  agent  as  officer. 

Cited  in  Ex  parte  Riggins,  134  Fed.  412,  arguendo.  See  112  Am. 
St.  Rep.  142,  note, 

Syl.  2   (X,  842).     Courts  must  protect  federal  rights. 
Approved  in  New  Jersey  v.  Corrigan,  139  Fed.  765,  remanding  indict- 
ment found  by  grand  jury  sworn  prior  to  offense. 

Syl.  4  (X,  843).     Jurisdiction  to  determine  legality  of  restraint. 
Approved  in  In  re  Kopel,  148  Fed.  506,  federal  court  may  entertain 
petition  for  habeas  corpus  though  state  court  has  denied  writ. 

Ill  U.  S.  640-675,  28  L.  547,  JOHNSON  v.  WATERS. 

Syl.  3  (X,  842).     Equitable  relief  against  fraudulent  judgment. 

Approved  in  McDaniel  v.  Traylor,  196  U.  S.  420,  49  L.  536,  25  Sup.  Ct. 
369,  upholding  circuit  court 's  jurisdiction  of  suit  to  set  aside  probate 
court 's  judgment  against  intestate 's  estate  which  is  lien  on  property ; 
Froebrich  v.  Lane,  45  Or.  21,  106  Am.  St.  Rep.  634,  76  Pac.  353,  equity 
court  may  set  aside  county  court's  decree  settling  administrator's  final 
account,  procured  by  fraud ;  Brock  v.  Kirkpatrick,  72  S.  C.  501,  52  S.  E. 
596,  judgment  on  note  against  administrator  acknowledged  on  final 
account  and  enrolled  in  probate  court,  and  execution  issued  thereon, 
is  prima  facie  evidence  in  suit  by  creditor  to  subject  lands  of  devisees  to 
payment  without  production  of  note.     See  106  Am.  St.  Rep.  642,  note. 

Ill  U.  S.  676-684,  28  L.  565,  HENNEQUIN  v.  CLEWS. 
Syl.  1   (X,  845).     Bankruptcy — Debts  created  by  fraud. 
See  98  Am.  St.  Rep.  597,  note. 

Distinguished  in  Tinker  v.  Colwell,  193  U.  S.  488,  48  L.  761,  24  Sup. 
Ct.  505,  judgment  for  damages  for  criminal  conversation  is  exceptteJ 
from  operation  of  discharge  by  Bankr.  Act,  §  17,  subd.  2, 


1213  Notes  on  U.  S.  Reports.  Ill  U.  S.  684-715 

Syl.  3   (X,  846).     Bankruptcy— Fiduciary  debts. 

Approved  in  Crawford  v.  Burke,  195  U.  S.  189,  49  L.  152,  25  Sup. 
Ct.  9,  claim  arising  out  of  conversion  by  brokers  of  shares  purchased 
and  held  by  them  on  customer's  account,  is  probable  under  Bankr.  Act, 
§  63a ;  Barrett  v.  Prince,  143  Fed.  304,  releasing  on  habeas  corpus  bank- 
rupt held  under  capias  in  action  to  recover  value  of  property  embezzled 
where  embezzlement  not  shown  to  have  been  committed  while  acting 
in  fiduciary  capacity;  In  re  Harper,  133  Fed.  974,  under  Bankr.  Act, 
1898,  §  17,  cl.  4,  officers  of  private  corporations  are  not  discharged  from 
debts  created  by  fraud;  Reeves  v.  McCIracken,  69  N.  J.  Eq.  206,  60  Atl. 
333,  debt  arising  out  of  implied  understanding  had  on  conveyance  by 
deed  absolute,  no  trust  being  expressly  declared,  not  excepted  from 
operation  of  bankruptcy  discharge;  Crosby  v.  Miller,  25  R.  I.  173,  175, 
55  Atl.  328,  329,  discharge  in  bankruptcy  cancels  judgment  on  debt  in- 
curred by  broker  by  failure  to  return  to  customer  securities  deposited 
with  him  as  collateral  against   loss. 

Ill  U.  S.  684-700,  28  L.  559,  WILLIAMS  v.  MORGAN. 

Syl.  1   (X,  846).     Receivers — Order  fixing  compensation  appealable. 

Approved  in  Ruggles  v.  Patton.  143  Fed.  314,  315,  order  authorizing 
receiver  to  pay  himself  from  funds  in  his  hands  specific  sum  for  past 
services  is  appealable;  Dodge  v.  Norlin,  133  Fed.  365,  66  C.  C.  A.  425. 
judgment  of  bankruptcy  court  that  chattel  mortgage  on  bankrupt's 
property  is  voidable  by  trustee  is  final  appealable  decree. 

Distinguished  in  Heinze  v.  Butte  etc.  Min.  Co.,  129  Fed.  338,  64  C.  C.  A. 
15,  neither  order  of  circuit  court  approving  receiver 's  monthly  reports, 
nor  one  directing  payment  of  his  expenses,  made  prior  to  final  account, 
is   appealable. 

Ill  U.  S.  701-715,  28  L.  569,  HAGAR  v.  RECLAMATION  DIST. 

Syl.  2  (X,  848).     Reclamation — Lands  benefited. 

Approved  in  Van  Cleve  v.  Passaic  Valley  Sewerage  Commrs.,  71  N.  J. 
L.  227,  58  Atl.  588,  upholding  P.  L.  1903,  p.  777,  to  relieve  from  pollu- 
tion streams  within  Passaic  Valley  sewerage  district. 

Syl.   3    (X,   848).     Liens — Expense   of   reclaiming   swamps. 
See   102  Am.  St.  Rep.  832,  note. 

Syl.  4   (X,  848).     Burden  of  cost  of  local  improvement. 

Approved  in  Voris  v.  Pittsburg  Plate  Glass  Co.,  163  Ind.  608,  70 
X.  E.  252,  Burns'  Rev.  St.  1894,  §  4290,  is  not  void  as  not  giving  owner 
of  back-lying  land  within  one  hundred  and  fifty  feet  of  street  improve- 
ment chance  to  be  heard  on  question  of  special  benefits ;  Sissou  v.  Board 
of  Supervisors,  128  Iowa,  458,  104  N.  W.  461,  upholding  Acts  30th 
Gen.  Assem.,  p.  61,  c.  68,  for  establishment  of  drainage  districts;  Van 
Cleve  V.  Passaic  Valley  Sewerage  Commrs.,  70  N.  J.  L.  214,  215,  58 
Atl.  583,  upholding  P.  L.  1903,  p.  777,  to  relieve  from  pollution  streams 
within  Passaic  Valley  sewerage  district.     See  102  Am.  St.  Rep.  814,  note. 


Ill  U.  S.  701-715  Notes  on  U.  S.  Reports.  1214 

Syl.  7   (X,  849).     Due  process  of  law. 

Approved  in  In  re  Finley,  1  Cal.  App.  201,  81  Pac.  1046,  upholding 
Penal  Code,  §  246,  providing  death  penalty  for  assaults  with  deadly 
weapon  by  life  convicts;  Eoss  v.  Board  of  Supervisors,  128  Iowa,  441, 
104  N.  W,  511,  upholding  Code,  tit.  10,  c.  2,  relative  to  proceedings 
for  establishment  of  drainage  ditches  though  scope  of  appeal  limited; 
Hoertz  v.  Jefferson  etc.Draining  Co.,  119  Ky.  833,  84  S.  W.  1143,  up- 
holding levy  of  drainage  assessment  after  notice  by  publication ;  St. 
Louis  V.  Gait,  179  Mo.  17,  77  S.  W.  879,  63  L.  E.  A.  778,  upholding 
conviction  of  anti-weed  ordinance  in  ordinary  courts  with  right  of 
appeal;  dissenting  opinion  in  United  States  v.  Ju  Toy,  198  U.  S.  273, 
49  L.  1048,  25  Sup.  Ct.  644,  majority  upholding  28  Stat.  372,  390,  c.  301, 
making  departmental  decision  on  right  of  Chinese  to  enter  conclusive  on 
federal  courts  in  habeas  corpus;  Gray  v.  Stiles,  6  Okl.  546,  49  Pac.  1104, 
arguendo. 

Syl.  8  (X,  850).     State  taxing  power,  how  exercised. 

Approved  in  Hodge  v.  Muscatine  County,  121  Iowa,  489,  104  Am.  St. 
Eep.  304,  96  N.  W.  971,  67  L.  E.  A.  624,  upholding  Code,  §  5007,  taxing 
vendor  of  cigarettes  and  buildings  used  in  their  manufacture  or  sale. 

Syl.  9  (X,  850).     Notice  of  tax  levy,  when  unnecessary. 

Approved  in  Hodge  v.  Muscatine  Co.,  196  U.  S.  280,  49  L.  481,  25 
Sup.  Ct.  237,  under  Iowa  Code,  §  5007,  taxing  business  of  selling  cig- 
arettes, notice  of  assessment  or  levy  of  tax  imposed  thereby,  not  neces- 
sary; Michigan  E.  E.  Tax  Cases,  138  Fed.  237,  upholding  Pub.  Acts 
1901,  p.  236,  Act  No.  173,  relating  to  assessment  and  taxation  of  rail- 
road property;  People  v.  Eeardon,  184  N.  Y.  447,  112  Am.  St.  Rep. 
637,  77  N.  E.  975,  upholding  Laws  1905,  pp.  474,  477,  §§  315,  324,  im- 
posing tax  on  stock  transfers.     See  104  Am.  St.  Eep.  314,  note. 

Syl.  10  (X,  850).  Due  process — Notice  of  assessment. 
Approved  in  Taylor  v.  Crawford,  72  Ohio  St.  57,  74  N.  E.  1068,  69  L. 
E.  A.  805,  upholding  95  Ohio  Laws,  p.  155,  §  3,  providing  for  cleaning 
and  repairing  public  drains  at  expense  of  property  owners;  Nathan  v. 
Spokane  Co.,  35  Wash.  34,  35,  76  Pac.  523,  65  L.  E.  A.  336,  upholding 
Bal.  Code,  §  1740a,  relating  to  assessment  of  taxes  on  goods  brought  into 
county  after  March  1st,  in  any  year  to  be  sold  without  intention  of 
engaging  in  permanent  trade. 

Syl.  11  (X,  851).     Due  process— Contest  of  tax. 

Approved  in  Georgia  etc.  E.  E.  Co.  v.  Wright,  124  Ga.  618,  53  S.  E. 
261,  upholding  Georgia  scheme  of  taxation;  Carney  v.  People,  210  111. 
440,  71  N.  E.  367,  where,  after  personalty  belonging  to  C,  was  assessed 
to  him  individually,  board  assessed  other  property  to  firm  of  C.  &  Co., 
under  which  name  he  did  business,  latter  assessment  not  raising  of  assess- 
ment requiring  notice  under  Rev.  St.,  1899,  p.  1444,  c.  120 ;  McMillanet  v. 
Board  of  Co.  Commrs.,  93  Minn.  21,  100  N.  W.  385,  upholding  Laws  1901, 
p.    413,   c.    258,   as   amended   in    19U2,    relating    to    ditch    coustructiou; 


1215  Notes  on  U.  S.  Eeports.  Ill  U.  S.  716-766 

Chicago  etc.  E.  Co.  v.  State,  128  Wis.  654,  108  N.  W.  585,  upholding 
Laws  1903,  p.  491,  c.  315,  relating  to  determination  of  average  rate 
of  taxation  on  general  property  in  assessing  railroads. 

(X,  848.)  Miscellaneous..  Cited  in  State  v.  Bryan,  50  Fla.  373,  39 
So.  955,  arguendo. 

Ill  U.  S.  716-722,  28  L.  574,  LOUISIANA  v.  POLICE  JURY. 

Syl.    1    (X,    852).     Obligation    of    contract    defined. 

Approved  in  Ex  parte  Folsom,  131  Fed.  503,  holding  void  South 
Carolina  constitutional  amendment  dissolving  corporate  existence  of  cer- 
tain townships  which  had  issued  railroad  aid  bonds  under  existing 
statute. 

Syl.  2  (X,  852).  Modification  of  taxing  power — Obligation  of  con- 
tracts. 

Approved  in  City  of  Ft.  Madison  v.  Ft.  Madison  "Water  Co.,  134  Fed. 
216,  67  C.  C.  A.  142,  Iowa  statute  providing  for  assessment  of  property 
at  quarter  of  cash  value  is  void  as  affecting  ability  of  city  to  pay 
hydrant  rentals  under  contract  made  when  statute  required  assessment  at 
truo  cash  value. 

Ill  U.  S.  722-733,  28  L.  577,  HITZ  v.  NATIONAL  METROPOLITAN 
BANK. 

Syl.  6   (X,  853).     Abolition  of  curtesy — Vested  rights. 

See  112  Am.  St.  Rep.  595,  note. 

Syl.  7   (X,  S53).     Curtesy  exempt  from  husband's  debts. 
See  112  Am.  St.  Rep.  595,  note. 

Ill  U.  S.  738-745,  28  L.  582,  FACTORS'  ETC.  INS.  CO.  v.  MURPHY. 

Syl.  2  (X,  854).     Merger — Mortgagee  acquiring  legal  title. 

Approved  in  McCreary  v.  Coggeshall,  74  S.  C.  50,  53  S.  E.  980,  where 
testator  devised  property  to  A  and  on  his  death  with  issue  to  such  issue 
and  if  without  issue  to  B,  on  B  acquiring  life  estate,  contingent  remain- 
der merged  in  B's  fee;  Glenn  v.  Eudd,  68  S.  C.  105,  102  Am.  St.  Rep.  659, 
46  S.  E.  556,  parol  agreement  or  conveyance  to  mortgagee  that  con- 
veyance shall  not  constitute   merger  and  satisfaction  of  mortgage. 

Ill  U.  S.  74G-766,  28  L.  585,  BUTCHERS'  UNION  CO.  v.  CRESCENT 
CITY  CO. 

Syl.  1  (X,  855).     Police  powers — Inspection  of  hides. 

Approved  in  Squire  v.  Tellier,  185  Mass.  21,  102  Am.  St.  Rop.  322,  69 
N.  E.  313,  upholding  act  of  19u3,  regulating  sales  of  stocks  of  mer- 
chandise in  bulk. 

Syl.  2   (X,  856).     Police  power  cannot  be  contracted  away. 
Approved  in  Manigault  v.  Hprings,  Hl9  U.  S.  481,  50  L.  279,  26  Sup. 
Ct.  127,  upholding  construction  of  dam  across  uavigablc  stream  to  drain 


Ill  U.  S.  746-766  Notes  on  U.  S.  Eeports,  1216 

lowlands;  New  Orleans  Gaslight  Co.  v.  Drainage  Commission,  197  U.  S. 
460,  49  L.  835,  25  Sup.  Ct.  471,  upholding  right  to  impose  on  gas  com- 
pany cost  of  change  in  location  of  pipes  in  streets,  because  of  con- 
struction of  city  drainage  system;  Fort  Smith  v.  Hunt,  72  Ark.  565,  102 
Am.  St.  Rep.  51,  82  S.  W.  166,  66  L.  R.  A.  238,  contract  between  city 
and  electric  company  prescribing  terms  on  which  latter  may  erect  poles 
in  streets  does  not  deprive  city  of  power  to  exact  pole  license;  Van 
Cleve  V.  Passaic  Valley  etc.  Conimrs.,  71  N.  J.  L.  224,  58  Atl.  587, 
acts  under  which  city  of  Paterson  authorized  to  empty  sewage  into 
Passaic  river  were  mere  license  revocable  whenever  public  health  require; 
White  V.  Holman,  44  Or.  186,  74  Pac.  935,  Laws  1903,  p.  238,  creating 
commission  for  licensing  sailors'  boarding-houses  and  giving  board  right 
to  reject  applications,  does  not  authorize  grant  of  license  to  one  man 
only;  Scranton  Gas  etc.  Co.  v.  Scranton  City,  214  Pa.  St.  590,  64  Atl. 
85,  gas  company  compelled  to  move  pipes  from  street  because  of  change 
of  grade  cannot  recover  damages  from  city;  Norfolk  etc.  R.  R.  Co.  v. 
Commonwealth,  103  Va.  293,  49  S.  E.  40,  under  Const.,  §  156b,  corpora- 
tion commission  may  regulate  charges  of  switching  company  for  placing 
cars  on  scales;  Petersburg  v.  Petersburg  Aqueduct  Co.,  102  Va.  659,  47 
S.  E.  849,  under  Code  1887,  §  1093,  city  may  prohibit  water  company 
from  digging  up  streets  in  extending  beyond  limits  of  town,  as  it 
existed  when  company  chartered;  Board  of  Education  v.  Phillips,  67 
Kan.   553,   73   Pac.   98,   arguendo. 

Distinguished  in  O  'Reilly  De  Camara  v.  Brooke,  135  Fed.  389,  holding 
Cuban  military  governor  liable  for  abolishing  exclusive  franchise  to 
slaughter  cattle  in  Havana  granted  by  Spanish  government. 

Syl.  3  (X,  857).     Inalienable  right  to  follow  occupation. 

Approved  in  Humes  v.  City  of  Little  Rock,  138  Fed.  932,  holding  void 
ordinance  imposing  tax  of  $50  weekly  on  business  of  selling  trading 
stamps;  Toney  v.  State,  141  Ala.  123,  109  Am.  St.  Rep.  23,  37  So.  334, 
67  L.  R.  A.  286,  holding  void  act  of  1901,  making  it  penal  to  break 
contract  to  labor  or  lease  land;  State  v.  Feingold,  77  Conn.  331,  59  Atl. 
213,  upholding  Pub.  Acts  1897,  p.  855,  c.  152,  prohibiting  sales  by 
itinerant  vendors  without  license,  and  defining  itinerant  vendors;  Seh- 
naier  v.  Navarre  Hotel  etc.  Co.,  182  N.  Y.  89,  108  Am.  St.  Rep.  790, 
70  L.  R.  A.  722,  74  N.  E.  562,  holding  void  Laws  1896,  p.  1052,  making 
it  unlawful  for  firm  to  engage  in  business  of  master  plumber  unless 
each  member  has  been  registered  after  examination;  Block  v.  Schwartz, 
27  Utah,  400,  76  Pac.  26,  holding  void  Act  1901,  p.  67,  regulating  sales 
of  stocks  of  merchandise  in  bulk;  State  v.  Smith,  42  Wash.  247,  84  Pac. 
854,  holding  void  Laws  1905,  p.  130,  providing  for  licensing  of  plumbers; 
dissenting  opinion  in  Ex  parte  Boyce,  27  Nev.  367,  75  Pac.  17,  65  L.  R. 
A.  47,  majority  upholding  act  of  1903,  providing  for  eight-hour  day  for 
workmen  in  mines,  smelters  and  ore-mills. 


1217  Notes  on  U.  S.  Eeports.  Ill  U.  S.  7GG-783 

111  U.  S.  766-768,  28  L.  592,  EX  PARTE  HITZ. 

Syl.  2  (X,  858).     Certiorari  by  defehdant  not  of  right, 
Approved  in  Whitney  v.  Dick,  202  U.  S.  139,  50  L.  966,  26  Sup.  Ct, 
584,  denying  certiorari  to  review  conviction  in  federal  court  where  only 
question  is  whether  punishment  of  offense  is  within  federal  jurisdiction. 

Ill  U.  S.  768-769,  28  L.  593,  SAN  FRANCISCO  v.  SCOTT, 

Syl.   1    (X,   858).     Federal  question — Validity  of  pueblo   grant. 
Approved  in  Devine  v.  Los  Angeles,  202  U.  S.  337,  50  L.  1055,  26  Sup. 
Ct.  652,  nature  and  extent  of  riparian  rights  and  rights  in  percolating 
waters  of  patentees  whose  titles   derived  from  Mexican  grants  to   pre- 
decessors are  not  federal  questions. 

Ill  U.  S.  776,  28  L.  599,  NICKLE  v.  STEWART. 

Syl.  1  (X,  859).     Bill  of  review — New  matter. 

Distinguished  in  Safe  Deposit  etc.  Co.  v.  Gittings,  102  Md.  463,  62 
Atl.  1033,  4  L.  R.  A.  (N.  S.)  865,  where  trial  court  entered  decree 
conformable  to  appellate  court's  opinion,  reversing  dismissal  of  bill 
for  accounting,  bill  of  review  allowable  for  newly  discovered  evidence. 

Ill  U.  S.  776-783,  28  L.  596,  BURNHAM  v.  BOWEN. 

Syl.  1   (X,  859).     Receivers — Railroad's  operating  expenses. 

Approved  in  Le  Hote  v.  Boyet,  85  Miss.  642,  38  So.  1,  claims  for  labor 
necessary  to  continuing  business  performed  for  corporation  Just  prior 
to  receivership  are  preferred  over  mortgage  creditors. 

Syl.  2  (X,  860).     Railroad  receivership — Diversion  of  income. 

Approved  in'  Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  188,  49  L. 
719,  25  Sup.  Ct.  415,  claim  for  tics  necessary  to  preservation  of  railroad 
furnished  within  six  months  of  receivership  is  not  preferred  over  lien 
of  mortgage  recorded  prior  to  the  contract. 

Syl.  3   (X,  862).     Assignment  of  claim — Railroad  receivership. 

Approved  in  Ivirkpatrick  v.  Eastern  Milling  etc.  Co.,  135  Fed.  149, 
where  one  made  underwriting  agreement  with  corporation  to  purchase 
its  bonds  and  receive  stock  as  bonus,  but  bonds  pledged  to  bank  with 
assignment  of  agreement,  bank  entitled  to  stock  from  receivers  of  cor- 
poration after  its  insolvency. 
• 

Syl.  4  (X,  862).     Railroad  mortgage — Diversion  of  earnings. 

Approved  in  Messick  v.  Hartford  etc.  R.  R.  Co.,  76  Conn.  19,  20,  21, 
100  Am.  St.  Rep.  977,  55  Atl.  667,  668,  persons  furnisliing  railroad 
sujiplies  necessary  to  operation  of  road  and  money  to  pay  wages  after 
default  in  interest  on  bonds  are  not  preferred  to  bondholders  on  sale  of 
mortgaged  property,  there  having  been  no  diversion  of  income;  Security 
Trust  Co.  V.  Goble  R.  Co.,  44  Or.  374,  74  Pac.  921,  where  services  to 
railroad  rendered  thirty  days  prior  to  receivership  were  not  rendered  in 
77 


112  U.  S.  1-41  Notes  on  U.  S.  Eeporta.  I'^IS 

furtherance    of    railroad    business    but    in    company's    logging    venture, 
claimants  not  preferred  to  mortgage. 

Distinguished  in  Norman  &  Co.  v.  Edington,  Groner  &  Griffiths, 
115  Tenn.  314,  89  S.  W.  745,  under  Shannon's  Code,  §  3580,  creating 
laborer's  lien  for  railroad  construction,  notice  required  cannot  be  given 
by  assignee  of  laborer's  claim. 

Ill  U.  S.  784-788,  28  L.  603,  WHITE  v.  KNOX. 

Syl.  3  (X,  864).     Judgment  against  insolvent  bank — Interest. 

Approved  in  In  re  Kallak,  147  Fed.  278,  taxes  due  from  bankrupt 
are  payable  together  veith  penalties  or  interest  accrued  under  state 
laws  to  time  of  payment. 


CXII  UNITED  STATES. 


112  U.  S.  1-7,  28  L.  613,  UNITED  STATES  v.  MOETON. 

Syl.  1   (X,  867).     West  Point  cadet  in  service. 

Distinguished  in  Hartigan  v.  United  States,  196  U.  S.  174,  49  L.  436, 
25  Sup.  Ct.  204,  upholding  dismissal  of  West  Point  cadet  without  trial 
and  conviction  by  court-martial. 

112  U.  S.  8-12,  28  L.  615,  WOODWORTH  v.  BLAIR.        • 
Syl.  2   (X,  867).     Prior  mortgagee  an  unnecessary  party. 
Approved   in   Boatmen's   Bank   v.   Fritzlen,    135   Fed.   660,    68   C.   C. 
A.  288,  holding  where  bill  seeks  both  to  foreclose  and  set  aside  mort- 
gage, senior  mortgagee  a  necessary  party,  and  can  remove  cause. 

112  U.  S.  24-32,  28  L.  623,  MOFFAT  v.  UNITED  STATES. 

Syl.  3  (X,  868).     Fictitious  land  patents  void. 

Approved  in  Hyde  v.  Shine,  199  U,  S.  80,  50  L.  96,  25  Sup.  Ct.  760, 
holding  scheme  to  exchange  state  school  lands  obtained  in  name  of 
actitious  persons  by  forged  instruments  for  public  lands  a  conspiracy 
against  United  States. 

Distinguished  in  United  States  v.  Hyde,  132  Fed.  547,  holding  title 
passed   where   fictitious   applications   accompanied  by  assignments. 

112  U.  S.  36-41,  28  L.  627,  DAVIES  v.  CORBIN. 

Syl.  2  (X,  870).     Jurisdiction  fixed  by  whole  tax. 

Approved  in  Stanwood  v.  Wishard,  134  Fed.  961,  permitting  defend- 
ants to  join  in  creditor  's  suit,  although  respective  claims  less  than  $2,000. 


1219  Notes  on  U.  S.  Reports.  112  U.  S.  50-88 

112  U.  S.  50-69,  28  L.  656,  BUTTERWORTH  v.  UNITED  STATES. 

Syl.  1   (X,  870).     Mandamusing  subordinate  public  officers. 

Approved  in  Wadsworth  v,  Boysen,  148  Fed,  780,  enjoining  Indian 
agent  acting  unlawfully  from  obstructing  prospector  working  on  reserva- 
tion lands;  McDaid  v.  Territory,  1  Okl.  106,  30  Pac.  442,  compelling 
tovvnsite  trustees  to  issue  deed  to  contestant  where  secretary  directs  un- 
authorized appeal;  State  v.  Williams,  45  Or.  333,  77  Pac.  971,  67  L. 
R.  A.  166,  mandamusing  chief  of  police  where  scheme  of  mayor  licensing 
gambling  illegal. 

Syl.  4   (X,  871).     Patents  issued  by  commissioner. 

Apjiroved  in  Vant  Wond  Rubber  Co.  v.  Sternan,  145  Fed.  198,  holding 
bill  for  infringement  alleging  application  made  "to  proper  depart- 
ment" insufficient  to  show  patent  issued  by  proper  officers;  McDaid 
V.  Territory,  1  Okl.  98,  30  Pac.  440,  compelling  site  trustees  to  issue 
deed  to  contestant  entitled  thereto,  in  spite  of  unauthorized  appeal.  See 
note  98  Am.  St.  Rep.  873. 

Syl.  7   (X,  872).     Patents — Remedy  of  unsuccessful  applicant. 

Approved  in  Appert  v.  Brownsville  etc.  Co.,  144  Fed.  117,  holding 
suit  by  unsuccesful  applicant  one  of  original  equity  jurisdiction. 

112  U.  S.  09-75,  28  L.  053,  MORAN  v.  NEW  ORLEANS. 

Syl.  1   (X,  872).     State  tax  on  interstate  commerce. 

Approved  in  Commonwealth  v.  Ayer  &  Co.,  117  Ky.  169,  77  S.  W.  688, 
holding  interstate  vessels  registered  at  Paducah,  Kentucky,  having  same 
painted  on  stern,  taxable  at  Paducah. 

112  U.  S.  76-83,  28  L.  673,  UNITED  STATES  v.  WADDELL. 

Syl.  2  (X,  873).  Homestead  right  protected  by  constitution — Con- 
spiracy. 

Approved  in  Ex  parte  Riggins,  134  Fed.  421,  refusing  to  release  peti- 
tioner M"here  indictment  charged  lynching  of  negro  a  conspiracy  to  de- 
prive him  of  rights  as  citizen. 

Distinguished  in  United  States  v.  Moore,  129  Fed.  634,  denying  juris- 
diction  to   punish   consi>iracy   against   citizen   organizing   miners'   union. 

Syl.  3   (X,  873).     Acts  constituting  conspiracy  clearly  alleged. 
Approved  in  Ex  parte  Riggins,  134  Fed.  412,  ajiplyiug  rule  to  lynch- 
ing of  negro. 

112  U.  S.  83-88,  28  L.  617,  WILSON  v.  ARRICK. 

Syl.   1    (X,   874).     Powers   of   administrator   de   bonis   non. 

Approved  in  McCrcery  v.  Bank,  55  W.  Va.  670,  47  S.  E.  893,  denying 
recovery  of  bank  certificates  pledged  by  executor  as  collateral  security. 
See  108  Am.  St.  Rep.  421,  429,  note. 


112  U.  S.  94-177  Notes  on  U.  S.  Eeports.  1220 

112  U.  S.  94-123,  28  L.  643,  ELK  v.  WILKINS. 

Syl.  1  (X,  875).     Indian  not  a  citizen. 

Distinguished  in  In  re  Minook,  2  Alaska,  212,  holding  under  Indian 
severalty  bill,  an  Indian  voluntarily  separating  from  tribe  and  adopting 
civilization  a  citizen  by  naturalization;  Keokuk  v.  Ulam,  4  Okl.  15, 
38  Pac.  1084,  subjecting  personal  property  of  Indian  separating  from 
reservation  to  taxation. 

112  U.  S.  129-138,  28  L.  685,  NIX  v.  ALLEN. 

Syl.  1   (X,  877).     Pre-empting  portion,  abandons  remainder  of  claim. 

Distinguished  in  Miller  v.  Hamley,  31  Colo.  499,  74  Pac.  981,  holding 
locator  obtaining  patent  for  portion  of  lode  claim,  retaining  possession 
of  remainder,  did  not  lose  rights  thereto. 

112  U.  S.  144-149,  28  L.  670,  HOEBACH  v.  HILL. 

Syl.  3  (X,  878).  Fraudulent  conveyances  unaffecting  subsequent 
creditors. 

Approved  in  In  re  Callison,  130  Fed.  988,  sustaining  demurrer,  peti- 
tion failing  to  show  creditor  such  at  time  conveyance  made;  Brake  v. 
Callison,  129  Fed.  202,  63  C.  C.  A.  359,  denying  conveyance  to  all  ex- 
isting creditors  an  act  of  bankruptcy. 

112  U.  S.  150-165,  28  L.  636,  FORT  SCOTT  v.  HICKMAN. 

Syl.  2   (X,  878).     Acknowledgment  of  debt  certain. 

Approved  in  Park  v.  Park,  32  Ind.  App.  644,  70  N.  E.  493,  holding 
conclusion  of  law  unsustained,  written  acknowledgment  that  note  ' '  was 
due  and  unpaid"  omitted  from  finding;  Ryan  v.  Canton  Bank,  103  Md. 
447,  63  Atl.  1066,  denying  statement  in  corporation  minutes  extended 
time  to  bring  action  for  further  compensation.  See  notes  102  Am.  St. 
Rep.  756,  757. 

Syl.  4  (X,  879).     Erroneous  iudgment  on  special  finding  reversed. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  734,  735, 
68  C.  C.  A.  89,  reversing  judgment  where  action  tried  by  stipulation 
and  finding  covers  part  of  issues;  Rew  v.  Independent  School  Dist., 
125  Iowa,  39,  106  Am.  St.  Rep.  282,  98  N.  W.  806,  directing  lower 
court  to  enter  judgment  without  retrial  of  case. 

112   U.   S.    165-177,   28   L.   6S0,   BUENA   VISTA   COUNTY   v.   IOWA 
FALLS  ETC.  CO. 

Syl.  2  (X,  879).    Laud  commissioner's  decision  appealable. 

Approved  in  dissenting  opinion  in  McDaid  v.  Territory,  1  Okl.  Ill/, 
30  Pac.  444,  majority  denying  appeal  after  issue  of  patent  from  towu- 
site  trustees'  award  to  contestant. 


1221  Notes  on  U.  S.  Eeports.  112  U.  S.  178-206 

112  U.  S.  178-180,  28  L.  690,  EX  PARTE  CROUCH. 

Sjl.  1   (X,  880).     Habeas  corpus  ■where  evidence  conflicts. 

Approved  in  United  States  v.  Lewis,  200  U.  S,  8,  50  L.  346,  26  Sup. 
Ct.  229,  denying  relief  to  soldiers  charged  with  murder  where  evidence 
conflicts  on  question  of  surrender  before  shot  fired;  United  States  v. 
Lewis,  129  Fed.  827,  refusing  to  inquire  whether  shooting  was  justifiable. 

112  U.  S.  183-187,  28  L.  692,  SCOTLAND  COUNTY  v.  HILL. 

Syl.  1  (X,  881).     State  decrees  bind  all  parties. 

Approved  in  Georgia  R.  R.  Co.  v.  Wright,  124  Ga.  603,  53  S.  E.  254, 
estopping  nominal  defendant  from  setting  up  matters  against  codefend- 
ant  in  state  court  pleadable  in  federal  court.  See  note,  105  Am.  St. 
Rep.  215. 

Distinguished  in  Mankato  v.  Barber  etc.  Pav.  Co.,  142  Fed.  341, 
holding  litigant  not  concluded  by  judgment  of  state  court  rendered 
after  judgment  procured  in  federal  court. 

Syl.  2   (X,  881).     Offer  of  proof  presumed  bona  fide. 
Approved  in  State  v.  Irwin,  17  S.  D.  389,  97  N.  W.'lO,  holding  court 
erred  rejecting  offer  to  prove  former  acquittal. 

112  U.  S.  187-193,  28  L.  693,  AYRES  v.  WISWALL. 

Syl.  4   (X,  883).     Separate  causes  ground  of  removal. 

Approved  in  Manufacturers  Com.  Co.  v.  Brown  Alaska  Co.,  148  Fed. 
310,  allowing  removal  of  maker  of  note,  although  indorser  and  holder 
citizens  of  same  state;  Miller  v.  Clifford,  133  Fed.  884,  67  C.  C.  A.  52, 
denying  single  stockholder  right  to  remove,  where  action  brought  by 
creditor  against  stockholders  upon  statutory  liability;  Matz  v.  Arick, 
76  Conn.  393,  56  Atl.  632,  vacating  judgment  as  to  all,  where  appeal 
taken  by  some  defendants. 

112  U.  S.  201-206,  28  L.  629,  FOSTER  v.  KANSAS. 

Svl.  3   (X,  884).     Supersedeas  effective  from  time  filed. 

Approved  in  Thalheim  v.  Camp  Phosphate  Co.,  48  Fla.  195,  37  So. 
525,  holding  supersedeas  does  not  restore  personal  property  or  impair 
lien  created  by  execution. 

Syl.  4  (X,  885).     State  may  regulate  liquor  trafiic. 

Approved  in  State  v.  Frederickson,  101  Me.  46,  63  Atl.  539,  sustaining 
conviction  for  maintaining  liquor  nuisance;  Harrell  v.  Speed,  113  Tenn. 
230,  106  Am.  St.  Rep.  814,  81  S.  W.  841,  upholding  tax  on  liquor  sold 
while  interstate  vessel  moored  at  landing  place;  Webster  v.  State,  110 
Tenn.  505,  82  S.  W.  182,  sustaining  act  prohibiting  sale  of  liquors 
within  four  miles  of  schoolhouses. 

Syl.  6  (X,  886).     Removal  of  officers — Due  process. 

Distinguished  in  dissenting  opinion  in  Territory  v.  Albright,  12  N. 
M.  316,  78  Pac.  211,  majority  determining  right  of  assessor  to  offico 
where  he  was  appointed  prior  to  taking  effect  of  act  dividing  county. 


112  U.  S.  216-261  Notes  on  U.  S.  Reports.  1222 

112  U.  S.  216-217,  28  L.  697,  SNYDER  v.  UNITED  STATES. 

Syl.  2  (X,  886).     Verdict  unaffected  by  bad  spelling. 

Approved  in  Wilson  v.  Territory,  7  Ariz.  50,  60  Pac.  697,  upholding 
verdict  of  murder  in  second  ' '  decree ' ' ;  Johns  v.  State,  46  Fla.  154,  35 
So.  71,  refusing  to  set  aside  verdict,  pronoun  we  spelled  "wee." 

112  U.  S.  217-227,  28  L.  698,  LABETTE  CO.  COMMRS.  v.  UNITED 

STATES. 

Syl.  3  (X,  887).     Mandamus  joins  all  necessary  parties. 

Approved  in  Rose  v.  McKie,  145  Fed.  590,  overruling  objection  to 
■writ  on  ground  statutory  duty  falls  short  of  full  satisfaction;  McKie 
V.  Rose,  140  Fed.  149,  joining  all  officers  necessary  to  levy  tax  to  pay 
judgment;  Guthrie  v.  Sparks,  131  Fed.  451,  65  C.  C.  A.  427,  joining 
sheriff  although  no  duty  devolved  on  him  until  after  levy  made;  State 
V.  Williams,  45  Or.  331,  77  Pac.  .970,  67  L.  R.  A.  166,  holding  mandamus 
properly  directed  to  several  officers  commanding  each  to  do  the  suc- 
cessive act  enjoined  by  law. 

112  U.  S.  244-249,  28  L.  702,  MORRIS  v.  McMILLAN. 

Syl.  1   (X,  889).     Invention  distinguished  from  mechanical  skill. 

Approved  in  Conderman  v.  Clements,  147  Fed.  916,  holding  Condcr- 
man  wheel  patent  different  from  Ferris  wheel  only  in  detachable  parts 
void;  McKenzie  Furn.  Co.  v.  Green  Eng.  Co.,  138  Fed.  832,  declaring 
Creen  &  Gent  patent  for  improvement  in  fire  arches  void  in  view  of 
prior  art. 

112  U.   S.  250-261,  26  L.   708,  CONNECTICUT  MUT.  L.   INS.   CO.  v. 
UNION  ETC.  CO. 

Syl.  1   (X,  889).     State  laws  binding  on  federal  courts. 

Approved  in  Easton  v.  Geo.  Wostenholm  &  Son,  137  Fed.  530,  70  C. 
C.  A.  108.  presuming  English  law  governing  contract  for  goods  pur- 
chased .abroad  same  as  local  law;  Toledo  Tract.  Co.  v.  Cameron,  137 
Fed.  66,  69  C.  C.  A.  28,  receiving  former  testimony,  admissible  by  state 
law  where  witness  without  district  and  one  hundred  miles  from  trial. 

Distinguished  in  Doll  v.  Equitable  etc.  Soc,  138  Fed.  710,  allowing 
physician  to  testify  under  disqualifying  statute  of  foreign  state,  where 
contract  sued  on  was  executed. 

Syl.  3  (X,  890).  Insurance — Answers  omitting  minor  ailments.  • 
Approved  in  Mutual  etc.  Ins.  Co.  v.  Dobler,  137  Fed.  556,  70  C.  C. 
A.  134,  holding  occasional  examinations  witliout  charge,  not  vitiating 
ansvv'er,  "he  did  not  remember  when  he  had  consulted  physician"; 
Blumenthal  v.  Berkshire  Life  Ins.  Co.,  134  Mich.  218,  104  Am.  St. 
Rep.  604,  96  N.  W.  18,  holding  insured  answering  as  to  consultation 
need  only  state  consultations  as  to  serious  ailments ;  Rupert  v.  Supreme 
Court  U.  O.  F.,  94  Minn.  296,  298,  102  N.  W.  717,  presuming  trivial 
ailments  and  injuries  not  in  contemplation  of  parties. 


1223  Notes  on  U.  S.  Eeports.  112  U.  S.  2G1-343 

112  U.  S.  261-273,  28  L.  704,  GRENADA  COUNTY  v.  BROGDEN. 

Syl.  1  (X,  891).     Statutes  harmonized  with  constitution. 

Approved  in  Burke  v.  Malaby,  14  Okl.  655,  78  Pac.  107,  declaring 
act  permitting  action  to  be  brought  in  county  where  subject  of  action 
situated  void — federal  constitution  prescribed  different  rule;  dissenting 
opinion  in  Hartford  Fire  Ins.  Co.  v.  State,  76  Ark.  325,  89  S.  W.  51, 
majority  sustaining  act  prohibiting  foreign  corporations  from  doing 
business  within  state  upon  failure  to  file  affidavit. 

Syl.  2   (X,  891).     Unauthorized  acts  may  be  ratified. 

Approved  in  Red  River  etc.  Co.  v.  Tennessee  etc.  R.  R.  Co.,  113  Tenn. 
731,  87  S.  W.  1024,  legalizing  subscription  as  though  authority  originally 
given. 

112  U.  S.  294-306,  28  L.  729,  HEIDRITTEE  v.  OIL-CLOTH  CO. 

Syl.  1   (X,  892).     Liens — Service  may  be  constructive. 
.    Approved  in  Genest  v.  Las  Vegas  Masonic  Bldg.  Assn.,  11  N.  M.  265, 
67  Pac.  746,  sustaining  service  by  publication  in  an  adjudication  of  lien. 

Syl.  2   (X,  893).     Court  obtaining  possession  acquires  jurisdiction. 

Distinguished  in  Fountain  v.  624  Pieces  of  Timber,  140  Fed.  381, 
sustaining  subsequent  seizure  by  marshal  where  deputy  sheriff  failed 
to  take  property  into  possession;  Ingraham  v.  National  Salt  Co.,  139 
Fed.  689,  refusing  to  enjoin  receivers  of  state  court,  where  federal 
attachment  levied  before  insolvency  proceedings  commenced  was  on  real 
estate. 

112  U.  S.  306-311,  28  L.  746,  EAST  TENNESSEE  ETC.  R.  R.  CO.  v, 
SOUTHERN  TEL.  CO. 

Syl.  2   (X,  895).     Remedy — Courts  limited  by  statute. 

Distinguished  in  Estate  of  Sutro,  143  Cal.  492,  77  Pac.  404,  sustaining 
complaint  to  establish  heirship  filed  twenty  days  after  decree  establish- 
ing proof  of  notice. 

Syl.   3    (X,   895).     Removal — Federal   court's   power   limited. 

Approved  in  Broadmoor  Land  Co.  v.  Curr,  142  Fed.  423,  conforming 
procedure  in  condemnation  proceedings  to  state  practice;  Broadmoor 
Land  Co.  V.  Curr,  133  Fed.  38,  66  C.  C.  A.  143,  modifying  supersedeas 
in  federal  court  to  conform  to  state  practice. 

112  U.  S.  331-343,  28  L.  717,  HART  v.  PENNSYLVANIA  R.  R.  CO. 

Syl.  1  (X,  896).     Reduced  rates  affect  carrier's  liability. 

Approved  in  Missouri  etc.  Ry.  Co.  of  Texas  v.  Patrick,  144  Fed.  634, 
enforcing  limitation  to  agreed  value  per  one  hundred  pounds  in  con- 
sideration of  reduced  price;  Macfarlane  v.  Adams  Exp.  Co.,  137  Fed. 
983  984,  limiting  liability  to  amount  stated  in  receipt,  charge  based 
on  corresponding  value;  United  States  Express  Co.  v.  Joyce,  36  Ind. 
App.  4,  72  N.  E.  867,  holding  currier  liable  for  injuries,  although  horses 


112  U.  S.  344-369  Notes  on  U.  S.  Eeporta.  1224 

sold  for  sum  exceeding  declared  value;  Baltimore  etc.  R.  E.  Co.  v. 
Hubbard,  72  Ohio  St.  320,  74  N.  E.  219,  limiting  liability  to  amount 
stated  in  contract  based  upon  reduced  rate;  Hill  v.  Northern  Pac.  R. 
Co.,  33  Wash.  701,  704,  705,  74  Pac.  1055,  1056,  upholding  limitation 
of  liability  in  case  of  loss  or  damage;  dissenting  opinion  in  Holmes 
V.  North  German  etc.  Co.,  184  N.  Y.  287,  77  N.  E.  23,  majority  holding 
carrier  liable  for  handbag,  although  valuation  not  declared  or  additional 
charges  paid.     See  note,  97  Am,  St.  Rep.  720. 

Distinguished  in  United  States  etc.  Mills  v.  Oceanic  etc.  Co.,  145 
Fed,  702,  703,  705,  holding  carrier's  liability  limited  to  specific  sum 
per  package,  unless  value  expressed,  invalid,  although  limitation  to 
invoice  value  enforceable;  Ficklin  v.  Wabash  R.  R.  Co.,  117  Mo.  App. 
226,  93  S.  W.  848,  holding  liability  not  limited,  where  contract  provid- 
ing reduced  rate  same  for  all  shipments;  Keyes  etc.  Livery  Co.  v.  St. 
Louis  etc.  R.  R.  Co.,  113  Mo.  App.  154,  87  S.  W.  555,  holding  on  evi- 
dence, reduced  charge  not  a  consideration  for  stipulation  liquidating 
damages;  Nashville  etc.  Ry.  Co.  v.  Stone,  112  Tenn.  374,  79  S.  W. 
1037,  refusing  to  limit  liability  to  $5  per  hog  as  unreasonable;  Sprigg 
V.  Rutland  R.  R.  Co.,  77  Vt.  353,  60  Atl.  145,  holding  carriers  liable  for 
injuries  to  caretaker,  where  contract  for  caretaker  and  stock  entire; 
Chesapeake  etc.  Ry.  Co.  v.  Beasley,  104  Va.  793,  794,  800,  804,  52  S.  E. 
567,  568,  570,  571,  3  L.  R.  A.  (N.  S.)  183,  refusing  to  limit  liability  for 
baggage  to  $100  as  unreasonable. 

112  U.  S.  344-353,  28  L.  760,  BRANDIES  v.  COCHRANE. 

Syl.  1   (X,  900).     Judgment  not  a  lien  on  trust. 

Distinguished  in  Reed  v.  Munn,  148  Fed.  745,  746,  holding  equitable 
interest  of  beneficiaries   subject  to   sale  under  execution. 

112  U.  S.  354-369,  28  L.  665,  MAHN  v.  HARWOOD. 

Syl.  2  (X,  900).    Patent  commissioner's  decision  attackable. 

Approved  in  Weston  etc.  Co.  v.  Empire  etc.  Co.,  136  Fed.  599,  69  C. 
C.  A.  329,  sustaining  defense,  where  patent  issued  two  years  after 
application  and  forfeiture  of  prior  one  for  nonpayment  of  fee. 

Syl.  3  (X,  901).     Reissue  granted  for  inadvertency. 
Approved  in  Milloy  Elec.   Co.   v.   Thompson  etc.   Elec.   Co.,   148   Fed. 
846,  denying  reissue  upon  discovery  of  error  after  long  litigation. 

Syl.  5    (X,  902).     Patent  covers  parts,  specifically  described. 

Approved  in  Thomson  etc.  Co.  v.  Black  R.  Tr.  Co.,  135  Fed.  766, 
68  C.  C.  A.  461,  sustaining  reissue,  although  changes  in  reissued  patent 
immaterial  and  some  of  claims  identical,  with  original  issue;  Rembert 
etc.  Co.  V.  American  Cotton  Co.,  129  Fed.  369,  64  C.  C.  A.  25,  declaring 
patent  without  utility  when  restricted  to  theory  underlying  successful 
operation. 


1225  Notes  on  U.  S.  Keports.  112  U.  S.  377-413 

112  U.  S.  377-39G,  28  L.  787,  CHICAGO  ETC.  EY.  CO.  v.  EOSS. 

Syl.  3   (X,  904).     Conductor  not  fellow-servant  of  fireman. 

Approved  in  McGill  v.  Southern  Pac.  Co.,  4  Ariz.  122,  124,  33  Pac. 
821,  822,  holding  section  foreman  not  fellow-servant  of  conductor,  pre- 
venting recovery;  Evans  v.  Louisiana  Lumber  Co.,  Ill  La.  539,  35  So. 
738,  holding  company  liable  where  laborer  injured  through  negligence 
of  sawyer;  Merritt  v.  Victoria  Lumber  Co.,  Ill  La.  164,  35  So.  499, 
holding  company  liable  where  foreman's  negligence  in  not  properly 
guarding  saw  resulted  in  laborer's  death;  Southern  Ey.  Co.  v.  Cheaves, 
84  Miss.  587,  36  So.  697,  holding  company  liable  for  injuries  to  fire- 
man through  negligence  of  engineer;  Allen  v.  Bell,  32  Mont.  78,  79  Pac. 
584,  allowing  recovery  to  miner  for  injury  through  false  information 
given  by  foreman  as  to  blast;  Eailroad  v.  Baldwin,  113  Tenn.  413,  82  S. 
W.  488,  67  L^  E.  A.  340,  allowing  recovery  by  brakeman  injured  by  con- 
ductor signaling  engineer;  Mullin  v.  Northern  Pac.  Ey.  Co.,  38  Wash. 
554,  80  Pac.  815,  allowing  recovery,  employee  in  pit  injured  by  another 
employee   running  engine  over  pit. 

Disapproved  in  Northern  Pac.  Ey.  Co.  v.  Dixon,  194  U.  S.  344,  48  L. 
1009,  24  Sup.  Ct.  683,  local  telegraph  operator  and  fireman  fellow- 
servants;  Baltimore  etc.  Ey.  Co.  v.  Brown,  146  Fed.  28,  holding  gang 
boss  a  fellow-servant  of  crew;  Smith  v.  Lehigh  Valley  E.  Co.,  141  Fed. 
194,  holding  mate  and  floatman  fellow-servants;  Crosby  v.  Lehigh  Val. 
E.  Co.,  137  Fed.  767,  70  C.  C.  A.  199,  fireman  on  passenger  engine 
fellow-servant  of  conductor  on  train  approaching  from  opposite  direc- 
tion; The  Westport,  136  Fed.  395,  69  C.  C.  A.  235,  captain  and  seaman 
fellow-servants;  Southern  Pac.  Co.  v.  McGill,  5  Ariz.  43,  44  Pac.  304, 
foreman  section-hand  and  conductor  are  fellow-servants;  Larsen  v.  Le 
Doux,  11  Idaho,  57,  81  Pac.  601,  holding  contractors  not  liable  for 
carelessness  of  employee  constructing  scaffold;  Atchison  etc.  Bridge  Co. 
V.  Miller,  71  Kan.  31,  80  Pac.  25,  pile-driver  a  fellow-servant  of 
machinist  repairing  hoisting  engine;  Grim  v.  Olympia  Light  etc.  Co., 
42  Wash.  123,  130,  84  Pac.  636,  638,  holding  motormen  operating  dis- 
tinct cars  under  arrangement  between  themselves  are  fellow-servants. 

112  U.  S.  405-413,  28  L.  733,  EEYNOLDS  v.  CBAWFOEDSVILLE 
BANK. 

Syl.  2   (X,  910).     Federal  jurisdiction  unaffected  by  state  law. 

Approved  in  Mathews  S.  Co.  v.  Mathews,  148  Fed.  493,  remanding 
creditor's  suit  to  apply  property  not  reachable  by  execution  in  actitm 
at  law;  Ames  etc.  Co.  v.  Big  Indian  etc.  Co.,  146  Fed.  173,  175,  ont(ir- 
taining  jurisdiction  to  settle  rights  and  priorities  of  all  persons  diverting 
water;  United  States  Min.  Co.  v.  Lawson,  134  Fed.  771,  67  C.  C.  A.  5S7, 
entertaining  suit  to  quiet  title  without  prior  adjudication  of  title  at  law 
or  reference  to  possession. 

Syl.  3  (X,  911).     Pleadings  to  quiet  title. 

Approved  in  Atlantic  Trust  Co.  v.  (li;ij>man,  145  Fed.  821,  hoMing 
complainant  entitled  to  denials  in  petition  and  matters  of  defense  prop- 


112  U.  S.  414-477  Notes  on  U.  S.  Eeports.  1226 

erly  pleaded  in  answer;  Robinson  v.  American  Car  etc.  Co.,  132  Fed. 
166,  holding  cause  submitted  on  pleadings,  facts  alleged  in  bill  and  not 
negatived  by  answer,  only  considered  true;  Seymour  Water  Co.  v.  Sey- 
mour, 163  Ind.  128,  70  N.  E.  517,  holding  complaint  alleging  franchise 
for  waterworks  unreasonable  and  seeking  revocation  of  contract  executed 
thereunder  insufficient  to  support  action  to  quiet  title. 

Svl.  6  (X,  913).     Unauthorized  conveyance  to  corporation  not  void. 

Approved  in  State  v.  American  Book  Co.,  69  Kan.  13,  76  Pac.  415,  1 
L.  E.  A.  (N.  S.)  1041,  refusing  to  enjoin  foreign  corporation  from  per- 
forming contracts  made  before  license  obtained. 

112  U.  S.  414-423,  28  L.  794,  KANSAS  PAC.  R.  R.  v.  ATCHISON 
R.  R. 

Syl.  2   (X,  913).     Corporations  citizens  of  creating  states. 

Approved  in  United  States  v.  Milwaukee  etc.  Co.,  142  Fed.  255,  treat- 
ing, in  action  under  Elkins  act,  corporation  organized  and  owned  by 
officers  of  another,  identical  with  such  other  corporation. 

Syl.   3    (X,   913).     Reserved   indemnity   lands    unselectable. 

Approved  by  Sjoli  v.  Dreschel,  199  U.  S.  566,  50  L.  312,  note,  26 
Sup.  Ct.  154,  holding  grantee  did  not  acquire  title  to  land  granted  within 
indemnity  limits  by  merely  filing  selections;  Humbird  v.  Avery,  195 
U.  S.  508,  49  L.  299,  25  Sup.  Ct.  123,  holding  title  to  indemnity  lands 
not  vested,  until  selection  made  and  approved;  Sage  v.  Maxwell,  91  Minn. 
533,  99  N.  W.  45,  sustaining  homestead  rights  to  lands  within  indemnity 
limits. 

Distinguished  in  United  States  v.  Choctaw  etc.  R.  R.  Co.,  3  Okl.  498, 
41  Pac.  760,  refusing  to  restrain  railroad  from  building  road  without 
approval  of  Secretary  of  Interior. 

112  U.  S.  439-451,  28  L.  764,  FORTIER  v.  NEW  ORLEANS  BANK. 

Syl.  3   (X,  915).     Governmental  control  of  national  banks. 

A]>proved  in  Brigham  v.  Peter  Bent  Brigham  Hospital,  134  Fed.  528, 
67  <,'.  C.  A.  393,  holding  state  alone  can  object  to  amount  of  property  a 
charitable  corporation  can  hold;  Tidwell  v.  Chiricahua  Cattle  Co.,  5 
Ariz.  362,  53  Pac.  195,  admitting  deeds  against  trespasser,  over  objection 
that  title  was  in  United  States;  Schoonover  v.  Petcina,  126  Iowa,  268, 
100  N.  W.  493,  holding  national  bank  president  loaning  money  of  real 
estate  and  taking  mortgages  in  own  name,  not  estopped  from  objecting 
to    personal   assesment. 

112  U.  S.  452-477,  28  L.  751,  LAMAR  v.  MICOU. 

Syl.   5    (X,   916).     Infant   cannot  change   own   domicile. 

Approved  in  Young  v.  Hiner,  72  Ark.  3U3,  79  S.  W.  1063,  following 
rule. 


1227  Notes  on  U.  S.  Eeports.  112  U.  S.  48.3-506 

Syl.  6   (X,  916).     Guardian  without  extraterritorial  power. 

Approved  in  In  re  Brady,  10  Idaho,  370,  79  Pac.  75,  retaining  juris- 
diction to  settle  general  guardian 's  account,  where  ward 's  removal  by 
foreign  guardian  from  state  unauthorized. 

Syl.  12  (X,  917).     Guardian  may  invest  in  bonds. 

Approved  in  In  re  Allis'  Estate,  123  Wis.  226,  101  N.  W.  366,  sanc- 
tioning investment  of  trust  funds  in  railroad  and  street  railway  bonds. 

112  U.  S.  485-489,  28  L.  768,  BIRDSELL  v.  SHALIOF. 

Syl.  1   (X,  918).     Licensee  cannot  sue  for  infringement. 

Distinguished  in  Wooster  v.  Crane  &  Co.,  147  Fed.  516,  allowing 
equitable  owner  to  sue  for  infringement  of  copyright. 

Syl.  5  (X,  919).     Patentee — Damages  against  maker  and  user. 

Approved  in  Eldred  v.  Breitwieser,  132  Fed.  252,  holding  owner  not> 
estopped  from  maintaining  action  against  user  by  adverse  judgment 
in  action  against  manufacturer;  Westinghouse  etc.  Co.  v.  Mutual  Life 
Ins.  Co.,  129  Fed.  222,  holding  decree  against  maker  no  defense  to  suit 
against  user  for  infringement. 

Syl.  6   (X,  919).     Licensee  may  join  for  infringement. 

Approved  in  Daimler  Mfg.  Co.  v.  Conklin,  145  Fed.  956,  holding 
licensee  may  join  bill  showing  interest  subject  to  impairment  by  in- 
fringement. 

Distinguished  in  Bredin  v.  Robinson,  145  Fed.  945,  denying  owner's 
right  to  sue  alone,  where  profits  inure  to  licensee 's  sole  benefit. 

112  U.  S.  490-495,  28  L.  822,  MARYLAND  v.  BALDWIN. 

Syl.  1  (X,  920).     Jurisdiction — Real  party  in  interest. 

Approved  in  Burrell  v.  United  States,  147  Fed.  47,  entertaining  juris- 
diction, where  plaintiff,  a  corporation  of  Washington,  defendant  contrac- 
tor, a  resident  of  California,  and  surety  com])any  organized  in  Connecti- 
cut; United  States  v.  Barrett,  135  Fed.  194,  denying  jurisdiction  of  suit 
on  contractor 's  bond  in  name  of  United  States  by  person  furnishing 
material.     See  101  Am.  St.  Rep.   171,  note. 

Svl.  4   (X,  921).     Agreement  to  marry  alone  insufficient. 

Approved  in  Sorcnson  v.  Sorenson,  68  Neb.  508,  100  N.  W.  933,  holding 
mere  "agreement  to  live  together  as  husband  and  wife"  insuthcient; 
Reaves  v.  Reaves,  15  Okl.  256,  82  Pac.  495,  sustaining  on  facts  a  mere 
agreement  to  marry  followed  by  open  cohabitation. 

112  U.  S.  502-506,  28  L.  811,  ENGLAND  v.  GEHIIARDT. 

Syl.  3    (X,  922).     Court's  opinion  not  part  of  record. 

Approved  in  Townsend  v.  Beatrice  Com.  Assn.,  139  Fed.  383,  refusing 
to  review  equity  case  in  absence  of  evidence,  although  opinion  liled  by 
lower  court. 


112  U.  S.  514-600  Notes  on  U.  S.  Eeports.  1228 

112  U.  S.  514-526,  28  L.  812,  THE  ELIZABETH  JONES. 

SyL  1  (X,  923).     Collision — Vessel  changing  course. 

Approved  in  The  Metamora,  144  Fed.  938,  blanung  vessel  not  allowing 
for  yawing  of  another,  close-hauled  in  strong  wind  and  heavy  sea; 
The  Eagle  Wing,  135  Fed.  829,  holding  privileged  vessel  at  fault  chang- 
ing course  just  prior  to  collision;  The  Sitka,  132  Fed.  868,  holding  tow 
at  fault  changing  course  to  starboard  after  collision  between  tug  and 
other   vessel. 

Syl.  2  (X,  923).     Collision — Vessel  placed  in  danger. 

Approved  in  Minnesota  S.  S.  Co.  v.  Lehigh  Valley  etc.  Co.,  129  Fed. 
28,  63  C.  C.  A.  672,  holding  master  excusable  even  if  all  precautions 
were  not  taken. 

112  U.  S.  26-536,  28  L.  816,  BRITTON  v.  THORNTON. 

Syl.  1   (X,  924).     Wills— Determinable  fee. 

Approved  in  Yocum  v.  Parker,  134  Fed.  207,  67  C.  C.  A.  227,  holding 
devise  to  son  and  on  death  without  issue  to  collateral  heirs,  title  vested 
in  devisee  upon  birth  of  issue. 

112  U.  S.  536-580,  28  L.  770,  CHEW  HEONG  v.  UNITED  STATES. 

Syl.  2   (X,  925).     Repeals  by  implication  not  favored. 

Approved  in  Guthrie  v.  Sparks,  131  Fed.  449,  65  C.  C.  A.  427,  holding 
act  denying  fiscal  court  power  to  levy  tax  to  pay  railroad  bond  in- 
debtedness, unrepealed  by  later  act  creating  power  to  levy  general 
county  taxes;  Giles  v.  Dennison,  15  Okl.  63,  78  Pac.  177,  denying  prior 
act  repealed  by  later,  both  providing  plans  to  raise  revenue  to  con- 
struct buildings;  Carpenter  v.  Russell,  13  Okl.  283,  73  Pac.  932,  holding 
act  covering  only  probate  matters  not  repealed  by  act  giving  probate 
judges  jurisdiction  of  causes,  civil  and  criminal ;  Allen  v.  Reed,  10 
Okl.  156,  63  Pac.  877,  holding  congressional  act  reserving  county  seats 
not  defeating  territorial  act  providing  for  an  election  for  county  seats ; 
United  States  v.  Foreman,  56  Okl.  257,  48  Pac.  98,  allowing  entryman 
choice  of  statutes  to  recover  money  paid  for  land  erroneous,  allowed  and 
subsequently  canceled. 

Syl.  4  (X,  926).     Statutes  not  given  retrospective  operation. 

Approved  in  Mottley  v.  Louisville  etc.  R.  Co.,  150  Fed.  411,  holding 
contract  awarding  free  passage  over  lines  in  consideration  of  release  of 
damages  not  affected  by  subsequent  statute  prohibiting  free  transporta- 
tion. 

112  U.  S.  580-600,  28  L.  798,  HEAD-MONEY  CASES. 

Syl.  3  (X,  927).     Uniform  tax  defined. 

Approved  in  State  v.  Chicago,  Burlington  etc.  Ry.  Co.,  195  Mo.  240, 
93  S.  W.  787,  declaring  fifteen  cent  special  road  tax,  exempting  Kansas 
City  and  St.  Joseph,  void;  McMillian  v.  Payne  Co.  Commrs.,  14  Okl. 
6G7,  79  Pac.  900,  holding  tax  levy  not  void  because  heavier  on  people 
of  township  authorized  to  erect  bridge. 


1229  Notes  on  U.  S.  Reports.  112  U.  S.  604-623 

Syl.  7   (X,  928).     Treaties  subject  to  congressional  action. 

Approved  in  Wadsworth  v,  Boysen,  148  Fed.  774,  holding  in  case  of 
conflict,  legislative  amendment  will  prevail  over  treaty  requiring  ratifica- 
tion; United  Shoe  Mach.  Co.  v.  Duplessis  etc.  Co.,  148  Fed.  36,  holding 
treaty  not  void  because  not  self-executory,  but  dependent  on  congressional 
action;  Hong  Wing  v.  United  States,  142  Fed.  130,  holding  congressional 
act  continued  exclusive  laws  in  force  regardless  of  existing  treaty  ob- 
ligations; Wyman,  Petitioner,  191  Mass.  279,  77  N.  E.  380,  enforcing 
treaty  rights  of  Russian  vice-consul  to  be  administrator  to  the  exclusion 
of   public   administration. 

112  U.  S.  604-C09,  28  L.  835,  BOND  v.  DUSTIN. 

Syl.  2  (X,  930).     Jury  waived  by  written  stipulation. 

Distinguished  in  Shields  v.  Mongollon  etc.  Co.,  137  Fed.  544,  70  C. 
C.  A.  123,  reviewing  assignments  of  error  where  jury  waived  in  open 
court  and  in  writing. 

Syl.  3   (X,  930).     Motion  to  arrest  judgment — Evidence. 

Approved  in  Demolli  v.  United  States,  144  Fed.  366,  refusing  to  ex- 
amine other  parts  of  record  to  supply  defect  in  judgment  in  criminal 
oaso. 

112    U.    S.    609-G23,    28    L.    837,    MEMPHIS    R.    R.    CO.    v.    COMMIS- 
SIONERS. 

Syl.   1    (X,   931).     Taxation  exemption   a  personal   privilege. 

Approved  in  Baltimore  etc.  Ry.  Co.  v.  Wicomico  Co.,  103  Md.  281,  285, 
286,  63  Atl.  679,  681,  holding  purchaser  at  foreclosure  sale  of  corporate 
property  and  immunity  from  taxation,  did  not  acquire  exemption. 

Distinguished  in  Wicomico  Co.  Commrs.  v.  Bancroft,  135  Fed.  982, 
holding  exemption  of  railroad  from  taxation  under  special  act  of  legis- 
lature  passed   to   successors   in   interest. 

Syl.  3   (X,  932).     Charter  distinguished  from  franchises. 

Approved  in  Vicksburg  v.  Vicksburg  Waterworks  Co.,  202  U.  S. 
464,  50  L.  1109,  26  Sup.  Ct.  660,  holding  contractual  rights  under  munici- 
pal ordinance  passed  by  foreclosure  sale  of  franchise  and  corporate 
property;  Julian  v.  Central  Trust  Co.,  193  U.  S.  106,  48  L.  637,  24  Sup. 
Ct.  399,  holding  upon  foreclosure  sale  franchises  and  corporate  property 
ceased  to  be  liable  for  subsequent  debts  of  corporation;  Grand  Rapids  & 
I.  R.  Co.  V.  Osborn,  193  U.  S.  29,  48  L.  604,  24  Sup.  Ct.  310,  denying 
purchaser's  right  under  foreclosure  sale  of  franchise  and  j^roperty  to 
incorporate  with  privileges  of  old  corporation;  Omalia  Water  Co.  v.  City 
of  Omaha,  147  Fed.  15,  holding  purchaser  at  foreclosure  sale  had  right 
to  collect  rates  specified  in  contract  between  corporation  and  city; 
Farmers'  Loan  etc.  Co.  v.  Meridian  W.  W.  Co.,  139  Fed.  667,  allowing 
mortgagee  a  receiver,  where  city  oiitaiiis  decree  depriving  curporation  of 
right  to  operate  water  plant;  Iron  Sihi'i-  Min.  Co.  v.  ''owic,  ."'l  Colo.  4.1;!, 
72    Pac.    1068,   entertaining   juiisdietiou    where    decision    of   lower   court 


112  U.  S.  624-676  Notes  on  U.  S.  Reports.  1230 

based  upon  determination  of  corporations  in  ability  to  do  business; 
Detroit  etc.  R.  R.  Co.  v.  Campbell,  140  Mich.  392,  103  N.  W.  859,  allow- 
ing corporation  in  hands  of  receiver  to  condemn  land  for  right  of  way; 
Southwestern  Tel.  etc.  Co.  v.  San  Antonio,  32  Tex.  Civ.  103,  73  S.  W. 
860,  holding  corporate  franchises  property  within  city  charter's  pro- 
visions, taxing  all  property. 

Miscellaneous.  Cited  in  Southern  Ry.  Co.  v.  Greensboro  etc.  Co.,  134 
Fed.  93,  holding  suit  against  corporation  commissioners  to  enjoin 
alleged  void  order  not  suit  against  state. 

112  U.  S.  624-645,  28  L.  828,  UNION  METALLIC  CARTRIDGE  CO.  v. 
U.   S.    CARTRIDGE   CO. 

Syl.  4  (X,  934),     Patents — Reissue  as  to  discarded  claim. 

Approved  in  Rembert  etc.  Co.  v.  American  Cotton  Co.,  129  Fed.  369, 
64  C.  C.  A.  25,  restricting  patent  to  method  underlying  successful  opera- 
tion. 

112  U.  S.  645,  659,  28  L.  846,  UNITED  STATES  v.  GREAT  FALLS 
MFG.  CO. 

Syl.  1  (X,  934).     Private  property  taken  for  public  use. 

Approved  in  Penrhyn  Slate  Co.  v.  Granville  El.  etc.  Co.,  181  N.  Y.  84, 
73  N.  E.  566,  dismissing  riparian  owner's  suit  against  city  to  restrain 
diversion  on  ground  of  laches. 

Distinguished  in  Hijo  v.  United  States,  194  U.  S.  322,  48  L.  996,  24 
Sup.  Ct.  727,  denying  United  States'  liability  for  use  of  Spanish  vessel 
captured  during  war  with  Spain;  Town  of  Nahaut  v.  United  States,  136 
Fed.  283,  69  L.  R.  A.  723,  70  C.  C.  A.  641,  denying  municipal  corpora- 
tion compensation  for  state  franchises  within  territory  condenmed  by 
United  States. 

Syl.  2  (X,  935).     Owner's  remedies — Property  for  public  use. 

Approved  in  Zimmerman  v.  Kansas  City  etc.  R.  Co.,  144  Fed.  624, 
allowing  owner  to  recover  all  damages  sustained  by  railroad  appropriat- 
ing lot  without  exercise  of  eminent  domain;  United  States  v.  Foreman, 
5  Okl.  253,  257,  48  Pac.  97,  98,  holding  entryman  may  sue  to  recover 
for  land  erroneously  allowed. 

Syl.  3  (X,  935).     Eminent  domain — Implied  obligation  to  pay. 

Approved  in  Christie-Street  Com.  Co.  v.  United  States,  136  Fed.  329, 
69  C.  C.  A.  464,  holding  action  to  recover  back  taxes  illegally  collected 
maintainable  without  regard  to  whether  on  contract  or  in  tort;  O'Reilly 
De  Camara  v.  Brooke,  135  Fed.  390,  holding  United  States  officer  liable 
in  tort  for  property  taken  for  public  use,  although  government  also 
lialjle  on  contract. 

112  U.  S.  670-676,  28  L.  862,  MARTINGTON  v.  FAIRBANKS. 

Syl.    1    (X,    936).     Exception   to    general   finding. 

Approved  in  Ignited  States  etc.  Co.  v.  Board  of  Commrs..  145  Fed.  151, 
refusing  to  consider  question  of  sufficiency  of  evidence  to  sustain  finding; 


1231  Notes  on  U.  S.  Eeports.  112  U.  S.  693-710 

National  etc.  Co.  v.  Cincinnati  etc.  Ey.  Co.,  145  Fed.  35,  refusing  to 
review  question  whether  judgment  supported  by  facts  found;  Fitzgerald 
V.  Bassford,  142  Fed.  134,  refusing  to  review  on  assignment  of  error 
that  court  erred  rendering  judgment  for  plaintiff  and  against  de- 
fendants; West  V.  Houston  Oil  Co.,  136  Fed.  350,  69  C.  C.  A.  169,  re- 
fusing to  review  sufficiency  of  fact  found  to  support  judgment;  Paul  v. 
Delaware  etc.  R.  Co.,  130  Fed.  954,  956,  holding,  in  absence  of  excep- 
tions taken  to  questions  of  law,  general  verdict  containing  mixed  ques- 
tions of  law  and  fact,  conclusive  as  to  both;  Eureka  Co.  Bank  v.  Clarke, 
130  Fed.  327,  64  C.  C.  A.  571,  refusing  to  weigh  evidence  to  determine 
whether  court's  findings  justified  thereby. 

Syl.  3  (X,  937).     Finding  equivalent  to  verdict. 

Approved  in  Delaware  etc.  R.  Co.  v.  Kutter,  147  Fed.  57,  refusing  to 
review  weight  of  evidence  where  findings  general;  Streeter  v.  Sanitary 
Dist.  of  Chicago,  133  Fed.  126,  66  C.  C.  A.  190,  refusing  in  absence  of 
special  findings  on  stipulation  of  acts  to  weigh  evidence  and  determine 
facts;  Paul  v.  Delaware  etc.  R.  Co.,  130  Fed.  956,  denying  request  for 
special  findings  of  facts  where  action  tried  without  jury;  Eureka  Co. 
Bank  v.  Clarke,  130  Fed.  326,  64  C.  C.  A.  571,  refusing  to  weigh  evi- 
dence to  determine  whether  court's  findings  justified  thereby;  York  v. 
Washburn,  129  Fed.  566,  64  C.  C.  A.  132,  refusing  to  inquire  whether 
finding  sustained  by  evidence. 

Syl.  4   (X,  938).     Matters  presented  by  bill  of  exceptions. 

Approved  in  Paul  v.  Delaware  etc.  R.  Co.,  130  Fed.  954,  holding  in 
ease  tried  without  jury,  whole  testimony  cannot  be  reviewed  by  bill  of 
exceptions. 

112  U.   S.   693-696,  28  L.  871,  WHITNEY  v.  MORROW. 

Syl.  2   (X,  939).     Title  not  strengthened  by  subsequent  pntont. 

Approved  in  Kneeland  v.  Korter,  40  Wash.  368,  82  Pac.  611,  1  L. 
E.  A.  (N.  S.)  745,  holding  territorial  grantees  entitled  to  land,  al- 
though patent  issued   aftjr  Washington  became  state. 

112  U.  S.  698-710,  28  L.  866,  KNICKERBOCKER  LIFE  INS.  CO.  v. 
PENDLETON. 

Syl.   1    (X,  939).     Policy  forfeited  by  nonpayment  of  note. 

Approved  in  Eessler  v.  Fidelity  etc.  Life  Ins.  Co.,  110  Tenn.  414,  420, 
75  S.  W.  735,  737,  holding  policy  voided  by  nonpayment  of  note,  al- 
though silent  thereon. 

Syl.  4    (X,  940).     Insurance — Liability  denied,  proof  waived. 

Approved  in  Phoenix  Ins.  Co.  v.  Kerr,  129  Fed.  727,  64  C.  C.  A.  251, 
66  L.  R.  A.  569,  holding  denial  of  contract,  waiver  of  proof  of  loss; 
Greenwich  Ins.  Co.  v.  State,  74  Ark.  79,  84  S.  W.  1028,  holding  proof  of 
loss  waived  by  adjuster's  deterinination  to  stand  on  offer;  Scely  v. 
Manhattan  etc.  Ins.  Co.,  72  N.  H.  54,  55  Atl.  426,  holding  proof  of 
death  unnecessary    where  company  claimed  policy  lapsed;   Madden  &  Co. 


112  U.  S.  717-742  Notes  on  U.  S.  Reports.  1232 

V.  Phoenix  Ins.  Co.,  70  S.  C.  301,  49  S.  E.  857,  where  at  time  of  apply- 
ing for  insurance  insured  showed  inventory  to  agent,  who  said  it  was 
all  right,  insurer  waived  right  to  insist  that  it  did  not  conform  to  iron- 
safe  clause  in  policy. 

112  U.  S.  717-720,  28  L.  864,  THAYER  v.  LIFE  ASSN. 

Syl.  1   (X,  941).     Trustee  an  indispensable  party. 

Approved  in  In  re  E.  T.  Kenney  Co.,  136  Fed.  455,  holding  cestuis  que 
trust  not  necessary  for  proper  parties  in  action  to  recover  moneys  for 
trust  estate. 

112  U.  S.  720-733,  28  L.  872,  ST.  PAUL  R.  R.  CO.  v.  WINONA  R.  R, 
CO. 

Syl.  3    (X,   942).     Public  lands— Priority  of  selection. 

Approved  in  Sjoli  v.  Dreschel,  199  U.  S.  566,  50  L.  312,  26  Sup. 
Ct.  154,  holding  railroad  acquired  no  interest  by  merely  filing  list  of 
selection  to  supply  deficiencies  within  place  limits;  Humbird  v,  Avery, 
195  U.  S.  508,  49  L.  299,  25  Sup.  Ct.  123,  holding  sales  by  railroad 
after  acceptance  of  act  cannot  defeat  provisions  thereof  with  reference  to 
conflicting  claims;  State  v.  Trustees,  47  Fla.  325,  35  So.  995,  holding 
neither  swamp  land  grant  nor  conformatory  act  of  Congress  of  1850 
affected  provisions  of  school  land  grant  of  1845;  Sage  v.  Maxwell,  91 
Minn.  534,  99  N.  W.  45,  sustaining  settler's  rights  to  land  granted  to 
railroad  where  selection  not  made  and  approval  given. 

112  U.  S.  733-737,  28  L.  861,  ST.  PAUL  R.  R.  v.  UNITED  STATES. 

Syl.  2   (X,  943).     United  States — Assignment  of  claim    void. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  20,  50  L.  353,  26  Sup.  Ct.  216, 
holding  contract  for  prosecution  of  claim,  made  a  lien  thereon,  void. 

112  U.  S.  737-742,  28  L.  859,  PEUGH  v.  PORTER. 

Syl.  2   (X,  944).     Assignment — Fund  appropriated  creates  lien. 

Approved  in  Union  Trust  Co.  v.  Bulkeley,  150  Fed.  513,  holding 
parol  assignment  secured  by  notes  to  secure  money  for  business  creates 
valid  lien  against  assignor's  bankruptcy  trustee;  In  re  Cramond,  145 
Fed.  977,  denying  right  of  bank  holding  assignment  of  contractor's 
claim  right  to  file  liea. 


CXIII  UNITED  STATES. 


113  IT.  S.   1-9,  28  L.  896,  COLE  v.  LA  GRANGE. 

SyL  1   (X,  946).     Eminent  domain — Private  use. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  252,  49  L.  467,  25  Sup.  Ct.  251,  upholding  removability  of  proceed- 
ing for  condemnation  of  land  under  Ky.  St.,  §§  835-839,  where  diverse 
citizenship  existed;  Scott  v.  La  Porte,  162  Ind.  48,  68  N.  E.  282,  holding 
void  city  ordinance  empowering  water  company  to  construct  waterworks 
and  binding  city  to  pay  large  sum  for  tw^enty-one  years  as  water  rentals 
to  trustee  of  company's  bondholders,  and  jiledging  city's  taxing  power 
to  meet  charges;  Castner  v.  Minneapolis,  92  Minn.  87,  99  N.  W.  361, 
city  council  cannot  reimburse  defeated  candidate  for  public  office  for 
expense  of  election  contest. 

Distinguished  in  dissenting  opinion  in  Madisonville  Tract  ion  Co.  v. 
St.  Bernard  Min.  Co.,  196  U.  S.  260,  49  L.  471,  25  Sup.  Ct.  251,  major- 
ity upholding  removability  of  proceeding  for  condemnation  under  Ky. 
St.,   S§   835-839,  where  diverse  citizenship  existed. 

113  U.  S.  9-26,  28  L.  889,  HEAD  v.  AMOSKEAG  MFG.  CO. 

Syl.  1   (X,  947).     Due  process^ — Mill  dam  act. 

Approved  in  Otis  Co.  v.  Ludlow  Mfg.  Co.,  201  U.  S.  151,  50  L.  705, 
26  Sup.  .Ct.  353,  upholding  Mass.  Pub.  St.,  c.  190,  giving  mill  owners 
right  to  flowage  to  develop  water-power,  where  compensation  secured  to 
upper  owner  for  injuries  resulting  to  lands;  Brown  v.  Gerald,  100  Me. 
308,  109  Am.  St.  Kep.  526,  61  Atl.  792,  70  L.  E.  A.  472,  denying  right 
of  generator  and  seller  of  electric  power  for  manufacturing  purposes 
to  erect  line  of  poles  and  wires  across  private  property;  Otis  Co.  v. 
Ludlow  Manf.  Co.,  186  Mass.  95,  104  Am.  St.  Eep.  563,  70  N.  E.  1012, 
upholding  compensation  provided  in  Pub.  St.  1882,  c.  190,  §  2,  where 
another  miU  site  has  been  previously  appropriated;  Minnesota  Canal 
etc.  Co.  V.  Koochiching  Co.,  97  Minn.  448,  107  N.  W.  412,  generation  of 
electricity  by  water-power  for  sale  to  general  public  is  public  use,  but 
development  of  water-power  is  not ;  State  v.  White  River  Power  Co.,  39 
Wash.  662,  82  Pac.  151,  2  L.  R.  A.  (X.  S.)  842,  taking  of  land  by 
electric  power  corporation  which  has  no  city  franchise  is  taking  for 
private  use. 

113  U.  S.  27-32,  28  L.  923,  BARBIER  v.  CONNOLLY. 

Syl.  1  (X,  947).     Law  ordinance — Equal  protection. 

Approved  in  Grainger  v.  Douglass  etc.  Jockey  Club,  14S  Fed.  521, 
524,  526,  upholding  Ky.  Act  1906,  regulating  racing  of  running  hurses; 
78  [1233] 


113  U.  S.  27-32  Notes  on  U.  S.  Reports.  1234 

French  v.  Davidson,  143  Cal.  662,  77  Pac.  664,  upholding  Stat.  1899, 
p.  32,  requiring  vaccination  of  school  children;  In  re  Finley,  1  Cal.  App. 
210,  81  Pac.  1046,  upholding  Pen.  Code,  §  246,  imposing  death  penalty 
on  life  convict  making  malicious  assault  with  deadly  weapon;  State  v. 
Reynolds,  77  Conn.  134,  58  Atl.  757,  upholding  Gen.  St.  1902,  §  1358, 
prohibiting  engaging  in  temporary  business  of  selling  provisions  within 
one  mile  of  fair  grounds  of  any  incorporated  society,  without  latter 's  con- 
sent; Christy  v.  Elliott,  216  111.  40,  108  Am.  St.  Rep.  196,  74  N.  E.  1039, 
upholding  Laws  1903,  pp.  301,  302,  regulating  speed  of  automobiles; 
McKinster  v.  Sager,  163  Ind.  679,  106  Am.  St.  Rep.  268,  72  1\'.  E. 
857,  68  L.  R.  A.  273,  holding  void  Acts  1903,  p.  276,  rsgulating  sales 
of  stock  of  merchandise  not  in  ordinary  course  of  trade;  Sellers  v. 
Hayes,  163  Ind.  434,  72  N.  E.  123,  holding  void  Acts  1901,  p.  505, 
regulating  sales  of  stock  of  merchandise,  not  in  ordinary  course  of  trade ; 
Adams  Express  Co.  v.  State,  161  Ind.  346,  67  N.  B.  1039,  upholding 
Burns'  St.  1901,  §§  3312b,  et  seq.,  prohibiting  unjust  discriminations  by 
express  companies;  Iowa  etc.  Ins.  Assn.  v.  Gilbertson,  129  Iowa,  669,  106 
N.  W.  157,  upholding  Code  Supp.  1902,  §  1333d,  requiring  insurance 
companies,  except  county  mutuals,  not  organized  for  profit,  to  pay  tax 
on  gross  receipts  after  deducting  losses;  Brady  v.  Mattern,  125  Iowa, 
168,  106  Am.  St.  Rep.  291,  100  N.  W.  362;  upholding  Acts  29th  Gen. 
Assem.,  p.  45,  c.  77,  regulating  conduct  of  building  and  loan  business  by 
unincorporated  societies;  Templar  v.  Barbers'  Board  of  Examiners,  131 
Mich.  255,  100  Am.  St.  Rep.  610,  90  N.  W.  1059,  holding  void  act  of 
1899,  providing  for  licensing  of  barbers  and  prohibiting  grant  of  cer- 
tificates to  aliens;  State  v.  Boehm,  92  Minn.  378,  100  N.  W.  97,  up- 
lioldiug  Laws  1895,  p.  653,  c.  273,  declaring  certain  weeds  nuisances; 
State  V.  Cudahy  Packing  Co.,  33  Mont.  185,  82  Pac.  835,  holding  void 
Penal  Code,  §§  321,  325,  prohibiting  combinations  to  fix  price  of  com- 
modities and  exempting  persons  engaged  in  agriculture  or  horticulture ; 
Wenham  v.  State,  65  Neb.  406,  91  N.  W.  425,  58  L.  R.  A.  825,  up- 
holding act  of  1899,  regulating  hours  of  labor  of  females  in  factories, 
stores,  hotels,  and  restaurants;  Ex  parte  Boyce,  27  Nev.  337,  75  Pac.  5, 
65  L.  R.  A.  47,  upholding  act  of  1903,  regulating  hours  of  labor  in 
mines  and  smelters;  People  v.  Reardon,  184  N.  Y.  445,  112  Am.  St. 
Rep.  636,  77  N.  E.  974,  upholding  Laws  1905,  pp.  474,  477,  §§  315,  324, 
imposing  tax  on  transfers  of  corporate  stock;  People  v.  Warden,  183 
X.  Y.  226,  76  N.  E.  12,  2  L.  R.  A.  (N.  S.)  859,  upholding  Laws  1904, 
c.  432,  regulating  employment  agencies  in  cities  of  first  and  second  class ; 
Cowart  V.  City  Council,  67  S.  C.  44,  45  S.  E.  125,  upholding  ordinance 
providing  that  lenders,  except  banks,  loaning  money  on  personalty,  should 
pay  licenses,  according  to  schedule  of  gross  business;  Standard  Oil  Co. 
V.  Fredericksburg,  105  Va.  91,  52  S.  E.  820,  holding  void  city  ordinance 
imposing  one  tax  on  corporations  transporting  oil  in  bulk  in  tank  cars  or 
pipes,  and  another  tax  on  persons  selling  oil  brought  in  for  distribution  in 
barrels;  dissenting  opinion  in  Wright  v.  Hart,  182  N.  Y,  354,  358,  75  N. 
E.  413,  414,  2  L.  R.  A.  (N.  S.)  338,  majority  holding  void  Laws  1902, 
p.  1249,  making  sales  of  stock  of  merchandise  in  bulk  void  as  to  creditors 
unless  inventory  made  and  purchaser  notifies  creditors;  dissenting  opinion 


1235  Notes  on  U.  S.  Eeports.  113  U.  S.  40-73 

in  State  t.  Barrett,  138  N.  C.  649,  50  S.  E.  512,  majority  upholding 
Laws  1903,  p.  749,  making  it  unlawful  for  one  not  liceused  retailer  to  sell 
liquor,  and  making  keeping  of  more  than  quart  prima  facie  keeping  for 
Bale. 

Syl.  2   (X,  950).     Fourteenth  amendment — Police  power. 

Approved  in  Glucose  Rcf.  Co.  v.  City  of  Chicago,  138  Fed.  217,  up- 
holding smoke  ordinance;  State  v.  Robb,  100  Me.  185,  60  Atl.  876, 
upliolding  ordinance  giving  exclusive  privilege  of  collecting  and  remov- 
ing garbage  to  person  specially  appointed,  and  proliibiting  others  from 
engaging  in  same  business;  State  V.  Shattuck,  96  r^Iinn.  49,  104  N.  W. 
720,  upholding  Laws  1903,  p.  606,  §  45,  prohibiting  sale  of  rufifed  grouse; 
City  of  Butte  v.  Paltrovich,  30  Mont.  23,  104  Am.  St.  Eep.  698,  75  Pac. 
522,  upholding  ordinance  regulating  hours  of  operation  of  pawnshops, 
loan  offices,  and  second-hand  stores  only;  Johnson  v.  Spartan  Mills,  68 
S.  C.  356,  47  S.  E.  702,  upholding  Code  1902,  §§  2712,  2720,  making  it 
unlawful  to  pay  wages  in  evidences  of  indebtedness  redeemable  in  other 
than  lawful  money  and  exempting  agricultural  contracts;  dissenting 
opinion  in  Lochner  v.  New  York,  198  U.  S.  65,  49  L.  945,  25  Sup.  Ct. 
539,  majority  holding  void  New  York  act  1897,  regulating  hours  of 
labor  in  bakeries. 

Syl.  3  (X,  952).  Federal  question — Conformity  to  federal  constitu- 
tion. 

Approved  in  dissenting  opinion  in  Ex  parte  Boyce,  27  Xev.  366,  75 
Pac.  16,  65  L.  R.  A.  47,  majority  upholding  act  of  1903,  regulating 
hours  of  labor  in  mines  and  smelters. 

113  U.  S.  40-50,  28  L.  885,  DAVIDSON  v.  VON  LING  IN. 

Syl.  3  (X,  953).     Breach  of  charter-party — Repudiation. 

Approved  in  Mutual  etc.  Life  Assn.  v.  Austin,  142  Fed.  401,  con- 
struing uncontestable  clause  in  insurance  policy;  Ross-Meehan  Foundry 
Co.  V.  Royer  Wheel  Co.,  113  Tenn.  376,  83  S.  W.  168,  68  L.  R.  A.  829, 
contract  by  which  plaintiff  agrees  to  make  and  deliver  to  defendant  for 
three  years  all  castings  required  by  it,  each  delivery  payable  within 
sixty  days,  may  be  terminated  on  failure  to  make  payment;  The  Gordon 
Campbell,  141  Fed.  436,  arguendo. 

113  U.  S.  59-73,  28  L.  901,  HOLLISTER  v.  BENEDICT  ETC.  MFG. 
CO. 

Syl.  1    (X,  953).     Patentee's  rights  exclusive  of  government. 

Approved  in  dissenting  opinioji  in  International  Postal  Supply  Co.  v. 
Bruce,  194  U.  S.  608,  48  L.  1138,  24  Sup.  Ct.  820,  majority  holding  in- 
ability to  make  United  States  party,  defeats  right  of  patentee  for 
stamp-canceling  machine,  to  enjoin  use  by  postmaster  of  infringing  ma- 
chines of  which  government  is  lessee. 

Syl.  5    (X,  954).     Patentable  invention — Mechanical  skill. 
Approved    in    New    York    etc.    Belting    Co.    v.    Sierer,    149    Fed.    770, 
Furneas  &■  Watts  patent  No.  527,961,  for  tile  floor,  is  void  in  view  of 


113  U.  S.  73-96  Notes  on  U.  S.  Eeports.  1236 

prior  act;  Sloan  Filter  Co.  v.  Portland  Gold  Min.  Co.,  139  Fed.  26,  holding 
void  Sloan  patent  No.  587,874,  for  barrel  filter  for  filtration  of  precious 
metal  solutions;  Wilce  v.  Bush  Temple  of  Music  Co.,  134  Fed.  391,  67 
C,  C.  A.  371,  holding  void  Wilce  &  Burnham  patent  No.  531,711,  for 
improved   flooring. 

113  U.  S.  73-81,  28  L.  927,  HESS  v.  REYNOLDS. 

Syl.  1   (X,  956).     Removal — Suit  against  administrator — Claims. 

Approved  in  Fourier  v,  McKenzie,  147  Fed.  289,  upholding  federal 
jurisdiction  of  suit  by  diverse  citizens  to  determine  shares  in  estate  of 
decedent,  where  property  held  partly  by  federal  receiver,  and  partly  by 
decedent's  surviving  partner;  Barber  Asphalt  Pav.  Co.  v.  Morris,  132 
Fed.  949,  67  L.  R.  A.  761,  66  C.  C.  A.  55,  Duluth  charter  regulating 
appeals  from  allowance  or  rejection  of  claims  and  i^rohibiting  payments 
pending  appeal,  does  not  aft'ect  federal  court's  power  to  enforce  judg- 
ments on  such  claims. 

Syl.    3    (X,   957).     Removal — Time   to   apply. 

Approved  in  Carpenter  v.  New  York  etc.  R.  R.  Co.,  184  Mass.  101, 
68  N.  E.  29,  hearing  before  auditor  does  not  constitute  trial  so  as  to 
preclude  plaintiff  from  being  entitled  to  nonsuit  after  hearing,  but 
before  filing  of  auditor's  report. 

(X,  956.)  Miscellaneous.  Cited  in  Cheshire  Prov.  Inst.  v.  Anglo- 
American  Land  etc.  Co.,  132  Fed.  969,  66  C.  C.  A.  122,  court  may 
render  judgment  against  corporation  in  hands  of  receiver  to  determine 
question  of  debt  or  no  debt. 

113  U.  S.  81-84,  28  L.  938,  POLLEYS  v.  BLACK  RIVER  IMPROVE- 
MENT CO. 

Syl.  3  (X,  958).     When  time  for  writ  of  error  runs. 

Approved  in  In  re  MeCall,  145  Fed.  901,  time  limit  for  review  of 
orders  confirming  bankrupt's  composition,  by  appeal,  runs  from  entry 
of  confirmation  order  on  records. 

113  U.  S.  89-96,  28  L.  934,  GRIFFITH  v.  GODEY. 

Syl.  1   (X,  959).     Conclusiveness  of  settlement  of  executor's  account. 

Approved  in  Froebrich  v.  Lane,  45  Or.  21,  106  Am.  St.  Rep.  634,  76 
Pac.  352,  equity  court  may  set  aside  county  court's  decree  settling  ad- 
ministrator's final  account  procured  by  fraud,  though  B.  &  C.  Comp., 
§  911,  gives  county  court  exclusive  jurisdiction  to  settle  such  accounts; 
Thomas  v.  Hawpe,  35  Tex.  Civ.  315,  80  S.  W.  131,  where  administrator 
filed  account  showing  balance  applicable  to  unpaid  claims,  but  did  not 
give  debts  of  estate,  nor  names  of  creditors,  or  ask  for  discharge,  and 
court  settled  it  in  form  for  annual  exhibit  it  is  not  final  account. 

Syl.  2   (X,  960).     Equity — Omission  from  administrator's  account. 
Approved  in  Tucker  v.  Stewart,  121  Iowa,  717,  97  N.  W.  149,  uphold- 
ing suit  to  set  aside  order  finally  discharging  administrator  for  errors 


1237  Notes  on  U.  S.  Keports.  113  U.  S.  97-127 

in  settlement  brought  •within  five  years  after  discovery  of  errors.     See 
lOG  Am.   St.  Eep,   642,  note, 

113  U.  S.  97-104,  28  L.  906,  ROWELL  v.  LINDSAY.      . 

Syl.  4   (X,  961).     Patents— Equivalents. 

Approved  in  American  Can  Co.  v.  Hickmott  Asparagus  etc.  Co.,  137 
Fed.  88,  upholding  machine  of  Eldridge  patent  No.  712,998,  for  can- 
body  forming  machine;  Cleveland  Foundry  Co.  v.  Detroit  etc.  Stove  Co., 
131  Fed.  751,  holding  void  Jearves  patent  No.  475,401,  for  oil-burner. 

Syl.  5   (X,  961).     Infringement  of  part  of  combination. 

Approved  in  Bullock  etc.  Mfg.  Co.  v.  Westinghouse  etc.  Mfg.  Co.,  129 
Fed.  109,  63  C.  C.  A.  607,  following  rule;  Dodge  Coal  Storage 
Co.  V.  New  York  etc.  R.  R.  Co.,  139  Fed.  981,  holding  void  Piez  &  Beau- 
mont patents  Nos.  668,960  and  688,111,  for  improvements  in  coal- 
storage  apparatus;  Avery  v.  Case  Plow  Works,  139  Fed.  8S6,  con- 
struing Avery  patent  No.   650,771,   for  double   mold-board  plow. 

113  U.  S.  104-116,  28  L.  930,  FINDLAY  v.  McALLISTER. 

Syl.  1  (X,  961).     Conspiracy  to  defeat  tax  to  pay  judgment. 

Distinguished  in  Bitzer  v.  Washburn,  121  Iowa,  468,  96  N.  W.  981, 
denying  judgment  creditor's  action  for  conspiracy  where  he  levied  on 
realty  and  garnisheed  purchaser  and  garnishee  secured  discharge  with- 
out notice  after  sale. 

113   U.   S.    116-127,   28   L.    915,   CENTRAL   RAILROAD    ETC.    CO   v. 
PETTUS. 

Syl.  2   (X,  962).     Attorney's  fees  for  recovering  fund. 

Approved  in  Harrigan  v.  Gilchrist,  121  Wis.  391,  99  N.  W.  991.  follow- 
ing rule;  McCourt  v.  Singers-Bigger,  145  Fed.  114,  stockholder  who  by 
suit  on  behalf  of  corporation  recovers  fund  wrongfully  diverted  by 
officers  is  entitled  to  reimbursement  therefrom  for  attorney's  fees,  but 
defending  stockholders  are  not;  Cuyler  v.  Atlantic  etc.  R.  Co.,  132  Fed. 
572,  federal  equity  court  has  discretion  to  allow  counsel  fees  to  joint 
owner  of  property  who  has  sued  for  its  protection  and  it  has  been 
brought  within  control  of  court;  Lamar  v.  Hall,  129  Fed.  83,  63  C. 
C.  A.  521,  where,  after  appointment  of  receiver  in  suits  by  lien  creditors 
against  corporation,  attorneys  for  minority  stockholders  filed  bill  alleg- 
ing former  suits  brought  in  bad  faith  and  co-receiver  appointed,  and  on 
trial  bad  faith  not  shown  and  sale  set  aside  for  inadequacy  of  price, 
and  increased  price  obtained  on  resale,  attorneys  not  entitled  to  fees 
out  of  proceeds;  Bartholomew  v.  Union  Trust  Co.  (Myers  v.  Mut.  Life 
Ins.  Co.),  36  Ind.  App.  329,  75  N.  E.  31,  services  rendered  by  attorney 
for  intervener  in  receivership,  who  asked  that  bond  and  mortgage  given 
by  him  to  insolvent  be  found  paid  and  ordered  canceled,  are  not  pay- 
able out  of  receivership  fund;  Kimble  v.  Board  of  Commrs.,  32  Ind. 
App.  389,  66  N.  E.  1027,  where  defendant,  who  secured  judgments 
against    county    officers    for    misappropriated    county    funds,    and    paid 


113  U.  S.  135-179  Notes  on  U.  S.  Eeporta.  1238 

over  amounts  recovered  less  expenses  of  suits  and  attorneys,  is  entitled 
to  such  items;  Coffman  v.  Gates,  110  Mo.  App.  488,  85  S.  W.  660,  where 
one  holding  interest  in  lands  in  fee  and  remainder  as  trustee  expended 
money  in  defense  of  ejectment  suit,  he  could  look  to  trust  property  for 
proportionate  reimbursement;  Carpenter  v.  United  States  Fidelity  etc. 
Co.,  123  Wis.  215,  101  N.  W.  407,  county  court  may  determine  amount 
due  administrator  for  legal  services,  and  on  application  of  attorneys 
after  administrator  has  become  defaulter  decree  amount  thereof  lien 
on  estate's  assets  in  favor  of  attorneys;  Butler  v.  Conwell,  14  Wyo. 
173,  82  Pac.  952,  where  attorney  for  creditors  of  insolvent  collected 
and  paid  to  receiver  fund  for  benefit  of  all  creditors,  attorney's  claim 
on  fund  is  valid  whether  presented  for  allowance  by  employing  creditors 
or  by  attorney  himself. 

113  U.  S.  135-142,  28  L.  954,  ACKLEY  SCHOOL  DIST.  v.  HALL. 

Syl.  2  (X,  964).     Negotiability  of  municipal  bond. 

Approved  in  National  Salt  Co.  v.  Ingraham,  143  Fed.  807,  corpora- 
tions' certificates  of  indebtedness  not  rendered  non-negotiable  by  pro- 
vision that  maker  may  pay  principal  before  maturity. 

Syl.  4  (X,  964).     Statutes  embracing  one  subject — Title. 
Approved  in  Blair  v.  Chicago,  201  U.  S.  452,  50  L.  823,  26  Sup.  Ct. 
427,  upholding  statutes  constituting  charters  of  Chicago  street  railway 

companit"-'. 

113  U.  S.  149-152,  28  L.  962,  BICKXELL  v.  COMSTOCK. 

Syl.  1  (X,  965).    Land  patent — Officer's  mutilation  of  record. 

Approved  in  United  States  v.  Laam,  149  Fed.  585,  land  patent  duly 
issued  on  decision  of  proper  officers  and  recorded  in  proper  land  depart- 
ment book  passes  title  without  delivery;  Sage  v.  Kudnick,  91  Minn.  334, 
100  N.  W.  108,  after  passing  of  title  to  land  grant  by  definite  location 
of  road,  pendency  of  adverse  claim  before  Interior  Department  did  not 
suspend    running   of   limitations   in    favor   of   adverse    claim. 

Svl.  3   (X.  965).     Adverse  possession  gives  perfect  title. 

Approved  in  Linton  v.  Heye,  69  Neb.  455,  111  Am.  St.  Eep.  559, 
95  N.  W.  1041,  statute  of  limitations  respecting  actions  for  recovery 
of  realty  does  not  deprive  owner  of  property  without  due  process ; 
Wilson  V.  Braden,  56  W.  Va.  376,  107  Am.  St.  Rep.  930.  49  S.  E.  411, 
determining   question  of   sufficiency   of   adverse   possession. 

113  U.  S.  157-179,  28  L.  939,  CONSOLIDATED  SAFETY  VALVE  CO. 
V.  CROSBY  STEAM  GAUGE  ETC.  CO. 

Syl.   4    (X,   967).      Patents — Mere   mechanical   skill. 

Approved  in  Brown  Bag  Filling  Mach.  ('u.  v.  Drohen,  140  Fed.  101, 
upholding  Cummings  patent  No.  573,171,  for  machine  for  filling  paper 
bags. 


1239  Notes  on  U.  S.  Eeports,  113  U.  S.  179-212 

Syl.  7   (X,  968).     Patent  infringement — Specific  differences. 

Approved  in  Eiss  v.  Barth  Mfg.  Co.,  136  Fed.  854,  69  C.  C.  A.  528, 
Riss  patent  No.  356,963,  for  electric  circuit  closing  apj)aratus,  infringed 
by  apparatus  of  Dillon  patent  No.  676,426. 

Syl.  9    (X,  968).     Patentable  novelty — Extensive  use. 

Approved  in  Robins  etc.  Belt  Co.  v.  American  etc.  Mach.  Co.,  145 
Fed.  926,  upholding  Robins  patent  No.  571,604,  for  belt  conveyor. 

Distinguished  in  Mayo  Knitting  etc.  Co.  v.  E.  Jenckes  Mfg.  Co., 
133  Fed.  541,  66  C.  C.  A.  503,  holding  void  Mayo  patent  No.  461,357, 
claim  11,  for  circular  knitting  machine. 

Syl.  10  (X,  909).     Patent  for  safety  valve. 

Approved  in  Albright  v.  Langfeld,  131  Fed.  475,  upholding  Albright 
patent  No.  439,086,  for  coin  purse. 

113  U.  S.  179-199,  28  L.  908,  BRYAN  v.  KENNETT. 

Syl.  1  (X,  969).     Projierty  includes  inchoate  titles. 

Approved  in  Corkran  Oil  etc.  Co.  v.  Arnaudet,  111  La.  577,  35  So. 
733,  following  rule. 

Syl.  3   (X,  969).     Suit  against  nonresident  minor. 

Approved  in  Cohen  v.  Portland  Lodge  etc.  Elks,  144  Fed.  276,  on 
service  by  publication  on  nonresident  defendant  under  B.  &  C.  Comp. 
Or.,  §§  56,  57,  minority  of  defendant  immaterial. 

Syl.  4   (X,  969).     Judgments— Collateral  attack. 

Approved  in  Kittcl  v.  Trustees  etc.  Improvement  Fund,  139  Fed.  955, 
where  trustees  of  Florida  improvement  fund,  joined  as  defendants  in 
foreclosure  of  lands  covering  certificate  from  them  alleged  in  answer 
intention  to  comply  with  certificate  they  are  estopped  from  denying 
authority  to  make  certificate. 

113  U.  S.  199-202,  28  L.  948,  NORTHERN  LIBERTY  MARKET  CO. 
V.  KELLY. 

Syl.  1   (X,  970).     Compromise  note  for  lesser  sum. 

Approved  in  Tollman  v.  Quincy,  129  Fed.  975,  where  defendant's  note 
transferred  to  plaintiff  before  maturity  in  settlement  of  pending  suit, 
plaintiff  's  counsel  being  told  it  was  given  by  maker  to  payee  in  settle- 
ment of  account,  it  is  no  defense  that  it  was  accommodation  paper. 

113  U.  S.  205-212,  28  L.  959,  CARDWELL  v.  AMEFICAN-BRIDGE 
CO. 

Syl.  1   (X,  970).     Navigable  waters — Admission  of  state. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  479,  50  L.  278,  26 
Sup.  Ct.  127,  state  constitution  providing  that  navigable  waters  shall 
forever  remain  public  highways  does  not  prevent  legislature  from  autlior- 
izing  >lam  across  stream  to  subserve  drainage  of  lowlands. 


113  U.  S.  21G-242  Notes  on  U.  S.  Kcports.  1240 

Syl.  2  (X,  971).    State's  power  over  navigable  waters. 

Approved  in  United  States  v.  Union  Bridge  Co.,  143  Fed.  392,  com- 
pany building  bridge  over  navigable  stream  under  state  charter,  provid- 
ing it  shall  not  obstruct  navigation,  may  be  compelled  by  United  States 
to  so  alter  it  as  not  to  obstruct  navigation;  Kansas  City  etc.  E.  R. 
Co.  V.  Wiygul,  82  Miss.  231,  33  So.  967,  61  L.  R.  A.  578,  railroad  which 
has  constructed  bridge  over  navigable  interstate  river  under  state  grant 
may  make  necessary  repairs;  Seibert  v.  Missouri  Pac.  Ey.  Co.,  188  Mo. 
672,  87  S.  W.  999,  70  L.  E.  A.  72,  refusing  to  interfere  with  decision 
of  city  authorities  locating  machinery  for  operating  safety-gates  at 
railroad  crossing  where  thirty-nine  feet  of  unobstructed  space  in  high- 
way left. 

113  U.  S.  216-218,  28  L.  983,  CHEONG  AH  MOY  v.  UNITED  STATES. 

Syl.  1  (X,  972).    Moot  questions  not  decided. 

Distinguished  in  Mackenzie  v.  Barrett,  141  Fed.  965,  allowing  habeas 
corpus  where  petitioner  under  arrest  but  out  on  bail. 

113  U.  S.  218-222,  28  L.  980,  PRICE  v.  PENNSYLVANIA  R.  R.  CO. 

(X,  972.)  Miscellaneous.  Cited  in  Yarrington  v.  Delaware  etc.  Co., 
143  Fed.  569. 

113  U.  S.  222-227,  28  L.  981,  DAKOTA  CO.  v.  GLIDDEN. 

Syl.  2    (X,   973).     Appeal — Evidence   dehors  record. 

Approved  in  Ridge  v.  Mauker,  132  Fed,  601,  67  C.  C.  A.  596,  deter- 
mining conclusiveness  of  state  decree  against  receivers  appointed  by 
court  of  another  county;  Barnes  v.  Lynch,  9  Okl.  22,  59  Pac.  999, 
applying  rule  where  proceedings  after  judgment,  for  appointment  of 
referee  and  taking  accounting  presented  in  support  of  motion  to  dismiss 
appeal,  by  attested  copies  of  record  and  by  affidavit. 

113  U.  S.  227-242,  28  L.  966,  ANDERSON  COUNTY  COMMRS.  v. 
BEAL. 

Syl.  1   (X,  973).     Municipal  bonds— Recital. 

Approved  in  Piatt  v.  Hitchcock  Co.,  139  Fed.  933,  applying  rule  where 
county  commissioners,  authorized  to  issue  bonds  not  exceeding  ten  per 
cent  of  last  preceding  assessment,  recited  bonds  issued  pursuant  to 
specified  statutes  and  bonds  issued  after  last  assessment  but.  board  had 
power  until  few  days  later  to  alter  assessment. 

Syl.  4  (X,  974).     Direction  of  verdict. 

Approved  in  McGuire  v.  Blount,  199  U.  S.  148,  50  L.  130,  26  Sup. 
Ct.  1,  upholding  direction  of  verdict  in  ejectment;  Guild  v.  Priugle, 
145  Fed.  314,  upholding  refusal  to  direct  verdict  in  action  against  city 
contractor  for  death  of  pedestrian  by  falling  into  excavation  where  evi- 
dence conflicted;  International  Text  Book  Co.  v.  Heartt,  136  Fed.  133, 
69  C.  C.  A.  127,  applying  principle  in  action  against  corporation  for 
slanderous  words  of  agent;   Guun  v.  Union  R.  E.  Co.,  27  E.  I,  327,  62 


1241  Notes  on  U.  S.  Keports.  113  U.  S.  243-331 

Atl.  121,  upholding  Gen.  Laws  1896,  c.  251,  §  11,  authorizing  supreme 
court  to  direct  judgment  without  further  trial  by  jury ;  TVoolf  v.  Wash- 
ington etc.  Nav.  Co.,  37  Wash.  503,  79  Pac.  999,  it  cannot  be  presumed 
that  one  killed  at  railway  crossing  was  in  exercise  of  due  care  where 
attendant  facts  show  such  was  not  case. 

113  U.   S.  243-249,   28  L.   987,   HARVEY  v.  UNITED   STATES. 

Syl.  3   (X.  975),     Interest  on  claim  against  government. 

Approved  in  Watts  v.  United  States,  129  Fed.  226,  admiralty  court 
in  suit  against  government  for  damages  for  loss  of  British  vessel 
through  collision  with  naval  vessel  cannot  allow  interest  where  statute  is 
silent. 

113  U.  S.  249-257,  28  L.  949,  CENTRAL  R.  R.  CO.  v.  MILLS, 
Syl.  1  (X,  976).    Removal — Diverse  citizenship  of  one  defendant. 
Approved  in  Groel  v.  United  Elec.  Co.,  132  Fed.  258,  259,  262,  265, 

in  suit  by  stockholder  on  right  of  action  in  corporation,  corporation  is 

aligned  with  whichever  party  its  interests  appear  to  be  for  purposes  of 

federal  jurisdiction. 

113  U.  S.  310-315,  28  L.  999,  THORXLEY  v.  UNITED  STATES. 

Syl.  2  (X,  980).     Statutory  construction  where  meaning  plain. 

Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Naylor,  73  Ohio  St.  120,  76 
N.  E.  506,  3  L;  R.  A.  (N.  S.)  473,  where  next  of  kin  of  one  killed 
by  wrongful  act  are  alien  nonresidents,  administrator  may  sue  for  their 
benefit. 

113  U.  S.  316-321,  28  L.  989,  BAYLIS  v.  TRAVELERS'  INS.  CO.     ' 

Syl.  1   (X,  981).     Direction  of  verdict. 

Approved  in  Gunn  v.  Union  etc.  R.  R.  Co.,  27  R.  I.  327,  62  Atl.  121, 
upholding  Gen.  Laws  1896,  c.  256,  §  11,  authorizing  supreme  court  to 
direct   judgment  without   further  trial  by  jury. 

113  U.  S.  322-327,  28  L.  1003,  PNEUMATIC  GAS  CO.  v.  BEERY. 

Syl.  1  (X,  981).    Ratification  of  director's  act  by  corporation. 

Approved  in  Kessler  v.  Ensley,  141  Fed.  134,  where  property  of  cor- 
poration conveyed  to  trustees  to  sell  and  pay  debts  and  company  ac- 
cepted reconveyance  of  remainder  after  debts  paid,  corporation  cannot 
deny  authority  of  trustees;  Kessler  v.  Ensley  Co.,  129  Fed.  402,  411, 
determining  right  of  minority  stockholders  to  sue  to  set  aside  sale  of 
corporation's  land  whereby  it  was  defrauded. 

113  U.  S.  328-331,  28  L.  1005,  EX  PARTE  BIGELOW. 

Syl.  2  (X,  982).     Habeas  corpus — Judgment  as  nullity. 

Approved  in  Valentina  v.  Mercer,  201  U.  S.  138,  50  L.  695,  26  Sup. 
Ct.  368,  denying  habeas  corpus  to  release  one  convicted  of  murder  in 
first  degree  in  state  court  on  ground  that  court  lost  jurisdiction  by 
instruction  that  only  question  was  degree  of  murder;  Felts  v.  Murphy, 


113  U.  S.  339-407  Notes  on  U.  S.  Keports.  1242 

201  U.  S.  129,  50  L.  692,  26  Sup.  Ct.  366,  denying  habeas  corpus  where 
one  convicted  of  murder  in  state  court  and  court  did  not  have  testimony 
read  to  accused,  who  was  nearly  totally  deaf. 

113  U.  S.  339,  340,  28  L.  978,  SANTA  ANNA  v.  FEANK. 

Syl.  1   (X,  983).     Appeal — Eeview  of  general  findings. 

Approved  in  Streetcr  v.  Sanitary  Dist.  of  Chicago,  133  Fed.  126,  66 
C.  C.  A.  190,  following  rule. 

113  U.  S.  340-407,  28  L.  1015,  McAETHUR  v.  SCOTT. 

Syl.  2   (X,  984).     Wills— Vesting  of  estates. 

Approved  in  Ehode  Island  Hospital  Trust  Co.  v.  Noyes,  26  E.  I.  335, 
58  Atl.  1004,  following  rule;  Brigham  v.  Peter  Bent  Brigham  Hospital, 
134  Fed.  523,  67  C.  C.  A.  393,  where  will  directed  sesidue  to  be  invested 
by  executors  for  twenty-five  years  and  pay  legacies  from  income  and 
balance  of  income  to  be  added  to  principal  and  form  corjioration  to 
transfer  property  to  it  for  care  of  sick,  gift  vested  on  testator's  death; 
Taylor  v.  Stephens,  165  lud.  203,  74  N.  E.  981,  will  giving  wife  use  of 
property  for  life  and  at  her  death  property  to  go  to  children,  gives 
children  vested  remainder;  Bosworth  v.  Stockbridge,  189  Mass.  267, 
75  N.  E.  713,  devise  to  executors  to  pay  income  to  three  persons  and 
on  death  of  one  to  be  put  at  interest  until  all  dead  and  then  whole  fund 
to  go  to  others,  gave  latter  vested  estate. 

Syl.  4  (X,  984).     Ecmainders — Devise  in  trust. 

Approved  in  Anderson  v.  Messinger,  146  Fed.  940,  where  will  de- 
clared if  either  son  died  without  descendants,  survivor  took  his  estate, 
•and  if  latter  died  without  descendants  all  should  go  to  testator's  brothers 
and  sisters,  sons  acquired  life  estate  with  remainder  to  survivor  in  case 
one  died  without  issue;  Land  Title  etc.  Co.  v.  McCoach,  129  Fed.  905, 
64  C.  C.  A.  333,  where  bequest  of  residue  was  in  trust,  income  to  be 
paid  to  widow  for  life,  remainder  to  children  living  at  her  death  and 
issue  of  deceased  children,  remainder  was  not  vested  and  bequests  not 
subject  to  legacy  tax  under  War  Eevcnue  Act,  §  29;  Archer  v.  Jacobs, 
125  Iowa,  479,  481,  101  N.  W.  199,  where  will  devised  quarter  of  estate 
to  daughter  for  life,  remainder  to  her  children,  but  if  she  left  no  children 
then   to   testator 's   son,   children  in   being   took   vested   remainder. 

Syl.  7    (X,  985).     Equity — Who  necessary  parties. 

Approved  in  Spaulding  v.  Evenson,  149  Fed.  917,  where  voluntary 
association  with  many  members  is  represented  by  committee,  suit  is 
maintainable  against  members  of  committee  in  representative  capacity; 
In  re  E.  T.  Kenney  Co.,  136  Fed.  455,  where  creditors  of  insolvent, 
prior  to  bankruptcy,  assigned  claims  to  committee  to  buy  property  and 
sell  same  for  interest  of  assignors,  beneficial  interest  of  assignors  in 
net  proceeds  of  claims  not  provable  in  bankruptcy ;  Lynch  v.  United 
States,  13  Okl.  158,  73  Pac.  1101,  where  patent  issued  to  homesteads 
for  townsite  and  land  jilatted  ami  lots  sold  to  diverse  persons,  govern- 
ment cannot  cancel  patent  thou;^h  it  was  procured  by  fraud;   Cresap  v. 


1243  Notes  on  U.  S.  Eeports.  113  U.  S.  418-464 

Cresap,  54  W.  Va.  590,  46  S.  E.  586,  executrix  claiming  as  devisee  and 
also  that  property  is  individual  property  may  set  up  individual  claim 
in  bill  to   construe   will  and   settle  estate, 

Syl.   11    (X,   986).     Remaindermen — Judgmeni   setting  aside  will. 

Approved  in  Anderson  v.  Mcssinger,  146  Fed.  949,  where  will  left 
estate  in  remainder  after  death  of  surviving  son  to  lineal  descendants, 
life  tenants  could  not  prejudice  remainderman  by  declaration  of  trust 
of  property;  Medill  v.  Snyder,  71  Kan.  594,  81  Pac.  218,  time  limited 
by  statute  of  wills  for  bringing  action  in  district  court  to  contest  will 
not  be  extended  by  Code  Civ.  Proc,  §  23,  relating  to  revival  of  actions; 
Downey  v.  Seib,  185  N.  Y.  433,  434,  78  N.  E.  67,  68,  where  father 
conveyed  premises  to  daughter  for' life,  remainder  to  her  children,  and 
if  she  died  without  issue  to  his  sons,  and  sons  conveyed  fee  to  daughter 
while  childless,  children  of  sons  not  concluded  by  decree  against  sons 
reforming  deed. 

(X,  984.)  Miscellaneous.  Cited  in  Anderson  v.  Messinger,  146  Fed., 
948,  distinguishing  between  trust  of  executor  as  such  is  where  executor 
is  named  as  trustee  in  will. 

113  U.  S.  418-423,  28  L.  1013,  UNITED  STATES  v.  JORDAX. 

Syl.  1   (X,  987).     Refunding  revenue  taxes. 

Approved  in  Thatcher  v.  United  States,  149  Fed.  903,  failure  to 
present  claim  for  refunding  of  legacy  taxes  illegally  collected  within 
time  limited  by  Rev.  St.,   §   3228,  does  not  bar  action  thereon. 

113  U.  S.  44<)-4r>2,  28  L.  1043,  MORGAN  v.  HAMLET, 
Syl.  1  (X,  9SS).  Limitation — Claims  against  estate. 
Approved  in  Boyle  v.  Boyle,  126  Iowa,  168,  101  N.  W.  748,  Code, 
§  3349,  limiting  time  for  presentation  of  claims  against  estate,  applies 
to  infants;  Barry  v.  Minahan,  127  Wis.  576,  107  N.  W.  491,  construing 
Rev.  St.,  §  3844,  bars  claims  against  estates  not  presented  in  time  re- 
quired. 

(X,  988.)  Miscellaneous.  Cited  in  Srhurineier  v.  Connecticut  etc, 
Ins.  Co.,  137  Fed.  45,  69  C.  C.  A.  22,  federal  courts  follow  state  de- 
cisions. 

113  U.  S.  452-464,  28  L.  1038,  CHASE  v.  CURTIS. 

Svl.  1   (X,  989).     Corporations — Reports  of  debts — Penal  statutes. 

Distinguished  in  Starkweather  v.  Brown,  25  R.  I.  148,  55  Atl.  203, 
stockholders  of  manufacturing  corporation  having  no  factory  in  state 
are  liable  under  stockholders'  liability  imposed  by  Pub.  St.,  c,  155, 
for  failure  to  file  returns  as  required  by  §  11. 

Syl.  2    (X,  989).     Judgment  against  corporation  as  evidence. 

Approved  in  Audenried  v.  East  Coast  Mining  Co.,  68  N.  J.  Eq.  462, 
59  Atl.  582,  in  action  against  directors  to  enforce  liability  accruing  to 
creditors    of    corporation    under    Laws    18L!o,    p.    2SG,    judgment    not    on 


113  U.  S.  465-537  Notes  on  U.  S.  Reports,  1244 

merits  against  corporation  obtained  in  another  jurisdiction  is  not  con- 
clusive as  to  debt  sued  on. 

113  IT.  S.  465-476,  28  L.  1055,  ST.  LOUIS,  IRON  MOUNTAIN   ETC. 
R.  CO.  V.  BERRY. 

Syl,  1  (X,  990).     Consolidation  of  corporations. 

Approved  in  Lake  Drummond  Canal  Co.  v.  Commonwealth,  103  Va. 
354,  49  S.  E.  511,  corporation  created  on  purchase  at  foreclosure  of 
property  and  franchises  of  another  corporation  cannot  claim  tax 
immunity  granted  to  old  corporation. 

Distinguished  in  Lee  v.  Atlantic  etc.  R.  Co.,  150  Fed.  790,  construing 
agreement  between  corporations  as  merger  and  not  consolidation. 

113  U.  S.  506-516,  28  L.  1102,  PROVIDENT  INSTITUTION  ETC.  v. 
MAYOR  ETC.  JERSEY  CITY. 

Syl.  3   (X,  992).     Due  process — Priority  of  water  rents. 

Approved  in  Arnold  v.  Knoxville,  115  Tenn.  210,  90  S.  W.  472, 
upholding  Acts  1905,  p.  585,  authorizing  levy  of  special  assessments 
for  municipal  improvements  on  abutting  property  benefited  thereby; 
City  of  Grafton  v.  Holt,  58  W.  Va.  188,  52  S.  E.  23,  water  rates 
exacted  by  public  corporation  from  actual  consumers  are  not  taxes. 

Syl.  4  (X,  993).     Priority  of  water  rent  liens. 

Approved  in  City  of  East  Grand  Forks  v.  Luck,  97  Minn.  375, 
376,  107  N.  W.  394,  395,  upholding  Laws  1895,  p.  113,  §§  291,  293, 
making  owner  of  premises  liable  for  water  and  light  furnished  by 
city  to  tenant;  Richmond  v.  Williams,  102  Va.  743,  47  S.  E.  847, 
creditors  secured  by  deed  of  trust  are  not  owners  of  land  within 
Act  1892,  providing  for  notice  to  owners  of  assessment  for  improve- 
ments, 

113  U.  S.  516-527,  28  L.  1098,  UNION  PAC.  RY.  CO.  v.  CHEYENNE. 

Syl.  2   (X,  994).     Enjoining  collection  of  illegal  tax. 

Approved  in  Fargo  v.  Hart,  193  U.  S.  503,  48  L.  767,  24  Sup.  Ct. 
498,  upholding  injunction  against  assessment  for  taxation  of  prop- 
erty of  nonresident  express  company  on  mileage  basis;  Illinois  Life 
Ins.  Co.  V.  Newman,  141  Fed.  451,  refusing  to  enjoin  collection  of 
tax  levied  under  state  statute  on  ground  of  illegality  of  statute 
alone. 

113  U.  S.  527-537,  28  L.  1113,  ERHARDT  v.  BOARO, 

Sj'l.  1  (X,  995).     Mining  notice — Course  of  vein. 

Approved  in  Last  Chance  Min.  Co.  v.  Bunker  Hill  etc.  Co.,  131 
Fed.  590,  66  C.  C.  A.  299,  where  end  lines  of  lode  cross  surface  out- 
croppings,  they  determine  extralateral  right  of  claim  without  regard 
to  angle  at  which  they  cross  general  course  of  vein;  Loeser  v.  Gardi- 
ner, 1  Alaska,  616,  where  by  mintis'  custuius  boundaries  are  marked 


1245  Notes  on  U.  S.  Reports,  11?  U.  S.  527-537 

by  only  one  center  stake  at  each  end,  boundaries  are  formed  by  end 
lines  at  right  angles  to  center  line  drawn  from  one  center  stake  to 
other,  and  by  side  lines  parallel  to  center,  and  far  enough  therefrom 
to  embrace  twenty  acres;  Columbia  Min.  Co.  v.  Duchess  Min.  Co.,  13 
Wyo.  255,  79  Pac.  387,  upholding  siifficiency  of  notice,  dated  and 
signed,  that  undersigned  claims  by  right  of  discovery  ledge  or  de- 
posit, described  as  1500  feet  in  northwesterly  direction  from  notice 
and  300  feet  on  each  side  of  vein;  Bonanza  etc.  Min.  Co.  v.  Golden 
Head  Min.  Co.,  29  Utah,  168,  80  Pac.  738,  upholding  sufficiency  of 
notice  of  mining  location. 

Distinguished  in  dissenting  opinion  in  Bonanza  etc.  Min.  Co.  v. 
Golden  Head  Min.  Co.,  29  Utah,  178,  80  Pac.  742,  majority  uphold- 
ing sufficiency  of  notice  of  mining  location. 

Syl.  2   (X,  995),     Mines — Discovery,  appropriation,  development. 

Approved  in  Creeds  etc.  Milling  Co.  v.  Uinta  Tunnel  etc.  Co.,  198 
U.  S.  346,  49  L.  507,  25  Sup.  Ct.  266,  Eev.  St.,  §  2320,  does  not  re- 
quire discovery  of  vein  or  lode  before  other  steps  taken  to  perfect 
location;  Behrends  v.  Goldsteen,  1  Alaska,  525,  discovery  of  mineral 
within  boundary  of  naval  reservation  will  not  sustain  location,  which 
lies  partly  within  and  partly  without  reservation;  Weed  v.  Snook, 
144  Cal,  443,  77  Pac.  1025,  prior  locators  of  oil  lands  in  actual  pos- 
session engaged  in  erecting  machinery  for  purpose  of  drilling  are 
protected  against  clandestine  subsequent  entry  prior  to  actual  dis- 
covery of  oil;  dissenting  ojjinion  in  Lily  Min.  Co.  v.  Kellogg,  27 
Utah,  123,  74  Pac.  522,  arguendo. 

Syl.  3   (X,  995).     Mines — Trespasser  acquires  no  rights. 

Cited  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  1  Alaska,  460,  argu- 
endo. 

Distinguished  in  Lockhart  v.  Leeds,  195  U.  S.  437,  49  L.  269,  25 
Sup.  Ct.  76,  upholding  sufficiency  of  bill  to  restrain  mining  during 
pendency  of  suit,  here  defendants  acquired  title  by  relocation  made 
pursuant  to  fraudulent  conspiracy  with  complainant's  partner,  where- 
by partner  was  to  fail  to  perfect  locators. 

Syl.  4  (X,  995).     Mines — Protection  of  discoverer. 

Approved  in  Bulctte  v.  Dodge,  2  Alaska,  432,  following  rule;  Red- 
den V.  Harlan,  2  Alaska,  405,  where  plaintiff  staked  and  recorded 
placer  location  but  made  no  discovery,  and  eleven  months  later  de- 
fendants located  same  ground  and  began  shaft,  latter  not  enjoined. 

Syl.  5  (X,  996).     Miner's  rules. 

Approved  in  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  124,  127, 
49  L.  411,  412,  25  Sup.  Ct.  211,  upholding  Mont.  Code,  §  3612,  pre- 
scribing requirements  of  declaratory  statement;  Mares  v.  Dillon,  30 
Mont.  132,  75  Pac.  965,  upholding  Pol.  Code,  §  3610,  providing  ad- 
ditional   requirements   for    valid    location    of    mining    claims    to    those 


113  "U".  S.  537-565  Notes  on  U.  S.  Eeports.  1246 

required  by  federal  law;  Wright  v.  Lyons,  45  Or.  173,  77  Pac.  83, 
upholding  B.  &  C.  Comp.,  §§  3975,  3976,  relating  to  marking  of  bound- 
aries of  mining  claim.     See  104  Am.  St.  Eep.  688,  690,  notes. 

Syl.  6  (X,  996).     Mines — Necessity  for  discovery. 

Approved  in  Bulette  v.  Dodge,  2  Alaska,  429,  following  rule;  Creede 
etc.  Milling  Co.  v.  Uinta  Tunnel  etc.  Co.,  196  U.  S.  349,  49  L.  509, 
25  Sup.  Ct.  266,  Eev.  St.,  §  2320,  does  not  require  discovery  of  vein 
or  lode  before  other  steps  taken  to  perfect  location;  Lange  v.  Kobin- 
son,  148  Ted.  802,  where  locator  of  placer  claims  along  creek  washed 
cut  few  pans  of  deposit  on  site  of  creek  and  found  color  sufficient 
to  justify  shaft,  there  was  sufficient  discovery;  Redden  v.  Harlan,  2 
Alaska,  406,  where  plaintiff  recorded  placer  location  but  made  no  dis- 
covery, and  eleven  months  later  defendant  recorded  same  ground  and 
began  shaft,  latter  not  enjoined. 

113  U.  S.  537-539,  28  L.  1116,  EKHAEDT  v.  BOAEO. 

Syl.  1  (X,  996).     Injunction  irreparable  injury. 

Approved  in  Big  Six  Dev.  Co.  v.  Mitchell,  138  Fed.  283,  288,  up- 
holding bill  by  landlord  to  cancel  mining  lease  as  cloud  on  title 
and  to  enjoin  lessee  from  mining  on  leased  premises  because  of 
breach  of  lease  in  operating  in  unworkmanlike  manner;  Field  v.  Tan- 
ner, 32  Colo.  290,  75  Pac.  920,  in  action  for  recovery  of  realty,  one 
tenant  in  common  may  recover  possession  of  entire  tract  as  against 
all  except  cotenant;  dissenting  opinion  in  Mountain  Copper  Co.  v. 
United  States,  142  Fed.  648,  majority  refusing  to  enjoin  lawful  busi- 
ness as  nuisance  where  injury  would  be  slight  and  grant  thereof 
would  be  oppressive. 

113  U.  S.  550-565,  28  L.  993,  FUSSELL  v.  GEEGG. 

Syl.  1   (X,  998).     Equitable  relief. 

Approved  in  Glenn  v.  West,  103  Va.  524,  49  S.  E.  672,  holder  of 
equitable  title  out  of  posse-ssion  cannot  sue  possessor  under  tax  title, 
between  whom  and  himself  no  priority  exists,  to  quiet  title;  dissent- 
ing opinion  in  Barnes  v.  Newton,  5  Old.  459,  460,  49  Pac.  1080,  1081, 
majority  holding  successful  contest  and  before  Land  Department 
may  enjoin  adversary  from  further  interfering  with  possession  and 
further  occupancy  of  premises. 

Syl.  5   (X,  999).     Ejectment  where   plaintiff  has  no  title. 

Approved  in  Eastern  Or.  Land  Co.  v.  Brosnan,  147  Fed.  810,  where 
public  lands  patented  under  general  land  laws  had  been  previously 
otherwise  appropriated  by  act  of  Congress,  laud  is  recoverable  by 
time  owner  by  action  at  law  where  he  has  title  sufficient  to  support 
ejectment. 


1247  Notes  on  U.  S.  Eeports,  113  U.  S.  568-609 

113  U.  S.  568-574,  28  L.  1079,  BROWN  v.  UNITED  STATES. 
Syl.  1  (X,  1000).  Contemporaneous  statutory  construction. 
Approved  in  Avery  v.  Pima  Co.,  7  Ariz.  32,  60  Pac.  703,  under 
Rev.  St.  Ariz.,  presenting  salaries  of  sheriff,  sheriff  cannot  collect 
extra  compensation  for  caring  for  federal  prisoners  in  county  jail; 
Pitts  V.  Logan  County,  3  Okl.  740,  41  Pac.  591,  clerks  of  territorial 
courts  must  account  to  United  States  Secretary  of  Treasury  for  all 
fees,  and  territorial  act  regulating  same  is  void;  Mann  v.  Mercer 
County  Court,  58  W.  Va.  660,  52  S.  E.  779,  construing  Code  1899,  c. 
114,  §  2,  relating  to  adjournments;  dissenting  opinion  in  Bates  etc. 
Co.  V.  Payne,  194  U.  S.  Ill,  48  L.  896,  24  Sup.  Ct.  595,  majority  up- 
holding refusal  of  Postmaster  General  to  admit  as  second-class  mat- 
ter monthly  musical  publication,  each  issue  of  which  treats  of  work 
of  single  musician  and  is  complete  in  itself. 

Distinguished  in  Sylvania  v.  Hilton,  123  Ga.  760,.  107  Am.  St.  Rep. 
165,  51  S.  E.  746,  2  L.  R.  A.  (X.  S.)  483,  corrugated  iron  building 
with  window-frame  does  not  comply  with  fire  ordinance  requiring 
buildings  to  be  made  of  incombustible  material,  though  ordinance 
repeatedly  violated  without  objection  by  authorities. 

113  U.  S.  574-585,  28  L.  10S4,  CHICAGO  LIFE  INS.  CO.  v.  NEEDLES. 

Syl.  1  (X,  1001).     State  decision  on  federal  question. 

Approved  in  Mathew  v.  Wabash  Ey.  Co.,  115  Mo.  App.  4S1,  81  S. 
W.  648,  judgment  for  plaintiff  in  action  for  injuries  to  passenger 
on  interstate  train  equipped  with  automatic  couplers  as  required  by 
interstate  commerce  commission,  which  equipment  increased  hazard, 
is  reviewable  by  United  States  supreme  court  on  error. 

113  U.  S.  594-609,  28  L.  1093,  AYERS  v.  WATSON. 

Syl.   1   (X,  1003).     Removal— Time  to  petition. 

Approved  in  O 'Conor  v.  Texas,  202  U.  S.  507,  50  L.  1126,  26  Sup. 
Ct.  726,  alien  nonresident  cannot  remove  suit;  Kentucky  v.  Powers, 
139  Fed.  485,  under  Rev.  St.,  §  641,  criminal  prosecution  is  remov- 
able when,  after  three  reversals  of  conviction,  defendant  discrim- 
inated in  selection  of  jury  and  under  state  law  rulings  of  trial  court 
as  to  juries  are  not  reviewable. 

Syl.   2    (X,   1003).     Removal— Waiver. 

Approved  in  Groton  Bridge  etc.  Co.  v.  American  Bridge  Co.,  137 
Fed.  293,  297,  neither  general  appearance  of  defendant  nor  grant  of 
extension  of  time  to  plead  by  stipulation  waives  right  to  remove. 

Syl.  8  (X,  1005).     Boundaries — Courses  and  distances. 

Cited  in  Davis  v.  Commonwealth  Land  etc.  Co.,  141  Fed.  731, 
arguendo. 


113  U.  S.  609-644  Notes  on  IT.  S.  Reports.  1248 

113  U.  S.  609-618,  28  L.  1106,  CALIFORNIA  ETC.  PAVING  CO.  v. 
MOLITOR. 

Syl.  3  (X,  1005).     Patent  infringement  question  of  fact. 

Approved  in  Walker  etc.  Bin  Co.  v.  Miller,  146  Fed.  252,  where  in 
infringement  suit  patent  sustained,  whole  question  of  infringement 
and  its  extent  may  be  considered  by  master;  Chicago  Grain  Door  Co. 
V.  Chicago  etc.  R.  Co.,  137  Fed.  105,  where  pending  infringement 
suit  defendant  begins  use  of  different  infringing  device,  question  of 
second  infringement  may  be  brought  in  by  supplemental  bill. 

Syl.  4  (X,  1006).     Patent  infringement — Contempt. 

Approved  in  General  Elec.  Co.  v.  McLaren,  140  Fed.  878,  and 
Brookfield  v.  Novelty  Glass  Mfg.  Co.,  132  Fed.  317,  both  following 
rule;  Heinze  v.  Butte  etc.  Min.  Co.,  129  Fed.  281,  63  C,  C.  A.  388, 
no  judgment  of  contempt  can  be  rendered  where  circuit  judges  dis- 
agree. 

113   U.   S.   61S-G29,   28   L.   1109,  WINONA  ETC.   R.   R.   CO.  v.   BAR- 
NEY. 

Syl.  1   (X,  1006).     Railroad  land  grants. 

Approved  in  Moon  v.  Salt  Lake  Co.,  27  Utah,  444,  76  Pac.  225, 
construing  congressional  act  of  1870,  granting  right  of  way  through 
public  lands  to  Utah  Central  Railroad;  United  States  v.  Choctaw  etc. 
R.  R.  Co.,  3  Okl.  479,  41  Pac.  754,  arguendo. 

Syl.  2   (X,  1006).     Railroad  land  grants — Indemnity. 

Approved  in  Churchill  v.  Choctaw  Ry.  Co.,  4  Okl.  470,  46  Pac. 
500,  homesteader  subsequent  to  railroad  grant  is  subject  to  rights 
of  railroad  though  line  not  definitely  located  until  after  entry. 

113   U.   S.   629-644,   28   L.   1122,   KANSAS   ETC.   R.   R.    CO   v.   DUN- 
MEYER. 

Syl.  2  (X,  1007).     Railroad  land  grant — Definite  location. 

Approved  in  United  States  v.  Choctaw  etc.  R.  R.  Co.,  3  Okl.  489,  41 
Pac.  757,  following  rule;  Eastern  Or.  L.  Co.  v.  Brosnan,  147  Fed. 
812,  applying  rule  to  grant  to  state  to  aid  construction  of  military 
road. 

Syl.  3  (X,  1008).  Railroad  land  grant — Abandonment  of  home- 
Etcad. 

Approved  in  Southern  Pac.  R.  R.  Co.  v.  United  States,  200  U.  S. 
300,  50  L.  515,  26  Sup.  Ct.  298,  lack  of  final  order  of  confirmation 
of  Mexican  grant  because  of  appeal  from  confirmation  decree  does 
not  defeat  contention  that  lands  excluded  from  railroad  grant; 
United  States  v.  Oregon  etc.  R.  Co.,  143  Fed.  770,  grant  of  1866,  to 
Central  Pacific  did  not  embrace  land  subject  to  homestead  entry 
though    entry    relinquished    prior    to    definite    location;    McMichaei    v. 


1249  Notes  on  U.  S.  Eeports.  113  U.  S.  630-703 

Murphy,  12  Okl.   IGO,   70  Pac.   191,   one  settling  on  tract   covered  by 
homestead  entry  of  another  is  trespasser. 

Syl.  4  (X,  1009).     Land  grant — Homestead,  when  attaches. 

Approved  in  Oregon  etc.  E.  Co.  v.  United  States,  148  Fed.  606, 
following  rule;  McMichael  v.  Murphy,  197  U.  S.  311,  49  L.  769,  2.3 
Sup.  Ct.  4G0,  homestead  entry  valid  on  face,  though  made  by  one 
disqualified  to  make  valid  entry,  prevents  initiation  of  homestead 
rights  by  another  while  entry  remains  uncanceled  or  unrelinquished; 
United  States  v.  Chicago  etc.  Ey.  Co.,  148  Fed.  890,  where,  at  time 
of  grant  to  Iowa  to  aid  railroad  and  at  time  of  definite  location, 
lists  of  lands  selected  as  swamp  were  on  file  with  Interior  Depart- 
ment but  were  subsequently  disapproved,  alleged  swamp  lands  not  ex- 
empt from  grant;  City  of  Guthrie  v.  Beamer,  3  Okl.  665,  41  Pac. 
6:")1,  one  claiming  public  lands  as  townsite  settler  acquires  no  vested 
rights  as  against  United  States  until  entry  made  at  proper  land  of- 
fice. 

113  U.  S.  636-6.-9,  28  L.  1037,  MAXWELL  v.  WILKTNSOX. 

Syl.  1  (X,  1012).     Evidence — Memoranda  to  refresh  memory. 

Distinguished  in  Grunbcrg  v.  United  States,  145  Fed.  96,  permit- 
ting partner  to  refresh  memory  from  ledger  entries  of  sales  made 
at  close  of  calendar  month  in  which  sale  made. 

113  U.  S.  679-0S3,  2S  L.  1070,  BLAKE  v.  SAN  FEAXCISCO. 

Syl.  3  (X,  1013).     Patents — Application  of  old  process. 

Approved  in  O'Rourke  Eng.  etc.  Co.  v.  McMullen,  150  Fed.  352, 
holding  void  Moran  patent  No.  500,149,  claim  3,  for  air-lock  for  cais- 
sons; Daylight  etc.  Mfg.  Co.  v.  American  Pris.  Light  Co.,  142  Fed. 
461,  holding  void  Cummiugs  patent  No.  695,282,  for  machine  for  mak- 
ing prismatic  glass. 

113  U.  S.  6S4-6S7,  28  L.  1152,  FOUETH  NAT.  BANK  v.  STOUT. 

Syl.  1  (X,  1014).     Appeal — Joint  Judgment — Jurisdictional  amount. 

Approved  in  Feely  v.  Bryan,  55  "W.  Va.  591,  47  S.  E.  309,  where 
several  creditors  with  separate  demands  attack  mortgage  as  prefer- 
ence, and  decree  adjudges  property  for  benefit  of  all  insolvent's 
creditors,  and  decrees  particular  sums  to  several  creditors  sums  can- 
not be  added  to  give  appellate  jurisdiction. 

113  U.  S.  689-703,  28  L.  1089,  BOYEE  v.  BOYEE. 

Syl.  2  (X,  1014).     Uniform  taxation  of  national  bank  sales. 

Approved  in  Ankeny  v.   Blakley,   44   Or.   SO,   74   Pac.   488,   holding 
assessment    on    national    bank    stock    not    discriminatory    aa    compared 
with  that  assessed  on  other  moneyed  capital. 
79 


113  U.  S.  703-711  Kotcs  on  U.  S.  Eeporta.  1250 

113  U.  S.  703-711,  2S  L.  1145,  SOON  HING  v.  CROWLEY. 

Syl.  I  (X,  lOlG).     Regulation  of  business — Discrimination. 

Approved  in  New  York  v.  Van  De  Carr,  199  U.  S.  563,  50  L.  311, 
26  Sup.  Ct.  144,  upholding  New  York  ordinance  giving  board  of  health 
discretion  to  grant  or  withhold  permits  to  sell  milk  in  city;  Johnson  v. 
Spartan  Mills,  68  S.  C.  356,  47  S.  E.  702,  upholding  Code  1902,  §§ 
2712,  2720,  making  it  unlawful  to  pay  wages  in  evidences  of  indebted- 
ness redeemable  in  other  than  lawful  money  and  exempting  agricul- 
tural contracts;  Cowart  v.  City  Council,  67  S.  C.  44,  45  S.  E.  125, 
upholding  ordinance  providing  that  lenders,  except  banks,  loaning 
money  on  personalty  should  pay  licenses  according  to  schedule  of 
gross  business;  dissenting  opinion  in  Wright  v.  Hart,  182  N.  Y.  358. 
75  N.  E.  414,  2  L.  R.  A.  (N.  S.)  338,  majority  holding  void  act  of 
1002,  regulating  sales  of  stocks  of  merchandise  in  bulk.  See  108  Am. 
St.  Rep.  789,  note. 

Syl.  2  (X,  1016).     Police  regulation — Laundry  hours. 

Approved  in  Grainger  v.  Douglas  Park  Jockey  Club,  143  Fed.  521, 
522,  526,  upholding  Kentucky  act  of  1906,  regulating  racing  of  run- 
ning horses;  Glucose  Refining  Co.  v.  City  of  Chicago,  138  Fed.  216, 
upholding  Chicago  smoke  ordinance;  City  of  Butte  v.  Paltrovich,  30 
Mont.  23,  104  Am.  St.  Rep.  698,  75  Pac.  522,  upholding  ordinance 
regulating  hours  of  operating  pawnshops,  loan  offices,  and  second- 
hand stores;  Wcnham  v.  State,  65  Neb.  406,  91  N.  W.  425,  58  L.  E.  A. 
825,  upholding  act  of  1899,  regulating  hours  of  labor  of  females  in 
factories,  stores,  hotels,  and  restaurants;  Ex  parte  Boyce,  27  Nob. 
337,  75  Pac.  5,  65  L.  R.  A.  47,  upholding  act  of  1903,  regulating 
hours  of  labor  in  mines  and  smelters. 

Syl.  3  (X,  1018).     Regulation  of  laundry  hours. 

Approved  in  Fischer  v.  St.  Louis,  194  U.  S.  371,  48  L.  1024,  24 
Sup.  Ct.  673,  upholding  city  ordinance  prohibiting  maintenance  of 
dairies  or  cow-stables  in  city  limits  wthout  permission  of  municipal 
assembly.     See  99  Am.  St.  Rep.  623,  note. 

Syl.  4  (X,  1018).     Motives  of  legislature. 

Approved  in  Grainger  v.  Douglas  Park  Jockey  Club,  148  Fed.  535, 
upholding  Kentucky  act  of  1906,  regulating  racing  of  running  horses; 
Glucose  Refining  Co.  v.  City  of  Chicago,  138  Fed.  217,  upholding 
Chicago  smoke  ordinance;  People  v.  Gardner,  143  Mich.  107,  106  N. 
W.  542,  in  prosecution  for  violating  garbage  ordinance,  evidence 
showing  purpose  of  council  in  passing  ordinance  was  fraudulent  and  to 
create  monopoly  of  garbage  business  was  inadmissible;  Tilly  v. 
Mitchell,  121  Wis.  11,  105  Am.  St.  Rep.  1007,  98  N.  W.  973,  under 
Laws  1891,  p.  199,  §  54,  giving  council  power  to  vacate  streets, 
courts  cannot  inquire  into  motives  of  councilmen  in  vacating  part 
of  street  for  private  use  where  action  is  not  fraudulent. 


1251  Notes   on  TJ.  5.  Ecports,  113  U.  S.  713-727 

113  U.  S.  713-727,  28  L.  1117,  EX  PARTE  FISK. 

Syl.  1   (X,  1019).     Conformity  to  stute  practice. 

Approved  in  Swift  v.  Jones,  145  Fed.  492,  circuit  judge  cannot  in 
law  action,  order  trial  before  special  master  authorized  to  hear  and 
pass  on  issues  of  fact  and  report  findings  to  court;  Low  Foon  Yin 
V.  United  States  Im.  Commr.,  145  Fed.  796,  arguendo. 

S\i.  2   (X,  1020).     Examination  of  witness  prior  to  trial. 

Approved  in  Hanks  Dental  Assn.  v.  International  Tooth  Crown  Co., 
194  U.  S.  305,  307,  310,  48  L.  989,  991,  992,  24  Sup.  Ct.  700,  follow- 
ing rule;  Diamond  Coal  &  Coke  Co.  v.  Allen,  137  Fed.  706,  testimony  of 
absent  witness  on  former  trial  of  same  case  cannot  be  read  in  evi- 
dence. 

Distinguished  in  Toledo  Traction  Co.  v.  Cameron,  137  Fed.  59,  69 
C.  C.  A.  28,  admitting  testimony  of  absent  witness  given  on  former 
trial  of  same  case  as  authorized  by  Ohio  statute. 

Syl.  4  (X,  1020).  Eemoval — Examination  of  adversary  prior  to 
trial. 

Approved  in  Bryant  Bros.  Co.  v.  Robinson,  149  Fed.  328,  demurrer 
to  bill  not  accompanied  by  certificate  of  counsel  that  it  is  well  founded 
nor  supported  by  defendant's  afiidavit  that  it  was  not  interposed  for 
delay  is  defective;  Importers'  etc.  Bank  v.  Lyons,  134  Fed.  511, 
depositions  may  be  taken  to  be  used  on  hearing  of  rule  to  show 
cause. 

Distinguished  in  Blood  v.  Morrin,  140  Fed.  919,  920,  plaintiff  in 
federal  court  who  is  citizen  of  another  state  and  resides  more  than 
one  hundred  miles  from  place  of  trial  may  be  compelled  to  give 
deposition  de  bene  esse  prior  to  trial. 

Syl.  5  (X,  1021).     Habeas  corpus — Contempt  of  void  order. 

Approved  in  United  States  v.  Atchison  etc.  Ry.  Co.,  142  Fed.  182, 
denying  jurisdiction  to  enjoin  railroad  from  granting  rebates;  Ameri- 
can Lighting  Co.  v.  Public  Service  Corp.,  134  Fed.  131,  denying 
right  to  punish  for  contempt  in  disregarding  restraining  order  in 
case  for  which  there  is  adequate  remedy  at  law;  Cuyler  v.  Atlantic 
etc.  R.  Co.,  131  Fed.  99,  releasing  on  habeas  corpus  newspaper  pub- 
lisher imprisoned  for  contempt  consisting  of  editorial  criticising  of- 
ficial conduct  of  court;  State  v.  McGahey,  12  N.  D.  547,  97  N.  W. 
869,  afiidavit  on  information  and  belief  and  not  otherwise  corrob- 
orated eonfcrs  no  jurisdiction  to  issue  search-warrant  under  Codes 
1899,  §  7605. 

(X,  1019.)  Miscellaneous.  Cited  in  Bessette  v.  W.  B.  Conkey  Co., 
194  U.  S.  333,  48  L.  1004,  24  Sup.  Ct.  665,  judgment  of  circuit  court 
finding  one  not  party  to  suit  guilty  of  contempt  for  violation  of  re- 
straining order,  and  imposing  fine  therefor,  is  reviewable  on  error  by 
circuit  court  of  appeals. 


113  U.  S.  727-737  l^otes  on  U.  S.  Eeporta.  1252 

113  IT.  S.  727-737,  28  L.  1137,  COOPEE  MFG.  CO.  v.  FEEGUSON. 

Syl.  2   (X,  1021).     Eegulation  of  foreign  corporations. 

Approved  in  Black  v.  Vermont  Marble  Co.,  1  Cal.  App.  719,  82 
Pac.  1061,  under  Stat.  1899,  p.  Ill,  relating  to  designation  by  foreign 
corporations  of  agents  for  service  of  process,  does  not  permit  foreign 
corporation  not  filing  designation  till  after  suit  to  plead  limitations 
as  defense;  Commonwealth  v.  Eead  Phosphate  Co.,  113  Ky.  38,  67 
S.  W.  46,  upholding  Ky.  St.,  §  571,  requiring  corporations  except 
foreign  insurance  companies  to  file  statement  with  Secretary  of 
State  giving  location  of  office  and  name  of  agent  on  whom  process 
can  be  served;  Metropolitan  Life  Ins.  Co.  v.  Board  of  Assessors,  115 
La.  706,  39  So.  849,  arguendo. 

Syl.  2   (X,  1022).     Contemporaneous  legislative  construction. 

Approved  in  State  v.  New  Orleans  Ey.  &  Light.  Co.,  116  La.  148,  40 
So.  59S,  electric  light  company  is  not  "manufacturer"  within  exemp- 
tion clause  of  Const.  1S9S,  art.  229,  authorizing  legislature  to  impose  li- 
cense taxes;  Henry  v.  State,  87  Miss.  57,  59,  39  So.  871,  872,  upholding 
Eev.  Code,  1892,  §  3201,  providing  for  working  convicts  on  farm 
leased  for  that  purpose;  Higgins  v.  Tax  Assessors  of  Pawtucket,  27 
E.  L  409,  63  Atl.  37,  upholding  Practice  Act  1905,  p.  4,  §  12,  giving 
superior  courts  jurisdiction  of  certain  extraordinary  writs. 

Syl.  4  (X,  1022).     Foreign  corporations — Filing  of  articles. 

Approved  in  Kirven  v.  Virginia  etc.  Chemical  Co.,  145  Fed.  293, 
294,  where  foreign  corporation  which  sold  and  shipped  goods  to  resi- 
dent of  South  Carolina  on  local  agent's  order  taken  subject  to  its 
approval  had  not  complied  with  state  statute  authorizing  it  to  do 
business  in  state,  but  did  so  before  suit  it  may  recover  price;  Am- 
mons  V.  Brunswick  etc.  Co.,  141  Fed.  575,  576,  578,  under  act  of 
1901,  regulating  business  of  foreign  corporations  in  Indian  Terri- 
tory, foreign  corporation  which  in  single  instance  completed  ex- 
ecutory sale  by  delivery  of  property  and  took  mortgage  for  price 
through  agent  is  not  "doing  business";  Babbitt  v.  Field,  6  Ariz. 
12,  52  Pac.  776,  applying  rule  under  Eev.  St.,  tit.  12,  c.  7;  .Jameson 
V.  Simmouds  Saw  Co.,  2  Cal.  App..  585,  84  Pac.  290,  firm  which  pur- 
chases goods  of  foreign  corporation  on  mail  orders  and  which  re- 
sells goods  is  not  agent  of  corporation  within  Code  Civ.  Proc,  §  411, 
authorizing  service  on  agent,  though  firm  designated  itself  as  agent 
on  letterheads;  Deere  Plow  Co.  v.  Wyland,  69  Kan.  258,  76  Pac.  864. 
determining  whether  single  transaction  by  foreign  corporation  was 
doing  business  in  state  within  Gen.  St.  1901,  §  1283,  relating  to 
foreign  corporations;  Gemundt  v.  Shipley,  -98  Md.  662,  57  Atl.  13, 
where  nonresident  of  county  owned  property  which  he  managed 
and  also  collected  rents  on  property  owned  as  cotenant,  for  which  he 
received  commission  and  had  house  in  county  in  which  he  formerly 
lived  and  used  it  as  office  when  in  county,  he  was  not  engaged  in 
regular  business  within  Code,  §  132,  authorizing  suit  in  county  where 


1253  Notes  on  U.  S.  Ecports.  113  U.  S.  756-768 

business  carried  on;  Eootli  v.  "Wcigand,  2S  I'tab,  3S7,  389,  79  Pac. 
573,  under  Rev.  St.  1898,  §  351,  contracts  of  foreign  corporation  made 
while  doing  business  in  state  without  complying  with  such  statute 
are  invalid  and  unenforceable  by  corporation;  Keene  Guaranty  Sav. 
Bank  v.  Lawrence,  32  Wash.  578,  73  Pac.  682,  where  only  business 
of  foreign  corporation  in  state  was  purchase  of  mortgage,  which 
wr.s  sent  to  its  banker  in  state  of  its  residence,  it  is  not  subject  to 
laws  prohibiting  foreign  corporations  from  doing  business  without 
license. 

Syl.  5  (X,  1023).     Limitations  on  foreign  corporations. 

Approved  in  Belle  City  Mfg.  Co.  v.  Prizzell,  11  Idaho,  8,  81  Pac. 
59,  following  rule;  Attorney  General  v.  Electric  etc.  Battery  Co., 
188  Mass.  240,  74  N.  E.  467,  upholding  Stat.  1903,  requiring  foreign 
corporations  to  file  certain  certificate  and  to  pay  excise  tax  on  capi- 
tal stock,  is  valid  as  to  corporation  engaged  in  interstate  commerce; 
Greek-American  Sponge  Co.  v.  Richardson  etc.  Co.,  124  Wis.  476, 
102  N.  W.  891,  sale  by  foreign  corporation  of  goods  sent  to  local 
agent  for  delivery  to  and  inspection  by  purchaser  is  enforceable  by 
corporation  though  it  has  not  filed  articles  as  required  by  law. 

Distinguished  in  United  States  Rubber  Co.  v.  Butler  Bros.  Shoe 
Co.,  132  Fed.  399,  foreign  corporation  which  has  established  place 
of  business  in  Colorado,  where  goods  are  sold  by  factor,  is  doing 
business  in  state  within  Colo.  Act  1901,  §  10,  though  goods  bought 
from  other  state. 

Syl.  6  (X,  1023).  Contract  of  foreign  corporation  not  filing  arti 
cles. 

Approved  in  Iowa  etc.  Min.  Co.  v.  United  States  etc.  Guaranty  Co., 
146  Fed.  439,  contract  by  foreign  corporation  which  has  not  complied 
with  Iowa  Code  1897,  §  1637,  is  not  void. 

113  U.  S.  756-768,  28  L.  1141,  HARDIN  v.  BOYD. 

Syl.  1   (X,  1025).     Amendment  of  equity  pleading. 

Approved  in  Ratliff  v.  Sommers,  55  W.  Va.  37,  46  S.  E.  715,  apply- 
ing rule  in  suit  for  specific  performance  of  parol  contract  to  purchase 
land. 

Syl.  2   (X,  1026).     Equity — Amendment  making  new  case. 

Approved  in  Jones  v.  Missouri  etc.  Elec.  Co.,  144  Fed.  779,  minority 
stockholder  may  in  one  suit  recover  value  of  stock  and  repudiate 
contract  of  consolidation  of  corporation;  Fourth  Nat.  Bank  v.  Camden 
Lumber  Co.,  142  Fed.  260,  omission  of  seal  from  mortgage  made  by 
business  corporation  is  not  fatal  to  its  validity  under  Arkansas  law. 

Distinguished  in  Cclla  v.  Brown,  144  Fed.  754,  where  bill  discloses 
fact  that  complainant  seeks  relief  based  on  recognition  of  validity 
of  transaction,  which  he  seeks  to  specifically  enforce,  he  cannot  pray 
for  amendment  of  transaction  as  fraudulent. 


114  XJ.  S.  l-ol  Notes  on  U.  S.  Reports.  1254 

Syl.  3   (X,  1026).     Purchase-money  lien — Limitations. 

Approved  in  Conway  v.  Caswell,  121  Ga.  257,  48  S.  E.  958,  where 
insurance  policy  transferred  as  security  for  debt,  fact  that  remedy 
on  latter  barred  does  not  prevent  holder  of  collateral  from  enforcing 
rights  thereunder. 


CXIV  UNITED  STATES. 


114  U.  S.  1-14,  29  L.  76,  THOMPSON  v.  BOISSELIEE. 

Syl.  2   (X,  1028).     Shape  or  form  not  patentable. 

Approved  in  Voightmann  v.  Weis  etc.  Co.,  133  Fed.  303,  Voight- 
mann  patent  No.  600,186  for  improvement  in  fireproof  windows,  is 
void  for  lack  of  invention  and  also  for  being  mere  aggregations. 

114  U.  S.  15-47,  29  L.  47,  MUEPHY  v.  EAMSEY. 

Syl.  5  (X,  1030).     Power  of  Congress  over  territories. 

Approved  in  United  States  v.  Winans,  198  U.  S.  383,  49  L.  1093,  25 
Sup.  Ct.  662,  fishing  rights  in  Coh.mbia  river  secured  to  Yakima 
Indians  by  treaty  of  1859  are  not  subordinate  to  powers  acquired  by 
state  of  Washington  over  shore  lands,  on  its  admission  into  the  Union; 
ivepner  v.  United  States,  195  U.  S.  125,  49  L.  122,  24  Sup.  Ct.  797,  right 
of  government  to  appeal  from  judgment  of  acquittal  under  military 
order  No.  58  as  amended  by  Act  of  Philippine  Commission  August, 
1901,  was  taken  away  by  section  5,  Act  of  Congress  July  1,  1902; 
Allen  V.  Eeed,  10  Okl.  Ill,  60  Pac.  784,  chapter  23  of  Statutes  of 
1893,  relating  to  changing  of  county  seats  is  inconsistent  with  sec- 
tions 10  and  14  of  Act  of  Congress  March  3,  1893,  providing  for  open- 
ing of  Cherokee  Outlet  to  settlement;  Goodson  v.  United  States,  7 
Okl.  137,  54  Pac.  429,  district  courts  of  Oklahoma,  when  exercising 
jurisdiction  of  United  States  court,  have  exclusive  jurisdiction  of  all 
crimes  punishable  by  law  of  United  States  when  committed  by  per- 
sons other  than  Indians,  or  when  committed  by  Indians  on  reserva- 
tions, except  certain  excepted  crimes;  Kneeland  v.  Korter,  40  Wash. 
363,  82  Pac.  609,  1  L.  E.  A.  (N.  S.)  745,  prior  to  admission  of  state 
into  Union,  Congress  has  power  to  grant  tide  lands  lying  between 
high  and  low  water-mark  within  its  boundaries. 

114  U.  S.  47-51,  29  L.  61,  BOHALL  v.  DILLA. 

Syl.  2  (X,  1031).     Public  lands — Title  of  claimant. 

Approved  in  Paine  v.  Foster,  9  Okl.  232,  262,  53  Pac.  115,  60  Pac. 
25,  reaffirming  rule;  Smith  v.  Love,  49  Fla.  241,  38  So.  380,  facts 
alleged  in  plea  are  held  suflScient  if  maintained  by  proofs  to  consti- 
tute plaintiff  trustee  of  legal  title  for  defendant;  Gebo  v.  Clarke 
Fork  C.  Min.  Co.,  30  Mont.  91,  75  Pac.  860,  complaint  to  hold  patentee 


1255  Notes  on  U.  S.  Eeports.  114  U.  S.  52-57 

of  jniblic  land  a  trustee  tlieroof  docs  not  state  a  cause  of  action  when 
it  does  not  appear  that  plaintiff  did  not  make  a  voluntary  relinquish- 
ment; Cagle  V.  Dunham,  14  Okl.  615,  78  Pac.  562,  decision  rendered 
by  Land  Department  after  due  notice  and  hearing  will  not  be  set 
aside  by  court  of  equity  upon  allegations  that  perjury  was  committed 
hclorc  Land  Department;  Baldwin  v.  Keith,  13  Okl.  630,  75  Pae. 
1126,  it  is  within  discretion  of  Secretary  of  Interior  to  deny  appli- 
cation to  make  homestead  entry  made  by  person  who  has  no  equities 
in  land  when  land  is  covered  by  Indian  allotment  and  injustice  would 
be  done  by  canceling  allotment ;  Parker  v.  Lynch,  7  Okl.  660,  56 
Pac.  1091,  offering  to  file  contest  against  homestead  entry  gives  party 
no  interest  in  land,  and  after  contest  rejected  he  cannot  maintain 
action  against  entryman  to  deckire  trustee  for  his  benefit;  Thornton 
V.  Peerj%  7  Okl.  448,  54  Pac.  651,  allegation  in  petition  that  pre- 
vailing party  in  land  office  introduced  perjured  testimony  will  not 
•  Mitliorize  court  to  set  aside  the  findings  unless  there  are  allegations 
iliat  no  other  testimony  was  introduced. 

Syl.  3  (X,  1032).     Showing  by  pre-emptor. 

Approved  in  Small  v.  Kakestraw,  196  U.  S.  406,  49  L.  529,  25  Sup. 
C't.  285.  finding  by  Secretary  of  Interior  that  residence  of  homestead 
(uitryman  for  voting  purposes  was  in  another  precinct  from  that  where 
land  lies  is  not  erroneous  where  entryman,  after  entry,  voted  in  an- 
other county  and  secretary  may  have  had  other  testimony.  See  104 
Am.  St.  Kep.  697,  note. 

Syl.  4  (X,  1032).     Absence  of  pre-emptor. 

Approved  in  BertwcU  v.  Haines,  10  Okl.  475,  63  Pac.  704,  where  one 
claiming  right  to  tract  of  government  land  settled  thereon  and  im- 
proved it,  short  absence  for  purpose  of  bringing  his  family  was  not 
an  abandonment. 

114  U.  S.  52-57,  29  L.  63,  LOUISVILLE  ETC.  E.  E.  v.  IDE. 

Syl.  1   (X,  1032).     Eemoval  of  causes — Joint  contract. 

Approved  in  Manufacturers'  Com.  Co.  v.  Brown  Alaska  Co.,  148 
Fed.  310,  contracts  of  maker  and  several  indorsers  on  promissory 
note  are  separate  from  the  others,  and  may  be  removed  by  any  de- 
fendant who  would  have  the  right  if  sued  alone;  Iowa  etc.  Min.  Co. 
v.  Bliss,  144  Fed.  452,  where  plaintiff,  an  alien,  sued  defendant  guar- 
anty company,  a  nonresident,  on  fidelity  bond,  in  which  only  obliga- 
tion of  principal  was  to  hold  guaranty  company  harmless,  and  ia 
Lame  action  plaintiff  sought  to  hold  principal  liable  for  embezzle- 
ment, controversy  between  plaintiff  and  guaranty  company  was  sep- 
arable from  that  between  it  and  principal  on  bond;  Lucas  v.  Milli- 
ken,  139  Fed.  825,  bill  for  specific  performance  of  contract  for  sale 
of  stock  of  corporation  and  to  recover  damages  which  does  not  allege 
insolvency  of  other  party  to  contract  does  not  state  cause  of  action 
against  corporiition  which  is  not  necessary  party,  and  its  joinder  will 


114  U.  S.  57-62  Notes  on  U.  S.  Eeports.  1256 

not  defeat  right  of  real  defendant  to  removal;  Cella  v.  Brown,  136 
Fed.  443,  in  action  for  specific  performance  to  compel  defendant  to 
convey  certain  securities,  where  it  was  alleged  that  bank  made  pay- 
ments for  complainant  and  claimed  stock  pledged,  and  complainant 
was  willing  to  reimburse  bank,  the  bank  was  not  necessary  party; 
Boatmen's  Bank  v.  Fritzlin,  135  Fed.  661,  662,  68  C.  C.  A.  288, 
holder  of  prior  mortgage  or  lien  is  not  necessary  party  to  foreclosure 
of  junior  mortgage;  Lathrop  etc.  Co.  v.  Pittsburg  etc.  R.  Co.,  135 
Fed.  620,  where,  in  complaint  against  railroad  and  construction  com- 
pany for  services  between  plaintiff  and  latter,  citizenship  of  con- 
struction was  diverse,  and  plaintiff  alleged  in  single  cause  of  action 
that  he  performed  services  for  railroad  company,  and  construction 
company  was  agent,  complaint  did  not  show  separate  cause  of  action; 
Miller  v.  Clifford,  133  Fed.  884,  67  C.  C.  A.  52,  in  suit  in  equity  brought 
in  state  court  on  behalf  of  all  creditors  of  insolvent  bank  against 
member  of  stockholders  to  enforce  their  liability,  there  is  no  sep- 
arate controversy;  Vulcan  Detinning  Co.  v.  American  Can  Co.,  130 
Fed.  637,  bill  seeking  to  enjoin  principal  defendants  from  practicing 
secret  process  alleged  to  be  owned  by  complainant,  and  to  restrain 
another  defendant  from  assisting  them,  does  not  present  separate  con- 
troversy which  gives  latter  defendant  right  of  removal. 

Syl.  2  (X,  1034).     Joint  actions — Option  of  plaintiff. 

Approved  in  Alabama  etc.  Ey.  Co.  v.  Thompson,  200  U.  S.  216,  50 
L.  446,  447,  26  Sup.  Ct.  161,  where  plaintiff  has  elected  to  sue  jointly 
in  tort  foreign  corporation  and  its  servants,  who  caused  the  injury, 
separable  controversy  arises;  City  of  Cleveland  v.  Cleveland  etc.  Ey. 
Co.,  147  Fed.  176,  plaintiff  had  right  to  join  lessee  in  possession  with 
lessor,  and  conclude  both  in  one  suit;  Thomas  v.  Great  Northern  Ey. 
Co.,  147  Fed.  85,  under  Washington  statute  servant  may  be  joined 
with  master  in  an  action  by  another  servant  for  personal  injuries 
alleged  to  have  resulted  from  their  negligence;  Iowa  etc.  Min.  Co. 
V.  Bliss,  144  Fed.  454,  bond  signed  by  employee  and  bonding  com- 
pany is  not  joint  obligation. 

114  U.  S.  57-60,  29  L.  65,  PUTNAM  v.  INGEAHAM. 

Syl.  1  (X,  1034).     Eemoval  of  causes — Separable  controversies. 

Approved  in  Vulcan  Detinning  Co.  v.  American  Can  Co.,  130  Fed. 
637,  bill  which  seeks  to  enjoin  principal  defendants  from  practicing 
secret  process  owned  by  complainant,  learned  through  employee  of 
complainant,  does  not  present  a  separate  controversy. 

114  U.  S.  60-62,  29  L.  66,  ST.  LOUIS  ETC.  EY.  v.  WILSON. 

Syl.  1  (X,  1035).     Eemoval  of  causes— Single  cause. 

Approved  in  Lucas  v.  Millikcn,  139  Fed.  823,  bill  for  specific  per- 
formance of  contract  for  sale  of  stock  of  corporation  which  does  not 
allege  insolvency  of  other  contracting  party  nor  that  ho  is  about  to 
dispose  of  stock  does  not  state  a  cause  of  action  against  company. 


1257  Notes  on  U.  S.  Ecports.  114  U.  S.  63-120 

114  U.  S.  63-SG,  29  L.  67,  SARGENT  v.  HULL  SAFE  ETC.  CO. 

Syl.  1  (X,  1036).     Infringement  of  patents. 

Approved  in  Universal  Brush  Co.  v.  Sonn,  146  Fed.  531,  Morrison 
patent  No.  717,014,  claim  1,  for  method  of  making  brushes,  infringed 
by  Sonn  patent  No.  791,510;  Westinghouse  etc.  Co.  v.  Cutter  etc.  Co., 
136  Fed.  221,  Wright  and  Aalborg  patent  No.  633,772,  for  automatic 
electric  circuit  breaker  not  infringed;  Eembert  etc.  Co.  v.  American 
Cotton  Co.,  129  Fed.  369,  64  C.  C.  A.  25,  Eembert  patent  No.  441,022, 
for  method  of  baling  cotton,  not  infringed  by  Graves  patent  No. 
473,144. 

114  U.  S.  87-103,  29  L.  96,  ELECTRIC  SIGNAL  CO.  v.  HALL  SIGNAL 
CO. 

Syl.  1   (X,  1037).     Infringement  of  patents. 

Approved  in  Imperial  Bottle  Cap  etc.  Co.  v.  Crown  Cork  etc.  Co., 
139  Fed.  323,  Painter  patent  No.  468,258,  for  bottle-stopper,  not  in- 
fringed by  Abbott  patent  No.  704,167. 

114  U.  S.  104-120,  29  L.  105,  THOMPSON  v.  WOOSTER. 

Syl.  1   (X,  1037).     Effect  of  decree  pro  confesso. 

Approved  in  North  Chicago  St.  R.  Co.  v.  Chicago  Union  Tr.  Co., 
150  Fed.  630,  under  federal  practice  in  equity,  after  answering  original 
bill,  defendant  is  entitled  to  plead  only  to  new  matter  introduced  by 
amendment;  Third  Nat.  Bank  v.  Atlantic  City,  130  Fed.  754,  65  C. 
C.  A,  177,  where  bill  to  establish  complainant's  right  to  a  fund  set 
out  grounds  and  alleged  priority,  decree  rendered  pro  confesso  as 
to  certain  defendants  became  conclusive  after  the  term;  Junge  v. 
MacKnight,  137  N.  C.  287,  49  S.  E.  474,  in  action  under  Laws  1893, 
p.  37,  c.  6,  to  determine  conflicting  claims  to  real  property,  failure 
of  defendant  to  answer  at  return  term  entitled  plaintiff  to  judgment 
by  default  final;  dissenting  opinion  in  Junge  v.  MacXnight,  135 
N.  C.  113,  47  S.  E.  455,  majority  holding  that  default  final  may 
be  rendered  at  return  day  only  in  cases  provided  for  in  Code,  385, 
and  in  action  to  remove  cloud  on  title,  rendition  of  it  at  such  time 
is  irregular. 

Syl.  2   (X,  1038).     Bills  pro  confesso — English  practice. 

Approved  in  Brown  v.  Fletcher,  140  Fed.  641,  Rev.  St.,  §  955, 
providing  for  revival  of  suits  which  have  abated  by  death  of  party 
applies  only  to  actions  at  law;  United  States  v.  Howard,  132  Fed. 
332,  under  Rev.  St.,  §  1025,  relating  to  indietmonts.  crime  of  sub- 
ornation of-  perjury  will  be  sufficiently  pleaded  if  proper  averments 
appear  in  any  form;  Lyle  v.  Winn,  45  Fla.  423,  34  So.  159,  where 
bill  to  foreclose  mortgage  did  not  ask  for  attorne^-s'  fees,  and  neither 
mortgage  nor  note  contained  any  stipulation  therefor,  it  was  error 
to  insert  amount  of  fee  in  decree  pro  confesso. 


114  U.  S.  127-173  Notes  on  U.  3.  Kcports.  1238 

114  U.  S.  127,  128,  29  L.  117,  M9WER  v,  FLETCHER. 

Syl.  1  (X,  1040).     Final  judgment. 

Approved  in  Schlosser  v.  Hemphill,  198  U.  S.  176,  49  L.  1003,  25 
Sup.  Ct.  654,  judgment  of  highest  state  court  reversing  decree  of  trial 
court  in  equity  case  is  not  final  and  will  not  sustain  writ  of  error 
from  supreme  court  of  United  States. 

114  U.  S.  138-146,  29  L.  114,  FARMINGTON  v.  PILLSBURY. 

Syl.  1  (X,  1042).     Jurisdiction— Act  of  1875. 

Approved  in  Steigleder  v.  McQucsten,  198  U.  S.  142,  49  L.  987, 
25  Sup.  Ct.  616,  question  of  jurisdiction  of  federal  circuit  court  on 
ground  of  diversity  of  citizenship  may  be  raised  on  motion  to  dis- 
miss; Briggs  V.  Traders'  Co.,  145  Fed.  257,  where  suit  is  brought  in 
circuit  court  to  wind  up  affairs  of  a  corporation,  and  the  court  has 
no  jurisdiction,  the  objection  under  U.  S.  Comp.  St.  1901,  p.  511,  may 
be  made  at  any  time  without  any  pleading;  Pennsylvania  Co.  v. 
Bay,  138  Fed.  205,  where  bill  in  federal  court  to  enjoin  business  of 
buying  and  selling  nontransferable  railroad  tickets  alleged  that  value 
of  business  sought  to  be  protected  amounted  to  $5,000,  such  amount  is 
considered  as  true  for  purpose  of  sustaining  jurisdiction, 

Syl.  2   (X,  1042).     Negotiable  paper — Removal  of  causes. 

Approved  in  Kreider  v.  Cole,  149  Fed.  654,  where  persons  interested 
in  Pennsylvania  corporation  for  purpose  of  bringing  suit  in  federal 
court  therein  for  receiver  assigned  stock  and  bonds  to  citizen  of  New 
Jersey,  such  assignment  defeated  jurisdiction;  Kirven  v.  Virginia- 
Carolina  Chemical  Co.,  145  Fed.  291,  original  beneficial  owner  may 
sue  in  federal  court  on  note,  although  nominal  payee  by  reason  of 
citizenship  could  not  sue  therein;  Woodside  v.  Vasey,  142  Fed.  618, 
circuit  court  is  without  jurisdiction  of  action  against  directors  of  cor- 
poration to  enforce  payment  of  number  of  claims,  all  but  one  of 
which  was  assigned  to  plaintiff  for  purpose  of  suing  therein;  Turn- 
bull  V.  Ross,  141  Fed.  652,  suit  was  properly  dismissed  where  it 
appeared  from  the  evidence  that  property  involved  was  collusively 
transferred  to  plaintiff,  who  was  citizen  of  another  state  for  purpose 
of  jurisdiction. 

114  U.  S.  149-158,  29  L.  58,  STEPHENSON  v.  BROOKLYN  R.  E. 

Syl.  2  (X,  1043).     Patents — Combinations. 

Approved  in  Capewell  v.  Goldsmith,  138  Fed.  685,  Capewell  patent 
No.  630,972,  for  stick-pin  retainer,  is  void  for  lack  of  patentable 
invention. 

114  U.  S.  158-173,  29  L.  83,  CHAPMAN  v.  BREWER. 

Syl.  2  (X,  1044).     Effect  of  adjudication  in  bankruptcy. 

Approved  in  Silvey  v.  Tift,  123  Ga.  808,  51  S.  E.  750,  1  L.  E.  A. 
(N.   S.)    386,   where   creditors   file   petition   to   have   debtor   adjudged 


1259  Notes  on  U.  S.  Reports.  114  U.  S.   176-195 

bankrupt,   alleging  preference  to  a  firm,   adjudication   in  bankruptcy 
is  conclusive  in  action  by  trustee   against   said  firm.     . 

Syl.  3  (X,  1044).     Circuit  court — State  relief. 

Approved  in  Douglas  etc.  Club  v.  Granger,  146  Fed.  419,  suit  to 
enjoin  officers  of  state  from  exercising  power  conferred  by  statute  on 
ground  that  their  action  is  unconstitutional,  is  within  federal  juris- 
diction; Ames  etc.  Co.  v.  Big  Indian  etc.  Co.,  146  Fed.  175,  federal 
court  having  jurisdiction  will  enforce  Civ.  Code  Mont.,  §  1891,  pro- 
viding that  in  actions  for  protection  of  water  rights  plaintiff  may 
make  parties  all  who  divert  water  from  stream;  In  re  Mertens,  131 
Fed.  515,  under  Bankr.  Act  July  1,  1898,  c.  541,  §  2,  subs.  2,  30  Stat. 
545,  as  amended,  bankruptcy  court  has  jurisdiction  to  try  and  deter- 
mine title  to  property  found  in  possession  of  bankrupt  purchased  by 
him. 

114  U.  S.  176-189,  29  L.  121,  CHESAPEAKE  ETC.  RY.  v.  MILLER. 

Syl.  1  (X,  1046).     Immunity  from  taxation — Assignee. 

Approved  in  "Wicomico  Co.  Commrs.  v.  Bancroft,  135  Fed.  981,  under 
Code  Md.  1888,  art.  23,  §§  187,  188,  providing  for  rights  of  new 
corporation  purchasing  railroad  under  foreclosure,  an  exemption 
from  taxation  for  a  term  of  years  enjoyed  by  the  old  company  passes 
to  the  new  one;  Baltimore  etc.  Ry.  Co.  v.  Wicomico  Co.,  103  Md. 
280,  63  Atl.  679,  under  Acts  1886,  p.  209,  c.  133,  granting  railroad 
company  exemption  from  taxation,  purchaser  under  foreclosure  sale 
was  not  entitled  to  exemption;  Rochester  v.  Rochester  Ry.  Co.,  182 
N.  Y.  118,  74  N.  E.'953,  70  L.  R.  A.  773,  where  street  railway  com- 
pany was  exempt  from  expense  of  repaying  between  tracks,  the  right 
did  not  pass  to  lessee,  it  being  personal  under  Laws  1869,  p.  54,  c.  34; 
Lake  Drummond  Canal  Co.  v.  Commonwealth,  103  Va.  350,  49  S.  E. 
510,  under  Code  1887,  §  1233,  providing  for  sale  of  corporation  prop- 
erty under  foreclosure,  such  sale  does  not  confer  upon  purchaser  im- 
munity from  taxation  granted  to  original  corporation  and  its  suc- 
cessors and  assigns. 

Syl.  2  (X,  1047).     Taxation  of  franchises. 

Approved  in  Baltimore  etc.  Ry.  Co.  v.  Wicomico  Co.,  103  Md.  285, 
63  Atl.  681,  where  purchaser  of  railroad  under  foreclosure  possesses 
immunity  from  taxation  enjoyed  by  mortgagor,  such  exemption  was 
recalled  by  general  assessment  law. 

114  U.  S.  190-195,  29  L.  132,  LITCHFIELD  v.  BALLOU. 

Syl.   1    (X,  1048).     Bill  in  equity. 

Approved  in  Southern  Pac.  R.  Co.  v.  United  States,  133  Fed.  657, 
658,  66  C.  C.  A.  581,  court  of  equity  has  jurisdiction  of  suit  by  gov- 
ernment against  railroad  company  to  determine  what  proportion  of 
lands  erroneously  patented  to  company  have  been  sold  to  bona  fide 
purchasers  and  for  cancellation  of  patent  to  lands  not   disposed  of j 


114  U.  S.  196-218  Notes  on  U.  S.  Reports.  1260 

General  Elec.  Co,  v.  Westinghouse  Elec.  &  Mfg.  Co.,  144  Fed.  466, 
where  contract  for  manufacture  of  electric  equipment  provided  for 
liquidated  damages  for  violation  thereof,  complainant  was  not  entitled 
to  injunction  to  restrain  defendant 's  violation. 

Distinguished  in  Southern  Pac.  E.  Co.  v.  United  States,  133  Fed. 
655,  66  C.  C.  A.  581,  where  bill  presents  case  over  which  court  of 
equity  has  jurisdiction  of  subject  matter,  objection  that  there  is 
remedy  at  law  must  be  taken  at  earliest  opportunity. 

Syl.  2  (X,  1048).     Limitation  on  municipal  indebtedness. 

Approved  in  Southern  Pac.  R.  R.  Co.  v.  United  States,  200  U.  S. 
349,  50  L.  510,  26  Sup.  Ct.  296,  where  bill  in  equity  avers  that 
certain  public  lands  were  erroneously  patented  to  railroad  company, 
and  prays  for  discovery  of  any  sales  to  bona  fide  purchasers  and 
recovery  of  value  of  lands  sold,  objection  that  complainant  had 
remedy  at  law  comes  too  late  when  made  at  hearing;  Reynolds  v. 
Lyon  County,  121  Iowa,  736,  96  N.  W.  1097,  holding  void  refunding 
bonds  to  pay  outstanding  bonds  where  county  debt  limit  exceeded 
thereby;  City  of  Guthrie  v.  New  Vienna.  Bank,  4  Okl.  211,  38  Pac. 
10,  chapter  14,  St.  Okl.,  imposing  provisional  debts  of  Guthrie,  East 
Guthrie,  Capitol  Hill  and  West  Guthrie  upon  Guthrie,  is  void  for  con- 
flict with  statute  fixing  maximum  rate  of  taxation. 

Syl.  3  (X,  1049).     Lien — Excessive  municipal  indebtedness. 

Approved  in  Board  of  County  Commrs.  etc.  v.  Gillett,  9  Okl.  .193, 
60  Pac.  278,  in  action  upon  warrant  issued  by  county  in  payment  of 
salary  of  county  clerk,  it  is  good  defense  that  at  time  services  were 
rendered  indebtedness  of  county  was  above  maximum  limit  fixed  by 
law;  City  of  Guthrie  v.  New  Vienna  Bk.,  4  Okl.  219,  38  Pac.  12, 
act  of  Congress  fixing  standard  of  validity  of  indebtedness  for  city 
of  Guthrie,  persons  dealing  with  that  city  do  so  at  their  peril;  Martin 
V.  Territory,  5  Okl-.  194,  48  Pac.  108,  under  §  4,  c.  818,  24  Stat.  171, 
providing  for  maximum  rate  of  taxation  of  municipalities  in  terri- 
tories, legislature  has  no  power  to  require  city  to  pay  debts  in  excess 
thereof. 

Syl.  4  (X,  1049).     Holders  of  illegal  bonds. 

Approved  in  Chelsea  Sav.  Bank  v.  City  of  Ironwood,  130  Fed.  412, 
66  C.  C.  A.  230,  where  city  issued  bonds  which  were  subsequently 
adjudged  invalid,  and  sold  them,  holder  thereof  could  maintain  action 
against  city  to  recover  the  purchase  price  paid. 

114  U.  S.  196-218,  29  L.  158,  GLOUCESTER  FERRY  CO.  v.  PENN- 
SYLVANIA. 

Syl.   2    (X,   1050).     Interstate   commerce   defined. 

Approved  in  Howard  v.  Illinois  C.  R.  Co.,  148  Fed.  1000,  liability 
of  common  carrier  to  its  employees  for  personal  injuries  is  not  com- 
merce, and  regulation  of  such  liability  is  not  within  power  of   Con- 


1261  Notes  on  U.  S.  Ecports.  114  U.  S.  196-218 

gress;  Globe  Elevator  Co.  v.  Andrew,  144  Fed.  882,  Laws  Wis.  1905, 
p.  37,  c.  19,  as  amended  by  Laws  Sp.  Sess.  1905,  p.  19,  c.  12,  providing 
for  inspection,  etc.,  of  grain  at  Superior,  as  applied  to  interstate 
shipments,  is  unconstitutional;  Belle  City  etc.  Co.  v.  Frizzell,  11  Idaho, 
8,  81  Pac.  59,  foreign  corporation  manufacturing  farm  machinery  in 
one  state  and  selling  same  to  citizens  of  another  state  upon  orders 
to  be  approved  by  it  taken  by  local  agent,  does  not  come  within  pro- 
visions of  §  2053,  Eev.  St.  1SS7;  State  v.  Faudre,  54  W.  Va.  123,  102 
Am.  St.  Eep.  927,  46  S.  E.  2G9,  63  L.  E.  A.  877,  state  of  Ohio  has 
right  to  establish  ferries  on  Ohio  side  of  Ohio  river  and  to  fix  charges 
for  ferriage  from  Ohio  to  West  Virginia;  dissenting  opinion  in  North- 
ern Securities  Co.  v.  United  States,  193  U.  S.  385,  48  L.  720,  24  Sup. 
Ct.  436,  majority  holding  combination  by  stockholders  in  two  com- 
peting interstate  railway  comj)anies  to  form  stockholding  corporation 
which  should  acquire,  in  exchange  for  its  own  capital  stock,  con- 
trolling interest  of  such  companies,  violates  anti-trust  act  July  2,  1890. 

Syl.  3  (X,  1051).     Power  of  Congress  over  commerce. 

Approved  in  Brooks  v.  Southern  Pac.  Co.,  148  Fed,  991,  Act  June 
11,  190C,  c.  3073,  34  Stat.  232,  treating  of  liability  of  interstate  com- 
mon carriers  for  injuries  to  employees  through  negligence  of  its 
officers  and  agents  is  unconstitutional;  dissenting  opinion  in  Northern 
Securities  Co.  v.  United  States,  193  U.  S.  393,  48  L.  723,  24  Sup.  Ct. 
43G,  majority  holding  Congress  had  power  under  federal  constitution 
to  enact  anti-trust  act  of  July  2,  1890,  declaring  illegal  every  com- 
bination in  restraint  of  interstate  commerce. 

Syl.  4  (X,  1051).     Commerce— Eights  of  state. 

Approved  in  People  v.  Eeardon,  184  N.  Y.  455,  112  Am.  St.  Eep. 
644,  77  N.  E.  978,  upholding  Laws  1905,  pp.  474,  477,  c.  241,  §§  315, 
324,  im]iosing  tax  upon  transfers  of  corporate  stock. 

Syl.  8  (X,  1054).     Taxation — Home  port  of  vessel. 

Approved  in  Old  Dominion  S.  S.  Co.  v.  Virginia,  198  U.  S.  305,  49 
L.  1002,  25  Sup.  Ct.  686,  vessels  which,  though  engaged  in  interstate 
commerce,  are  employed  wholly  within  state,  are  taxable  in  that  state 
though  registered  under  Eev.  St.  U.  S.;  Olson  v.  San  Francisco,  148 
Cal.  83,  82  Pac.  852,  uuder  §  4141,  Eev.  St.  U.  S.,  vessel  is  taxable 
at  San  Francisco,  her  "home  port,"  although  teijiporarily  registered 
in  state  of  Washington;  Harrell  v.  Speed,  113  Tenn.  228,  106  Am. 
St.  Eep.  814,  81  S.  W.  841,  under  Act  Cong.  August  8,  1890,  c.  728, 
26  Stat.  313,  providing  for  taxation,  laws  "of  state  shall  apply  to 
liquor  arriving  in  state,  one  running  a  bar  on  vessel  belonging  in 
Arkansas  and  plying  between  Arkansas  and  Tennessee,  is  subject  to 
laws  of  Tennessee  while  vessel  is  at  landing  therein. 

Syl.  10   (X,  1055).     Exemption  from  state  taxation. 

Approved  in  Attorney  General  v.  Electric  etc.  Battery  Co.,  ISS 
Mass.  240,  74  N.  E.  467,  Stat.  1903,  pp.  447,  450,  c.  437,  §^  GO,  G7,  75, 


114  U.  S.  218-233  Notes  on  U.  S.  Reports.  1262 

requiring  foreign  corporations  described  in  §  58  to  pay  excise  tax  as- 
sessed on  its  capital  stock,  is  constitutional;  State  v.  "Western  Union 
Tel.  Co.,  96  Minn.  24,  104  N.  W.  572,  Laws  1891,  p.  70,  c.  8,  amended 
by  c.  180,  p.  251,  Laws  1901,  providing  for  taxation  of  property  of 
telegraph  companies  witliin  state  as  a  system  is  cf"*istitutional. 

114  U.  S.  218-223,  29  L.  94,  LAMAR  v.  MICOU. 

Syl.  3  (X,  1055).     Residence  of  infant. 

Approved  in  Young  v.  Hiner,  72  Ark.  303,  79  S.  W.  1063,  infant's 
domicile  is  that  of  deceased  father,  and  cannot  be  clanged  by  infant 
during  minority;  Hayslip  v.  Gillis,  123  Ga.  206,  51  13.  E.  326,  where 
one  without  authority  took  infant  child  from  county  of  domicile  to 
another  county,  where  third  person  took  it  into  her  family,  the  or- 
dinary of  latter  county,  in  absence  of  any  choice  by  minor,  had  no 
jurisdiction  to  appoint  guardian;  Hering  v.  Mosher,  144  Mich.  155, 
107  N.  "W.  918,  where  father  left  minor  son  in  one  county  in  custody 
of  grandfather  and  removed  to  another  county,  where  he  died,  domi- 
cile of  child  was  county  where  he  resided  and  not  where   father  died. 

Syl.  4  (X,  1056).     Federal  courts — Judicial  notice. 

See  113  Am.  St.  Rep.  874,  note. 

(X,  1055.)  Miscellaneous.  Cited  in  Holmes  v.  Derrig,  127  Iowa, 
629,  103  N.  W.  975,  where,  on  death  of  widow  mother,  she  committed 
care  of  child  to  her  parents,  court  was  not  justified  in  awarding 
custody  to  uncle  because  said  grandparents  were  not  financially  as 
able  as  uncle  to  care  for  child. 

114  U.  S.  224-233,  29  L.  101,  XENIA  BANK  v.  STEWART. 
Syl.  1   (X,  1056).     Declarations  of  agents. 

Approved  in  Hupfer  v.  National  Distilling  Co.,  119  Wis.  425,  96 
N".  W.  811,  in  action  for  killing  plaintiff's  intestate  by  bursting  of 
vat,  evidence  that  superintendent  pointed  out  to  a  photographer  the 
hoops  that  surrounded  the  vat  is  admissible  to  identify  the  hoops. 

Syl.  4   (X,  1057).     Proof  of  insolvency. 

Approved  in  Bryan  v.  United  States,  133  Fed.  501,  06  C.  C.  A.  369, 
in  prosecution  for  uttering  counterfeit  5-cent  pieces,  where  counterfeit 
5-cent  pieces  were  found  in  defendant's  possession,  evidence  that 
molds  for  making  counterfeit  25-cent  pieces  were  found  in  tool-chest 
used  by  defendant  and  another  was  admissible;  East  Tennessee  etc. 
R.  R.  Co.  v.  Lindamood,  111  Tenn.  474,  78  S.  W.  103,  jury  could  not 
infer  negligence  of  railroad  company  from  proof  that  where  employee 
attempted  to  set  brake  it  gave  sudden  lurch,  which  loosened  his  hold 
so  that  he  fell. 


12G3  Notes  on  U.  S.  Eeports.  114  U.  S.  233-306 

114  U.  S.  233-244,  29  L.  110,  UNITED  STATES  v,  MINOR. 

Syl.  3  (X,  1057).     Vacating  land  patents. 

Approved  in  Lynch  v.  United  States,  13  Okl.  145,  73  Pac.  1096, 
where  patent  has  been  issued  to  homestead  entryman  for  townsite 
purposes  and  land  has  been  duly  platted  into  lots,  etc.,  and  large  num- 
ber of  lots  have  been  sold  to  innocent  purchasers,  although  patentee 
obtained  title  through  fraud,  patent  cannot  be  canceled,  and  govern- 
ment is  without  remedy.     See  101  Am.  St.  Rep.  170,  note. 

Syl.  5    (X,  1058).     Effect  of  Land  Department  decision. 

Approved  in  Estes  v.  Timmons,  199  U.  S.  396,  50  L,  244,  26  Sup. 
Ct.  85,  perjury  on  hearing  before  Land  Department  of  contest  over 
entry  under  homestead  law  is  not  ground  for  equitable  relief  against 
decision  of  department. 

114  U.  S.  252-262,  29  L.  126,  BISSELL  v.  FOSS. 

Syl.  3  (X,  1060).     Mining  partnership. 

Approved  in  Reed  v.  Munn,  148  Fed.  759,  lessee  has  right  to  pur- 
chase landlord's  title  at  execution  sale  and  put  an  end  to  relation 
of  landlord  and  tenant. 

114  U.  S.  270-306,  29  L.  185,  POINDEXTER  v.  GREENHOW. 

Syl.  1  (X,  1061).     Payment  of  taxes — Bond  coupons. 

Approved  in  Leet  v.  Armbuster,  143  Cal.  670,  77  Pac.  655,  tender 
of  redemption  money  to  purchaser  at  foreclosure  sale  operates  to  de- 
feat estate  of  purchaser  and  leaves  it  in  mortgagor  or  his  successor. 

Syl.  2  (X,  1062).     Effect  of  tender— Coupons. 

Approved  in  Bourquin  v.  Bourquin,  120  Ga.  120,  47  S.  E.  641,  where 
pending  action  in  ejectment  property  sued  for  was  sold  for  taxes 
and  purchased  by  defendant,  plaintiff  by  making  tender  under  Pol. 
Code,  §  909,  was  entitled  to  redeem. 

Syl.  5  (X,  1062).     State — Immunity  from  suit. 

Approved  in  United  States  v.  Ju  Toy,  198  U.  S.  263,  49  L.  1044, 
25  Sup.  Ct.  644,  28  Stat,  at  L.  372,  390,  c.  301,  U.  S.  Comp.  St.  1901, 
p.  1303,  §  1,  relating  to  exclusion  of  Chinese,  is  not  unconstitutional; 
Rosenberger  v.  Harris,  136  Fed.  1003,  under  Rev.  St.,  §  3929,  as 
amended  by  Act  Cong.  Sept.  19,  1890,  c.  90S,  26  Stat.  466,  authorizing 
postmaster  general  to  issue  fraud  orders,  he  has  authority  to  pass 
on  facts  but  not  on  questions  of  law.  See  108  Am.  St."  Rep.  832,  840, 
101  Am.   St.   Rep.   1G2,  notes. 

Syl.   6    (X,   1064).     Suit  against  state— Test. 

Approved  in  Southern  Ry.  Cj.  v.  Greensboro  etc.  Co.,  134  Fed.  93, 
suit  against  state  corporation  commissioner  to  enjoin  enforcement  of 
order  alleged  to  be  void  as  interference  with  interstate  commerce  is 
not  against  state.     See  108  Am.  St.  Rep.  83S,  note. 


114  U.  S.  309-355  Notes  on  U.  S.  Eeports.  1-64 

Syl.  13  (X,  10G4).     Statute  valid  in  part. 

Approved  in  Brooks  v.  Southern  Pac.  Co.,  148  Fed.  996,  Act  June 
11,  1906,  c.  3073,  34  Stat.  232,  relating  to  liability  of  common  carriers 
for  negligence  of  its  agents,  servants,  etc.,  is  unconstitutional  because 
it  applies  to  citizens  of  same  state;  Cella  Com.  Co.  v.  Bohlingcr,  147 
Fed.  423,  Act  of  Ark.  Feb.  26,  1901,  Kirby's  Dig.,  §  835,  authorizing 
personal  judgment  against  foreign  corporations  after  service  of  sum- 
mons on  auditor  of  state,  is  void ;  State  v.  Cudahy  Packing  Co.,  33  Mont. 
189,  82  Pac.  836,  Pen.  Code,  §  321,  prohibiting  combinations  for  pur- 
pose of  fixing  price  of  any  article,  etc.,  is,  by  reason  of  §  325,  exempt- 
ing persons  engaged  in  horticulture  or  agriculture,  void. 

114  U.  S.  309,  310,  29  L.   198,  CHAFFIN  v.  TAYLOR. 

Syl.  1   (X,  1065),     Following  Poindexter  v.  Greenhow. 

Approved  in  O'Eeilly  De  Camara  v.  Brooke,  135  Fed.  388,  military 
governor  of  Cuba  representing  the  United  States  during  temporary 
occupancy  of  the  island  is  not  exempt  from  personal  liability  for  tort 
committed  in  his  official  capacity. 

114  U.  S.  311-317,  29  L.  200,  ALLEN  v.  BALTIMORE  ETC.  R.  R. 

Syl.  2  (X,  1066).     Payment  of  taxes — Bond  coupons. 

Approved  in  Southern  Ry.  Co.  v.  Greensboro  etc.  Co.,  134  Fed.  93, 
North  Carolina  corporation  commission  is  agent  of  state  and  may  be 
enjoined  by  federal  court. 

Svl.  2  (X,  106G).     Injunction  restraining  collection  of  taxes. 
See  108  Am.  St.  Rep.  838,  note. 

114  U.  S.  317-323,  29  L.  202,  CARTER  v.  GREENHOW. 

Syl.  2   (X,  1067).     Contract  with  state — Testing  validity. 

Approved  in  O'Reilly  Be  Camara  v.  Brooke,  135  Fed.  388,  if  officer 
of  United  States  takes  property  of  private  person  for  public  use 
without  compensation,  he  is  liable  in  tort,  although  government  is 
also  liable. 

114  U.  S.  340-355,  29  L.  136,  EAST  ALABAMA  RY.  v.  DOE. 

Syl.  1   (X,  1069).     Assignee  of  railroad. 

Approved  in  Oregon  etc.  R.  R.  Co.  v.  Quigley,  10  Idaho,  785,  80  Pac. 
40.1,  Utah  and  Northern  Railway  Company  having  become  grantee 
of  right  of  way  on  certain  land  under  Act  Cong.  March  3,  1873,  c.  291, 
17  Stat.  612,  settlers  could  not  thereafter  acquire  title  by  adverse 
possession  to  part  of  land  included  in  grant  to  railway  company; 
Dobbins  v.  Colorado  etc.  Ry.  Co.,  19  Colo.  App.  261,  75  Pac.  157, 
where  law  provides  for  assessment  of*taxes  against  railroads  making 
them,  a  lien  on  section  within  the  county,  the  ordinary  remedy  of 
proceeding  in  equity  to  enforce  the  lien  is  proper. 


1265  Notes  on  U.  S.  Eeports.  114  U.  S.  355-410 

Syl.   2    (X,   1069).     Construction   of   state   laws. 

Approved  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  under 
Const.  N.  C,  art.  2,  §  14,  providing  that  no  county  tax  law  shall  be 
passed   unless   bill   for   that    purpose   shall   be    read    three   times   and 

vote   entered   on   record,   journal   showing   "Ayes   94,   nays   ,   total 

, ' '  shows  there  were  no  negative  votes  cast. 

114  U.  S.  355-373,  29  L.  152,  THE  BELGENLAND, 

Syl.  2   (X,  1070).     Admiralty  jurisdiction. 

Approved  in  The  Eagle  Point,  142  Fed.  454,  where  two  British 
vessels  are  found  in  fault  for  collision  on  high  seas,  in  United  States 
court  of  admiralty,  English  law  as  to  measure  of  damages  will  be  ap- 
plied. 

Syl.   3    (X,   1076).     Foreign   seamen — Admiralty   jurisdiction. 

Approved  in  The  Bound  Brook,  146  Fed.  161,  under  article  13  of 
Treaty,  December  11,  1871,  between  Germany  and  United  States 
giving  consular  officers  exclusive  cognizance  of  difference  between 
crew  and  captain  of  vessel,  court  of  admiralty  has  no  jurisdiction  of 
suit  against  German  vessel  for  wages. 

Syl.  4  (X,  1076).     Common  law  of  nations — Admiralty  jurisdiction. 
See  113  Am.  St,  Eep.  872,  note. 

Syl.    6    (X,    1076).     Amiralty   jurisdiction — High    seas. 

Approved  in  In  re  Clyde  S.  S.  Co.,  134  Fed.  100,  where  statute  of 
state  where  both  vessels  to  collision  on  h'gh  seas  belong  gives  right 
of  action  for  wrongful  death,  admiralty  court  will  apply  such  law. 

114  U.  S.  394-401,  29  L.  130,  HUXTLEY  v.  HUNTLEY. 

Syl.   1    (X,   1073).     Statute   of   frauds. 

Appr^.ved  in  Hartman  v.  Butterfield  Lumber  Co.,  199  U.  S.  338, 
50  L.  219,  20  Sup.  Ct.  63,  one  claiming  under  deed  of  trust  from 
pateutec  with  knowledge  of  prior  conveyance  of  timber  and  right  of 
way  oarjnot  o,ucstion  validity  of  such  conveyance  because  it  was  made 
pursuant  to  agreement  prior  to  patent  in  consideration  of  an  advance 
of  money  to  enable  entrymen  to  obtain  patent;  Jones  v.  Patrick,  140 
Fed.  408,  verbal  agreement  between  complainant  and  defendant  that 
they  should  find  purchaser  for  mining  property  on  which  defendant 
held  an  option  and  divide  profits  is  not  within  statute  of  frauds  of 
Nevada, 

114  U.  S.  401-410,  29  L.  149,  STATE  BANK  v.  UNITED  STATES. 

Syl.  1  (X,  1073).     Defalcation — Liability  of  government. 

Approved  in  Tanner  v.  Lee,  121  Ga.  526,  49  S.  E.  593,  creditor  who, 
without   notice   of   another's   claim,   receives   money   from   debtor   for 
pre-existing  debt  is  not  liable  for  an  accounting  to  true  owner. 
£0 


114  U.  S.  411-429  Notes  on  U.  S.  Keports.  1266 

114  r.  S.  411-417,  29  L.  147,  THE  LAURA. 

Syl.  2  (X,  1073).     Contemporaneous  construction. 

Approved  in  Walker  v.  Globe  etc.  Co.,  140  Fed.  309,  rights  vested 
in  author  of  map,  etc.,  under  U.  S.  Comp.  St.  1901,  p.  3406,  are  not 
taken  away  by  implication  by  U.  S.  Comp.  St.  1901,  pp.  3414,  3416; 
State  V.  Northern  Pac.  Ry.  Co.,  95  Minn.  47,  103  N.  W.  732,  foreign 
railway  company  paying  tax  on  gross  earnings  is  not  taxable  under 
§  1530,  Gen.  St.  1894,  but  under  other  sections  of  c.  11;  Ex  parte 
Anderson,  46  Tex.  Cr.  399,  81  S.  W.  987,  city  court  has  no  jurisdiction 
to  try  accused  for  violation  of  state  statute  prohibiting  sales  on 
Sunday. 

114  U.  S.  417-429,  29  L.  89,  EX  PARTE  WILSON. 

Syl.  1  (X,  1074).     Supreme  court — Criminal  cases. 

Approved  in  Kepner  v.  United  States,  195  U.  S.  126,  49  L.  123,  24 
Sup.  Ct.  797,  right  of  government  to  appeal  from  judgment  of  ac- 
quittal in  court  of  first  instance  in  Philippine  Islands  under  act  of 
Philippine  commission,  August  10,  1901,  was  taken  away  by  32  Stat. 
at  L.  691,  c.  1369. 

Syl.  2  (X,  1075).     Prosecuting  by  indictment. 

Approved  in  Schick  v.  United  States,  195  U.  S.  69,  49  L.  102,  24 
Sup.  Ct.  826,  person  prosecuted  under  24  Stat,  at  L.,  209,  c.  840,  U.  S. 
Comp.  Stat.  1901,  p.  2228,  §  11,  for  receipt  for  sale  of  oleomargarine, 
may  waive  jury  trial;  United  States  v.  Powers  &  Robertson,  1  Alaska, 
184,  185,  prosecution  for  sale  of  liquor  outside  of  particular  building 
without  license,  being  a  misdemeanor,  may  be  by  information. 

Syl.  8   (X,  1076).     Felony  at  common  law. 

Approved  in  State  v.  Foster,  187  Mo.  605,  86  S.  W.  249,  offense  of 
deterring  witness  from  attending  trial  and  giving  evidence  under 
Rev.  St.  1899,  §  2041,  is  a  misdemeanor. 

Syl.  10  (X,  1076).     Test  of  infamoas  crime. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  450,  50  L. 
265,  26  Sup.  Ct.  110,  dispensing  agents  of  a  state  which  has  taken 
charge  of  business  of  selling  intoxicating  liquors  are  within  scope  of 
U.  S.  Rev.  St.,  §§  3232,  3234,  3140;  United  States  v.  Camden  Iron 
W^ks.,  150  Fed.  216,  prosecution  by  information  for  receiving  rebate 
in  violation  of  24  Stat.  379,  c.  104,  U.  S.  Comp.  1901,  p.  3154,  was 
proper;  Jamison  v.  Wimbish,  130  Fed.  354,  order  of  police  magis- 
trate directing  person  to  serve  term  in  chain  gang  is  infamous  pun- 
ishment; United  States  v.  Ames  Mer.  Co.,  2  Alaska,  76,  corporation 
may  be  indicted  under  United  States  statutes  for  carrying  on  business 
as  liquor  dealer  without  paying  license  required  by  §  3244,  Rev.  St. 
U.  S.  1878;  Garitee  v.  Bond,  102  Md.  383,  111  Am.  St.  Rep.  387,  62 
Atl.  632,  one  convicted  of  making  overcharge  for  prosecuting  pension 
claim  in  violation  of  Act  Cong.,  June  27,  1890,  c.  634,  §  4,  26  Stat. 


1267  Notes  on  U.  S.  Reports.  114  U.  S.  429-463 

183,  is  not  convicted  of  infamous  crime  within  Code  Pub.  Gen.  Laws, 
art.  93,  §  51;  Territory  v.  Stroud,  6  Okl.  109,  50  Pac.  266,  prosecu- 
tion by  information  for  carrying  on  saloon  business  in  violation  of 
§  27,  c.  47,  Stat.  1893,  was  proper;  Ex  parte  Laeey,  6  Okl.  6,  37  Pac. 
1096,  where  person  is  arrested  upon  complaint  before  United  States 
commissioner  charging  infamous  crime,  under  §  1044,  Rev.  St.  U.  S., 
filing  of  complaint  does  not  stay  operation  of  statute  of  limitation; 
State  V.  Nichols,  27  R.  I.  77,  00  Atl.  766,  under  Acts-  1838,  §  12,  e.  6, 
p.  979,  offense  of  beating  an  animal  was  cognizable  by  justice  of  the 
peace. 

Syl.  12  (X,  1078).     Information  and  indictment. 

Approved  in  Cuyler  v.  Atlantic  etc.  R.  Co.,  131  Fed.  99,  publisher 
of  newspaper  who  in  editorial  criticises  conduct  and  integrity  of  court 
cannot  be  punished  for  contempt  under  Rev.  St.,  §  725;  In  re  McNeil, 
68  Kan.  309,  74  Pac.  1111,  defendant  convicted  of  assault  and 
battery  under  Gen.  St.  1901,  and  sentenced  to  both  fine  and  imprison- 
ment is  entitled  to  discharge  on  habeas  corpus. 

114  U.  S.  429-430,  29  L.  93,  UNITED  STATES  v.  PETIT. 

Syl.  1  (X,  1078).     Infamous  crime — Counterfeiting. 

Approved  in  State  v.  Nichols,  27  R.  I.  82,  60  Atl.  768.  offense  of 
beating  an  animal  is  not  an  infamous  crime  under  laws  of  Rhode 
Island. 

114  U.  S.  430-439,  29  L.  144,  DODGE  v.  KNOWLES. 

Syl.  5   (X,  1079).     Sufficient  notice  of  appeal. 

Approved  in  Lochman  v.  Lang,  132  Fed.  4,  where  appeal  has  been 
allowed  by  taking  security  and  filing  transcript  and  docketing  within 
time,  failure  to  issue  citation  within  time  is  not  ground  for  dismissal 
of  appeal. 

114  U.  S.  439-447,  29  L.  177,  DOBSON  v.  HARTFORD  CARPET  CO. 

Syl.  3    (X,   1080).     Damages  for  infringement. 

Approved  in  Regis  v.  Jaynes,  191  Mass.  251,  77  N.  E.  777,  plaintiff 
entitled  to  recover  damages  for  use  of  trademark  "Rex"  or  "Rexall" 
in  sale  of  preparations  for  cure  of  dyspepsia;  New  York  Bank  Note 
Co.  V.  Hamilton  Bank  Note  Co.,  180  N.  Y.  296,  73  N.  E.  53,  measure 
of  damages  for  selling  printing-presses  with  certain  attachments  in 
violation  of  agreement  is  difference  between  profits  made  from  sale 
of   presses   with  and   without   attachment. 

114  U.  S.  453-463,  29  L.  216,  DISTRICT  OF  COLUMBIA  COMMRS. 
V.  BALTIMORE  ETC.  R.  R.  Co. 

Syl.  1  (X,  1082).     Title  to  streets. 

Approved  in  dissenting  opinion  in  Canton  v.  Cotton  Warehouse  Co., 
84  Miss.  317,  105  Am.  St.  Rep.  428,  36  So.  280,  65  L.  R.  A.  561, 
majority    holding    power    given    to    railway    company    to    do    all    acta 


114  U.  S.  474-523  Notes  on  U.  S.  Eeportg.  -  1268 

incidental  to  maintenance  of  its  road  includes  right  to  lay  conduits 
in  its  right  of  way  to  conduct  water  to  its  buildings.  See  105  Am. 
St.  Rep.  456,  note. 

114  U.  S.  474-477,  29  L.  215,  BURTON  v.  WEST  JERSEY  FERRY  CO. 

(X,  1083.)  Miscellaneous.  Cited  in  Rhea  v.  United  States,  6 
Okl.  257,  50  Pac.  994,  exception  to  each  and  every  and  all  of  the 
instructions  given  by  court  to  jury  is  sufficient. 

114  U.  S.  488-492,  29  L.  183,  HOPT  v.  UTAH. 

(X,  1084.)  Miscellaneous.  Cited  in  dissenting  opinion  in  Kepner 
V.  United  States,  195  U.  S.  135,  49  L.  126,  24  Sup.  Ct.  797,  majority 
holding  under  32  Stat,  at  L.  691,  c.  1369,  government  cannot  appeal 
from  judgment   of  acquittal  in  Philippine   Islands. 

114  U.   S.   501-511,   29   L.   244,   NEW   ORLEANS   ETC.   R.   R.   CO.   v. 
DELAMORE. 

Syl.  2  (X,  1085).     Bankruptcy  of  railroad. 

Approved  in  In  re  Mathews  etc.  Slate  Co.,  144  Fed.  726,  corporation 
engaged  in  quarrying  slate  and  selling  it  after  trimming  and  cutting 
it  is  engaged  in  mining  and  manufacturing  business  under  Bankr.  Act 
July  1,   1S9S,  §  4b,  as  amended  in  1903, 

Syl.  3  (X,  1085).     Status  of  franchise. 

Approved  in  Vicksburg  v.  Vicksburg  Waterworks  Co.,  202  U.  S. 
4G4,  50  L.  1109,  26  Sup.  Ct.  660,  contract  rights  under  municipal  or- 
dinance which  was  property  of  water  company  covered  by  mortgage 
passed  under  foreclosure  to  purchaser;  Julian  v.  Central  Trust  Co., 
193  U.  S.  105,  48  L.  636,  24  Sup.  Ct.  399,  property  and  franchises 
of  railroad  purchased  at  foreclosure  sale  are  not  liable  for  satisfaction 
of  judgment  for  tort  committed  by  mortgagor  after  sale  because  of 
failure  of  purchaser  to  comply  with  N.  C.  Code;  Omaha  Water  Co. 
V.  City  of  Omaha,  147  Fed.  15,  foreclosure  of  mortgage  of  property  of 
water  company  passes  to  purchaser  contract  to  collect  specified  rates 
in  contract  between  company  and  city;  Farmers'  Loan  etc.  Co.  v. 
Meridian  W.  W.  Co.,  139  Fed.  665,  franchise  granted  water  company 
to  maintain  pipes  in  street  to  supply  water  may  be  mortgaged;  San 
Joaquin  etc.  Irr.  Co.  v.  Merced  Co.,  2  Cal.  App.  600,  84  Pac.  288, 
where  corporation  was  authorized  to  acquire  property,  etc.,  the  exer- 
cise of  such  process  in  county  other  thaa  where  principal  place  of 
business  is  located  subjected  property  therein  to   taxation. 

114  U.  S.  511-523,  29  L.  240,  STURGES  v.  CARTER. 

Syl.  2  (X,  1086).     Collection  of  taxes — Previous  year. 

Approved  in  Georgia  E.  R.  Co.  v.  Wright,  124  Ga.  615,  53  S.  E. 
260,  acceptance  by  comptroller  general  of  return  from  which  taxable 
property  has  been  omitted  does  not  bar  state  of  its  right  to  proceed 
against  delinquent  for  tax  due  on  omitted  property;  Adams  v.  Kuy- 


1269  Notes  on,  U.  S.  Eeports.  114  U.  S.  523-542 

kerdall,  83  Miss.  594,  35  So.  835,  Acts  1894,  c.  34,  p.  29,  appointing 
state  revenue  agent  to  supervise  action  of  taxing  officers  was  not  un' 
constitutional. 

Syl.  6  (X,  10S7).     Taxation  of  corporate  stock. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  XJ.  S.  205, 
50  L.  154,  26  Sup.  Ct.  36,  due  process  of  law  is  denied  Kentucky  cor- 
poration by  tax  assessed  under  Ky.  St.,  §  4020,  upon  rolling  stock 
permanently  located  in  another  state. 

114  U.  S.  523,  524,   29  L.  232,  BEECHER  MFG.   CO.  v.   ATWATEE 
MFG..  CO. 

Syl.  1  (X,  1087).     Patent— Use  of  dies. 

Approved  in  American  Choc.  Mach.  Co.  v.  Hclmstetter,  142  Fed. 
980,  Holmes'  patent  No.  492,205,  for  machine  for  coating  confec- 
tionery, claim  1,  is  not  infringed  by  Weeks'  patent  No.  034,633. 

114  U.  S.  525-542,  29  L.  264,  FORT  LEAVENWORTH  R.  E.  v.  LOWE. 

Syl.   1   (X,  1087).     Federal  jurisdiction  over  land. 

Approved  in  Hamburg  American  S.  S.  Co.  v.  Grube,  196  U.  S.  415, 
49  L.  533,  25  Sup.  Ct.  352,  public  laws  of  New  Jersey  are  in  force 
in  littoral  waters  of  Sandy  Hook  peninsula  below  low-water  mark 
whether  enacted  prior  or  subsequently  to  cession  by  New  Jersey  to 
United  States  by  act  March  12,  1846;  United  States  v.  Tully,  140 
Fed.  900,  homicide  committed  in  place  where,  upon  admission  of  Mon- 
tana into  Union,  right  to  exclusive  legislation  was  reserved  to  gen- 
eral government,  is  punishable  in  federal  court. 

Syl.   2    (X,   lOSS).     Acquisition   of  laud  by  government. 

Approved  in  United  Shoe  Mach.  Co.  v.  Duplessis  etc.  Co.,  148  Fed. 
36,  patent  granted  prior  to  January  1,  1898,  which  is  limited  by  Rev. 
St.,  §  4887,  to  terms  of  prior  foreign  patent,  is  not  changed  by  32 
Stat.   1936,   1939. 

Syl.  4   (X,  1088).     Qualitication  of  government's  ownership. 

Approved  in  In  re  Blount,  142  Fed.  267,  where  insolvent  trans- 
ferred all  his  property  to  one  creditor  to  be  distributed  among  his 
creditors  save  one,  and  said  creditors  expressed  no  objection,  under 
Bankr.  Act,  July  1,  1898,  c.  541,  §  56b,  30  Stat.  560,  the  single  cred- 
itor only  could  maintain  petition  in  bankruptcy;  United  States  v, 
Tully,  140  Fed.  905,  after  passage  of  the  Organic  Act,  §§  16  and  36, 
in  the  territory  of  Montana,  ceased  to  be  public  lands;  State  v. 
Tully,  31  Mont.  376,  78  Pac.  764,  where  certain  land  was  granted 
to  proposed  state  of  Montana,  excluding  certain  section  of  each 
township,  which  remained  in  possession  of  federal  government,  a  crime 
committed  thereon  is  punishable  in  federal  court. 


114  U.  S.  542-555  Notes  on  U.  S.  Reports.  1270 

114  U.  S.  542-547,  29  L.  270,  CHICAGO  ETC.  E.  R.  CO.  v.  McGLINN. 

Syl.  3  (X,  1090).     Exclusive  jurisdiction  by  federal  government. 

Approved  in  Hamburg  American  S.  S.  Co.  v.  Grube,  196  U.  S.  415, 
49  L.  533,  25  Sup.  Ct.  352,  public  laws  of  New  Jersey  are  in  force  in 
littoral  waters  of  Sandy  Hook  peninsula  below  low-water  mark  whether 
enacted  prior  or  subsequently  to  cession  by  New  Jersey  to  United 
States  by  act  March  12,  1846. 

Syl.   4   (X,   1090).     Treaties — Municipal  laws. 

Approved  in  In  re  Chavez,  149  Fed.  75,  under  civil  law  in  force 
in  New  Mexico  except  as  changed  by  statute,  community  property 
acquired  by  husband  or  wife  is  first  subject  to  community  debts,  then 
antenuptial  debts  of  husband. 

114  U.  S.  549-555,  29  L.  255,  MAETINSBURG  ETC.  E.  R.  v.  MAECH. 

Syl,  1  (X,  1091).     Effect  of  engineer's  certificate. 

Approved  in  Bush  v.  Jones,  144  Fed.  945,  clause  in  specifications 
for  foundation  of  building  that  "whole  to  be  made  perfectly  water- 
tight and  guaranteed,"  did  not  constitute  guaranty  that  cellar 
should  be  water-tight,  but  was  only  guaranty  of  his  compliance  with 
specifications;  Moore  &  Co.  v.  Cornwall,  144  Fed.  30,  charter-party 
containing  provision  that  certificate  of  marine  surveyor  that  vessel 
in  proper  condition  for  voyage  should  be  furnished  charterers,  con- 
templated actual  survey  and  not  a  refusal  on  account  of  her  age; 
Guild  V.  Andrews,  137  Fed.  371,  70  C.  C.  A.  49,  stipulation  in  con- 
tract for  construction  of  sewer  making  engineer  arbiter  of  amount 
of  work  done  and  compensation  to  be  paid  is  valid;  Couners  v.  United 
States,  130  Fed.  614,  under  contract  for  construction  of  building 
containing  provisions  for  excavation,  contractor  assumed  risk  of 
depth  of  excavation;  Green  Bay  Lumber  Co.  v.  Independent  School 
Dist.,  125  Iowa,  233,  101  N.  W.  87,  under  contract  for  construction 
of  schoolhouse  which  provided  that  payments  should  be  made  as  work 
progressed  on  architect 's  certificates,  payments  made  to  contractor 
on  such  certificates  on  information  furnished  him  by  superintendent 
were  sufficient;  Edwards  v.  Hartshorn,  72  Kan.  24,  82  Pac.  522,  pro- 
vision in  contract  between  principal  contractor  and  subcontractor  for 
grading  of  railroad,  that  work  should  be  under  supervision  of  en- 
gineer, v/ho  should  make  estimates  for  basis  of  payments,  and  that 
his  decision  should  be  final,  is  valid;  Seretto  v.  Eockland  etc.  Ey.,  101  Me. 
145,  63  Atl.  653,  where  contract  provides  that  installments  to  be  paid  by 
defendant  to  plaintiff  contractor  for  work  on  railroad  shall  be  determineil 
by  engineer,  and  another  engineer  is  substituted,  estimates  of  substituted 
engineer  are  binding;  White  v.  Abbott,  188  Mass.  102,  74  N.  E.  306, 
provision  in  contract  between  contractor  and  subcontractor  that  if 
latter  should  fail  to  complete  contract  and  owner  should  be  obliged 
to  complete  it  and  expense  to  be  deducted  from  contract  price,  and 
cost  to  be   certified  by  architect,  is  valid,  and  architect's  determiuu- 


1271  Notes  on  U.  S.  Reports.  114  U.  S.  555-5S7 

tion  is  binding;  Livesley  v.  Johnston,  45  Or.  46,  106  Am.  St.  Rep. 
647,  76  Pac.  949,  65  L.  R.  A.  783,  contract  for  sale  of  hops  providing 
for  quantity  and  price,  etc.,  is  not  wanting  in  mutuality  because  they 
must  be  "according  to  judgment"  of  buyer;  Dallas  etc.  Loan  Assn. 
V.  Thomas,  36  Tex.  Civ.  272,  81  S.  W.  1044,  where  building  contract 
required  building  to  be  completed  to  satisfaction  of  architect,  in  suit 
on  contractor's  bond  after  abandonment,  sureties  were  bound  by 
testimony  of  architect  that  certain  items  were  necessary  to  com- 
plete building;  Billmyer  v.  Insurance  Co.,  57  "W.  Va.  47,  49  S.  E. 
902,  903,  an  award  made  in  pursuance  to  condition  in  policy  of  in- 
surance is  final  to  amount  of  loss  but  not  as  to  other  matters;  Plumb- 
ing Co.  V.  Carr,  54  W.  Va.  276,  46  S.  E.  460,  where  contract  for  plumb- 
ing home  provides  that  final  payment  shall  be  made  when  work  is 
completed  to  satisfaction  of  architect,  his  reasons  for  rejection  if 
made  in  good  faith  cannot  be  inquired  into. 

114  U.  S.  555-562,  29  L.  248,  STRANG  v.  BRADNER. 

Syl.  2  (X,  1093).     Claim  against  bankrupt. 

Approved  in  In  re  Ilardie,  143  Fed.  608,  false  statement  made  by 
partner  in  ordinary  course  of  business  in  buying  merchandise,  for 
purpose  of  buying  goods  on  credit,  bars  other  partners  from  right  to 
discharge  in  bankruptcy  under  Bankr.  Act,  July  1,  1898;  Standard 
Sewing  Machine  Co.  v.  Alexander,  68  S.  C.  510,  47  S.  E.  712,  plaintiff 
in  tort  on  ground  that  goods  obtained  by  fraudulent  representations 
not  estopped  by  proving  in  bankruptcy  court  notes  taken  for  price  of 
goods. 

114  U.  S.  564-575,  29  L.  277,  WALES  v.  WHITNEY. 

Syl.  3   (X,  1094).     Naval  court-martials. 

See  111  Am.  St.  Rep.  936,  note. 

Syl.  5  (X,  1095).     Restraint  necessary  for  habeas  corpus. 

Approved  in  Mackenzie  v.  Barrett,  141  Fed.  966,  defendant  ar- 
rested under  indictment  for  abandonment  of  his  wife  and  having 
given  bail  is  entitled  to  writ  of  habeas  corpus  to  test  right  of  court 
to  detain  him  for  any  purpose;  In  re  Dykes  v.  Baker,  13  Okl.  340,  74 
Pac.  507,  one  who  has  been  arrested  upon  indictment  pending  in  dis- 
trict court  and  has  given  bail  is  not  entitled  to  discharge  on  habeas 
corpus. 

114  U.  S.  576-587,  29  L.  273,  RICHMOND  MINING  CO.  v.  ROSE. 

Syl.   1    (X,  1095).     Excessive  size  of  mining  claim. 

Approved  in  McPherson  v.  Julius,  17  S.  D.  123,  95  N.  "W.  434,  in 
absence  of  fraud,  locator's  claim  of  six  hundred  and  fifty  feet  in  excess 
of  amount  allowed  by  law  is  invalid  only  as  to  excess. 

Limited  in  Price  v.  Mcintosh,  1  Alaska,  291,  292,  where  junior  loc-atdr 
attempts  to  relocate  exct-ss  in  area  in  plac-er  claim,  he  must  locate  por- 


11-4  U.  S.  587-615  Notes  on  U.  S.  Keports.  1272 

tion  of  excess  claim  not  actually  occupied  by  diggings  or  property  of 
senior  locator. 

Syl.  3  (X,  1096).  Mining  claim — Commencement  of  action. 
•  Approved  in  Nome-Sinook  Co.  v.  Simpson,  1  Alaska,  583,  586,  587, 
court  will  decide  right  of  possession  of  mining  property  under  laws  of 
locality  unless  one  or  other  of  parties  establishes  valid  title  under 
United  States  mining  laws;  Pennsylvania  Min.  Co.  v.  Bales,  18  Colo. 
App.  110,  70  Pae.  444,  trial  and  failure  to  object  that  adverse  claim  not 
filed  within  legal  time  is  waiver. 

Syl.  6    (X,   1096).     Land  Department — Disputed  mining  claim. 

Approved  in  Wright  v.  Hartville,  13  Wyo.  507,  81  Pac.  651,  652,  L,and 
Department  and  not  court  has  jurisdiction  in  action  between  towusite 
claimant  and  mining  claimant. 

Syl.  7   (X,  1096).     Power  of  land  office — Pending  suit. 

Approved  in  Deeney  v.  Mineral  Creek  Mill.  Co.,  11  N.  M.  294,  67 
Pac.  726,  receiver 's  receipt  issued  to  mining  applicant  during  pendency 
of  action  in  court  in  pursuance  of  §  2326,  Kev.  St.  U.  S.,  is  void;  dis- 
senting opinion  in  Lily  Min.  Co.  v.  Kellogg,  27  Utah,  121,  74  Pac.  521, 
majority  holding  where  no  claim  adverse  to  mining  claim  is  filed  within 
time  limited  by  Eev.  St.,  §  2325,  it  is  conclusively  presumed  that  ap- 
plicant entitled  to  patent. 

114  U.  S.  587-598,  29  L.  235,  WABASH  ETC.  EY.  v.  HAM. 

Syl.  1   (X,  1097).     Status  of  corporate  property. 

Approved  in  Dubreuil  v.  Gaither,  98  Md.  544,  56  Atl.  966,  where 
partnership  has  note  discounted  at  bank  and  proceeds  are  deposited  there 
in  name  of  one  partner  as  trustee  and  trustee  recovers  judgment  against 
receiver  of  bank  for  balance  of  deposit,  in  suit  by  receiver  against  all 
partners  he  was  entitled  to  setoff  of  balance  due  bank  on  note  against 
the  judgment. 

Syl.    2     (X,    1098).     Status    of    consolidated    corporations. 

Approved  in  Chicago  &  N.  W.  Ey.  Co.  v.  Fox  Eiver  E.  Ey.  etc.,  119 
Wis.  188,  96  N.  W.  542,  purchase  from  street  railway  company  of  its 
equipment,  but  not  franchises,  etc.,  did  not  make  purchaser  seller's 
' '  successor ' '  within  terms  of  contract  making  seller  and  successors  liable 
for  wages  of  flagman  at  crossing. 

114  U.  S.  606-615,  29  L.  229,  WUETS  v.  HOAGLAND. 

Syl.  1  (X,  1099).     Expense  of  drains. 

Approved  in  Brown  v.  Gerald,  100  Me.  368,  109  Am.  St.  Eep.  526, 
61  Atl.  792,  70  L.  E.  A.  472,  manufacturing,  selling  and  distributing 
electricity  for  power  and  manufacturing  purposes  is  not  a  public  use 
for  which  private  property  may  be  taken  against  will  of  the  ovvner; 
Minnesota  Canal  etc.  Co.  v.  Koochiching  Co.,  97  Minn.  448,  107  N.  W.  412, 
under  Minnesota  statutes  relating  to  construction  of  canal  and  creation 
of    water-power,    corporation    is    not    authorized    to    divert    water    from 


1273  Notes  on  U.  S.  Eeports.  114  U.  S.  C15-619 

navigable  lakes  and  streams  to  such  an  extent  as  to  interfere  with  navi- 
gation.    See   102   Am.   St.  Kep.   833,  note. 

Syl.  2   (X,  1100).     Equal  protection  of  the  law. 

See  102  Am.   St.  Kep.  814,  note. 

Criticised  in  Voris  v.  Pittsburg  Plate  Glass  Co.,  163  Tnd.  608,  70 
N.  E.  252,  under  sections  Burns'  Kev.  St.,  1894,  providing  for  method 
assessing  property  for  improvements,  etc.,  assessment  on  abutting  lots 
founded  on  report  not  giving  names  of  owners  on  back-lying  land, 
created  lien  on  back-lying  land. 

114  U.  S.  615-619,  29  L.  224,  SCHOFIELD  v.  CHICAGO  ETC.  RY. 

Syl.    1    (X,    1100).     Duty   on  approaching   railroad    crossing. 

Approved  in  Northern  Pac.  Ey.  Co.  v.  Jones,  144  Fed.  49,  50,  where 
plaintiff  in  full  possession  of  his  faculties  walks  on  railroad  track  for 
half  a  mile,  without  looking  back,  or  listening,  and  is  struck  by  train, 
he  is  guilty  of  contributory  negligence  as  matter  of  law;  International 
etc.  Co.  V.  Gaffney,  143  Fed.  307,  owner  of  steamship  which  was  in 
charge  of  tugs  hired  to  take  her  from  public  pier  to  sea  is  not  liable 
for  injury  to  person  on  pier  caused  by  hawser  sweeping  across  pier,  ow- 
ing to  handling  of  tug;  dissenting  opinion  in  Klutt  v.  Philadelphia  etc. 
Ry.  Co.,  142  Fed.  398,  majority  holding  where  tugboat  having  a  car  float 
on  each  side  ran  down  rowboat  and  .plaintiff's  intestate  was  drowned, 
question  of  negligence  was  for  jury;  Chicago  etc.  Ry.  Co.  v.  Smith,  141 
Fed.  931,  where  deceased  stepped  from  behind  a  dead  engine  onto  a 
railroad  track,  without  looking,  and  was  struck  and  killed,  he  was 
guilty  of  contributory  negligence;  Western  Tin.  Tel.  Co.  v.  Baker,  140 
Fed.  319,  where  telegraph  company  neglected  to  deliver  telegram  to 
plaintiff  informing  her  of  her  father's  death,  but  she  knew  of  it  in 
time  to  have  attended  the  funeral,  but  did  not  do  so  on  account  of 
indisposition  or  lack  of  care  to  take  train,  she  could  not  recover  dam- 
ages; Southern  Ry.  Co.  v.  Carroll,  138  Fed.  641,  where  traveler  knew  of 
existence  of  railroad  crossing,  approached  it  at  night  in  a  carriage,  with 
curtains  drawn,  without  looking  or  listening,  he  was  guilty  of  contributory 
negligence;  Dishon  v.  Cincinnati  etc.  Ry.  Co.,  133  Fed.  478,  66  C.  C.  A. 
345,  where  section-hand,  in  attempting  to  pass  between  two  cars  was 
crushed  by  one  car  moving  against  the  other,  he  was  guilty  of  con- 
tributory negligence;  Chicago  etc.  Ry.  Co.  v.  Andrews,  130  Fed.  72,  64 
C.  C.  A.  399,  plaintiff,  who  stepped  upon  railroad  crossing  directly  in 
front  of  rapidly  moving  train  in  daytime,  was  guilty  of  contributory 
negligence;  Gunn  v.  Union  R.  R.  Co.,  27  R.  I.  326,  62  Atl.  121,  where 
plaintiff  backed  from  between  horses  and  team  on  to  track  without 
looking  he  was  guilty  of  contributory  negligence;  Bamberg  v.  Atlantic 
Coast  Line  R.  R.,  72  S.  C.  392,  51  S.  E.  989,  where  plaintiff  was  injured 
by  being  struck  by  railroad  train  while  attempting  to  cross  track, 
whether  it  was  negligence  not  to  look  and  listen  is  for  jury. 


114  U.  S.  622-635  Notes  on  U.  S.  Reports.  1274 

Syl.   2    (X,   1102).     Directing  verdict   for   defendant. 

Approved  in  Detroit  etc.  R.  Co.  v.  Lambert,  150  Fed.  557,  here  thera 
was  positive  testimony  that  signals  were  given  by  train  at  crossing 
and  testimony  by  others  who  were  close  by -that  none  were  given,  ques- 
tion was  for  jury;  Hews  v.  Equitable  Life  Assur.  Society,  143  Fed.  853, 
where,  in  action  on  policy,  only  inference  was  that  insured  had  made 
material  misrepresentations  as  to  his  physical  condition  and  as  to  his 
use  of  alcoholic  beverages  in  his  application  and  to  medical  examiner, 
court  properly  directed  verdict  for  defendant;  Christensen  v.  Metro- 
politan St.  Ry.  Co.,  137  Fed.  712,  70  C.  C.  A.  657,  in  action  for  personal 
injuries  sustained  by  breaking  of  chain,  evidence  that  there  was  a  flaw 
on  inside  of  link,  but  could  not  be  discoverable  by  inspection,  did  not 
justify  submission  of  case  to  jury;  International  T.  Book  Co.  v.  Heartt, 
136  Fed.  133,  69  C.  C.  A.  127,  where,  in  an  action  against  corporation 
for  slanderous  words  spoken  by  its  agent  with  reference  to  an  embezzle- 
ment by  plaintiff,  it  appeared  that  words  were  used  after  agent_had 
gone  to  another  locality,  where  he  was  not  engaged  in  any  duty  under 
his  contract,  defendant  was  not  liable;  Van  Winkle  v.  New  York  etc. 
R.  R.  Co.,  34  Ind.  App.  480,  73  N.  E.  159,  where  plaintiff  who  was  in- 
firm and  aged,  approached  a  railroad  crossing  and  noticed  a  long  train 
moving  slowly  on  the  south  track,  and  was  struck  by  a  train  on  the 
north  track,  which  was  standing  near  when  he  reached  the  crossing,  is 
guilty  of  contributory  negligence;  Woolf  v.  Washington  etc.  Nav.  Co.,  37  . 
Wash.  503,  79  Pac.  999,  one  who,  driving  toward  railroad  crossing,  could 
see  approaching  locomotive  for  a  considerable  distance,  was  guilty  of 
contributory  negligence  as  matter  of  law  in  attempting  to  cross  ahead 
of  locomotive. 

114  U.  S.  622-635,  29  L.  257,  BROWN  v.  HOUSTON. 

Syl.  1   (X,  1103).     State  taxation  on  imports. 

Approved  in  United  States  Rubber  Co.  v.  Butler  Bros.  Shoe  Co.,  132 
Fed.  399,  foreign  corporation  which  has  established  place  of  business 
in  Colorado  where  its  goods  are  sold  by  factor  under  contract  is  doing 
business  in  state  within  meaning  of  Act,  Colo.  1901,  §  10;  People  v. 
Wells,  185  N.  Y.  278,  77  N.  E.  20,  when  foreign  corporation  maintains 
office  in  the  state  for  sale  of  its  products  which  are  imported  into 
state  and  sold  in  original  packages,  taking  bills  receivable  in  payment, 
and  they  are  held  within  state  until  maturity,  and  proceeds  imported 
remitted  to  home  office,  they  are  taxable  under  Tax  Law,  Laws  1896,  p. 
800,  c.  908,  §  7.     See  100  Am.  St.  Rep.  835,  note. 

Syl.   3    (X,    1104).     State   tax   on   exports. 

Approved  in  In  re  Sydow,  4  Ariz.  210,  36  Pac.  215,  Rev.  St.,  tit.  42, 
par.  2239,  §  9,  as  amended  by  Act  No.  83,  Laws,  1893,  requiring  dealers 
in  merchandise  except  certain  products  of  this  territory,  and  sold  by 
producer,  to  pay  license  tax,  is  valid.     See  112  Am.  St.  Rep.  651,  note. 

Syl.  5    (X,  1105).     Congressional  control  of  interstate  commerce. 

Approved  in  People  v.  Reardon,  184  N.  Y.  -iryC},  112  Am.  St.  Rep.  645, 
77  N.  E.  978,  Laws  1905,  pp.  474,  477,  c.  241,  §§  315,  324,  imposing  tax 


1275  Notes  on  U.  S.  Reports.  114  U.  S.  622-635 

on  transfers  of  stock,  is  constitutional;  Hagan  v.  City  of  Richmond,  104 
Va.  732,  3  L.  R.  A.  (N.  S.)  1120,  52  S.  E.  389,  under  Act  Cong.,  March 
3,  1899,  c.  425,  §  19,  30  Stat.  1154,  relating  to  authority  of  Secretary 
of  War  to  remove  obstructions  from  navigable  waters,  he  did  not  have 
exclusive  jurisdiction,  but  in  absence  of  action  on  his  part,  local  au- 
thorities may  protect  waterways. 

Syl.  6  (X,  1105).     Taxation — Products  of  other  states. 

Approved  in  Delaware  etc.  R.  R.  Co.  v.  Pennsylvania,  198  U.  S.  354,  49 
L.  1082,  25  Sup.  Ct.  669,  coal  mined  in  Pennsylvania  and  shipped  out 
of  state  for  sale  is  not  taxable  in  Pennsylvania  under  Pa.  Laws,  1891,  p. 
229;  Wrought  Iron  Range  Co.  v.  Campen,  135  N.  C.  518,  47  S.  E.  662, 
where  ranges  are  manufactured  in  one  state  and  sold  by  sample  in 
another  and  delivered  in  original  packages,  neither  person  exhibiting 
samples  or  delivering  are  peddlers,  within  Pub.  Laws  1903,  p.  336,  e. 
247. 

Syl.  7   (X,  1105).     Taxation — Mixture  of  property  at  destination. 

Approved  in  Delav»are  etc.  R.  R.  Co.  v.  Pennsylvania,  198  U.  S.  352,  49 
L.  1081,  25  Sup.  Ct.  669,  coal  mined  in  Pennsylvania  and  shipped  to 
another  state  for  sale  is  taxable  in  latter  state;  Rehrer  v.  Stewart,  197  U. 
S.  65,  49  L.  666,  25  Sup.  Ct.  403,  tax  upon  resident  managing  agents  of 
nonresident  meat-packing  houses,  imposed  by  Ga.  Act,  Dec.  21,  1900,  does 
not  conflict  with  commerce  clause  of  federal  constitution  when  applied  to 
business  of  selling  to  local  consumers  from  original  packages  shipped 
into  state  without  previous  contract;  Merchants'  Transf.  Co.  v.  Board  of 
Review,  128  Iowa,  738,  105  N.  W.  213',  merchandise  belonging  to  non- 
resident sellers,  consigned  to  warehouseman  within  state  and  stored 
to  account,  future  delivery  on  sales  by  owner,  may  be  assessed  by  local 
authorities;  Territory  v.  Denver  etc.,  R.  R.  Co.,  12  N.  M.  433,  78  Pac 
76,  upholding  Laws  1901,  p.  96,  relating  to  inspection  of  hides;  American 
Steel  etc.  Co.  v.  Speed,  110  Teun.  546,  100  Am.  St.  Rep.  814,  75  S.  W. 
1042,  where  goods  are  shipped  in  original  packages  to  agents  and  deliv- 
ered in  that  form  to  customers  and  ninety  per  cent  go  ultimately  to  job- 
bers, beyond  limits  of  state,  they  become  common  mass  of  property,  and 
taxable  within  state;  Gulf  etc.  Ry.  Co.  v.  State,  32  Tex.  Civ.  11,  73  S. 
W.  435,  where  corn  had  been  shijjped  from  South  Dakota  to  Texarkana, 
Texas,  and  arrived  there  before  contract  had  been  entered  into  in  Kansas 
for  the  sale  of  the  corn  to  a  firm  in  G.,  Texas,  the  transaction  would  be 
entirely  local;  Gulf  etc.  Ry.  Co.  v.  State,  32  Tex.  Civ.  8,  73  S.  W.  433, 
where  corn  was  shipped  from  South  Dakota  to  Texarkana,  Texas,  with 
privilege  of  inspection  at  Kansas  City,  under  through  bill  of  lading,  and 
it  was  transferred  to  other  cars  at  Kansas  City,  and  shipped  to  Tex- 
arkana, and  it  was  sold  by  consignee  at  Texarkana  to  firm  at  G.,  Texas, 
and  on  arrival  of  corn  at  Texarkana,  it  was  transhipped  to  G.,  the 
interstate  shipment  terminated  at  Texarkana;  Standard  Oil  Co.  v. 
Fredericksburg,  105  A^'a.  88,  52  S.  E.  819,  oil  company  which  brings  oil 
from  foreign  state  into  this  state  and  mingles  it  witli  property  of 
state,  is  not  engaged  in  interstate  coinnicrce;  Bacon  v.  Locke,  42  Wash. 
217,  83  Pae.  722,  Laws,  1905,  pp.  372,  373,  providing  that  every  person 


114  U.  S.  642-653  Notes  on  U.  S.  Reports.  1276 

who  peddles  out  or  "after  shipment  to  the  state"  canvasses  and  sella 
by  sample  certain  articles  shall  pay  license,  is  unconstitutional  under  art. 
1,  §   12,  Wash.  Const.     See  100  Am.  St.  Rep.  836,  note. 

Syl.  8  (X,  1107).     Taxation — Nonresident  and  nonresident  importer. 

Approved  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  206,  50  L. 
154,  26  Sup.  Ct.  36,  due  process  of  law  is  denied  Kentucky  corporation 
by  tax  under  Ky.  St.,  §  4020,  upon  its  rolling  stock  permanently 
located  in  other  states  and  employed  there  in  prosecution  of  its  business. 

114  U.   S.   642-653,   29  L.   250,   EX  PARTE   REGGEL. 

Syl.  1   (X,  1108).     Construction  of  Rev.  St.,   §§   5278,  5279. 

Approved  in  Knox  v.  State,  164  Ind.  234,  108  Am.  St.  Rep.  291,  73 
N.  E.  258,  fugitive  from  justice  extradited  on  specific  charge  may  be 
tried  on  different  charge  without  being  afforded  opportunity  to  return 
to  state  from  which  he  was  extradited. 

Syl.    2    (X,    1108).     Offenses    against    state   laws. 
Approved  in  Dodge  v.  Ellis,  795  U.  S.  626,  49  L.  350,  25  Sup.  Ct.  791, 
following  rule.     See   112  Am.   St.   Rep.   119,  note. 

Syl.  3    (X,   1108).     Extradition — Proof  that  accused  was  in  state. 
See  112  Am.  St.  Rep.  141,  note. 

Syl.  4   (X,  1108).     Criminal  procedure  in  state  courts. 

Approved  in  Rogers  v.  Peck,  199  U.  S.  434,  50  L.  260,  26  Sup.  Ct. 
87,  reprieve  by  governor  of  state  postponing  execution  of  death  sentence 
granted  for  purpose  of  appeal  to  United  States  supreme  court,  is  not 
proceeding  against  prisoner  within  meaning  of  U.  S.  Rev.  St.,  §  766,  as 
amended  by  act  March  3,  1893;  Benson  v.  Henkel,  198  U.  S.  10,  49 
L.  922,  25  Sup.  Ct.  569,  objection  to  indictment  charging  violation  of 
U.  S.  Rev.  St.,  §  5451,  in  bribing  two  federal  officials  to  reveal  eon- 
tents  of  certain  report,  are  not  available  before  United  States  eoni- 
raissioner;  Munsey  v.  Clough,  196  U.  S.  373,  49  L.  517,  25  Sup.  Ct. 
282,  where  accused  was  charged  with  crime  of  uttering  forged  instru- 
ment in  Massachusetts  on  hearing  before  governor  of  N.  H.  to  secure 
her  release  from  extradition,  the  indictment  was  considered  sufficient ; 
People  V.  Nolan,  144  Cal.  80,  77  Pac.  776,  Pen.  Code,  §  971,  as  amended, 
Laws  1880,  providing  that  no  other  facts  need  be  alleged  in  indictment 
against  accessory  before  the  fact  than  are  required  in  indictment  against 
his  })rincipal,  is  not  unconstitutional;  State  v.  Jack,  69  Kan.  392,  76 
Pac.  913,  1  L.  R.  A.  (N.  S.)  167,  proceeding  before  district  judge  upon 
application  of  county  attorney  under  §  10,  c.  265,  p.  485,  Laws  1897,  to 
take  testimony  relative  to  isolation  of  "anti-trust  law,"  is  valid; 
In  re  Renshaw,  18  S.  D.  37,  99  N.  W.  84,  Iowa  statute  providing  that 
if  mortgagor  of  personal  property  shall  sell  it  without  mortga;.fee 's 
consent,  he  shall  be  guilty  of  larceny,  covers  case  of  snle  in  lown, 
though  mortgage  was  executed  and  recorded  in  another  state.  See  112 
Am.  St.  Rep.  129,  note. 


1277  Notes  on  U.  S.  Reports.  115  U.  S.  1-25 

Syl.  5   (X,  1109).     Extradition — Proof  that  accused  is  fugitive. 

Approved  in  Hughes  v.  Pflanz,  138  Fed.  984,  where  person  had  been 
convicted  of  crime  in  Indiana  and  when  wanted  was  found  in  Kentucky, 
he  was  a  fugitive  from  justice;  In  re  Bruce,  132  Fed.  391,  where  peti- 
tioner committed  crime  of  bigamy  in  New  Jersey,  about  tive  years  be- 
fore his  arrest  in  Maryland,  and  had  resided  in  New  Jersey  about 
eighteen  months  after  commission  of  crime,  and  laws  of  New  Jersey 
provided  that  persons  must  be  indicted  within  two  years  after  commission 
of  offense,  the  indictment  was  not  barred;  State  v.  Clough,  72  N.  H. 
179,  55  Atl.  555,  67  L.  R.  A.  946,  on  application  for  requisition  to  gov- 
ernor of  New  Hampshire,  copy  of  affidavit  certified  by  governor  of 
Massachusetts,  averring  that  accused  had  fled  from  Massaeluisetts,  was 
sufficient  to  warrant  finding  that  accused  was  a  fugitive.  See  112  Am. 
St.  Rep.  110,  121,  122,  note. 

Syl.  G  (X,  1109).     Extradition — Habeas  corpus.    • 
See  112  Am.  St.  Rep.  132-134,  note. 


CXV  UNITED  STATES. 


115  U.  S.  1-25,  29  L.  319,  PACIFIC  RAILWAY  REMOVAL  CASES. 

Syl.  1   (X,  1111).     Federal  corporation  can  remove. 

Approveil  in  Buckhannan  etc.  R.  Co.  v.  Davis,  135  Fed.  709,  68  C.  C.  A. 
345,  holding  federal  court  having  jurisdiction  of  liquidation  proceedings 
may  remove  suits  against  receiver  to  condenm  crossing,  to  federal  court; 
Martin  v.  St.  Louis  etc.  Ry.  Co.,  134  Fed.  135,  sustaining  removal  suit 
brought  against  two  corporations,  one  created  under  state  laws,  the  other 
by  federal  statute,  to  establish  joint  liability  for  negligence;  Wolff  v. 
Choctaw  etc.  R.  Co.,  133  Fed.  603,  holding  action  against  corporation 
created  by  federal  statute  maintainable  only  in  federal  court  of  district, 
where  principal  office  is. 

Syl.  2  (X,  1112).     Corporations  consolidated  under  congressional  acts. 

Approved  in  Santa  Fe  etc.  R.  Co.  v.  Holmes,  136  Fed.  69,  68  C.  C.  A. 
634,  holding  allegation  that  corporation  was  organized  and  existing 
under  laws  of  United  States  sufficient. 

Syl.  5   (X,  1114).     Street  widening  controversies  removable. 

Approved  in  South  Dakota  etc.  Ry.  Co.  v.  Chicago  etc.  Ry.  Co.,  141 
Fed.  582,  permitting  one  owner  in  condemnation  proceedings  against 
several  owning  in  severalty  to  remove. 

Distinguished  in  City  of  Cleveland  v.  Cleveland  etc.  Ry.  Co.,  147  Fed. 
175,  denying  removal,  each  defendant  separately  pleading  continuous 
adverse  possession  for  more  than  twenty-one  years;   Helena  etc.  Co.  v. 


115  U.  S.  25-51  Notes  on  U.  S.  Eeports,  1278 

Spratt,  146  Fed.  317,  denying  separable  controversy,  one  defendant, 
non-resident,  holding  legal  title,  other  defendant,  a  resident,  holding 
equitable;  Perkins  v.  Lake  Superior  etc.  Ey.  Co.,  140  Fed.  911,  holding 
controversy  not  separable  because  one  defendant  owner  of  part  of  lands 
sought   to   be   condemned. 

115  U.  S.  25-28,  29  L.  333,  HADDEN  v.  MEKRITT. 

Syl.  1  (X,  1114).     Foreign  coin  values,  how  ascertained. 

Approved  in  Stone  v.  Whitridge,  129  Fed.  37,  64  C.  C.  A.  47,  hold- 
ing fluctuations  in  value  of  foreign  money,  allowing  treasurer  to  order 
liquidation  of  entry  at  different  value,  refers  to  the  metallic  value. 

115  U.  S.  29-40,  29  L.  341,  WHEELER  v.  NEW  BRUNSWICK  ETC. 
RY.  CO. 

Syl.  2  (X,  1115).     Contract  annulled  when  minds  meet. 

Approved  in  Stephens  v.  Essex  County  Park  Commission,  143  Fed.  848, 
holding  penalty  not  waived  by  owner  refusing  to  answer  contractor's 
letter  explaining  cause  of  delay. 

115  U.  S.  41-45,  29  L.  331,  PIRIE  v.  TVEDT. 

Syl.  1    (X,  1115).     Separate  answers  unaffecting  joint  action. 

Approved  in  Yulcan  Detinning  Co.  v.  American  Can  Co.,  130  Fed. 
637,  denying  removal,  bill  against  principal  defendant  for  practicing 
secret  process  learned  through  breach  of  trust  of  codefendant;  American 
Bridge  Co.  v.  Hunt,  130  Fed.  304,  64  C.  C.  A.  548,  remanding  foreign 
corporation  joined  with  employee  causing  injury;  County  Commissioners 
V.  United  Rys.  etc.  Co.,  99  Md.  89,  57  Atl.  677,  remanding  case  where 
some  of  joint  defendants  opposed  removal. 

Distinguished  in  Alabama  etc.  Ry.  Co.  v.  Thompson,  200  U.  S.  215,  50 
L.  446,  26  Sup.  Ct.  161,  holding  action  in  tort  against  foreign  corpora- 
tion and  servants,  presents  separable  controversy  and  removable;  Yeates 
V.  Illinois  C.  R.  Co.,  137  Fed.  945,  refusing  to  remand  action  against 
two  companies,  one  owning,  the  other  leasing,  tracts,  injury  caused  bv 
negligence   of   lessee's   employee. 

115  U.  S.  45-51,  29  L.  348,  GIVILLIN  v.  DONNELLAN. 

Syl.  1   (X,  1117).     Mineral  lands — Valid  location,  property. 

Approved  in  Worthen  v.  Sidway,  72  Ark.  225,  79  S.  W.  781,  following 
rule;  Clipper  Min.  Co.  v.  Eli  Min.  Co.,  194  U.  S.  226,  48  L.  950,  24  Sup. 
Ct.  632,  holding  owner  of  prior  placer  location  can  maintain  adverse  suit 
against  petitioning  patentee  for  subsequent  lode  location;  Willitt  v. 
Baker,  133  Fed.  947,  holding  person  making  location  during  night  after 
original  locators  had  resumed  work,  a  trespasser ;  O  'Connell  v.  Pinnacle 
Gold  Mines  Co.,  131  Fed.  110,  holding  unpatented  claims  passed  to 
administrator  and  not  to  heirs  as  grantees  of  government;  Nome-Sinook 
Co.  V.  Simpson,  1  Alaska,  583,  holding  applicant  may  maintain  adverse 
suit  for  mining  patent  in  district  court  of  Alaska ;  Peoria  etc.  Min.  Co. 
V.  Turner,  20  Colo.  App.  479,  79  Pac.  917,  declaring  prospector  going  on 


1279  Notes  on  U.  S.  Eeports,  115  U.  S.  56-67 

prior,  subsisting  and  valid  location  for  purpose  of  discovery  a  tres- 
passer; White  Star  Mining  Co.  v.  Hultberg,  220  111.  598,  77  N.  E.  334, 
holding  possessor  of  mining  claim  has  freehold  estate  within  statute 
governing  appeals,  although  patent  not  issued. 

Syl.  2  (X,  1117).     Action  to  determine  adverse  claims. 

Approved  by.  Behrends  v.  Goldsteen,  1  Alaska,  525,  refusing  to  sustain 
mining  claim  location  within  boundaries  of  tract  reserved  for  naval  pur- 
poses; AUyn  V.  Schultz,  5  Ariz.  161,  48  Pac.  963,  holding  plaintiff  must 
establish  right  against  both  defendant  and  United  States;  Miller  v. 
Hamley,  31  Colo.  498,  74  Pac.  981,  holding  locator,  obtaining  patent  for 
part  of  location,  including  discovery  shaft,  but  remaining  in  possession  of 
whole,  not  abandoning  part  omitted  from  patent. 

Syl.  3  (X,  1118).     Locator's  discovery  not  benefiting  adversary. 

Approved  in  Rebecca  Gold  Min.  Co.  v.  Bryant,  31  Colo.  123,  71  Pac. 
1111,  holding  second  location  invalid,  where  Land  Department's  order 
canceling  prior  entry  void,   and  receiver's  certificate  outstanding. 

Syl.  4   (X,  1119).     Issuance  of  patent — Evidence  of  title. 

Approved  in  Lavngnino  v.  Uhlig,  198  U.  S.  455,  49  L.  1124,  25  Sup. 
Ct.  716,  holding  conliieting  area  between  mining  locations  does  not,  upon 
forfeiture  of  senior  location,  become  unoccupied,  enabling  relocator  to 
adverse  junior  locator  'a  application. 

115  U.  S.  56-61,  29  L.  328,  CRUMP  v.  THURBER. 

Syl.  1   (X,  1119).     Removal  of  causes — Separable  controversy. 

Approved  in  Elkins  v.  Howell,  140  Fed.  159,  allowing  grantee  to  re- 
move suit  brought  against  vendor  and  grantee  by  vendee,  grantee 's 
deed  made  after,  but  recorded  before  vendee 's  deed ;  Lucas  v.  Milliken, 
139  Fed.  823,  holding  bill  to  enforce  sale  of  stock  brought  against  stock- 
holder, corporation  a  nominal  party,  does  not  state  separate  cause; 
Miller  v.  Clifford,  133  Fed.  884,  67  C.  C.  A.  52,  denying  removal  by 
single  defendant  in  creditor's  suit,  brought  against  a  number  of  stock- 
holders to  enforce  double  statutory  liability;  Groel  v.  United  Elec.  Co., 
132  Fed.  254,  remanding,  where  jurisdiction  doubtful,  in  suit  instituted 
by  single  stockholder,  corporation  an  indispensable  party  against  foreign 
corporation. 

115  U.  S.  61-67,  29  L.  329,  STEWART  v.  DUNHAM. 

Syl.  2    (X,  1121).     Jurisdiction  determined  by  amount  involved. 

Approved  in  Jacobs  v.  Mexican  Sugar  Co.,  130  Fed.  591,  entertaining 
jurisdiction  of  proceeding  by  stockholders  to  appoint  receiver  of  in- 
tiolvent  corporation. 

Distinguished  in  Stanwood  v.  Wishard,  134  Fed.  9fil,  allowing  creditors 
whose  claims  are  less  than  two  thousand  dollars  to  join  in  creditor 's 
Buit. 


115  U.  S.  67-212  Notes  on  U.  S.  Eeports.  1280 

115  U.  S.  67-69,  29  L.  346,  EEHAEDT  v.  HOGABOOM. 

Syl.   2    (X,  1122).     Patent  conclusive   against  collateral  attack. 

Approved  in  Le  Marchel  v.  Teegarden,  133  Fed.  827,  holding  person 
attacking  patent  for  mistake  or  fraud  must  show  fully  all  details 
thereof,  before  court  will  consider  same;  Semer  v.  Auditor  General,  133 
Mich.  574,  95  N.  W.  734,  denying  owner's  right  to  object  to  the 
auditor  general's  and  land  commissioner's  report  as  to  nature  of  land 
delinquent  for  taxes. 

135  U.  S.  69-78,  29  L.  316,  THE  CHARLES  MORGAN. 

Syl.  2  (X,  1123).     Amending  appeal  in  admiralty. 

Approved  in  The  San  Rafael,  141  Fed.  275,  holding  appeal  in  ad- 
miralty vacates  decree  of  district  court  and  opens  up  trial  anew. 

Syl.  4   (X,  1124).     Witnesses  impeached  by  contradictory  statements. 

Approved  in  Barton  v.  Shull,  70  Neb.  329,  97  N.  W.  294,  holding 
witness  may  be  asked  whether  contradictory  statement  not  made  while 
detailing  conversation  with  third  party. 

115  U.  S.  151-160,  29  L.  336,  PHILLIPI  v.  PHILLIPE. 

Syl.  2   (X,  1130).     Trust  repudiated,  limitations  begin  running. 

Approved  in  Patterson  v.  Hewitt,  11  N.  M.  42,  66  Pac.  565,  55  L. 
R.  A.  658,  denying  nonresident  parties  to  original  location  agreement 
right  to  enforce  accounting  as  to  ores  discovered  years  after  nonresidents 
left  state;  Felkner  v.  Dooly,  28  Utah,  239,  78  Pac.  366,  barring  action 
by  beneficiary  to  recover  proceeds,  delayed  four  years  after  notice  of 
trustee  claim. 

115  U.  S.  188-212,  29  L.  366,  NORRINGTON  v.  WRIGHT. 

Syl.  2   (X,  1131).     Sales — Statements  as  warranties. 

Approved  in  Mutual  etc.  Life  Assn.  v.  Austin,  142  Fed.  401,  denying 
insurer 's  right  to  contest  policy  outstanding  five  years,  on  ground  policy 
delivered  to  insured  in  bad  health;  Henderson  Elev.  Co.  v.  North  Georgia 
Milling  Co.,  126  Ga.  282,  55  S.  E.  52,  regarding  words  descriptive  of 
subject  matter  of  sale  and  time  of  shipment  as  warranties ;  dissenting 
opinion  in  Gardiner  v.  McDonogh,  147  Cal.  527,  81  Pac.  969,  majority 
holding  where  beans  were  sold  by  description,  title  passed  by  delivery 
protecting  bona  fide  purchaser  from  vendee. 

Syl.  3   (X,  1132).     Sales — Contract  entire. 

Approved  in  Inman  Mfg.  Co.  v.  American  Cereal  Co.,  124  Towa,  741, 
100  N.  W.  862,  holding  contract  to  build  and  install  several  machines, 
although  some  used  independent,  entire;  Ross-Meehan  Foundry  Co.  v. 
Roger  WTieel  Co.,  113  Tenn.  3:4,  378,  83  S.  W.  168,  169,  68  L.  R.  A.  829, 
declaring  contract  to  deliver  for  three  years  all  castings  required,  pay- 
ment sixty  days  after  delivery,  entire. 


1281  Notes  on  U.  S.  H-ports.  115  U.  S.  213-247 

Syl.  5  (X,  1132).     Sales — More  or  less — Immaterial  variations. 

Approved  in  Hadley  Dean  Plate  Glass  Co.  v.  Highland  Glass  Co.,  143 
Fed.  243,  holding  words  "more  or  less"  applicable  to  variations  in  quan- 
tity naturally  occurring  in  such  transactions. 

Syl.  6  (X,  1133).     Sales — Vendee's  right  to  rescind. 

Approved  in  Michigan  Yacht  etc.  Co.  v.  Busch,  143  Fed.  932,  holding 
positive  refusal  to  pay  installment  relieved  shipbuilder  from  further 
performance;  Harding  v.  York  Knitting  Mills,  142  Fed.  231,  232,  deny- 
ing vendee's  right  to  rescind  as  to  yarn  undelivered  after  using  prior 
shipments,    although   complaining   thereof. 

Distinguished  in  McDonald  v.  Kansas  City  Bolt  etc.  Co.,  149  Fed. 
363,  holding  vendee  estopped  by  failure  to  notify  vendor  after  knowledge 
of  defect  and  receipt  of  three  carloads. 

115  U.  S.  213-221,  29  L.  372,  FILLEY  v.  POPE. 

Syl.  1  (X,  1134).  Sales — Descriptive  statements  ordinarily  war- 
ranties. 

Approved  in  Mutual  etc.  Life  Ins.  Assn.  v.  Austin,  142  Fed.  401,  deny- 
ing insurer's  right  to  contest  policy  in  hands  of  insured  for  five  years, 
on  ground  policy  delivered  while  insured  in  bad  health;  dissenting  opinion 
in  Gardiner  v.  McDonogh,  147  Cal.  327,  81  Pac.  969,  majority  holding 
where  goods  were  sold  by  description,  title  passed  by  delivery  protecting 
bona  fide  purchaser  from  vendee. 

Syl.  2  (X,  1134).     Sales— Vendee 's  right  to  rescind. 

Distinguished  in  McDonald  v.  Kansas  City  Bolt  etc.  Co.,  149  Fed. 
363,  estopping  vendee  failing  to  notify  vendor  after  receipt  of  three 
carloads  and  knowledge  of  defects. 

115  U.  S.  222-227,  29  L.  373,  LANCASTER  t.  COLLINS. 

Syl.   3    (X,   1135).     Appeal — Weight  of  evidence   not  reviewable. 

Approved  in  Delaware  etc.  E.  Co.  v.  Kutter,  147  Fed.  57,  holding  gen- 
eral finding  conclusive  on  matters  of  fact  and  equivalent  to  verdict  of 
jury;  Paul  v.  Delaware  etc.  E.  Co.,  130  Fed.  956,  limiting  appellate  court 
to  question  whether  findings  supported  by  any  evidence;  Eureka  Co. 
Bank  v.  Clarke,  130  Fed.  326,  64  C.  C.  A.  571,  holding  appellate  court 
precluded  from  determining  whether  findings  of  act  Justified  by  evi- 
dence. 

115  U.  S.  22S-247,  29  L.  3S4,  VAN  WHEEL  v.  WINSTON. 

Syl.  1   (X,  1135).     Equity — Allegations  must  be  specific. 

Approved  in  Tetrault  v.  Fournier,  187  Mass.  62,  72  N.  E.  352.  declaring 
allegation,  plaintiffs  delayed  by  attorney's  negligence  and  miscondiict, 
too  general  to  constitute  excuse  for  ten  years '  delay. 

81 


115  U.  S.  248-339  Notes  on  U.  S.  Eeporta.  1282 

Syl.  2  (X,  1136).  Corporations — Fraudulent  representations  by  presi- 
dent. 

Distinguished  in  Stickel  v.  Atwood,  25  K.  I.  459,  56  Atl.  688,  holding 
president  participating  in  bond  issue  liable  to  purchasers,  although 
president    ignorant    bonds    falsely    represented. 

115  U.  S.  248-259,  29  L.  388,  STAEIN  v.  NEW  YORK. 

Syl.  1   (X,  1136).     Construction  of  federal  constitution  reviewable. 

Approved  in  Sloan  v.  United  States,  193  U.  S.  621,  48  L.  817,  24 
Sup.  Ct.  570,  denying  Indian  treaty  drawn  in  question  by  reference  there- 
to on  question  as  to  proper  construction  of  statute;  Hall  v.  Chicago  etc. 
Ry.  Co.,  149  Fed.  566,  holding  action  under  employer 's  liability  act 
one  arising  under  a  law  of  the  United  States. 

Syl.  4  (X,  1138).     Defendant  pleading  separate  defenses. 

Approved  in  Vulcan  Detinning  Co.  v.  American  Can  Co.,  130  Fed.  637, 
denying  controversy  separable  bill  enjoining  some  defendants  from 
practicing  secret  .process  wrongfully  obtained  and  restraining  codefend- 
ant,  a  former  employee,   from  assisting  them. 

Distinguished  in  Manufacturers'  Com.  Co.  v.  Brown-Alaska  Co.,  148 
Fed.  310,  holding  action  against  maker  and  indorsers  of  note  severable. 

115  U.  S.  264-284,  29  L.  377,  HENDERSON  v.  WADSWORTH. 

Syl.  2  (X,  1139).     Jurisdiction — Uniting  separate  claims. 

Approved  in  The  Joseph  B.  Thomas,  148  Fed.  767,  holding  claims 
cannot  be  added  together  to  give  appellate  court  jurisdiction;  Feely  v. 
Bryan,  55  W.  Va.  590,  47  S.  E.  309,  dismissing  appeal  by  mortgage 
preferred  creditor,  decree  adjudging  property  for  benefit  of  creditors, 
none  of  whom  get  one  hundred  dollars. 

115  U.  S.  300-307,  29  L.  403,  MERRICK'S  EXECUTOR  v.  GIDDINGS. 
Syl.  2  (X,  1141).     Attorney  and  client — Compromising  claim. 
See  100  Am.  St.  Rep.  446,  note. 

115  U.  S.  308-321,  29  L.  398,  SMITH  v.  BLACK. 

Syl.  2    (X,   1141).     Creditor  purchasing  at  trustee's  sale. 

Approved  in  Anderson  v.  Messinger,  146  Fed.  932,  holding  pledgee 
may  become  purchaser  at  judicial  sale  of  pledge  conducted  by  officer  of 
the  law. 

115  U.  S.  321-339,  29  L.  414,  KENTUCKY  RY.  TAX  CASES. 

Syl.  1  (X,  1141).     Notice  of  taxation  proceedings  unnecessary. 

Approved  in  Chicago  etc.  R.  Co.  v.  State,  128  Wis.  654,  108  N.  W.  585, 
holding  owners  of  railroad  property  of  state  board's  action  determining 
average  rate  unnecessary. 


7  283  Notes  on  U.  S.  Reports.  115  U.  S.  339-363 

Syl.  3    (X,  1143).     Railroads  taxed  differently   from  real  property. 

Approved  in  Michigan  etc.  R.  R,  Co.  v.  Powers,  201  U.  S.  293,  300,  50 
L.  761,  764,  26  Sup.  Ct.  466,  upholding  taxation  of  railroad  property 
at  the  average  rate  imposed  on  property  subject  to  ad  valorem  taxes 
ascertained  by  dividing  total  tax  levied  by  value  of  property;  Cook  v. 
Marshall  Co.,  196  U.  S.  274,  49  L.  476,  25  Sup.  Ct.  233,  holding  tax  on 
retail  tobacco  dealer  not  invalid  because  interstate  jobbers  and  whole- 
salers exempted  therefrom;  Field  v.  Barber  Asphalt  Paving  Co.,  194 
U.  S.  622,  48  L.  1153,  24  Sup.  Ct.  784,  sustaining  statutory  provision 
permitting  only  resident  owners  to  protest  against  improvement;  Mich- 
igan R.  R.  Tax  Cases,  138  Fed.  233,  238,  239,  refusing  to  enjoin  collec- 
tion of  tax  against  railroad  property  based  on  actual  value  thereof,  be- 
cause other  property  taxed  at  less  than  actual  value;  St.  Louis  etc.  Ry. 
<!'o.  V.  Davis,  132  Fed.  634,  sustaining  method,  taxation  value  fixed  by  divid- 
ing the  entire  valuation  of  railroad  property  upon  a  mileage  basis;  Com- 
monwealth V.  Union  etc.  Transit  Co.,  118  Ky.  144,  80  S.  W.  493,  denying  un- 
just discrimination,  although  refrigerator-car  company  taxed  on  all  cars, 
while  railroad  company  taxed  only  on  cars  within  state;  State  v.  Bazille, 
97  Minn.  20,  106  N.  W.  97,  sustaining  act  imposing  tax  on  certain  de- 
vises, bequests  and  inheritances ;  People  v.  Reardon,  184  N.  Y.  445,  112 
Am.  St.  Rep.  636,  77  N.  E.  974,  upholding  act  imposing  tax  on  transfers 
of  stock  in  domestic  and  foreign  corporations;  Lacy  v.  Packing  Co.,  134 
N.  C.  573,  47  S.  E.  55,  sustaining  license  tax  on  packing-houses; 
Chicago  etc.  R.  Co.  v.  State,  128  Wis.  615,  108  N.  W.  571,  sustaining 
assessment,  railroad  property  valued  on  basis  of  franchise,  assessors 
omitting  similar  elements  as  to  ordinary  corporations;  Kingsley  v. 
Merrill,  122  Wis.  201,  99  N.  W,  1049,  67  L.  R.  A.  200,  sustaining  act 
maliiug  debts  due  from  solvent  debtors  subject  to  taxation.  See  104 
Am.  St.  Rep.  302,  note. 

115  U.  S.  339-348,  29  L.  432,  KNICKERBOCKER  ETC.   INS.  CO.  v. 
PENDLETON. 

Syl.  1    (X,  1144).     Writ  of  error  may  be  amended. 
Approved  in  Thomas  v.  Green  County,  146  Fed.  970,  amending  writ 
by  adding  names  of  omitted  plaintiffs. 

115  U.  S.  348-352,  29  L.  412,  SARGENT  v.  HELTON. 

Syl.  1   (X,  1144).     State  court  not  enjoined  by  federal. 

Distinguished  in  Madisonville  Traction  Co.  v.  St,  Bernard  Min.  Co., 
196  U.  S.  245,  49  L.  465,  25  Sup.  Ct.  251,  enjoining  further  prosecution 
in  state  court,  where  condemnation  proceedings  removed  on  ground  of 
diverse  citizenship. 

115  U.  S.  353-363,  29  L.  407,  CAMORS  v.  WATTS. 

Syl.  3    (X,   1145).     Bonds — Prospective  damages  stipulated. 

Approved  in  United  States  v.  Alcorn,  145  Fed.  998,  holding  stipulation 
in  bond  of  bidder  for  mail  contract  an  absolute  undertaking  to  pay 
amount  named  therein;  Stillvvell  v.  Paepke-Leicht  etc.  Co.,  73  Ark.  436, 


115  U.  S.  3G3-107  Notes  on  U.  S,  Eeports.  1284 

108  Am.  St.  Eep.  42,  84  S.  W.  485,  holding  sum  designated  in  logging 
contract  as  a  forfeit  a  penalty  and  unenforceable;  Griffith  v.  Black- 
water  B.  &  L.  Co.,  55  W.  Va.  628,  48  S.  E.  451,  69  L.  E.  A.  124,  hold- 
ing amount  allowed  contractor  under  terminated  contract  for  expenditures 
not  apportioned  between  executed  and  unexecuted  part  of  contract. 

Syl.  4   (X,  1146).     Charter  exists  until  charterer  defaults. 
Approved  in  Moore  &  Co.  v.  Cornwall,  144  Fed.  33,  holding  surveyor's 
refusal  to  survey  not  justifying  cancellation  of  charter  by  charterers. 

(X,  1145.)  Miscellaneous.  Cited  in  Wiser  v.  Lawler,  7  Ariz.  183,  62 
Pac.  700,  refusing  to  consider  assignment  of  error,  without  statement 
wherein  error  consisted. 

115  U.  S.  363-373,  29  L.  393,  POPE  v.  ALLIS. 

Syl.  2   (X,  1146).     Variance  immaterial,  unless  misleading. 

Approved  in  Schiflfer  v.  Anderson,  146  Fed.  459,  allowing  proof  under 
general  denial  that  defendant  "S"  was  not  member  of  firm  as  alleged. 

Syl.  3  (X,  1146).     Former  pleadings  admissible  as  evidence. 
Approved  in  Wyles  v.  Berry,  116  Ky.  380,  76  S,  W,  127,  holding  with- 
drawn answer  admissible  against  defendant. 

Syl.  5   (X,  1146).     Sales — Vendee  may  rescind. 

Approved  in  McDonald  v.  Kansas  City  Bolt  etc.  Co.,  149  Fed.  363, 
holding  immediate  notice  of  refusal  indispensable  to  vendee '3  release  of 
liability. 

Syl.  6  (X,  1147).     Eescission — Sale  by  sample. 

Approved  in  dissenting  opinion  in  Gardiner  v.  McDonogh,  147  Cal. 
327,  81  Pac.  969,  majority  holding  sale  by  description  and  not  by 
sample,  title  passed  upon  delivery. 

Syl.   7    (X,   1147).     Vendee  may  inspect  arriving  goods. 

Approved  in  Thick  v.  Detroit  etc.  Ey.  Co.,  137  Mich.  713,  109  Am. 
St.  Eep.  694,  101  N.  W.  65,  holding  defendant  had  right  to  examine 
ties  sold  to  be  of  certain  quality. 

115  U.  S.  392-407,  29  L.  423,  DEFFEBACK  v.  HAWKE. 

Syl.  4  (X,  1150).     Minerals — Subsequent  discovery  unaffecting  patent. 

Approved  in  Board  of  Education  v.  Mansfield,  17  S.  D.  80,  82,  106 
Am.  St.  Eep.  771,  95  N.  W.  288,  289,  denying  townsite  patent  open  to 
collateral  attack,  parties  subsequently  locating  mining  claims. 

Syl.  7   (X,  1151).     Terms  of  conveyance  in  patent. 

Approved  in  Creede  etc.  Milling  Co.  v.  Uinta  Tunnel  etc.  Co.,  196  U.  S. 
358,  49  L,  512,  25  Sup.  Ct.  266,  denying  statutory  warrant  to  limit  patent 
of  lode  claim  by  reserving  tunnel  rights;  McCorkell  v.  Herron,  128  Iowa, 
330,  103  N.  W.  990,  holding  erroneous  recitals  in  patent  not  binding 
on  grantee. 


1285  Notes  on  U.  S.  Reports.  115  U.  S.  408  153 

Syl.  10   (X,  1152),     Adverse  holder  denied  improvements. 

Approved  in  Beasley  v.  Equitable  Securities  Co.,  72  Ark.  611,  84  S.  W. 
228,  bond  for  title  is  not  color  of  title  within  statute  allowing  compensa- 
tion for  improvements  made  by  occupant;  Woodruff  v.  Wallace,  3  Okl. 
375,  378,  41  Pac.  364,  365,  denying  person  whose  homestead  entry  was 
canceled  for  fraud  benefit  of  occupying  claimant's  act. 

115  U.  S.  408-413,  29  L.  428,  SPARKS  v.  PIERCE. 

Syl.  2    (X,  1153).     Occupancy  not  creating  vested  rights. 

Approved  in  Tyee  Consol.  Min.  Co.  v.  Langstedt,  136  Fed.  127,  69 
C.  C.  A,  548,  holding  adverse  possession  insufficient  to  start  statute  of 
limitations  against  locator  before  patent  issued;  La  Fevre  v.  Amonson,  11 
Idaho,  48,  81  Pac.  72,  holding  mere  occupancy  did  not  create  vested 
right  against  purchaser  from  government. 

Syl.  3   (X,  1153).     Public  lands — Relief  against  patent. 

Approved  in  Gebo  v.  Clark  Fork  C.  Min.  Co.,  30  Mont.  92,  75  Pac. 
860,  holding  complaint  to  charge  patentee  as  trustee,  not  alleging 
plaintiff  did  not  make  voluntary  relinquishment,  insufficient;  Baldwin  v. 
Keith,  13  Okl.  630,  75  Pac.  1126,  refusing  to  declare  resultant  trust, 
complaint  failing  to  allege  that  claimant  resided  upon,  cultivated  and 
improved  the  land;  Parker  v.  Lynch,  7  Okl.  660,  56  Pac.  1091,  holding 
party  offering  to  contest  homestead  entry  cannot  maintain  action  to  de- 
clare patentee,  the  entryman  at  time  contest  offered,  a  trustee. 

115  U.  S.  413-429,  29  L.  435,  ALABAMA  v.  BURR. 

Syl.  3   (X,  1154).     Pleadings  must  state  facts. 

Distinguished  in  Nester  v.  Diamond  Match  Co.,  143  Fed.  75,  holding 
allegation  that  defendant  did  not  run,  sort  and  deliver  logs  with  reason- 
able dispatch  cured  by  subsequent  counts. 

115  U.  S.  429-439,  29  L.  419,  EACHUS  v.  BROMALL. 

Syl.  3   (X,  1154).     Reissue  invalid,  broader  than  patent. 

Cited  generally  in  Fitch  v.  Spang  etc.  &  Co.,  140  Fed.  294,  holding  un- 
necessary to  consider  defense  based  on  principal  case,  pateut  not  in- 
fringed. 

115  U.  S.  439-453,  29  L.  440,  GIBSON  v.  LYOX. 

Syl.  3   (X,  1155).     Federal  courts  following  state  decisions. 

Distinguished  in  Davis  v.  Commonwealth  etc.  Co.,  141  Fed.  717,  718, 
holding  state  decision  as  to  boundaries  not  binding  on  federea!  court  as 
to  pending  suits. 

Sj'l.  4    (X,   1155).     State  decisions — Rules  of  property. 

Approved  in  Davis  v.  Commonwealth  Land  etc.  Co..  141  Fed.  717,  718, 
refusing  to  follow  state  decision  as  to  boundaries  in  pending  suits  by 
owners  in  federal  eoui't. 


115  U.  S.  -103-523  Notes  on  U.  S.  Reports.  1286 

115  U.  S.  -165-4C9,  29  L.  445,  LEONARD  v.  OZARK  LAND  CO. 

Syl.  1   (X,  1156).     Appeal — Injunction  ordered  by  final  decree. 

Approved  in  Elliott  v.  Kuzek,  2  Alaska,  591,  holding  on  demurrer,  ap- 
peal and  supersedeas  bond  not  operating  to  abate  suit  on  injunctioa 
bond;  State  v.  Superior  Court,  39  Wash.  117,  109  Am.  St.  Rep.  862, 
80  Pac.  1109,  1  L.  R.  A.  (N.  S.)  554,  holding  injunction  prohibiting 
f  hooting-gallery,  etc.,  not  superseded  by  appeal. 

115  U.  S.  487-505,  29  L.  458,  KURTZ  v.  MOFFITT. 

Syl.  1   (X,   1158).     Habeas  corpus  a  civil  suit. 

Approved  in  State  v.  Superior  Court,  32  Wash.  146,  72  Pac.  1041, 
declaring  appeal  from  judgment  denying  habeas  corpus  ineffectual  with- 
out appeal  bond. 

Syl.  2  (X,  1158).     Federal  courts— Habeas  corpus  not  removable. 

Approved  in  Ah  Sou  v.  United  States,  200  U.  S.  611,  50  L.  619,  26 
Sup.  Ct.  752,  dismissing  appeal  from  order  deporting  Chinese  slave  girl ; 
Tincher  v.  Arnold,  147  Fed.  677,  holding  circuit  court  without  jurisdiction 
of  action  to  construe  will  as  to  executor's  duties;  Clifford  v.  Williams, 
131  Fed.  102,  holding  circuit  court  without  jurisdiction  to  issue  habeas 
corpus  to  determine  question  of  child's  custody;  Gallagher  v.  Asphalt  Co. 
of  America,  65  N.  J.  Eq.  282,  55  Atl.  268,  holding  federal  court  without 
jurisdiction  of  creditor's  bill  to  enjoin  corporation  from  exercising  fran- 
chise. 

Distinguished  in  De  La  Rama  v.  De  La  Rama,  201  U.  S.  307,  50  L. 
767,  26  Sup.  Ct.  485,  re\'iewing  judgment  reversing  decree  of  court  of 
lirst  instance  granting  divorce  and  awarding  $81,042.75  as  alimony, 
pendente  lite. 

115  U.  S.  512-523,  29  L.  463,  MISSOURI  PAC.  RY.  t.  HUMES. 
Syl.  2  (X,  1161).     State  laws  aft'ecting  private  property. 
Approved  in  St.  Louis  etc.  Ry.  Co.  v.  Davis,  132  Fed.   633,  denying 

property  taken  without  due  process,  where  railroad  company  present  at 

meeting  of  assessors  and  heard  by  counsel. 

Svl.   4    (X,   1162).     Penalties — Violations   of   statutory   requirements. 

Approved  in  Terre  Haute  etc.  Ry.  Co.  v.  Salmon,  161  Ind.  133,  134,  137, 
138  67  N.  E.  918,  919,  920,  holding  act  allowing  owners  to  collect  ex- 
penses for  repairing  fences  along  railroad,  together  with  reasonable  attor- 
ney 's  fee,  is  constitutional ;  Mier  v.  Phillips  Fuel  Co.,  130  Iowa,  577,  107 
N.  W.  624,  sustaining  act  inflicting  penalty  upon  mine  operators  taking 
coal  from  adjoining  land  without  permission;  Mumford  v.  Chicago  etc. 
Ry.  Co.,  128  Iowa,  693,  104  N.  W.  1138,  sustaining  act  prohibiting  rail- 
road from  restricting  liability  for  damages  sustained  by  employees  from 
neo-ligence  of  coemployees;  Yazoo  etc.  R.  R.  Co.  v.  Harrington,  85  Miss. 
375  37  So.  1017,  sustaining  act  requiring  railroad  companies  to  maintain 
cattle-guards;  Casey  v.  St.  Louis  Transit  Co.,  116  Mo.  App.  256,  264, 
91  S.  W.  426,  429,  sustaining  act,  but  holding  person  suing  thereunder 


1287  Kotes  on  U.  S.  Eeports.  115  U.  S.  524-565 

must  dcmanci  entire  penalty  provided  tlicrein  for  wrongful  death  through 
negligence  of  employees;  State  v.  Cantwell,  179  Mo.  264,  78  S.  W.  574, 
as  to  act  prohibiting  the  working  of  mining  employees  beneath  surface 
more  than  eight  hours;  Marsh  v.  Kansas  City  etc.  Ry.  Co.,  104  Mo.  App. 
585,  78  S.  W.  286,  as  to  act  providing  railroad  shall  pay  $5,000  in  cases 
of  death  due  to  negligent  running  of  trains;  Sanger  v.  Chesapeake  etc. 
Ey.  Co.,  102  Va.  92,  45  S.  E.  752,  as  to  act  requiring  railroad  to  fence 
right    of    way. 

Distinguished  in  Cigarmaker's  etc.  Union  v.  Goldberg,  72  N.  J.  L.  215, 
111  Am.  St.  Eep.  663,  61  Atl.  458,  70  L.  R.  A.  156,  declaring  uncon- 
stitutional act  exacting  from  infringer  of  trademark  penalty  for  benefit 
of  injured  party. 

Svl.   5    (X,   1163).     Equal  protection — Double  damages — Railroads. 

Approved  in  Cowart  v.  City  Council,  67  S.  C.  44,  45  S.  E.  126,  upholding 
ordinance  taxing  lenders,  except  banks,  loaning  on  personalty,  according 
to  schedule  of  given  business. 

115  U.  S.  524-427,  29  L.  480,  DAVIS  SEWIXG  MacII.  CO.  v.  EICH- 
AEDS. 

Syl.  1   (X,  1165).  .  Guaranty — Xotice  of  acceptance  unnecessary. 

Approved  in  Frost  v.  Standard  Metal  Co.,  215  111.  242,  74  N.  E.  139, 
notice  that  guaranty  accepted  and  credit  extended  unnecessary  when 
guarantor  knew  gviaranty  accepted  and  credit  would  be  extended;  Buhrer 
V.  Baldwin,  137  Mich.  270,  100  N.  W.  470,  holding  contract  of  guaranty 
reciting  consideration,  notice  of  acceptance  unnecessary.  See  105  Am. 
St.  Eep.  515,  note. 

Syl.  2    (X,  1165).     Guaranty — Notice  of  acceptance  necessary. 
Approved  in  John  Deere  Plow  Co.  v.  McCuUough,  102  Mo,  App.  461, 
76  S.  W.  716,  holding  guaranty  of  payment  sent  after  contract  of  sale 
made  unenforceable  in  absence   of  notice.     See   105  Am.  St,  Eep,   513, 
note. 

115  U.  S.  528-542,  29  L.  467,  TRAER  v.  CLEWS. 

Syl.  2    (X,  1165).     Statute  of  limitations— Fraud, 

Approved  in  dissenting  opinion  in  Atchison  etc.  Ry.  Co.  v.  Grain  Co., 
68  Kan.  594,  597,  75  Pac.  1054,  1055,  majority  holding  code  section 
postponing  running  of  statute  of  limitations  until  discovery  of  fraud 
without  application  to  action  upon  contract, 

115  U.  S.  550-565,  29  L.  472,  THOMPSON  v,  ALLEN  COUNTY. 

Syl.   1    (X,   1167),     Equity — Inadequacy   of  law. 

Approved  in  Ehrlich  v,  Willenski,  138  Fed,  426,  intimating  that 
equitable  action  would  lie  to  enforce  liability  against  treasurer  of 
cigarmaker  's   international   union. 


115  U.  S.  587-619  Notes  on  U.  S.  Keports.  12SS 

Syl.  2  (X,  1167).     Equity — Taxes  not  collected  through  receiver. 

Approved  in  Maria  v.  San  Jacinto  etc.  Irr.  Dist.,  131  Fed.  789,  790. 
holding  proper  remedy  to  collect  judgment  against  irrigation  district 
Tras  to  mandamus  officers  to  levy  assessment;  Boskwitz  v.  Thompson,  144 
Cal.  731,  78  Pac.  292,  holding  court  of  equity  in  absence  of  statutory 
authority  without  jurisdiction  to  enforce  lien  created  by  statute. 

115  U.  S.  587-598,  29  L.  499,  PULLMAN  CAR  CO.  v.  MISSOURI  PAC. 
RY. 

Syl.  4   (X,  1169).     Railroads  controlling  other  roads. 

Distinguished  in  Louisville  etc.  R.  Co.  v.  Coulter,  131  Fed.  307,  308, 
considering,  for  purposes  of  taxation,  line  operated  by  second  company, 
the  majority  of  shares  of  which  are  owned  by  controlling  company. 

115  U.  S.  598-600,  29  L.  504,  HASSALL  v.  WILCOX. 

Syl.  1  (X,  1170).     Jurisdiction  not  conferred  by  aggregating  claims. 

Approved  in  Feely  v.  Bryan,  55  W.  Va.  592,  47  S.  E.  310,  holding 
particular  sums  decreed  creditors  attacking  preference  cannot  be  added 
for  appellate  jurisdiction. 

115  U.  S.  600-611,  29  L.  477,  NORTHERN  PAC.  RY.  v.  TRAILL 
COUNTY. 

Syl.  2    (X,   1171).     Railroad  land  grants — Cost  of  surveying. 

Approved  in  United  States  v.  Montana  Lumber  etc.  Co.,  196  U.  S. 
577,  49  L.  605,  25  Sup.  Ct.  367,  holding  private  survey  inadmissible 
to  identify  odd-numbered  sections  included  in  railroad  grant  in  action 
by  United  States  for  timber  cut  thereon. 

Distinguished  in  Baltimore  Shipbuilding  etc.  Co.  v.  Baltimore,  195 
U.  S.  381,  49  L.  244,  25  Sup.  Ct.  50,  holding  land  conveyed  by  United 
States  for  drydock  purposes  with  reservation  for  forfeiture  not  wholly 
exempt  from  state  taxation;  Territory  v.  Delinquent  Taxpayers,  12  N. 
M.  71,  73  Pac.  624,  lands  in  perfect  Spanish  grant  are  taxable  though 
grant  submitted  to  court  of  land  claims  and  patent  not  yet  issued. 

115  U.  S.  611-616,  29  L.  502,  BOWMAN  v.  CHICAGO  ETC.  RY. 

Syl.   1    (X,   1172).     Jurisdiction   not  conferred  by   stipulation. 

Approved  in  Smith  v.  Chesapeake  etc.  Ry.  Co.,  118  Ky.  828,  82  S.  W. 
411,  dismissing  appeal  where  amount  of  damage  increased  by  sham 
amendment;  Casey  v.  St.  Louis  Transit  Co.,  116  Mo.  App.  271,  91  S.  W. 
432,  disapproving  suits  to  recover  less  than  statutory  penalty  in  order 
to  oust  appellate  court  of  jurisdiction. 

115  U.  S.  616-619,  29  L.  482,  CLAY  COUNTY  v.  McALEER. 

Syl.   1    (X,   1173).     Mandamus   denied  maximum  levy   insufficient. 

Approved  in  Pettibone  v.  West  Chic.  Park  Commrs.,  215  111.  322,  74  N. 
E.  394,  upholding  act  providing  tax  for  maintenance  of  park  and  pay- 
ment of  bonded  interest,  although  tax  sufficient  only  for  park  mainte- 
nance. 


1289  Notes  on  U.  S.  Eeports.  115  U.  S.  620-673 

115  U.  S.   G20-634,  39  L.  483,  CAMPBELL  v.  HOLT. 

Syl.   1   (X,  1173).     Adverse  possession  gives  good  title. 

Approved  in  Linton  v.  Heye,  194  U.  S.  628,  48  L.  1157,  24  Sup.  Ct. 
856,  reaffirming  rule;  Nortliern  Pac.  Ey.  Co.  v.  Ely,  197  U.  S.  8,  49  L. 
642,  25  Sup.  Ct.  302,  holding  title  to  right  of  way  granted  by  Congress 
to  railroad  not  included  within  one  hundred  feet  of  center  acquirable  by 
adverse  possession;  Linton  v.  Heye,  69  Neb.  454,  111  Am.  St.  Eep.  559,  95 
N.  W.  1041,  sustaining  statute  respecting  actions  for  recovery  of  real 
property  against  married  woman  during  coverture;  dissenting  opinion  in 
Brock  V.  Kirkpatrick,  69  S.  C.  251,  252,  48  S.  E.  79,  majority  holding 
limitations  do  not  run  against  right  of  creditors  to  subject  lands  devised 
to  payment  of  testator's  debt  till  return  nulla  bona  made  against  exec- 
utor.    See  111  Am.  St.  Eep.  456,  561,  note. 

Syl.  3   (X,  1174).     Statute  of  limitations  specially  pleaded. 

Approved  in  Davis  v.  Mills,  194  U.  S.  457,  48  L.  1017,  24  Sup.  Ct.  692, 
as  to  actions  in  another  state  against  corporate  directors  on  liability 
prior  to   enactment. 

Syl.  6  (X,  1174).     Statute  of  limitation— Eepeal. 

Approved  in  Condon  v.  City  of  Eureka  Springs,  135  Fed.  568,  sustain- 
ing act,  repealing  city's  right  to  call  in  outstanding  warrants  and  to  re- 
ject those  spurious;  Orman  v.  Van  Arsdell,  12  N.  M.  348,  349,  78  Pac. 
48,  67  L.  E.  A.  438,  upholding  Laws  1903,  p.  121,  prescribing  limitation 
of  actions  as  to  nonresidents,  though  retrospective  in  operation;  House  v. 
Carr,  185  N.  Y.  458,  78  N.  E.  172,  refusing  to  restrain  sale  under  power 
of  sale  contained  in  barred  mortgage. 

Distinguished  in  Fuller  &  Fuller  Co.  v.  Johnson,  8  Okl.  604,  58  Pac. 
746,  holding  action  barred  by  former  statute,  not  revived  unless  so 
evident  from  repealing  statute;  State  v.  Aberdeen,  34  Wash.  65,  66,  74 
Pac.  1023,  upholding  statute  declaring  existing  statutes  not  a  bar  to 
actions  by  state  in  suits  against  towns  for  liquor  license  fees. 

115  U.  S.  634-649,  29  L.  505,  BALTZEE  v.  EALEIGH  ETC.  EY. 

Syl.  1   (X,  1175).     Equity  reforms — Mistake  clearly  shown. 

Approved  in  Barker  v.  Pullman  Co.,  134  Fed.  72,  67  C.  C.  A.  196, 
refusing  to  reform  contract  signed  by  principals,  although  agents  nego- 
tiating  came   understood   agreement   to   be   different. 

115  U.  S.  650-673,  29  L.  516,  NEW  OELEANS  GAS  CO.  v.  LOUISIANA 
LIGHT  CO. 

Syl.  1  (X,  1176)  Consolidated  corporation  exercising  constituent's 
privileges. 

Distinguished  in  Shaw  v.  Covington,  194  U.  S.  598,  48  L.  1133,  24 
Sup.  Ct.  754,  denying  consolidated  corporation's  riglit  to  claim  exclusive 
privilege  of  a  constituent  corporation  especially  where  public  poles 
against  claim. 


115  U.  S.  C50-G73  Notes  on  U.  S.  Eeports.  1200 

Syl.  3  (X,  1177).     Public  privileges  controlled  by  legislative  authority. 

Approved  in  Water  etc.  Co.  v.  City  of  Hutchinson,  144  Fed.  2G4,  de- 
claring ultra  vires  contract  entered  into  by  city,  giving  company  exclusive 
right  to  use  streets  to  supply  water,  etc. ;  Purnell  v.  McLane,  98  Md.  593, 
56  Atl.  832,  holding  in  absence  of  special  franchise  applicant  not  en- 
titled to  permit  to  use  conduits. 

Syl.  4  (X,  1178).     Constitution  protects  exclusive  charter  grants. 

Distinguished  in  New  Orleans  Gaslight  Co.  v.  Drainage  Commission, 
197  U.  S.  459,  49  L.  834,  25  Sup.  Ct.  471,  denying  gas  company's  right 
to  recover  sums  expended  making  changes  in  system  necessitated  by 
construction  of  municipal  drainage  system;  Tillamook  Water  Co.  y. 
Tillamook  City,  139  Fed.  406,  holding  contract  with  water  company  not 
violated  by  construction  of  municipal  competing  plant ;  Leggett  v. 
Detroit,  137  Mich.  253,  100  N.  W.  569,  denying  city's  power  to  accept 
land  exempting  other  land  of  grantor  from  future  street  assessments. 

Syl.  5   (X,  1179).     State's  police  power  limited  by  constitution. 

Approved  in  Dobbins  v.  Los  Angeles,  195  U.  S.  239,  49  L.  176,  25 
Sup.  Ct.  18,  reversing  where  bill  to  enjoin  enforcement  of  municipal 
ordinance  prohibiting  maintenance  of  gasworks  within  certain  limits 
dismissed  by  lower  court;  dissenting  opinion  in  Sweet  v.  Ballentyne, 
8  Idaho,  442,  69  Pac.  999,  majority  upholding  act  prohibiting  grazing 
and  herding  of  sheep  within  two  miles  of  inhabited  dwellings. 

Syl.  7  (X,  1180).     Statutory  authority  granted  to  corporations. 

Approved  in  Southern  Kansas  Ey.  Co.  v.  Oklahoma  City,  12  Okl.  104, 
69  Pac.  1057,  denying  city's  right  to  open  street  until  railroad  im- 
provements are  condemned,  appraised  and  paid  for. 

Syl.  10   (X,  1181).     Constitutional  prohibition  upon  state  laws. 

Approved  in  New  York  v.  Van  De  Carr,  199  U.  S.  558,  50  L.  309, 
26  Sup.  Ct.  144,  sustaining  sanitary  provision  giving  board  of  health 
discretionary  power  to  grant  or  withhold  permits- to  sell  milk;  Manigault 
v.  Springs,  199  U.  S.  481,  50  L.  279,  26  Sup.  Ct.  127,  holding  owner 
not  entitled  to  compensation  where  lands  flooded  by  erection  of  dam 
under  legislative  authority;  New  Orleans  Gaslight  Co.  v.  Drainage  Com- 
mission, 197  U.  S.  459,  49  L.  834,  25  Sup.  Ct.  471,  denying  gas  com- 
pany's right  to  recover  money  expended  conforming  system  to  new 
municipal  drainage  system;  Jacobsen  v.  Massachusetts,  197  U.  S.  25, 
49  L.  649,  25  Sup.  Ct.  358,  upholding  act  authorizing  compulsory  vac- 
cination; Lake  Erie  etc.  R.  R.  Co.  v.  Shelley,  163  Ind.  44,  71  N.  E.  154, 
denying  railroad  compensation  for  constructing  and  maintaining  cross- 
ings and  approaches  because  of  highway  constructed  across  tracks;  Fort 
Smith  V.  Hunt,  72  Ark.  564,  102  Am.  St.  Rep.  51,  82  S.  W.  166,  66  L. 
U.  A.  238,  contract  between  city  and  electric  company  prescribing  terms 
on  which  latter  may  erect  poles  in  streets  does  not  invalidate  later  pole 
license  ordinance;  State  v.  Hyman,  98  Md.  614,  57  Atl.  9,  64  L.  R.  A. 
637,  sustaining  sweat-shop  act  as  to  manufacture  of  clothing  in  tenement 


1291  Notes  on  U.  S.  Reports.  115   U.  S.  G74-700 

houses;  Van  Cleve  v.  Passaic  Val.  etc.  Comnirs.,  71  N.  J.  L.  224,  58 
Atl.  587,  holding  act  permitting  city  of  Paterson  to  empty  sewage  in 
Passaic  river  revocable;  dissenting  opinion  in  Wright  v.  Hart,  182  N. 
Y.  354,  75  N.  E.  413,  2  L.  R.  A.  (N.  S.)  338,  majority  declaring  un- 
constitutional act  requiring  detailed  inventory  five  days  before  sale  and 
notice  to  creditors.     See  103  Am.  St.  Rep.  868,  note. 

115   U.   S.   674-683,    29   L.   525,   NEW   ORLEANS   WATERWORKS  v. 
RIVERS. 

Syl.  1    (X,  1182).     Legislative  control  of  public  privileges. 

Approved  in  Water  etc.  Co.  v.  City  of  Hutchinson,  144  Fed.  264, 
declaring  ultra  vires  contract  entered  into  by  city,  giving  corporation 
exclusive  right  to  use  streets;  Westminster  Water  Co.  v.  Mayor  etc.,  98 
Md.  556,  557,  103  Am.  St.  Rep.  424,  56  Atl.  992,  64  L.  B.  A.  630. 
declaring  contract  between  city  and  water  company  to  annually  levy 
taxes  and  pay  proceeds  to  company  ultra  vires. 

Syl.  3  (X,  1183).  Municipal  corporations  granting  exclusive  fran- 
chises. 

Distinguished  in  Tillamook  Water  Co.  v.  Tillamook  City,  139  Fed.  406, 
denying  contract  between  city  and  water  company  violated  by  competing 
municipal  plant;  Leggett  v.  Detroit,  137  Mich.  253,  100  N.  W.  569, 
denying  city 's  power  to  except  land,  exempting  other  land  of  grantor 
from  future  street  assessments;  Petersburg  v.  Petersburg  Aqueduct  Co., 
102  Va.  659,  47  S.  E.  849,  upholding  city's  power  to  prohibit  existing 
water  company  from  digging  up  and  obstructing  streets  to  extend 
system. 

115  U.  S.  683-700,  29  L.  510,  LOUISVILLE  GAS  CO.  v.  CITIZENS' 
GAS  CO. 

Syl.  2   (X,  1185).     Contracts  under  state  legislation. 

Approved  in  Bradley  v.  Lightcap,  195  U.  S.  23,  49  L.  75,  24  Sup.  Ct. 
748,  declaring  due  process  of  law  denied,  act  construed  by  court  to 
defeat  rights  of  mortgagee  in  possession  upon  failure  to  comply  there- 
with; Terre  Haute  etc.  R.  R.  Co.  v.  Indiana,  194  U.  S.  589.  48  L.  1129, 
24  Sup.  Ct.  767,  reviewing  state  decision,  enforcing,  under  erroneous 
construction,  charter  obligation  to  pay  surplus  profits. 

Syl.  4  (X,  1186).  Municipal  corporations  granting  exclusive  fran- 
chises. 

Approved  in  Mercantile  etc.  Co.  v.  Columbus  Water  Wks.  Co.,  130 
Fed.  184,  and  Columbia  Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130  Fed. 
173,  both  enjoining  city  from  issuing  bonds  and  constructing  competing 
system  of  waterworks;  New  Orleans  Gaslight  Co.  v.  Drainage  Com- 
mission, 111  La.  843,  35  So.  931,  arguendo. 

Distinguished  in  Shaw  v.  Covington,  194  U.  S.  599,  48  L.  1133,  24  Sup. 
Ct.  754,  denying  consolidated  corporation  right  to  claim  exclusive  fran* 


116  U.  S.  1-7  Notes  on  U.  S.  Reports.  1292 

chise  enjoyed  by  one  of  constituent  corporations;  Water  etc.  Co.  v.  City 
of  Hutchinson,  144  Fed.  264,  denying  city's  right  to  grant  for  term 
of  years  exclusive  right  to  use  streets;  Petersburg  v.  Petersburg  Aqueduct 
Co.,  102  Va.  659,  47  S.  E.  849,  denying  existing  water  company's  right 
to  dig  up  and  obstruct  streets  in  order  to  extend  system. 


CXVI  UNITED  STATES. 


116  U.  S.  1-7,  29  L.  535,  HANLEY  v.  DONOGHUE. 

Syl.  1  (XI,  7).     Judgments— Full  faith  and  credit. 

Approved  in  Jasper  v.  Currie,  69  Neb.  6,  94  N.  W.  996,  in  action  on 
sister  state  judgment  defendant  may  show  he  was  induced  by  plaintiff's 
fraudulent  conduct  to  come  within  jurisdiction  of  court  rendering  judg- 
ment.    See  103  Am.  St.  Eep.  315,  319,  note. 

Distinguished  in  dissenting  opinion  in  In  re  Gulp,  2  Cal.  App.  S3, 
83  Pac.  94,  majority  holding  where  Kansas  divorce  decree  awarded  wife 
custody  of  child,  and  later  Kansas  court  modified  decree  by  awarding 
child  to  grandfather,  she  may,  on  habeas  corpus,  attack  modification 
by  proof  of  lack  of  notice. 

Syl.  3  (XI,  8).     Foreign  laws  must  be  proved. 

Approved  in  St.  Louis  etc.  Ey.  Co.  v.  Haist,  71  Ark.  265,  100  Am.  St. 
Rep.  65,  72  S.  W.  894,  in  action  for  death  by  wrongful  act  occurring 
La  Louisiana,  statute  of  latter  state  need  not  be  set  out  in  haec  verba. 

Syl.  5  (XI,  8).     Sister  state  judgment — State  laws. 
Sea  113  Am.  St.  Eep.  873,  note. 

Syl.  6  (XI,  8).     Judicial  notice  of  state  laws. 

Approved  in  Allen  v.  Alleghany  Co.,  196  U.  S.  464,  49  L.  555,  25  Sup. 
Ct.  311,  whether  or  not  corporate  contract  entered  into  in  contravention 
of  statutes  regailating  foreign  corporations  was  void  and  unenforceable 
in  other  states  does  not  present  federal  question;  Allgair  v.  Fislier, 
143  Fed.  963,  where,  pending  action  in  district  eoiirt  to  review  referee's 
order,  consent  order  permitting  creditors  to  become  parties  made,  juris- 
diction to  set'  aside  referee's  order  not  questionable  because  of  lack  of 
right  in  petitioner  to  seek  review:  Leathe  v.  Thomas,  218  111.  253,  75  N. 
E.  812,  setoff  is  defense  to  action  on  foreign  judgment  rendered  in  state 
where  setoffs  are  not  allowed  in  actions  on  judgments;  Erwin  v.  Soutlieni 
Ry.,  71  S.  C.  230,  50  S.  E.  779,  in  order  to  make  record  of  court  of  limited 
jurisdiction  in  g.arnishee  proceedings  in  other  state  binding,  it  must  lie 
alfirmativoly  shown  that  garnishee,  a  foreign  corporation,  submitted  it-df 
to  such  jurisdiction;  Thomas  v.  Board  of  Trustees,  195  U.  S.  214,  49  L. 
165,  25  Sup.  Ct.  24,  arguendo. 


1293  Notes  on  U.  S.  Eeports.  116  U.  S.  11-42 

Syl.   7    (XT,  9).     Joint  foreign  judgment — Pleading. 

Distinguished  in  East  Baltimore  Lum.  Co.  v.  K'Nessitt  Israel  etc. 
Congregation,  100  Md.  690,  62  Atl.  576,  where  defendants  jointly  sued 
as  original  promisors  and  record  failed  to  show  misjoinder  raised,  judg- 
ment against  all  cannot  be  reversed  as  to  some  and  affirmed  as  to  others. 

IIG  U.  S.  11,  12,  29  L.  550,  MARVEL  v.  MERRITT. 

Syl.  1   (XI,  9).     Statutory  construction — Nontechnical  words. 

Distinguished  in  Burdock  v.  Dillon,  144  Fed.  740,  word  ' '  mining ' '  in 
Bankr.  Act  1898,  §  4b,  as  amended  in  1903,  includes  quarrying  of  slate 
from  open  quarry. 

116  U.  S.  13-21,  29  L.  554,  SAXOXA^ILLE  MILLS  v.  RUSSELL. 

Syl.  2  (XI,  9).     Construction  of  tariff  act. 

Approved  in  Brcnnan  v.  United  States,  136  Fed.  747,  69  C.  C.  A.  395, 
limes  in  brine  are  free  of  duty  under  Act  1897,  par.  556,  Free  List,  §  2, 
and  not  dutiable  as  "limes." 

116  U.  S.  22-28,  29  L.  552,  MILLER  v,  FOREE. 

Syl.  1   (XI,  10).     Patents — Application  of  known  method. 

Distinguished  in  Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140  Fed.  173, 
where  invention  is  for  etching  machine,  sale  of  product  for  two  years 
prior  to  patent  is  not  public  use. 

116  U.  S.  28-33,  29  L.  542,  UTAH  ETC.  RY.  v.  FISHER. 

Syl.  1   (XI,  10).     Territorial  jurisdiction — Indian  reservation. 

Approved  in  Hollister  v.  United  States,  145  Fed.  777,  upholding  Comp. 
St.  Supp.,  1905,  p.  719,  conferring  jurisdiction  on  federal  district  courts 
in  South  Dakota  over  prosecutions  for  larceny  committed  on  Indian 
reservations;  Coey  v.  Cleghorn,  10  Idaho,  170,  109  Am.  St.  Rep.  199, 
79  Pac.  74,  where  it  is  shown  that  party  resides  on  Indian  reservation 
in  state  and  attachment  is  levied  on  his  property  situate  on  such  reserva- 
tion, claim  that  he  is  not  resident  of  state  fails;  Gay  v.  Thomas,  5  Okl. 
12,  46  Pac.  582,  upholding  taxation  of  cattle  of  nonresidents  grazed  on 
lands  in  Indian  reservation  leased  from  Indians.  See  103  Am.  St.  Rep. 
312,  note. 

Syl.  2  (XI,  10).    Taxation — Property  on  Indian  reservation. 

Approved  in  Gay  v.  Thomas,  5  Okl.  14,  15,  46  Pac.  5S2,  upholding 
taxation  of  cattle  of  nonresidents  grazed  on  lands  in  Indian  reservation 
leased  from  Indians. 

116  U.  S.  33-42,  29  L.  538,  HOLGALI  v.  EATON. 

Syl.  2   (XI,  11).     Specific  performance — Laches. 

Approved  in  Patterson  v.  Hewitt,  195  U.  S.  319,  49  L.  218,  25  Sup. 
Ct.  35,  affirming  11  N.  M.  33,  66  Pac.  562,  55  L.  R.  A.  658,  and  holding 
eight  years'  delay  after  right  to  deed  of  interest  in  mining  claim  has 
accrued  bj  reason  of  contribution  to  expense  necessary  to  patent  defeats 


116  U.  S.  45-53  Notes  on  U.  S.  Kcports.  1294 

suit  to  enforce  right  where  complainant  contributed  nothing  further  to 
development  of  mine;  Cole  v.  Birmingham  Union  Ey.  Co.,  143  Ala.  435, 
39  So.  405,  barring  suit  by  stockholder  to  set  aside,  for  ultra  vires,  sale 
of  property  of  street  railway,  ten  years  after  transfer,  property  having 
meantime  been  sold  to  third  party  and  mortgaged  by  latter. 

Syl.  6   (XI,  11).     Dismissal  of  original,  retention  of  cross-bill. 
Approved  in  Callahan  v.  Mercantile  Trust  Co.,  188  Mass.  398,  74  N. 
E.  667,  following  rule. 

116  U.  S.  45-48,  29  L.  558,  MACKALL  v.  EICIIAEDS. 

Syl.  1  (XI,  11).     Appeal — Decree  conformable  to  mandate. 

Approved  in  McClung  v.  Harris,  11  Okl.  65,  65  Pac.  942,  following 
rule. 

116  U.  S.  48-53,  29  L.  570,  LEE  v.  JOHNSON. 

Syl.  1   (XI,  12).     Collateral  attack  on  land  patent. 

Approved  in  Meyers  v.  United  States,  5  Okl.  185,  48  Pac.  189.  up- 
holding indictment  for  perjury  committed  in  affidavit  in  land  contest. 

Syl.  3  (XI,  12).     Conclusiveness  of  Land  Department  decisions. 

Approved  in  Paine  v.  Foster,  9  Okl.  233,  244,  53  Pac.  115,  118,  and 
Calhoun  v.  Violet,  4  Okl.  325,  47  Pac.  481,  both  following  rule;  Small  v. 
Eakestraw,  196  U.  S,  406,  49  L.  529,  25  Sup.  Ct.  285,  finding  by  Secre- 
tary of  Interior  that  residence  of  homesteader  for  voting  purposes  was 
in  precinct  other  than  where  land  lies,  not  erroneous  where  entryman 
once  voted  in  county  other  than  where  land  lies;  Estes  v.  Timmons,  199 
U.  S.  396,  50  L.  244,  26  Sup.  Ct.  85,  affirming  12  Okl.  544,  73  Pac.  305, 
and  holding  perjury  on  hearing  before  Land  Department  of  contest 
over  homestead  entry  is  not  ground  for  equitable  relief  against  depart- 
ment's decision;  Miller  v.  Margerie,  149  Fed.  697,  applying  rule  to 
decision  of  Alaska  townsite  trustee;  Gebo  v.  Clark  Fork  C.  Min.  Co., 
30  Mont.  92,  93,  75  Pac.  860,  holding  insufficient  complaint  to  hold 
patentee  of  coal  lands  trustee  for  plaintiff  on  mere  allegation  of  filing 
of  forged  relinquishment  of  plaintiff's  rights;  Cagle  v.  Dunham,  14  Okl. 
615,  625,  78  Pac.  562,  565,  refusing  to  set  aside  land  decision  for  per- 
jury where  notice  given  parties  who  appeared  before  department  and 
were  given  full  hearing;  Cook  v.  McCord,  9  Okl.  210,  60  Pac.  500, 
applying  rule  to  finding  as  to  whether  claimant  has  abandoned  lot; 
Thornton  v.  Peery,  7  Okl.  449,  54  Pac.  652,  allegation  that  succesrsful 
party  in  land  office  introduced  perjured  testimony  is  insufficient  to  set 
aside  department's  findings  in  absence  of  allegation  of  lack  of  further 
evidence  to  support  such  findings;  Parker  v.  Lynch,  7  Okl.  661,  56  Pac. 
1092  one  offering  to  file  contest  in  land  office  which  was  rejected  can- 
not sue  to  declare  patentee,  who  was  entryman  at  time  of  offer,  trustee 
for  his  use;  Black  v.  Jackson,  6  Okl.  754,  52  Pac.  407,  where  adversi^ 
claimants  are  residing  on  land  and  each  claims  under  prior  homestead 
settlement,  loser  before  Land  Department  cannot  claim  right  to  con- 
tinue residence  for  purpose  of  suit  to  declare  trust  agaiust  opponent; 


1205  Notes  on  U.  S.  Ecports.  116  U.  S.  54-97 

Meyers  v.  Unitea  States,  5  Okl.  182,  48  Pac.  189,  upholding  indictment 
for  perjury  committed  in  affidavit  in  land  contest;  Woodruff  v.  Wallace, 
3  Okl.  361,  41  Pae.  359,  district  court  may,  by  injunction,  give  ex- 
clusive possession  to  successful  party  in  land  ofiiee  contest.  See  104  Am. 
St.  Kep.  697,  note. 

Distinguished  in  dissenting  opinion  in  Paine  v.  Foster,  9  Okl.  262, 
60  Pac.  25,  majority  following  rule. 

116  U.  S.  54-55,  29  L.  535,  SIMMEEMOX  v.  NEBRASKA. 

Syl.  1    (XI,  13).     Time  to  raise  federal  question. 

Approved  in  Harding  v.  Illinois,  196  U.  S.  84,  49  L.  396,  25  Sup.  Ct. 
176,  neither  petition  for  rehearing,  petition  for  writ  of  error,  assign- 
ments of  error  in  federal  supreme  court  nor  certification  of  briefs  by 
clerk  of  state  court,  cure  failure  to  show  federal  question  raised  below. 

116  U.  S.  55-80,  29  L.  561,  CANXOX  v.  UNITED  STATES. 

Syl.  1   (XI,  13).     Bigamy — Cohabitation  defined. 

Approved  in  United  States  v.  Griego,  111  N.  M.  401,  72  Pae.  22, 
adultery  indictment  charging  married  man  with  committing  adultery 
by  having  unlawful  intercourse  is  sufficient  though  word  "sexual" 
omitted. 

Syl.  5    (XI,  14).     Indictment  in  words  of  statute. 

Approved  in  United  States  v.  Lake,  129  Fed.  501,  upholding  suflficioney 
of  indictment  against  jiresident  of  bankrupt  corporation  for  making 
false  oath  to  schedules.  *  • 

116  U.  S.  80-97,  29  L.  544,  ROBERTS  v.  REILLY. 

Syl.  3  (XI,  15).     Federal  habeas  corpus — Extradition. 
Approved  in  In  re  Kopel,  148  Fed.  506,  upholding  federal  jurisdiction 
to  issue  habeas  corpus  though  same  petition  denied  by  state  court. 

Syl.  4  (XI,  15).     Requisites  of  extradition  demand. 

Approved  in  Farrell  v.  Hawley,  78  Conn.  153,  61  Atl.  504,  70  L.  R. 
A.  686,  averment  in  reply  of  one  in  custody  under  extradition  warrant 
that  no  legal  hearing  was  had  to  ascertain  whether  he  was  fugitive  is 
insufficient. 

Syl.  5  (XI,  15).  Habeas  corpus — Extradition — Sufficiency  of  indict- 
ment.    See  112  Am.  St.  Rep.  106,  note. 

Syl.  6  (XI,  15).     Extradition — Question  of  fact — Fugitive. 

Approved  in  Dennison  v.  Christian,  196  U.  S.  637,  49  L.  630,  25  Sup. 
Ct.  795,  Munsey  v.  Clough,  196  U.  S.  372,  49  L.  517,  25  Sup.  Ct.  2S2 , 
Dodge  v.  Ellis,  195  U.  S.  626,  49  L.  350,  25  Sup.  Ct.  791,  In  re  Letcher, 
145  Cal.  564,  79  Pac.  65,  and  State  v.  Clough,  72  N.  H.  179,  55  Atl.  555, 
67  L.  R.  A.  946,  all  following  rule;  Benson  v.  Ilenkel,  198  U.  S.  10, 
49  L.  922,  25  Sup.  Ct.  569,  objection  to  indictment  for  bribing  federal 
officer  to  reveal  contents  of  reports  j)ertaining  to  Land  Department  in- 


116  U.  S.  98-131  Notes  on  U.  S.  Eeports.  1296 

vestigation  of  land  frauds  are  unavailable  in  proceedings  before  com- 
missioner for  removal  of  accused  to  another  federal  district.  See  112 
Am.  St.  Eep.  121,  125,  note. 

Syl.  7   (XI,  15).     Extradition — Certified  copy  of  laws. 
See  112  Am.  St.  Kep.  126,  138,  141,  note, 

Syl.  10   (XI,  16).     Extradition — Offense  against  asylum  state. 
See  112  Am.  St.  Rep.  115,  note. 

Syl.  11  (XI,  16).     Extradition— Fugitive  defined. 

Approved  in  Hughes  v.  Pflanz,  138  Fed.  984,  following  rule;  In  re 
Bruce,  132  Fed.  391,  393,  where  indicted  person  resided  in  state  for 
year  thereafter  but  removed  to  another  state  on  business  and  was  there- 
after temporarily  in  state  from  time  to  time  but  not  exceeding  eighteen 
months  in  all,  he  was  within  exception  of  limitation  statute. 

116  U.  S.  98-103,  29  L.  559,  CALL  v.  PALMER. 

Syl.  1  (XI,  16).     Law  governing  notes. 

Approved  in  In  re  Worth,  130  Fed.  930,  under  Iowa  Code  1897,  §  3041, 
creditors  of  bankrupt  cannot  set  up  defense  of  usury  against  claim  of 
another  creditor;  Benjamin  Bank  v.  Doherty,  42  Wash.  328,  84  Pac.  875, 
note  valid  where  made  not  subject  to  Washington  usury  laws  because 
secured  by  mortgage  on  property  in  this  state. 

116  U.  S.  104-108,  29  L.  550,  UNITED  STATES  v.  MOONEY. 

Syl.  3  (XI,  18).     District  court's  jurisdiction  over  penalties. 

Approved  in  Lederer  v.  Ferris,  149  Fed.  251,  suit  arising  under  copy- 
right laws  may  be  brought  in  any  district  in  which  defendant  can  be 
found  and  served  with  process. 

116  U.  S.  108-113,  29  L.  583,  COYLE  v.  DAVIS. 

Syl.  1  (XI,  18).     Parol  to  show  deed  a  mortgage. 

Approved  in  Neely  v.  Boyd,  145  Fed.  174,  holding  evidence  insufficient 
to  show  parol  agreement  by  purchaser  at  execution  sale  to  hold  title  for 
benefit  of  judgment  defendant  and  to  permit  latter  to  redeem  at  any 
time. 

Distinguished  in  dissenting  opinion  in  Stuart  v.  Hauser,  9  Idaho,  73, 
72  Pac.  726,  majority  holding  suit  by  grantor  to  have  deed  absolute 
declared  mortgage,  finding  that  deed  not  intended  as  mortgage  not  dis- 
turbed on  appeal  where  evidence  conflicts. 

116  U.  S.  113-131,  29  L.  575,  LIVERPOOL  ETC.  INS.  CO.  v. 
GUNTHER. 

Syl.  1   (XI,  IS).     Evidence  on  obscure  answer. 

Approved  in  Black  v.  Teeter,  1  Alaska,  564,  in  ejectment  where  evi- 
dence of  second  and  later  location  by  plaintiff  was  unobjected  to,  though 


1297  Notes  ou   U.  S.  Eeports.  116  U.  S.  131-167 

not    spocially   plciulcd,    ami    jury    found    for   plaintiff   on   such    location, 
instruction  submitting  last  location  not  ground  for  new  trial. 

116  U.  S.  131-135,  29  L.  587,  FISKE  v.  JEFFERSON  POLICE  JURY. 

Syl.  1   (XI,  19).     Change  or  abolition  of  elective  office. 

Approved  in  Board  etc.  of  Perry  County  v.  Lindeman,  165  lud.  191, 
73  N.  E.  914,  upholding  Acts  1903,  p.  40,  relating  to  salaries  of  officers; 
Gibbs  V.  Manchester,  73  N.  H.  267,  61  Atl.  129,  where  police  commis- 
sioners removed  policeman  without  charges  or  hearing,  city  not  lialjle 
for  acts  of  commissioners. 

116  U.  S.  138-142,  29  L.  5S9,  SAN  MATEO  CO.  v.  SOUTHERN  PAC. 
R.  R. 

Syl.   1    (XI,  20).     Dismissal  of  appeal — Payment  of  judgment. 
Ai)proved  in  Signor  v.  Clark,  13  N.  D.  46,  99  N.  W.  72,  following  rule. 

116  U.  S.  142-145,  29  L.  581,  HEWITT  t.  FILBERT. 

Syl.  1   (XI,  20).     Appeal — Necessity  for  citation. 

Approved  in  Lockman  v.  Lang,  132  Fed.  4,  where  appeal  allowed  by 
taking  security  in  time  and  transcript  filed  and  case  docketed,  failure 
to  issue  citation  within  time  for  appeal  is  no  ground  for  dismissal. 

Distinguished  in  Simjison  v.  First  Nat.  Bank,  129  Fed.  260,  261, 
63  C.  C.  A.  371,  where  appeal  allowed  on  condition  that  petitioner  give 
bond  in  fixed  amount,  filing  of  assignment  of  errors  at  time  of  giving 
and  acceptance  of  bond  is  in  time. 

116  U.  S.  145-154,  29  L.  572,  McCLUEE  v.  UNITED  STATES. 

Syl.  1   (XI,  21).     Court  of  claims  findings  conclusive. 

Approved  in  United  States  Nat.  Bank  v.  Bank  of  Guthrie,  6  Okl.  180, 
51  Pac.  123,  refusing  to  review  findings  where  it  cannot  be  said  there 
was  no  supporting  evidence. 

116    U.    S.    161-167,    29    L.    591,    WINCHESTER    ETC.    MFG.    CO.    v. 
CEEARY. 

Syl.  1   (XI,  22).     Vendor's  declarations  after  sale. 

Approved  in  Meyer  v.  Munro,  9  Idaho,  53,  71  Pac.  971,  mortgagor's 
declarations  made  after  mortgage  as  to  purpose  in  making  mortgage 
are  inadmissible  unless  mortgagee  shown  to  be  party   to   fraud. 

Distinguished  in  Ball  v.  United  States,  147  Fed.  40,  failure  to  charge 
that  evidence  of  prior  conviction  of  accused  was  admissilile  only  as 
tending  to  affect  his  credibility  as  witness  not  error  in  absence  of  re- 
quest tlierefor. 

Syl.  4   (XI,  22).     Agent's  declarations. 

Approved  in   Sweeney  v.  Sweeney,    119  Ga.   82,  46   S.   E.   78,   declara- 
tions  of   agent   in   possession   of   realty   as    manager   are    iuadij;issible    to 
disjiarage  principal's  title. 
82 


516  U.  S.  167-206  Notes  on  U.  S.  Eeports.  129« 

116  U.  S.  167-186,  29  L.  601,  SMITH  v.  WHITNEY. 

Syl.  2  (XI,  23).     Prohibition  matter  of  right. 

Approved  in  Alexander  v.  Crollott,  199  U.  S.  580,  50  L.  317,  26  Sup. 
Ct.  161,  upholding  denial  of  prohibition  against  justice  of  peace  in 
forcible  entry  where  there  is  right  of  appeal;  Kilty  v.  Eailroad  Com- 
missioners, 184  Mass.  311,  68  N.  E.  236,  refusal  of  prohibition  to  re- 
strain railroad  commissioners  from  issuing  certificate  of  compliance  at 
suit  of  stranger  is  not  reviewable;  dissenting  opinion  in  State  v.  God- 
frey, 54  W.  Va.  77,  46  S.  E.  194,  majority  granting  prohibition  against 
prosecution  under  void  city  gambling  ordinance. 

Syl.  3   (XI,  23).     Prohibition  is  law  remedy. 
See  111  Am.  St.  Rep.  932,  note, 

Syl.  4  (XI,  23).     Prohibition  restrains  judicial  functions  only. 

Approved  in  Lodge  v.  Fletcher,  184  Mass.  240,  68  N.  E.  204,  denying 
prohibition  to  restrain  aldermen  from  hearing  evidence  touching  mis- 
conduct of  city  officers. 

Syl.  5   (XI,  23).     Prohibition,  to  whom  directed. 
See  111  Am.  St.  Eep.  971,  note. 

Syl.  6  (XI,  23).     Prohibition  against  court-martial. 

Approved  in  United  States  v.  Praeger,  149  Fed.  485,  where  civilian 
witness  refused  to  answer  questions  before  court-martial  because  answers 
might  tend  to  incriminate  him,  decision  of  such  court  as  to  jji-opriety 
of  questions  not  conclusive  in  civil  courts;  In  re  Scott,  144  Fed.  81, 
denying  habeas  corpus  on  petition  of  minor  who  enlisted  in  navy  where 
at  time  of  petition  minor  was  on  trial  before  court-martial  for  military 
offense. 

Syl.  7   (XI,  24).     Army  regulations  sanctioned  by  law. 

Approved  in  Peters  v.  United  States.  2  Okl.  123,  33  Pac.  1033,  false 
swearing  before  receiver  in  contest  under  general  rules  of  land  office  is 
perjury  under  Eev.  St.,  §  5392. 

116  U.  S.  193-197,  29  L.  595,  WEBB  v.  BAENWALL. 

Syl.  1  (XI,  24).     Action  to  restrain  ejectment  judgment. 

Approved  in  O  'Connor  v.  O  'Connor,  146  Fed.  997,  federal  suit  to  set 
aside  federal  judgment  at  law  is  within  federal  jurisdiction  irrespective 
of  citizenship  where  defendants  were  parties  to  original  suit  or  in  privity 
with  parties. 

116  U.  S.  200-206,  29  L.  657,  KINGS  CO.  SAV.  INST.  v.  BLAIR. 

Svl.  1    (XI,  25).     Eeeovery  of  revenue  taxes — Time  to  claim. 

Cited  in  Christie-Street  Com.  Co.  v.  United  States,  129  Fed.  508,  ar- 
guendo. 

Distinguished  in  Grier  v.  Tucker,  150  Fed.  661,  one  assessed  with 
special  tax  under  oleomargarine  law  of  1886,  as  dealer,  who  before  pay- 


7.?!99  Notes  on  U.  S.  Keports.  116  U.  S.  219-306 

ing  tax  made  application  for  abatement  of  same,  which  was  refused,  need 
not  again  appeal  before  suing  to   recover  payment. 

116  U.  S.  219-226,  29  L.  608,  MILWAUKEE  v.  KOEFFLER. 

Syl.  1   (XI,  25).     Injunction  to  restrain  personalty  tax. 

Approved  in  Illinois  Life  Ins.  Co.  v.  Neuman,  141  Fed.  451,  refusing 
to  enjoin  collection  of  tax  levied  under  authority  of  state  statute  alleged 
to  be  illegal. 

116  U.   S.  237-252,  29  L.  659,  BROWN  v.  DAVIS. 

Syl.  2   (XI,  26).     Patent  reissue — Infringement. 

Approved  in  Scott  v.  Fisher  etc.  Mach.  Co.,  139  Fed.  145,  Bellis  patent 
No.  561,559,  for  improvements  in  knitting  machines,  not  infringed  by 
machine  of  Fisher  patent  No.  656,535. 

116  U.  S.  252-269,  29  L.  615,  PRESSER  v.  ILLINOIS. 

Syl.  3   (XI,  27).     Second  amendment  inapplicable  to   states. 

Approved  in  Ex  parte  Munn,  140  Fed.  783,  federal  court  cannot  on 
habeas  corpus  discharge  one  confined  for  contempt  of  state  court  for 
refusal  to  answer  questions  on  ground  that  answers  might  incriminate 
him;  St.  Louis  etc.  Ry.  Co.  v.  Davis,  132  Fed.  632,  federal  court  cannot 
enjoin  state  officers  from  contemplated  act  alleged  to  violate  fifth  amend- 
ment; In  re  Briggs,  135  N.  C.  121,  47  S.  E.  404,  upholding  Code,  §  1215, 
])roviding  against  excusing  participants  from  testifying  in  gambling 
cases. 

116  U.  S.  289-306,  29  L.  620,  MOBILE  v.  WATSON. 

Syl.  2  (XI,  29).     Debts  of  old  municipality. 

Approved  in  Pepin  Tp.  v.  Sage,  129  Fed.  660,  64  C.  C.  A.  169,  and  City 
of  Guthrie  v.  Wylie,  6  Okl.  66,  55  Pac.  105,  both  following  rule;  Graham 
v.  Folsom,  200  U.  S.  252,  253,  50  L.  468,  469,  26  Sup.  Ct.  245,  affirming 
I]x  parte  Folsom,  131  Fed.  506,  and  granting  mandamus  to  compel  county 
officers,  through  whom  taxes  are  assessed  and  levied,  to  levy  tax  to  pay 
judgment  on  township  bonds,  though  corporate  existence  of  township  de- 
stroyed by  state  constitution ;  Planters '  etc.  Bank  v.  Huiett  Tp.,  132  Fed. 
628,  applying  rule  where  township  transferred  to  new  county  after  issuing 
bonds;  Susong  v.  Cokesbury  Tp.,  132  Fed.  568,  though  in  transferring 
township  into  new  county  after  it  had  issued  bonds  small  part  left  in  old 
county,  that  in  new  county  still  taxable  for  bonds;  Taylor  v.  Pine  Grove 
Tp.,  132  Fed.  566,  where,  after  issuance  of  township  bonds,  all  but  small 
part  of  township  included  in  new  county,  and  boundaries  changed  so  as 
to  include  new  territory,  all  property  in  new  township  was  liable  fur 
bonds;  Board  Co.  Commrs.  Greer  Co.  v.  Clarke,  12  Okl.  212,  70  Pac.  211, 
Greer  County,  Oklahoma,  is  liable  for  (lel)ts  created  by  Greer  County, 
Texas,  prior  to  transfer  of  territory  to  Oklalidina;  School  Dist.  No.  76  v. 
Capital  Nat.  Bank,  7  Okl.  50,  4  Pac.  311,  wlicrc  township  under  school 
laws  of  1890  erected  schoolhousc,  its  (h'l)ts  (•(mtr.-ictcd  tor  such  juirposo 
are  not  township  liability;   Blackburn  v.  Oklahoma  City,  1   Okl.   295,  31 


116  U.  S.  307-347  Notes  on  U.  S.  Keports.  1300 

Pac.  783,  Oklahoma  City  clerk  may  recover  from  de  jure  corporation  for 
services  rendered  city  during  de  facto  existence;  City  of  Guthrie  v. 
Territory,  1  Okl.  202,  31  Pac.  194,  11  L.  E.  A.  418,  holding  city  suc- 
ceeding to  rights  and  property  of  village  is  liable  for  debts  of  village 
fixed  by  legislature. 

Distinguished  in  Folsora  v.  Greenwood  Co.,  130  Fed.  733,  county  which 
under  state  laws  can  levy  taxes  only  for  specified  purposes  is  not  liable 
for  township  bonds  issued  before  creation  of  county  by  township,  which 
was  corporate  body  in  another  county;  Wichman  v.  Placerville,  147  Cal. 
164,  81  Pac.  538,  where  city  authorized  by  special  statute  to  issue  bonds 
for  certain  purpose,  and  new  charter  contained  no  such  authority,  sub- 
sequent issue  under  old  act  was  void. 

Syl.  3  (XI,  29).     Preservation  of  remedies  for  city  debts. 

Approved  in  McKie  v.  Eose,  140  Fed.  14S,  where  town  authorized  to 
appropriate  and  raise  certain  sum  in  construction  of  steamboat  and  issue 
notes  therefor,  and  plaintiff  secured  judgment  for  portion  of  cost  of 
boat,  it  is  no  defense  to  mandamus  to  compel  levy  of  tax  to  pay  judg- 
ment that  town  had  issued  notes  to  full  statutory  limit  and  used  pro- 
ceeds ;  Ft.  Madison  v.  Ft.  Madison  Water  Co.,  134  Fed.  216,  67  C.  C.  A. 
142,  Iowa  Code,  1897,  §  1305,  providing  for  assessment  of  property  at 
twenty-five  per  cent  of  actual  value,  is  void  as  affecting  ability  of  city 
to  pay  hydrant  rentals  under  contract  made  when  law  required  assess- 
ment  at  true  cash  value. 

116  U.  S.  307-347,  29  L.  636,  STONE  v.  FAEMEES'  LOAN  &  TEUST 
CO.   (EAILEOAD  COMMISSION  CASES). 

Syl.   1    (XI,  30).     State  railroad  rate  regulation. 

Approved  in  People  v.  Chicago  etc.  Ey.  Co.,  223  111.  592,  79  N.  E. 
147,  railroad  commission  act  of  1905,  requiring  railroads  doing  business 
in  state  to  nmke  annual  report,  applies  to  foreign  corporations;  State  v. 
I'-ryan,   50   Fla.   371,  39   So.   954,   arguendo. 

Syl.  2  (XI,  31).     Eailroad  rate  regulation — Exemption. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S.  42,  50 
L.  772,  25  Sup.  Ct.  715,  special  franchise  imposed  by  N.  Y.  Laws,  1899, 
c.  712,  does  not  impair  obligation  of  contract  by  which  raih-oad  granted 
street  railway  franchise  in  consideration  of  payment  of  certain  sum  or 
percentage  of  earnings;  Eochester  v.  Eochcstcr  Ey.  Co.,  182  N.  Y.  115, 
74  N.  E.  958,  70  L.  E.  A.  773,  immunity  to  contribution  to  expense  of 
new  pavements  conferred  by  statute  to  street  railroad  is  revocable  at  will. 
See  105   Am.  St.  Eep.   703,   note. 

Syl.  6  (XI,  33).     State  regulation  of  interstate  road. 

Approved  in  Eusscll  v.  St.  Louis  etc.  Ey.  Co.,  71  Ark.  457,  75  S.  W. 
728,  foreign  railroad  complying  with  Acts  1889,  p.  43,  may  exercise  right 
of  eminent  domain^ 


1301  Notes  on  U.  S.  Eeports.  116  U.  S.  356-402 

116  U.  S.  356-366,  29  L.  633,  ANDERSON  v.  SANTA  ANNA. 

Syl.  1  (XI,  34).     Ratification  of  municipal  bonds. 

Approved  in  Potter  v.  Lainliart,  44  Fla.  668,  33  So.  258,  upholding  Acts 
1901,  c.  4912,  to  validate  prior  county  improvement  bonds, 

Syl.  2   (XI,  34).     Following  state  statutory  construction. 

Approved  in  Great  Southern  etc.  Hotel  Co.  v.  Jones,  193  U.  S.  544,  48 
L.  786,  24  Sup.  Ct.  576,  upholding  Ohio  statute  relating  to  mechanic 's 
lien,  no  state  decision  respecting  its  validity  having  been  rendered  till 
after  rights  of  parties  fixed  by  contract;  Board  of  Commrs.  v.  Tollman, 
145  Fed.  763,  giving  indej^endent  construction  to  state  constitution  al- 
leged to  be  violated  by  statute  under  which  aid  bonds  issued,  where  no 
state   decision  construing  constitution  at   time   of   issuance. 

116  U.  S.  366-380,  29  L.  652,  LITTLE  v.  HACKETT. 

Syl.  1  (XI,  36).     Recovery  for  other's  negligence. 

Approved  in  St.  Louis  etc.  Ry.  Co.  v.  Chapman,  140  Fed.  134,  denying 
liability  of  railroad  for  death  of  one  killed  by  backing  engine  while 
crossing  tracks.     See  110  Am.   St.  Rep.   279,  note. 

Syl.  3   (XI,  36).     Imputed  negligence  of  passenger. 

Approved  in  Sluder  v.  St.  Louis  Transit  Co.,  189  Mo.  140,  88  S.  W. 
655,  following  rule;  The  Hamilton,  146  Fed.  727,  where  two  vessels 
collided  as  result  of  joint  negligence,  negligence  of  one  is  no  defense  to 
liability  of  other;  Quinette  v.  Bisso,  136  Fed.  839,  69  C.  C.  A.  825,  one 
entering  skiff  owned  and  rowed  by  others  to  be  taken  across  river,  who 
was  run  down  by  tug  and  drowned,  not  contributorily  negligent  because 
of  negligence  of  oarsman;  St.  Louis  etc.  R.  R.  Co.  v.  MeFall,  75  Ark. 
35,  86  S.  W.  826,  where  conductor  killed  in  collision  by  negligence  of 
engineer  at  point  where  he  could  not  control  latter 's  actions  by  signal, 
negligence  of  engineer  not  imputable  to  him;  Duval  v.  Atlantic  Coast 
Line  R.  Co.,  134  N.  C.  338,  339,  340,  346,  101  Am.  St.  Rep.  830,  46 
S.  E.  753,  755,  65  L.  E.  A.  722,  negligence  of  one  with  whom  plaintiff 
riding  as  guest  in  buggy  struck  by  train  not  imputable  to  plaintiff.  See 
110  Am.  St.  Rep.  290,  292,  293,  note. 

116  U.  S.  380-386,  29  L.  593,  MOWER  v.  FLETCHER. 

Syl.  1    (XI,  37).     Pre-emption  of  disputed  school  lands. 

Approved  in  Clipper  Min.  Co.  v.  Eli  :Min.  etc.  Co.,  194  U.  S.  231,  48 
L.  952,  24  Sup.  Ct.  632,  entry,  against  will  of  placer  locator,  on  prior 
valid  placer  location,  to  prospect  for  unknown  lodes,  initiates  no  title 
to  lode  claims  located  in  placer  claim;  Smith  v.  Love,  49  Fla.  242,  38 
So.  380,  holding  plea  in  ejectment  sufficient  to  show  plaintiff  held  lands 
in  trust  for  defendant. 

116  U.  S.  401,  402,  29  L.  676,  EX  PARTE  BROWN. 

Syl.  1    (XI,  39).     Mandaums  to  review  dismissal. 

A] .proved  in  State  v.  District  Court,  13  N.  D.  219,  100  N.  W.  2-19, 
denying  mandamus  to  review  dismissal  of  prosecution  in  name  of  state  to 


116  U.  S.  404-435  Notes  on  U.  S.  Eeports.  1302 

remove  sheriff  in  which  motion  to  suspend  defendant  pending  suit  was 
made. 

116  U.  S.  404-40S,  29  L.  680,  GIBBINS  v.  DISTRICT  OF  COLUMBIA. 

Syl.  2   (XI,  40).     Tax  regulation  in  District  of  Columbia. 

Approved  in  Binns  v.  United  States,  194  U.  S.  492,  48  L.  1089.  24 
Sup.  Ct.  816,  license  fees  on  certain  businesses  imposed  by  Alaska  Pen. 
Code,  §  460,  are  not  excises  to  pay  debts  within  Const.,  art.  1,  §  8; 
Kingsley  v.  Merrill,  122  Wis.  201,  99  N.  W.  1049,  67  L.  R.  A.  200,  up- 
holding Rev.  St.  1898,  §  1036,  making  debts  due  from  solvent  debtors 
subject  to  taxation. 

116  U.  S.  408-410,  29  L.  679,  FLETCHER  v.  HAMLET.. 

Syl.  2   (XI,  40).     Removal  of  cause  by  firm. 

Approved  in  Blackburn  v.  Blackburn,  142  Fed.  903,  action  not  remov- 
able under  Act  1888,  §  2,  cl.  2,  where  there  is  no  separable  controversy 
unless  all  defendants  are  nonresidents  and  join  in  removal  petition. 

116  U.  S.  410-418,  29  L.  671,  EUREKA  ETC.  CANAL  CO.  v.  SUPERIOR 
COURT  OF  YUBA  COUNTY. 

Syl.  2  (XI,  40).     Contempt — Service  on  attorney  for  corporation. 

Approved  in  Christensen  Eng.  Co.  v.  Westinghouse  Air-Brake  Co.,  135 
Fed.  778,  68  C.  C.  A.  476,  upholding  sufficiency  of  service  of  notice  of 
r,  pplication  for  attachment  for  contempt  for  violation  of  injunction  given 
to  defendant's  solicitors  and  mailed  to  defendant  and  returned  marked 
' '  Refused. ' ' 

116  U.  S.  418-423,  39  L.  669,  O'REILLY  v.  CAAIPBELL. 

Syl.  2  (XI,  41).     Mining  contest  appeal — Objection  of  alienage. 

Approved  in  Matlock  v.  Stone,  77  Ark.  200,  91  S.  W.  555,  limitations 
cannot  be  first  raised  on  appeal  of  action  on  adverse  to  application  foi 
patent  to  mining  claim. 

Svl.  4   (XI,  41).     Mines — Discovery  and  development  as  elements. 

Approved  in  Creede  etc.  Milling  Co.  v.  Uinta  Tunnel  etc.  Co.,  196  U. 
S.  349,  49  L.  509,  25  Sup.  Ct.  266,  discovery  of  vein  or  lode  before  other 
steps  are  taken  to  perfect  location  is  not  required  by  Rev.  St.,  §  2320. 

Syl.  5  (XI,  41).     Mines — Location  of  vein  by  notice. 
Cited  in  dissenting  opinion  in  Lily  Min.  Co.  v.  Kellogg,  27  Utah,  124, 
74  Pac.  522,  arguendo, 

116  U.  S.  427-435,  29  L.  681,  COFFEY  v.  UNITED  STATES. 

Syl.  4  (XI,  42).  Internal  revenue — Information — Particulars  of 
fraud. 

Approved  in  United  States  v.  Manufacturing  Apparatus  etc.  Co.,  141 
Fed.  476,  information  for  forfeiture  of  oleomargarine  plant  under  Act 
1886,  §  17,  is  sufficient  if  charging  in  statutory  language  that  claimant 


1303  Notes  on  U.  S.  Eeports.  116  U.  S.  436-461 

was  manufacturing  oleomargarine  and  attempted  to  defraud  government 
of  tax  on  oleomargarine  produced  by  it. 

116  U.   S.   436-445,   29   L.   684,   COFFEY  v.  UNITED   STATES. 

Syl.  4  (XI,  42).     Eevenue — Acquittal  bars  forfeiture. 

Approved  in  United  States  v.  Donaldson-Sliulz  Co.,  142  Fed.  301,  ac- 
quittal for  obstructing  navigable  stream  bars  suit  to  compel  removal  of 
obstruction;  United  States  v.  Seattle  Brewing  etc.  Co.,  135  Fed.  598,  599, 
acquittal  of  transporting  casks  containing  bottled  beer  falsely  marked  as 
containing  soda  water  is  bar  to  action  for  forfeiture  and  penalty  imposed 
by  Eev.  St.,  §  3449;  United  States  v.  Lot  of  Precious  Stones,  134  Fed. 
63,  68  C.  C.  A.  1,  where  importer  and  wife  indicted  for  fraudulent  im- 
portation, acquittal  of  former  is  bar  as  to  him,  but  nolle  prosequi  of 
latter,  is  not  bar  to  forfeiture  proceedings  against  wife;  State  v.  Cobb, 
123  Iowa,  628,  99  N.  W.  300,  acquittal  of  violation  of  statute  prohibiting 
illegal  keeping  of  liquor  for  sale  bars  proceedings  to  condemn  liquor ; 
People  v.  Albers,  137  Mich.  685,  100  N.  W.  910,  where  defendant  ac- 
quitted of  bribery  in  pursuance  of  conspiracy  to  obtain  particular  action 
by  city  council,  jurors  drawn  on  subsequent  indictment  of  defendant  for 
false  swearing  on  previous  prosecution  not  biased,  though  they  had  sat 
•m  trial  of  other  councilman  and  convicted  him.  See  103  Am.  St.  Kep.  21, 
26,  note. 

Distinguished  in  United  States  Fidelity  etc.  Co.  v.  United  States,  150 
Fed.  554,  conviction  of  Indian  agent  for  malfeasance  in  office  no  bar  to 
suit  on  bond;  United  States  v.  Donaldson-Shultz  Co.,  148  Fed.  583,  584, 
585,  acquittal  of  violation  of  Act  1899,  §  10,  for  obstructing  navigable 
stream  not  bar  to  equity  suit  to  compel  removal  of  obstruction;  State  v. 
Vandemark,  77  Conn.  204,  58  Atl.  717,  acquittal  on  prosecution  for  con- 
spiracy to  assault,  in  which  defendant  testified  as  to  his  whereabouts, 
guilt  turning  on  such  question,  is  no  bar  to  prosecution  for  perjury  in 
giving  such  testimony;  State  v.  Corron,  73  N.  H.  448,  62  Atl.  1047, 
acquittal  of  liquor  dealer  of  violation  of  liquor  law  is  not  res  adjudicata 
of  action  for  breach  of  bond. 

116  U.  S.  446-461,  29  L.  691,  WALLING  v.  MICHIGAN. 

Syl.  1   (XI,  43).     Taxing  liquor  sales  by  nonresidents. 

Approved  in  Sloman  v.  William  D.  C.  Moebs  Co.,  139  Mich.  S.'^w,  102  N. 
W.  856,  following  rule;  Bacon  v.  Locke,  42  Wash.  217,  83  Puc.  722,  hold- 
ing void  laws  1905,  pp.  372,  373,  taxing  peddlers. 

Syl.  4   (XI,  44).     Commerce — Nonaction  by  Congress. 

Approved  in  dissenting  opinion  in  Cox  v.  Texas,  202  U.  S.  452,  50  L. 
1102,  26  Sup.  Ct.  671,  majority  upholding  Tex.  Eev.  Civ.  St.,  art.  5060,  et 
seq.,  taxing  liquor  dealers  and  exempting  wines  produced  from  domestic 
grapes  while  in  hands  of  manufacturers;  dissenting  opinion  in  Pabst 
Brewing  Co.  v.  Crenshaw,  198  U.  S.  44,  49  L.  936,  25  Sup.  Ct.  552, 
majority  upholding  state  statute  imposing  inspection  fee  on  beer  shipped 
from  other  states. 


116  U.  S.  491-529  Notes  on  U.  S.  Reports.  1304 

Distinguished  in  Cox  v.  Texas,  202  U,  S.  451,  50  L.  1101,  26  Sup.  Ct. 
671,  upholding  Tex.  Rev.  Civ.  St.  1895,  art.  5060,  et  seq.,  taxing  liquor 
dealers  and  exempting  wines  produced  from  domestic  grapes  while  in 
hands  of  manufacturer. 

116  U.  S.  491-499,  29  L.  703,  DUNPHY  v.  RYAN. 

Syl.  2  (XI,  48).     Statute  of  frauds — Contract  unenforceable. 

Approved  in  Jones  v.  Patrick,  140  Fed.  405,  verbal  agreement  to  co- 
operate in  finding  purchaser  at  advanced  price  for  mine  on  which  de- 
fendant held  option  and  to  share  in  profits  is  not  within  statute  of  frauds. 

Syl.  4  (XI,  48).     Assumpsit — Payment  under  oral  contract. 

See  102  Am.  St.  Rep.  236,  note. 

(XI,  47.)  Miscellaneous.  Cited  in  Stevens  v.  McChrystal,  150  Fed. 
88,  where  application  for  mining  claim  contested  and  later  contest  dis- 
missed under  agreement  of  applicant  to  convey  claim  to  contestant  on 
payment  of  sum  after  procurement  of  patent,  no  trust  created. 

116  U.  S.  517-529,  29  L.  715,  COE  v.  ERROL. 

Syl.  1  (XI,  49).     Scope  of  state's  jurisdiction. 

Approved  in  State  v.  Fidelity  etc.  Co.,  35  Tex.  Civ.  217,  80  S.  W. 
546,  following  rule. 

Syl.  2   (XI,  49).     Tax  on  nonresident's  personalty. 

Approved  in  State  v.  Fidelity  etc.  Co.,  35  Tex.  Civ.  232,  SO  S.  W.  554, 
following  rule;  Carstairs  v.  Cochran,  193  U.  S.  16,  48  L.  597,  24  Sup. 
Ct.  318,  upholding  Maryland  statute  taxing  liquors  in  bonded  warehouses 
and  requiring  warehouseman  to  pay  taxes  and  giving  him  lien  on  prop- 
erty therefor;  Buck  v.  Beach,  164  Jnd.  50,  108  Am.  St.  Rep.  272,  71  N. 
E.  968,  applying  rule  to  taxation  of  notes;  Commonwealth  v.  Union  etc. 
Transit  Co.,  118  Ky.  141,  80  S.  W.  492,  upholding  Ky.  St.  1903,  §  4020, 
taxing  personalty  of  domestic  corporation,  as  to  corporation_  owning  cars 
outside  of  state,  though  corporation  owning  ears  in  use  out  of  state  is  not 
taxed  therewith  in  state ;  Nathan  v.  Spokane  Co.,  35  Wash.  33,  76  Pac. 
523,  65  L.  R.  A.  336,  determining  validity  of  Laws  1899,  p.  295,  §  12, 
relating  to  taxation  of  goods  brought  into  any  county  after  March  1st  of 
each  year  to  be  sold  without  intention  of  engaging  in  permanent  trade. 

Distinguished  in  Union  etc.  Transit  Co.  v.  Kentucky,  199  U.  S.  206,  50 
L.  154,  26  Sup.  Ct.  36,  due  process  is  denied  Kentucky  corporation  by  tax 
assessed  under  Ky.  St.,  §  4U20,  on  rolling  stock  permanently  located  and 
used  in  other  states. 

Syl.  4  (XI,  49).     Commerce — State  tax  on  exports. 

Approved  in  United  States  v.  Geddes,  131  Fed.  453,  454,  65  C.  C.  A. 
320,  holding  road  operated  wholly  in  state  and  connecting  with  interstate 
road  not  engaged  in  interstate  traffic  under  safety  appliance  act  where 
it  required  separate  bill  of  lading  for  through  fre%ht;  Merchants' 
Transf,  Co.  v.  Board  of  Review,   12S   Iowa,   740,   105   N,  W,   213,   mer 


1305  Notes  on  U.  S.  Eeports.  116  U.  S.  529-566 

chandise  of  nonresident  sellers  consigned  to  warehouseman  in  state  and 
stored  to  await  future  delivery  on  sales,  is  assessable  by  local  authorities; 
Ames  V,  Kirby,  71  N.  J.  L.  446,  59  Atl.  560,  holding  anti-poolroom  statute 
violated  by  keeping  resort  for  betting  by  telegraph  with  i:)ersons  outside 
of  state;  American  Steel  etc.  Co.  v.  Speed,  110  Tenn.  546,  100  Am.  St. 
Kep.  814,  75  S.  W.  104ii,  upholding  state  tax  on  goods  shipped  from  out- 
side state  and  held  in  storage  to  await  later  sales.  See  98  Am.  St.  Eep. 
620,  note. 

Distinguished  in  United  States  v.  Great  Northern  Ey.  Co.,  145  Fed. 
439,  act  of  189.3,  as  amended,  requiring  automatic  couplers  on  cars  of 
interstate  carriers,  applies  to  cars  of  interstate  railroad  at  all  times  while 
in  use  on  the  road;  Gulf  etc.  Ey.  Co.  v.  State,  97  Tex.  286,  78  S.  W. 
499,  construing  shipment  of  grain  from  outside  state  as  being  within 
jurisdiction  of  state  railroad  commission. 

Syl.  5    (XT,  50).     State  tax  on  goods  for  export. 

Approved  in  Delaware  etc.  E.  E.  Co.  v.  Pennsylvania,  198  U.  S.  352, 
49  L.  1081,  25  Sup.  Ct.  669,  including  in  appraisement  of  capital  stock  of 
corporation  for  jiurposos  of  local  taxation,  value  of  coal  mined  in  state 
situated  in  another  state  and  there  awaiting  sale,  illegal;  Johnson  v. 
Southern  Pac.  Co.,  196  U.  S.  22,  49  L.  371,  25  Sup.  Ct.  158,  dining-car  in 
constant  use  is,  while  waiting  for  train  to  be  made  up  for  interstate  trip, 
within  automatic  coup)ler  act  of  1893. 

116  U.  S.  529-538,  29  L.  712,  lEON  SILVEE  MIN.  CO.  v.  CHEESMAN. 

Syl.  3    (XI,  51).     Mines— Vein  defined. 

Ajiproved  in  Grand  Central  Min.  Co.  v.  Mammoth  Min.  Co.,  29  Utah, 
574,  582,  83  Pac.  676,  679,  following  rule. 

116  U.  S.  550-566,  29  L.  729,  BAREY  v.  EDMUNDS. 

Syl.  3  (XI,  53).     Challenging  federal  jurisdiction. 

Approved  in  Gaddie  v.  Mann,  147  Fed.  959,  defendant  challenging 
jurisdiction  alleging  change  of  complainant 's  domicile  must  show  res- 
idence in  new  locality  and  intention  to  remain;  McCarthy  v.  American 
Thread  Co.,  143  Fed.  680,  circuit  court  will  not  require  payment  of 
costs  by  plaintiff  recovering  less  than  $500,  unless  jurisdictional  aver- 
ment of  amount  in  declaration  was  merely  colorable;  Pennsylvania  Co. 
V.  Bay,  138  Fed.  205,  upholding  jurisdiction  over  bill  to  enjoin  ticket- 
scalping,  where  business  alleged  to  be  worth  over  $5,000,  though  an- 
swer alleged  amount  less  than  $2,000. 

Syl.  4  (XI,  53).     Amount  in  controversy — Demand. 

Approved  in  Spaulding  v.  Evenson,  149  Fed.  916,  upholding  jurisdic- 
tion where  bill  to  restrain  interference  with  business  alleges  value  in 
dispute,  exclusive  of  interest  and  costs,  exceeds  $25,000,  and  that  de- 
fendant's acts  have  caused  damage  in  more  than  sucli  sum;  Barber  v. 
Boston  etc.  Co.,  145  Fed.  52,  adion  in  ease  for  $2,()U(I  damages  for 
uegligence    not    removable,    though    actual    damagea    alleged    to    bo 


116  U.  S.  572-598  Notes  on  U.  S.  Keports.  1306 

greater;  State  Bank  of  Chicago  v.  Cox,  143  Fed.  92,  upholding  juris- 
diction where  declaration  contained  common  counts  and  special  count 
each  alleging  amount  to  be  $5,000,  and  plaintiff  recovered  over  $2,000. 

116  U.  S.  572-584,  29  L.  735,  EOYALL  v.  VIRGINIA. 

Syl.  1  (XI,  55).     Attorney's  admission  fee  is  tax. 

Approved  in  Camden  etc.  Ry.  Co.  v.  Catlettsburg,  129  Fed.  430, 
denying  federal  jurisdiction  to  enjoin  criminal  proceedings  by  city 
for  violation  of  ordinance. 

116  U.  S.  588-592,  29  L.  725,  HARTOG  v.  MEMORY. 

Syl.  2  (XI,  56).     Pleading  adverse  citizenship — Dismissal. 

Approved  in  Every  Evening  Printing  Co.  v.  Butler,  144  Fed.  918, 
where  proper  allegations  showing  diverse  citizenship  are  made  in 
declaration,  allegations  of  plaintiff 's  citizenship  are  controvertible 
only  by  proper  pleadings  supported  by  proof. 

Syl.  4  (XI,  57).     Inquiry  into  jurisdiction  sua  spontc. 

Approved  in  Briggs  v.  Traders'  Co.,  145  Fed.  257,  federal  court's 
lack  of  jurisdiction  may  be  raised  by  any  jdeading;  Pennsylvania  Co. 
v.  Bay,  138  Fed.  205,  biU  to  enjoin  ticket-scalping  alleging  business 
worth  $500,  treated  as  true,  though  answer  alleges  amount  in  contro- 
versy less  than  $2,000,  till  defendant  sustains  burden  of  showing  lack 
of  jurisdictional  amount;  Gaddie  v.  Mann,  147  Fed.  959,  arguendo. 

Distinguished  in  Kirven  v.  Virginia-Carolina  Chemical  Co.,  145  Fed. 
291,  objection  to  federal  jurisdiction  where  dependent  on  question  of 
fact  and  taken  by  answer  should  be  submitted  to  jury,  as  independent 

issue. 

116  U.  S.  593-598,  29  L.  723,  SHEPHARD  v.  CARRIGAN, 

Syl.  1  (XI),  57).  Patents — Introduction  of  new  elements  in  claim. 
Approved  in  Cimiotti  Unhairing  Co.  v.  American  Fur  Refining  Co., 
198  U.  S.  410,  49  L.  1105,  25  Sup.  Ct.  697,  holding  Sutton  patent  No. 
3S.T,  358,  for  fur-plucking  machine,  not  infringed;  Universal  Brush  Co. 
V.  Sonn,  146  Fed.  531,  Morrison  patent  No.  717,014,  for  method  of 
making  brushes,  infringed  by  method  of  Sonn  patent  No.  791,510; 
Williams  Calk  Co.  v.  Kemmerer,  145  Fed.  930,  limiting  Williams  patent 
No.  666,583,  for  horseshoe  calk,  and  holding  it  not  infringed;  Wels- 
back  Light  Co.  v.  Cremo  etc.  Light  Co.,  145  Fed.  524,  Heald  patent 
No.  423,317,  for  appliance  for  use  with  incandescent  gas  lamps,  lim- 
ited and  not  infringed;  Victor  Talking  Mach.  Co.  v.  American  Grapho- 
phone  Co.,  145  Fed.  191,  construing  Berliner  patent  No.  548,623,  for 
sound  records;  Avery  v.  Case  Plow  Works,  139  Fed.  885,  Avery  patent 
No.  650,771,  claims  7  and  8  for  plow,  limited  and  not  infringed;  Rem- 
bert  etc.  Compress  Co.  v.  American  Cotton  Co.,  129  Fed.  368,  369,  64 
C.  C.  A.  25,  Rembert  patent  No.  441.022,  for  method  of  baling  cotton, 
limited  and  not  infringed  by  mechanism  of  Graves  patent  No.  473,144. 


i:!07  Notes  on  V.  S.  Heports.  116  U.  S.  599-641 

116  U.  S.  599-605,  29  L.  740,  MING  v.  WOODFOLK. 

Syl.  1   (XI,  59).     Elements  of  action  of  deceit. 

Approved  in  Pittsburgh  etc.  Trust  Co.  v.  Northern  etc.  Ins.  Co., 
148  Fed.  675,  statements  furnished  by  officers  of  insurance  company 
in  negotiations  for  sale  of  its  business,  though  incorrect,  do  not  sup- 
port action  for  deceit  where  they  were  prepared  by  employees  for 
company's  own  use;  Kimber  v.  Young,  137  Fed.  747,  748,  70  C.  C.  A. 
178,  applying  rule  where  on  sale  of  corporate  bonds  defendant  said  he 
knew  bonds  good  and  would  be  paid  and  that  they  were  preferred 
securities;  Stratton's  Independence  v.  Dines,  135  Fed.  458,  68  C.  C.  A. 
161,  where  defendant  sold  mine  to  plaintiff  for  its  stock  and  then 
contracted  with  another  for  sale  of  stock  on  commission,  profit  made 
by  defendant  on  sale  of  stock  is  not  basis  for  action  for  deceit  in 
sale  of  mine;  Lynch  v.  United  States,  13  Okl.  153,  73  Pac.  1099,  where 
homesteader  made  final  proof  and  paid  government  highest  price  at 
which  land  could  be  sold,  United  States  cannot  sue  to  cancel  patent 
though  patentee  committed  perjury  in  obtaining  title. 

116  U.  S.  609-G15,  29  L.  742,  JONES  v.  SIMPSON. 

Syl.  3  (XI,  60).     Fraudulent  conveyance — Vendee's  bad  faith. 

Approved  in  United  States  v.  Detroit  Timber  etc.  Co.,  200  U.  S.  332, 
50  L.  503,  26  Sup.  Ct.  282,  purchaser  of  lumber  company's  property 
is  not  chargeable  with  wrongful  character,  as  against  government,  of 
conveyances  of  standing  timber,  which  might  have  been  gained  by 
investigation  of  books  and  papers  of  company  turned  over  as  evidence 
of  titles;  Eeed  v.  Munn,  148  Fed.  756,  determining  effect  of  notice  of 
outstanding  equitable  interest  on  title  of  purchaser;  United  States  v. 
Detroit  Timber  etc.  Co.,  131  Fed.  674,  where  vendor  presents  con- 
vej-ances  to  himself  prima  facie  valid  and  assures  purchaser  that  title 
under  them  is  perfect,  purchaser  need  not  investigate  further;  Floyd- 
Jones  V.  Anderson,  30  Mont.  362,  76  Pac.  755,  where  member  of  build- 
ing and  loan  association  has  made  full  settlement  and  withdrawn 
therefrom,  such  settlement  and  withdrawal  cannot  be  set  aside  by 
society  without  showing  fraud. 

116  U.  S.  616-041,  29  L.  746,  BOYD  v.  UNITED  STATES. 

Syl.  1  (XI,  GO).     Proof  of  allegations  by  private  papers. 

Distinguished  in  Lawrence  v.  State,  103  Md.  34,  35,  37,  63  Atl.  103. 
104.  in  prosecution  for  false  pretenses,  on  issue  as  to  worth  of  paper  pur- 
porting to  be  certificate  of  deposit  issued  by  tiiist  company,  certificate  of 
deposit  book  seized  by  officers  is  admissible;  State  v.  Krinski,  78  Vt. 
165,  62  Atl.  37,  on  prosecution  for  keeping  liquor  without  license, 
liquors  illegally  seized  are  admissible;  State  v.  Eoyee,  38  Wash.  116, 
117,  80  Pac.  270.  in  burglary  prosecution  pawn  ticket  for  typewriter 
stolon  at  time  of  burglary  is  admissible,  though  taken  from  defendant 
by  police. 


116  U.  S.  616-641  Notes  on  U.  S.  Reports.  1308 

Syl.  2  (XI,  60).     Seizure  of  private  papers. 

Approved  in  Hale  v.  Henkel,  201  U.  S.  71,  73,  76,  50  L.  664,  665, 
666)  26  Sup.  Ct.  370,  determining  right  of  oflficer  of  corporation  to  re- 
fuse to  produce  books  before  grand  jury  investigating  violation  of 
anti-trust  law;  Ballmann  v.  Fagin,  200  U.  S.  195,  50  L.  437,  26  Sup. 
Ct.  212,  upholding  privilege  of  witness  where  cash-book  sought  by 
grand  jury  investigating  criminal  liability  of  national  bank  employee 
for  disappearance  of  cash  might  disclose  owner's  liability  for  running 
bucket-shop;  Edelstein  v.  United  States,  149  Fed.  642,  false  oath  pun- 
ishable under  Bankr.  Act,  §  29,  includes  examination  of  bankrupt  be- 
fore referee  on  examination  of  specifications  filed  against  discharge; 
United  States  v.  Praeger,  149  Fed.  483,  484,  refusal  of  witness  before 
court-martial  to  answer  questions  on  advice  of  counsel  that  answer 
might  subject  him  to  prosecution  is  not  violation  of  Comjj.  St.  1901, 
p.  965;  United  States  v.  Collins,  145  Fed.  711,  claim  of  privilege  for 
failure  to  produce  books  as  required  by  subpoena  insufficient  when 
based  solely  on  statement  of  claimant  that  books  will  tend  to  in- 
criminate him  and  that  he  has  not  been  sworn  as  witness;  State  v. 
Sheridan,  121  Iowa,  167,  96  N.  W.  731,  article  obtained  by  search  of 
defendant's  house  under  search-warrant  issued  without  legal  authority 
is  inadmissible  against  him;  Woods  v.  Cottrell,  55  W.  Va.  481,  104 
Am.  St.  Rep.  1004,  47  S.  E.  277,  65  L.  R.  A.  616,  justice  issuing 
warrant  for  arrest  of  one  for  keeping  slot  machine  as  gaming  table, 
and  to  seize  same,  and  who  binds  over  accused  to  appear  before  crim- 
inal court,  and  orders  constable  to  turn  over  machine  to  clerk  of  latter 
court,  acts  within  jurisdiction;  dissenting  opinion  in  In  re  Moser, 
138  Mich.  328,  110  Am.  St.  Rep.  315,  101  N.  W.  598,  69  L.  R.  A.  900, 
majority  holding  president  of  corporation  subpoenaed  by  grand  jury 
investigating  bribery  of  city  officials  in  contract  between  city  and 
corporation  cannot  refuse  to  produce  books  where  he  was  not  con- 
nected with  corporation  at  time  of  contract.  See  notes,  101  Am.  St. 
Rep.  329,  330,  and  98  Am.  St.  Rep.  687. 

Distinguished  in  In  re  Moser,  138  Mich.  313,  110  Am.  St.  Rep.  315, 
101  N.  W.  .592,  69  L.  R.  A.  900,  president  of  corporation  subpoenaed  by 
grand  jury  investigating  bribery  of  officials  in  contract  between  city 
and  corporation  cannot  refuse  to  produce  books  where  he  was  not 
member  of  corporation  at  time  of  contract;  State  v.  Strait,  94  Minn. 
388,  389,  102  N.  W.  913,  914,  whore  private  banker  accused  of  re- 
ceiving deposits  when  bank  insolvent,  his  trustee  in  bankruptcy  and 
books  are  examinable  before  grand  jury  on  investigation  of  affairs 
of  bank;  State  v.  MacQueen,  69  N.  J.  L.  527,  55  Atl.  1008,  arguendo. 

Syl.  3   (XI,  62).     Nonproduction  of  papers  as  proof. 

Approved  in  United  States  v.  Armour,  142  Fed.  825,  one  appearing 
before  corporation  commissioner  at  his  request  and  gives  testimony  or 
produces  documents,  though  not  siibpoenaed,  is  exempt  from  prosecution 
for  violation  of  anti-trust  law;  In  re  Hale,  139  Fed.  502,  subpoena 
commanding   officers   of   corporation   supposed   to   have   violated   anti- 


1309  Notes  on  U.  S.  Eeports.  116  U.  S.  616-641 

trust  law  to  appear  before  grand  jury  and  to  bring  all  corporation 's 
books  and  papers,  is  void;  Eosenbcrgcr  v.  Harris,  136  Fed.  1003, 
Rev.  St.,  §  3929,  relating  to  fraud  orders,  does  not  authorize  Post- 
master General  to  issue  such  order  against  mail  order  liquor  business, 
though  seller  guilty  of  false  statement  in  advertisement  as  to  age 
of  liquors;  In  re  Hess,  134  Fed.  Ill,  bankrupt  cannot  be  compelled 
to  produce  books  of  account  for  examination  where  they  might  tend 
to  incriminate  him;  dissenting  opinion  in  In  re  Conrades,  112  Mo. 
App.  47,  85  S.  W.  159,  majority  upholding  order  of  municipal  assembly 
requiring  production  of  books  of  corporation  in  aid  of  investigations 
as  to  evasion  of  taxes  by  corporation,  where  privilege  of  witness  not 
raised  before  assembly;  In  re  Briggs,  135  N.  C.  134,  135,  136,  47  S.  E. 
408,  upholding  Code,  §  1215,  providing  witness  in  gambling  case  not 
excused  from  testifying  as  to  his  own  gambling;  State  v.  Murphy, 
128  Wis.  207,  107  N.  W.  472,  determining  right  of  alderman  accused 
of  accepting  bribe  to  immunity  from  prosecution  because  he  had  testi- 
fied before  grand  jury. 

Distinguished  in  Gruberg  v.  United  States,  145  Fed.  87,  88,  89,  on 
prosecution  of  partners  for  conspiracy  to  enter  imported  goods  at 
less  than  true  value,  refusal  to  charge  that  refusal  of  defendants  to 
produce  invoice  on  notice  by  United  States  not  reversible  error. 

Syl.  4  (XI,  62).     Fourth  and  fifth  amendments  related. 

Approved  in  Hale  v.  Henkel,  201  U.  S.  82,  50  L.  669,  26  Sup.  Ct. 
370,  determining  right  of  officer  of  corporation  to  refuse  to  produce 
books  before  grand  jury  investigating  violation  of  anti-trust  law; 
Interstate  Commerce  Commission  v.  Baird,  194  U.  S.  45,  48  L.  869, 
24  Sup.  Ct.  563,  upholding  compulsory  production  of  documents  in 
proceeding  before  commerce  commission  alleging  violation  by  rail- 
road of  Commerce  Act  of  1887. 

Syl.   5    (XI,   62).     Forfeitures   are   criminal   proceedings. 

Approved  in  United  States  v.  Lot  of  Precious  Stones,  134  Fed.  63, 
68  C.  C.  A.  1,  acquittal  of  husband  of  fraudulent  importation  is  bar 
but  nolle  prosequi  of  information  against  wife  is  not  bar  to  forfeiture 
proceedings;  United  States  v.  One  Black  Horse,  129  Fed.  169,  vehicle 
owned  and  let  by  liveryman  and  used  wholly  within  United  States 
for  purpose  of  transporting  illegally  imported  liquor  was  forfeitable 
under  Eev.  St.,  §§  3061-3063,  though  owner  had  no  knowledge  of  us(!; 
Ex  parte  Munn,  140  Fed.  783,  arguendo. 

Distinguished  in  United  States  v.  Donaldson-Shultz  Co.,  148  Fed. 
584,  585,  acquittal  of  obstructing  navigable  stream  does  not  bar  suit 
to  compel  removal  of  obstruction;  United  States  v.  Hung  Cluuig,  134 
Fed.  25,  67  C.  C.  A.  93,  Chinese  deportation  proceedings  are  civil, 
and  defendant's  statements  to  arresting  oflieer  are  admissible  against 
him;  Wliitlow  v.  Nashville  etc.  Ily.  Co.,  114  Tenn.  354,  84  S.  W.  G2U, 
Code  Ala.  1896,  §  27,  providing  for  action  by  personal  representutivo 
for  injuries  to  emjiloyee  result  ing  in  death,  is  not  finni  so  as  to  pre- 
vent courts  of  other  states  from  entertaining  action  thereon. 


116  U.  S.  642-660  Notes  on  U.  S.  Eeporti.  1310 

Syl.  6   (XI,  63).     Constitutional  guaranties  liberally  construed. 

Approved  in  South  Carolina  v.  United  States,  199  U.  S.  450,  50  L. 
265,  26  Sup.  Ct.  110,  state  liquor  dispensing  agents  are  subject  to 
federal  revenue  tax;  Kepner  v.  United  States,  195  U.  S.  126,  49  L. 
123,  24  Sup.  Ct.  797,  government's  right  to  appeal  from  acquittal  in 
Philippine  court  of  first  instance  taken  away  by  Act  of  1902,  §  5, 
for  government  of  Philippines;  Schick  v.  United  States,  195  U.  S. 
69,  49  L.  102,  24  Sup.  Ct.  826,  one  prosecuted  by  information  under 
Act  1886,  for  purchasing  or  receiving  for  sale  oleomargarine  not 
stamped  according  to  law,  may  waive  jury;  Samel  v.  Dodd,  142  Fed. 
71,  holding  void  order  requiring  bankrupt  to  turn  over  property  or 
money  forming  part  of  his  estate  under  penalty  of  commitment  for 
contempt;  Dyer  v.  Mayor  etc.  of  Baltimore,  140  Fed.  888,  refusing 
to  enjoin  condemnation  proceedings  where  statute  required  two  weeks' 
publication  of  notice  of  meeting  to  assess  damages,  four  days'  notice 
of  time  to  review  assessment  and  two  weeks'  notice  for  right  to 
appeal;  Ex  parte  Eiggins,  134  Fed.  420,  upholding  indictment  for  con- 
spiracy under  Eev.  St.,  §§  5508,  5509,  for  lynching  negro  in  custody 
of  sheriff  to  prevent  his  trial  according  to  law. 

Distinguished  in  dissenting  opinion  in  Hale  v.  Henkel,  201  U.  S. 
88,  50  L.  671,  26  Sup.  Ct.  370,  majority  determining  right  of  officer 
of  corporation  to  refuse  to  produce  books  before  grand  jury  investi- 
gating violation  of  anti-trust  law. 

(XI,  60.)  Miscellaneous.  Cited  in  Fox  v.  Stubenrauch,  2  Cal.  App. 
94,  83  Pac.  84,  discussing  writ  of  assistance. 

116  U.  S.  642-660,  29  L.  755,  NOETHEEN  PAC.  E.  E.  v.  HEEBEET. 

Syl.  1  (XI,  64).     Allowance  of  challenge  to  proper  juror. 

Approved  in  Howard  v.  Kentucky,  200  U.  S.  173,  50  L.  425,  26  Sup. 
Ct.  189,  error  of  state  court  in  discharging  juror  after  acceptance  is 
not  denial  of  due  process  of  law;  Stevens  v.  Union  E.  E.  Co.,  26  E.  I. 
106,  58  Atl.  498,  66  L.  E.  A.  465,  allowance  of  peremptory  challenges 
in  excess  of  statutory  number  is  not  ground  for  reversal  in  absence  of 
showing  of  prejudice. 

Syl.  2  (XI,  65).    New  trial — Eemission  of  verdict. 

Approved  in  Noxon  v.  Eemington,  78  Conn.  299,  61  Atl.  964,  and 
Adcock  V.  Oregon  E.  E.  Co.,  45  Or.  180,  77  Pac.  80,  both  following 
rule;  Southern  Pac.  Co.  v.  Tomlinson,  4  Ariz.  132,  33  Pac.  711,  apply- 
ing rule  in  action  by  widow  for  wrongful  death  of  husband. 

Syl.  3   (XI,  65).     Injuries  caused  by  fellow-servant. 

Approved  in  American  Bridge  Co.  v.  Seeds,  144  Fed.  608,  holding 
bridge  company  not  liable  for  injuries  to  servant  by  being  struck  by 
crane  because  of  foreman's  inopportune  signal;  dissenting  opinion  in 
Northern  Pac.  Ey.  Co.  v.  Dixon,  194  U.  S.  353,  48  L.  1013,  24  Sup.  Ct. 
683,  majority  holding  negligence   of   railway   telegraph   operator   in   re- 


1311  Notes  on  U.  S.  Eeports.  116  U.  S.  661-664 

porting  to  train  dispatcher  movement  of  trains  resulting  in  death  of  fire- 
man is  negligence  of  fellow-servant. 

Syl.  4  (XI,  66).     Master's  duty — Safe  place  and  appliances. 

Approved  in  Southern  Pac.  Co.  v.  Hitzer,  135  Fed.  284,  68  C.  C.  A. 
26,  determining  degree  of  care  required  of  railroad  in  selection  of 
servants;  Chambers  v.  American  Tin  Plate  Co.,  129  Fed.  56-4,  64  C. 
C.  A.  129,  building  contractor  emjjloying  boss  carpenter  to  erect 
scaffolding  for  bricklayers  is  liable  for  injuries  to  latter  due  to  negli- 
gent construction;  Illinois  Central  E.  E.  Co.  v.  Langan,  116  Ky.  321, 
76  S.  W.  32,  master  is  liable  for  injuries  to  servant  while  unloading 
steel  by  reason  of  failure  to  provide  sufficient  number  of  men  to  do 
work;  McDonald  v.  Michigan  etc.  E.  E.  Co.,  132  Mich.  377,  379, 
102  Am.  St.  Eep.  426,  93  N.  W.  1043,  holding  railroad  liable  to  con- 
ductor for  injuries  caused  by  defective  brake  chain  where  conductor 
had  tried  brakes  before  starting  but  chain  broke  after  inspection  by 
inspector;  Neeley  v.  Southwestern  etc.  Oil  Co.,  13  Okl.  373,  75  Pac. 
543,  64  L.  E.  A.  145,  holding  master  liable  for  injuries  to  employee 
working  in  cotton-oil  mill;  Merrill  v.  Oregon  etc.  E.  Co.,  29  Utah,  278, 
110  Am.  St.  Eep.  695,  81  Pac.  88,  holding  master  liable  for  death  of 
car-repairer  by  kicking  string  of  cars  against  cars  between  which  de- 
ceased was  working  because  of  failure  of  master  to  establish  and  enforce 
rules  for  safety  of  servants;  Norfolk  etc.  Ey.  Co.  v.  Wade,  102  Va.  143, 
45  S.  E.  916,  holding  railroad  liable  for  injuries  to  servant  caused  by 
hidden  defect  in  handle  of  handcar;  Eichards  v.  Iron  Works,  56  W.  Ya. 
522,  49  S.  E.  442,  holding  master  liable  for  injuries  to  servant  caused 
by  negligent  construction  of  scaffolding  by  master  or  his  foreman.  See 
98  Am.  St.  Eep.  301,  note. 

Distinguished  in  Floyd  v.  Colorado  etc.  Iron  Co.,  18  Colo.  App.  156, 
70  Pac.  453,  where  superintendent  told  plaintiff  he  would  send  A  with 
tackle  to  replace  machinery  and  order  plaintiff  to  help  A,  plaintiff 
assumed  risk  by  proceeding  with  work  without  tackle  on  A's  suggestion. 

Syl.  9   (XI,  70).     Servant  failing  to  use  ordinary  care. 

Approved  in  Bell  Telephone  Co.  v.  Detharding,  148  Fed.  374,  telephone 
company  not  liable  for  death  of  "trouble  finder"  killed,  while  investi- 
gating trouble,  by  shock  due  to  crossing  of  electric  light  and  telephone 
wires. 

116  U.  S.  661-664,  29  L.  763,  PKESTON  v.  MANAED. 

Syl.  1   (XI,  70).     Patents— Prior  art. 

Approved  in  Bullock  Elec.  Mfg.  Co.  v.  General  Elec.  Co.,  149  Fed.  418, 
holding  void  Eeist  patent  No.  508,637,  for  improvement  in  armature 
cores. 


117  U.  S.  1-34  Notes  on  U.  S.  Eeporta.  1312 

116  U.  S.  665-671,  29  L.  770,  VICKSBUKG  ETC.  E.  E.  v.  DENNIS. 

Syl.  1  (XI,  70).     Follow  state  decisions. 

Approved  in  Columbia  Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130  Fed. 
1G6,  upholding  city  contract  to  pay  stated  sum  semi-annually  as  hydrant 
rentals  for  term  for  water  furnished  for  fire  purposes. 

Syl.  2  (XI,  71).     Tax  exemption  not  presumed. 

Approved  in  New  York  v.  State  Board  of  Tax  Commrs.,  199  U.  S.  36, 
41,  50  L.  75,  77,  25  Sup.  Ct.  715,  special  franchise  tax  imposed  by  N.  Y. 
Laws  1899,  c.  712,  does  not  impair  contract  by  which  street  railway 
franchise  granted  in  consideration  of  annual  payment  of  percentage  of 
earnings.     See  105  Am.  St.  Kep.  698,  702,  note. 

Syl.  4  (XI,  72).     Tax  exemption — Omissions  of  assessor. 

Approved  in  Adams  v.  Kuykendall,  83  Miss.  595,  35  So.  835,  fact  that 
city  tax  officers  acting  under  charter  power  to  levy  city  taxes  on  prop- 
erty in  limits  omitted  property  from  rolls  under  belief  that  it  was  ex- 
empt does  not  prevent  state  revenue  agent  from  taxing  such  property. 


CXVII  UNITED  STATES. 


117  U.  S.  1-34,  29  L.  791,  EXPRESS  CASES. 

Syl.  2   (XI,  75).     Eailroad  need  not  carry  express. 

Approved  in  Donovan  v.  Pennsylvania  Co.,  199  U.  S.  298,  299,  50  L. 
201,  26  Sup.  Ct.  91,  railroad  making  arrangements  with  transfer  com- 
pany to  furnish  at  stations  vehicles  for  accommodation  of  passengers 
may  exclude  other  hackmen  from  depot;  Louisville  etc.  E.  E.  Co.  v. 
West  Coast  Naval  etc.  Co.,  198  U.  S.  499,  49  L.  1141,  25  Sup.  Ct.  745, 
wharf  in  harbor  at  foot  of  city  street  built  by  railroad  under  city 
authority  for  transporting  freight  by  such  carriers  as  it  might  select  is 
not  public  wharf,  whose  use  can  be  demanded  by  others  for  use  of  own 
vessels;  Chicago  etc.  Ey.  Co.  v.  Hamler,  215  111.  530,  106  Am.  St.  Eep. 
1S7,  74  N.  E.  70G,  upholding  contract  between  sleeping-car  company 
and  porter  releasing  railroad  using  cars  from  injury  to  him  while  travel- 
ing over  lines;  United  States  Express  Co.  v.  State,  164  Ind.  210,  73  N. 
E.  106,  upholding  statute  requiring  express  companies  to  deliver  pack- 
ages to  consignee  to  whom  directed  in  cities  of  certain  population; 
Hedding  v.  Gallagher,  72  N.  H.  381,  391,  57  Atl.  227,  232,  64  L.  R. 
A.  811,  where  railroad  granting  exclusive  privilege  to  transfer  company 
of  soliciting  baggage  on  depot  grounds,  other  teamsters  may  be  excluded 
therefrom. 

Syl.   3    (XT,    76).      Courts — Arrangements   for   business   intercourse. 

Approved  in  lutorstate  C.  Com.  v.  Southern  Pac.  Co.,  132  Fed.  847, 
rule  adopted  by  agreement  of  railroads  by  which  through  rates  on  certain 


1313  Notes  on  U.  S.  Eeports.  117  U.  S.  34-96 

rates  is  conditioned  on  reservation  of  initial  carrier  of  power  to  route 
over  connecting  lines,  is  traffic  pool  within  Commerce  Act,  §  5;  Norfolk 
etc.  E.  R.  Co.  V.  Commonwealth,  103  Va.  296,  49  S.  E.  41,  upholding  cor- 
poration commission's  authority  to  regulate  charges  of  company  con- 
ducting switch  line  and  handling  cars  thereon  for  placing  cars  on  scales. 

117  U.  S.  34-51,  29  L.  785,  PICKARD  v.  PULLMAN  ETC.  CAR  CO. 

Syl.  1   (XI,  77).     Commerce — Tax  on  leased  cars. 

Approved  in  Kirven  v.  Virginia-Carolina  Chemical  Co.,  145  Fed.  293, 
corporation  of  another  state  shipping  goods  to  South  Carolina  vendee  on 
order  taken  by  local  agent  subject  to  its  approval  may  recover  price 
though  it  has  not  complied  with  South  Carolina  laws;  Murphy  v.  Wheat- 
ley,  100  Md.  365,  59  Atl.  706,  fact  that  Laws  1892,  p.  156,  imposing 
double  liability  on  stockholders,  is  by  page  153  made  applicable  to 
foreign  corporations,  does  not  affect  its  validity  as  to  domestic  corpora- 
tions; Attorney  General  v.  Electric  etc.  Battery  Co.,  188  Mass.  240,  74 
N.  E.  467,  upholding  act  of  1903,  requiring  foreign  corporations  .to  file 
yearly  certificate  of  certain  facts  and  to  pay  excise  tax  on  capital  stock, 
as  applied  to  corporation  doing  interstate  business  but  maintaining  office 
in  state. 

117  U.  S.  52-71,  29  L.  805,  HAGOOD  v.  SOUTHERN. 

Syl.  2   (XI,  78).     States— Suit  against  officer. 

Approved  in  De  Laittre  v.  Board  of  Commrs.,  -149  Fed.  802,  decision 
of  Oregon  commissioners  for  sale  of  school  lands  as  to  who  is  entitled 
to  patent,  prior  to  its  issuance,  is  not  reviewable  by  court;  Smith  v. 
Alexander,  146  Fed.  108,  refusing  preliminary  injunction  in  suit  against 
state  commissioners  to  secure  enforcement  of  contract  between  state  and 
complainant  according  to  latter 's  interpretation,  correctness  of  which 
is  denied  by  defendants;  State  v.  Mortensen,  69  Neb.  385,  95  N.  W. 
834,  tlenying  mandamus  to  compel  board  of  public  lands  to  perform 
contract  for  leasing  of  convict  labor;  Buchanan  v.  State  Treasurer, 
68  S.  C.  420,  47  S.  E.  686,  denying  mandamus  to  compel  comptroller 
general  to  issue  circuit  judge's  salary  warrant,  where  there  is  no  statute 
fixing  salary  and  no  appropriation  made  therefor.  See  lOS  Am.  St. 
Rep.  834,  837,  841,  note. 

Distinguished  in  Graham  v.  Folsom,  200  U.  S.  255,  50  L.  469,  26  Sup. 
Ct.  245,  mandamus  to  compel  county  auditor  and  treasurer  to  levy  tax 
to  pay  judgment  on  township  bonds  is  not  suit  against  state. 

Syl.  3    (XI,  80).     Political  obligations  and  personal  rights. 
See  108  Am.  St.  Rep.  837,  note. 

117  U.  S.  72-96,  29  L.  821,  WRIGHT  v.  KENTUCKY  ETC.  RY.   CO. 

Syl.  3   (XI,  80).     Director's  interest  antagonistic  to  corporation. 

Approved  in  Young  v.  City  of  Mankato,  97  Minn.  6,  105  N.  W.  970, 
3   L.   R.   A.    (N.    S.)    849,   freeholders    apiioiuled    to    draft    city   charter 

83 


117  U.  S.  96-129  Notes  on  U.  S.  Eeports.  1314 

cannot  employ  and  agree   to  pay   one   of  members  as   attorney  to   pre- 
pare charter. 

117  U.  S.  96-122,  29  L.  811,  LEATHEE  MANUFACTURING  BANK  v. 

MORGAN. 

Syl.  2   (XI,  80).     Estoppel — Failure  to  examine  bankbook. 

Approved  in  Scanlon-Gipson  Lumber  Co.  v.  Germania  Bank,  90  Minn. 
486,  97  N.  W.  383,  applying  principle  where  passbook  showed  account 
of  checks  collected  through  clearing-house. 

Syl.  3   (XI,  81).     Estoppel — Intent  to  mislead  unnecessary. 

Approved  in  United  States  v.  Martingale,  146  Fed.  294,  upholding 
indictment  against  national  bank  officer  for  misapplication  of  funds  by 
drawing  checks  when  he  had  no  funds ;  Manhattan  Web.  Co.  v.  Aquidnet-k 
Nat.  Bank,  133  Fed.  78,  where  bank  holding  personal  note  of  corpora- 
tion's treasurer  received  corporation's  check  with  directions  to  apply 
on  note,  which  it  did  without  inquiry,  corporation  may  recover  money 
though  no  demand  made  for  four  years  and  entry  made  on  passbook; 
Hennessy  Bros.  etc.  Co.  v.  Memphis  Nat.  Bank,  129  Fed.  560,  64  C.  C. 
A.  125,  where  corporation  doing  business  in  another  state  through  local 
officer,  who  opened  account  at  bank,  and  on  account  being  overdrawn 
gave  corporation's  demand  note  and  amount  credited  on  passbook,  cor- 
poration is  liable  on  note. 

Syl.  4  (XI,  81).    Forgery  of  bank  check — Depositor's  recovery. 

Approved  in  Commercial  Nat.  Bank  v.  Nacogdoches  etc.  Co.,  133  Fed. 
504,  66  C.  C.  A.  375,  where  plaintiff  received  warehouse  receipts  purport- 
ing to  be  issued  by  defendant,  as  collateral,  and  wrote  to  defendant 
saying  it  had  accepted  receipts,  but  latter  did  not  reply  until  borrower 
failed,  defendant  liable  for  loss  where  receipts  were  forgeries;  Mer- 
chants' Nat.  Bank  v.  Nichols,  223  III.  52,  79  N.  E.  41,  foreign  corpora- 
tion opening  local  office  whose  local  agent  opens  bank  account  and  makes 
overdrafts  may  deny  liability  though  it  did  not  examine  passbooks. 

Syl.  5  (XI,  81).     Estoppel  of  depositor — Forgery  of  check. 

Approved  in  dissenting  opinion  in  Rollins  v.  Ebbs,  138  N.  C.  160, 
50  S.  E.  584,  majority  holding  sureties  signing  guardian's  bond  with 
penalty  omitted  and  giving  it  to  another  for  delivery  are  estopped  to 
deny  its  validity  where  penalty  afterward  inserted. 

Distinguished  in  Murphy  v.  Metropolitan  Nat.  Bank,  191  Mass.  164, 
77  N.  E.  695,  where  loan  broker  negotiated  with  attorney,  who  acted  as 
agent  to  procure  loan  for  land  owner,  and  note  and  mortgage  executed 
and  check  given  lawyer  payable  to  land  owner,  and  lawyer  forged 
payee  's  name,  broker  could  recover  of  bank  paying  check. 

117  U.  S.  123-129,  29  L.  837,  CHICAGO  ETC.  RY.  v.  OHLE. 

(XL  83.)  Miscellaneous.  Cited  in  Virginia  v.  Felts,  133  Fed.  90,  96, 
as  to  proper  mode  of  trying  issue  as  to  jurisdiction. 


1315  Notes  on  U.  S.  Reports.  117  U.  S.  129-180 

117  U.  S.  129-139,  29  L.  830,  TENNESSEE  v.  WHITWORTH. 

Syl.  1  (XI,  83).     Taxable  elements  of  corporations. 

Approved  in  Powers  v.  Detroit  etc.  Ey.  Co.,  201  U.  S.  560,  50  L.  866, 
26  Sup.  Ct.  556,  contract  between  state  and  railroad  preventing  tax  other 
than  that  prescribed  by  Mich.  Laws  1855,  p.  305,  §  9,  created  by  pro- 
visions thereof  that  company  shall  pay  annual  tax  of  percentage  of 
paid-in  capital  in  lieu  of  other  taxes;  Succession  of  Kohn,  115  La.  74, 
38  So.  899,  corporate  shares  are  liable  to  inheritance  tax  though  corpora'- 
tion  taxed  on  all  its  property. 

Syl.  3  (XI,  84).     Double  taxation  not  presumed. 

Approved  in  Stroh  v.  Detroit,  131  Mich.  117,  90  N.  W.  1032,  under 
Pub.  Acts  1893,  No.  206,  §  8,  subd.  7,  shares  in  foreign  corporation 
are  exempt  from  taxation  when  its  property  is  located  and  taxable  in 
state;  State  v.  Louisiana  etc.  Ey.  Co.,  196  Mo.  535,  94  S.  W.  281,  bridge 
owned  by  railroad  and  used  as  part  of  roadbed  and  tracks,  being  assessable 
as  part  of  railroad,  is  not  also  assessable  as  toll  bridge  though  so  used; 
First  National  Bank  v.  Douglas  Co.,  124  Wis.  19,  102  N.  W.  316,  real 
estate  belonging  to  national  bank  accjuired  with  and  constituting  part 
of  its  capital  is  exempt  from  taxation  under  Banking  Act  1866,  p.  129. 

Syl.  4  (XI,  84).     Construction  of  statutory  contracts. 
Approved  in  Luhrig  Coal  Co.  v.  Jones   etc.   Co.,   141   Fed.   622,   con- 
struing contract  of  sale  of  coal  for  future  delivery. 

Syl.  5   (XI,  84).     Tax  exemption  of  capital  stock. 

Approved  in  First  National  Bank  v.  Douglas,  124  Wis.  21,  102  N.  W. 
317,  real  estate  belonging  to  national  bank  acquired  with  and  constituting 
part  of  capital  is  exempt  under  Banking  Act  1866,  p.  129. 

117  TJ.  S.  151-180,  29  L.  845,  VAN  BEOCKLIN  v.  STATE  OF  TEN- 
NTESSEE. 

Syl.  4   (XI,  86).     Taxation  of  public  property. 

Distinguished  in  South  Carolina  v.  United  States.  199  U.  S.  452,  50  L. 
266,  26  Sup.  Ct.  110,  government  may  exact  liquor  revenue  Iit.-euse  from 
state  liquor  dispensing  agent. 

Syl.  5  (XI,  86).     State  tax  of  government  property. 

Approved  in  United  States  v.  Thurston  Co.,  143  Fed.  2S9.  proceeds  of 
sales  of  lands  allotted  to  Indians  under  act  of  1882,  by  Indian  heirs  of 
allottees,  which  have  been  deposited  in  bank  under  direction  of  Interior 
Department,  are  exempt  from  state  taxation;  Mosely  v.  State,  115  Tenn. 
60,  86  S.  W.  716,  interest  on  United  States  bonds  is  not  taxable  by  state 
in  hands  of  bondholder;  dissenting  opinion  in  South  Carolina  v.  United 
States,  199  U.  S.  466,  467,  468,  471,  50  L.  272,  274,  26  Sup.  Ct.  110, 
majority  holding  government  may  exact  liquor  revenue  tax  from  state 
liquor  dispensing  agent. 

Distinguished  in  Hibernia  Savings  etc.  Soc.  v.  Snn  Francisco.  200  U.  S. 
314,  50  L,  496,  26  Sup.  Ct.  265,  United  States  treasury  checks  for  interest 


117  U.  S.  180-227  Notes  on  U.  S.  Keports.  1316 

on  government  bonds,  intended  for  immediate  payment,  are  taxable  by 
state  in  hands  of  owner. 

Syl.  6  (XI,  87),     Tax  on  property  acquired  at  tax  sale. 
See  101  Am.  St.  Eep.  182,  note. 

117  U.  S.  180-197,  29  L.  839,  GRAFFAM  v.  BURGESS. 

Syl.   2    (XI,   87).     Setting  aside  judicial  sales — Inadequacy. 

Approved  in  Kessler  v.  Ensley,  141  Fed.  155,  upholding  validity  of 
purchase  of  lands  by  former  director;  Sturgiss  v.  Corbin,  141  Fed.  3, 
refusing  to  set  aside  auction  sale  of  bankrupt's  property  under  order 
of  court  merely  because  unsuccessful  bidder  makes  advance  offer  of 
four  per  cent;  George  v.  Norwood,  77  Ark.  219,  91  S.  W.  558,  refusing 
to  set  aside  judicial  sale  for  $4,000,  where  advance  bid  of  $5,000  made. 
See  113  Am.  St.  Eep.  147,  note. 

Syl.  3  (XI,  88).     Judicial  sales — Gross  inadequacy — Fraud. 

Approved  in  Macfarlane  v.  Macfarlane,  50  Fla.  580,  39  So.  998,  set- 
ting aside  master's  sale,  of  which  notice  published  in  distant  news- 
paper, though  several  papers  published  at  place  of  sale  and  price  ob- 
tained grossly  inadequate. 

Syl.  5  (XI,  88).     Equity — Amendment  of  prayer. 

Approved  in  Indianapolis  etc.  Co.  v.  Lawson,  143  Fed.  838,  upholding 
court's  action  in  construing  complaint  as  covering  case  made  by  proof; 
Chicago  etc.  Vehicle  Co.  v.  American  etc.  Leather  Co.,  141  Fed.  520, 
upholding  amendment  of  bankruptcy  petition  to  meet  evidence  intro- 
duced showing  specific  preferential  transfers  as  acts  of  bankruptcy. 

117  U.  S.  201-210,  29  L.  855,  TUA  v.  CAERIERE. 

Syl.  4  (XI,  89).     Repeal  of  bankruptcy  revives  insolvency  law. 

Approved  in  In  re  Salmon,  143  Fed.  403,  Rev.  St.  Mo.  1899,  §§  1305, 
130G,  relating  to  liquidation  of  banks,  is  insolvency  law,  suspended  by 
bankruptcy  act;  In  re  Porterfield,  138  Fed.  198,  where  trust  deed 
from  bankrupt  to  wife  recorded  less  than  four  months  prior  to  state 
suit,  but  more  than  four  months  prior  to  bankruptcy,  and  all  parties 
submitted  to  bankruptcy  sale,  petitioning  creditors  not  entitled  to  have 
proceeds  according  to  state  statute  declaring  preferential  transfers  void. 

117  U.  S.  210-227,  29  L.  860,  PATCH  v.  WHITE. 

Syl.  1   (XI,  90).     Wills — Extrinsic   evidence — Latent  ambiguity. 

Approved  in  Pate  v.  Bushong,  161  Ind.  539,  100  Am.  St.  Rep.  287, 
69  N.  E.  293,  63  L.  E.  A.  593,  following  rule. 

Syl.  2  (XI,  90).     Wills— Latent  ambiguity. 

Approved  in  Pate  v.  Bushong,  161  Ind.  540,  545,  553,  100  Am.  St. 
Rep.  287,  69  N.  E.  294,  295,  298,  63  L.  R.  A.  593,  Sorenson  v.  Carey, 

96  Minn.   2(i6,    104  N.   V7.   960,   and   Wheaton  v.  Pope,  91  Minn.  306, 

97  N.   W.   1048,   all   following    rule. 


1317  Notes  on  U.  S.  Eeports.  117  U.  S.  228-254 

Distinguished  in  Oliver  v.  Henderson,  121  Ga.  840,  49  S.  E.  744, 
where  testator  devised  lot  78  in  certain  district,  but  did  not  own  such 
lot,  but  owned  lot  68,  parol  evidence  to  show  he  meant  lot  68  inad- 
missible where  not  shown  he  did  not  own  other  lots  in  district. 

117  U.  S.  228-232,  29  L.  858,  BARNEY  v.  WINONA  ETC.  R.  R.  CO. 

Syl.  1   (XI,  91).     Matters  considered  on  second  appeal. 

Approved  in  United  States  v.  Denver  etc.  R.  R.  Co.,  11  N.  M. 
154,  66  Pac.  552,  as  to  law  of  case  on  second  appeal. 

Syl.  2  (XI,  91).     Railroad  grant — Indeanity  lands. 

Approved  in  Sage  v.  Maxwell,  91  Minn.  533,  99  N.  W.  44,  under 
Hastings  &  Dakota  Railroad  grant,  company  acquired  no  vested  rights 
to  indemnity  lands  till  deficiency  in  place  lands  ascertained  and  selec- 
tion of  lieu  lands  made  and  approved. 

Syl.  3  (XI,  91).     Land  grant  to  Minnesota — Indemnity  lands. 

Approved  in  Humbird  v.  Avery,  195  U.  S.  508,  49  L,  299,  25  Sup. 
Ct.  123,  refusing  to  determine  in  advance  of  final  action  of  Land 
Department  rights  of  railroad's  grantees  of  lauds  within  indemnity 
limits  of  grant  of  1864,  and  purchasers  from  United  States  who 
claim  protection  of  act  of  July  1,  1898. 

117  U.  S.  236-241,  29  L.  SS8,  PHELPS  v.  OAKS. 

Syl.    2    (XT,    92).     Ejectment — Landlord    as    intervener — Citizenship. 

Approved  in  King  v.  Davis,  137  Fed.  236,  and  King  v.  Davis,  137 
Fed.  221,  both  holding  where  in  ejectment  requisite  citizenship  shown, 
and  after  judgment  against  tenant,  landlord  intervened  to  open  judg- 
ment, his  citizenship  is  immaterial. 

Distinguished  in  Cleveland  v.  Cleveland  etc.  Ry.  Co.,  147  Fed.  176, 
where  lessor  and  lessee  in  possession  who  has  equity  for  improvements 
are  joined  in  ejectment,  neither  can  remove  cause  when  other  defend- 
ant and  plaintiff  are  citizens  of  same  state. 

Syl.  3   (XI,  93).     Intervention  by  stranger. 

Approved  in  Ames  Realty  Co.  v.  Big  Indian  Min.  Co..  146  Fed.  ISO, 
in  federal  suit  to  protect  water  rights  from  other  appropriators,  all  of 
whom  are  citizens  of  states  other  than  complainant's,  cross-bills  by 
any  of  defendants  setting  up  priority  rights  are  entertaiuable  irrespec- 
tive of  citizenship. 

117  U.  S.  241-254,  29  L.  868,  EX  PARTE  ROYALL. 

Syl.  1   (XI,  93).     Federal  habeas  corpus — State  j)risoiier. 

Approved  in  Re  Lincoln,  202  U.  S.  180,  50  L.  985,  26  Sup.  Ct.  602, 
denying  habeas  corpus  on  behalf  of  one  convicted  in  district  court  of 
))ringing  liquor  into  Indian  couutrv  whore  term  of  iiuprisdiimcnt  has 
almost  expired;  Ex  parte  Moran,  144  Fed.  601,  602,  upludding  jiower 
of  circuit  court  of  ai^peals  to  issue  habeas  corpus  to  inquire  into  power 


117  U.  S.  241-254  Notes  on  U.  S.  Eeports.  1318 

of  Oklahoma  courts  to  imprison  one  convicted  of  capital  offense;  Ken- 
tucky V  Powers,  139  Fed.  480,  upholding  removal  of  criminal  pros- 
ecution where  defendant  discriminated  against  in  selection  of  jurors; 
Ex  parte  Moebus,  137  Fed.  156,  upholding  sufficiency  of  petition  for 
habeas  corpus  showing  extradited  prisoner  confined  in  penitentiary  for 
five  years  on  governor's  warrant  only;  West  Virginia  v.  Laing,  133 
Fed.  891,  66  C.  C.  A.  617,  member  of  marshal's  posse  who  killed  ono 
indicted  in  federal  court  while  trying  to  arrest  him  is  not  subject  to 
prosecution  therefor  by  state. 

Syl.  2   (XI,  93).     Federal  habeas  corpus — State  prisoner. 

Approved  in  Ke  Lincoln,  202  U.  S.  180,  182,  50  L.  985,  986,  26  Sup. 
Ct.  602,  denying  habeas  corpus  on  behalf  of  one  convicted  in  district 
court  of  bringing  liquor  into  Indian  country  where  term  of  imprison- 
ment has  almost  expired;  United  States  v.  Lewis,  200  U.  S.  6,  50  L. 
345,  26  Sup.  Ct.  229,  affirming  129  Fed.  825,  denying  habeas  corpus 
to  discharge  soldier  indicted  by  state  court  for  killing  in  city  streets 
one  who  committed  depredation  on  military  reservation,  where  evidence 
conflicted  as  to  whether  killing  justified;  Riggins  v.  United  States,  199 
U.  S.  549,  50  L.  304,  26  Sup.  Ct.  147,  habeas  corpus  to  test  sufficiency 
of  indictment  of  district  court  and  removed  to  circuit  court  not  issu- 
able by  latter;  Ex  parte  Collins,  149  Fed.  574,  575,  576,  objection 
that  petitioner  extradited  for  perjury  was  again  indicted  for  perjury 
committed  at  trial  and  convicted  is  not  available  on  habeas  corpus 
pending  state  appeal ;  Ex  parte  Caldwell,  138  Fed.  489,  releasing  one 
imprisoned  for  refusing  to  obey  subpoena  of  illegal  committee  appointed 
by  West  Virginia  house  of  delegates  ajjpointed  to  investigate,  dur- 
ing vacation,  governor's  misconduct;  In  re  Dowd,  133  Fed.  749,  752, 
753,  denying  habeas  corpus  where  petitioner  confined  for  violation  of 
state  injunction  in  suit  by  state  to  prevent  election  frauds;  Jamison 
V.  Wimbish,  130  Fed.  360,  361,  granting  habeas  corpus  wlicre  one  sen- 
tenced by  police  judge  for  minor  offense  to  seven  months  in  chain- 
gang,  where  prisoners  wear  stripes  and  irons  and  sleep  in  them. 

Distinguished  in  dissenting  opinion  in  United  States  v.  Sing  Tuck, 
194  U.  S.  174,  48  L.  923,  24  Sup.  Ct.  621,  majority  holding  habeas 
corpus  does  not  lie  where  Chinese  alleging  citizenship  denied  entry  and 
Secretary  of  Commerce  has  not  decided  appeal. 

Syl.  3    (XI,  95).     Habeas  corptus  after  state  conviction. 

Approved  in  Ee  Lincoln,  202  U.  S.  181,  50  L.  986,  26  Sup.  Ct.  602, 
denying  habeas  corpus  on  behalf  of  one  convicted  in  district  court 
of  bringing  liquor  into  Indian  country  where  term  of  imprisonment  has 
almost  expired. 

(XI,   93.)     Miscellaneous.     Cited  in  112   Am.   St.  Kep.   136,  note. 


l."19  Notes  on  U.  S.  Eeports.  117  U.  S,  254-271 

117  U.  S.  25J,  255,  29  L.  872,  EX  PARTE  ROYALL. 

Syl.  1   (XI,  95).     Federal  habeas  corjjus — State  prisoner. 

Approved  in  Eiggins  v.  United  States,  199  U.  S.  549,  50  L.  304,  26 
Sup.  Ct.  147,  habeas  corpus  to  test  sufificiency  of  indictment  found  in 
district  court  and  removed  to  circuit  court  not  issuable  by  latter;  Ex 
parte  Collins,  149  Fed.  575,  objection  that  petitioner  extradited  for 
perjury  was  indicted  and  convicted  for  perjury  committed  at  trial  not 
available  on  habeas  corpus  pending  state  appeal. 

117   U.   S.   255-271,   29   L.   892,   APPLEGATE   v.   LEXINGTON   ETC. 
MIN.  CO. 

Syl.  5   (XI,  95).     Presumption  of  jurisdiction — Publication. 

Approved  in  Johnson  v.  Hunter,  147  Fed.  139,  permitting  collateral 
attack  on  judgment  obtained  by  publication  of  summons  where  affi- 
davit as  disclosed  by  record  was  insufficient ;  Cohen  v.  Portland  Lotlge 
etc.  Elks,  144  Fed.  269,  upholding  sufficiency  of  affidavit  of  service 
by  publication  on  minor  defendant  in  foreclosure  suit;  Wallace  v. 
Adams,  143  Fed.  728,  recital  in  judgment  that  required  notice  was 
"given  to  defendants  in  conformity  of  law,"  raises  presumption  of 
due  service  and  of  jurisdiction  of  persons,  in  absence  of  inconsistent 
record;  Blue  Mt.  Iron  etc.  Co.  v.  Portner,  131  Fed.  59,  65  C.  C.  A. 
295,  appointment  of  receiver  for  corporation  by  state  court  of  gen- 
eral jurisdiction  not  collaterally  attackable  for  want  of  jurisdiction 
of  corporation's  person;  Ingram  v.  Sherwood,  75  Ark.  181,  87  S.  W. 
437,  applying  rule  to  decree  confirming  tax  title;  Clay  v.  Bilby,  72 
Ark.  lOS,  78  S.  W.  751,  upholding  sufficiency  of  affidavit  of  publica- 
tion of  warning  ortler  in  proceedings  for  sale  of  land  under  overdue 
tax  act;   McHatton  v.  Rhodes,  143  Cal.  280.  281,  101  Am.  St.  Rep.  125, 

76  Pac.  1038,  where  foreign  judgment  offered  in  evidence  recited  de- 
fendants had  been  fully  notified  by  publication  more  than  thirty  days 
prior  to  first  term  of  court,  it  is  presumed  that  order  made  for  pub- 
lication; Franklin  Union  v.  People,  220  111.  366,  110  Am.  St.  Rep.  248, 

77  N.  E.  180,  where  court  has  before  it  complainant  and  party  against 
whom  injunction  asked  on  bill  stating  case  of  equity  jurisdiction,  er- 
ror in  issuing  injunction  broader  than  bill  does  not  defeat  contempt 
for  violation  of  injunction;  O'Brien  v.  People,  216  111.  363,  108  Am. 
St.  Rep.  219,  75  N.  E.  112,  wliere  in  suit  to  enjoin  strikers  defend- 
ants served  with  process  failed  to  appear,  jurisdiction  not  all'ected  by 
defects  in  bill;  dissenting  opinion  in  Haddock  v.  Haddock,  201  U. 
S.  607,  50  L.  885,  26  Sup.  Ct.  525,  majority  hdldiiig  mere  domicile 
in  state  of  one  spouse  does  not  give  state  courts  jurisdiction  to  de 
cree  default  divorce  against  nonresident  defendant  served  by  publica- 
tion. 


117  U.  S.  271-312  Notes  on  U.  S.  Keports.  1320 

117  U.  S.  271,  272,  29  L.  898,  BOARDMAN  v.  TOFFEY. 

Syl.   1    (XI,   96).     General  finding  conclusive. 

Approved  in  Paul  v.  Delaware  etc.  E.  Co.,  130  Fed.  956,  follow- 
ing rule. 

117  U.  S.  272-275,  29  L.  897,  JEFFERSON  v.  DRIVER. 

Syl.  3   (XI,  97).     Removal  by  purchase  pendente  lite. 

Approved  in  Nash  v.  McNamara,  145  Fed.  543,  parties  brought 
into  state  action  by  cross-complaint  alleging  they  claim  interest  in 
property,  and  who  file  complaint  alleging  they  are  successors  of  plain- 
tiff, cannot  remove. 

117  U.  S.  275-279,  29  L.  899,  SLOANE  v.  ANDERSON. 

Syl.  1    (XI,  97).     Removal — Separable  controversy. 

Approved  in  Alabama  etc.  Ry.  Co.  v.  Thompson,  200  U.  S.  215,  50 
L.  446,  26  Sup.  Ct.  161,  case  in  which  plaintiff  elects  to  sue  foreign 
corporation  and  servants  jointly  for  tort  is  removable  by  corporation 
irrespective  of  citizenship  of  other  defendants,  though  joinder  im- 
proper; County  Commissioners  v.  United  Rys.  Co.,  99  Md.  89,  57  Atl. 
677,  under  Code  Gen.  Laws,  art.  75,  §  102,  relating  to  change  of  venue 
for  bias,  joint  defendants  cannot  remove  cause  without  consent  of  all 
eodefendants. 

117   U.   S.   280-282,   29   L.   898,   FIDELITY   INS.   CO.   v.   HUNTING- 
TON. 

Syl.  1    (XI,  98).     Removal — Separable  controversy. 

Approved  in  Palmer  v.  Inman,  122  Ga.  230,  50  S.  E.  88,  in  ac- 
tion by  judgment  creditor  against  debtor  and  his  lien  creditor  to  sub- 
ject encumbered  property  to  payment  of  judgment,  incidental  relief 
against  creditor  who  is  nonresident    is  not  ground  for  removal. 

Distinguished  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  661,  68  C. 
C.  A.  288,  granting  removal  of  separate  controversy    disclosed  in  bill. 

117  U.  S.  2SS-312,  29  L.  880,  THE  CHEROKEE  TRUST  FUNDS. 

Syl.  1   (XI,  100).     Cherokees  are  nation. 

Approved  in  Delaware  Indians  v.  Cherokee  Nation,  193  U.  S.  144, 
48  L.  654,  24  Sup.  Ct.  342,  inquiry  into  validity  of  method  of  adop- 
tion of  amendments  to  Cherokee  nation's  constitution  not  authorized 
by  30  Stat.  495,  c.  517,  §  25;  McBride  v.  Farrington,  131  Fed.  799, 
under  Act  Cong.,  30  Stat.  498,  §  13,  and  Laws  Chickasaw  Nation,  pp. 
188,  190,  lease  of  coal  and  oil  lands  allotted  to  Indians  for  limited 
period  valid. 

Syl.  2   (XT,   100).     Chciokees  are  citizens. 

Approved  in  Delaware  Indians  v.  Cherokee  Nation,  193  XT.  S.  136, 
4b   Li.   651,   24   Sup.    Ct.    342,    only    right    of    occupancy    for   life   with 


1321  Notes  on  U.  S.  Ecports.  117  U.  S.  312-355 

add'tional  privilege  secured  in  case  of  allotment  was  acquired  by 
Delawares  in  lands  which  Cherokees  agreed  by  contract  of  1867  to  sell 
to  such  Delawares. 

117  U.  S.  312-327,  29  L.  873,  PHOENIX  TRUST  CO.  v.  ERIE  ETC. 
TRANSPORTATION  CO. 

Syl.  4  (XI,  101).     Marine  insurance — Perils. 

Approved  in  Ryan  v.  Agricultural  Ins.  Co.,  188  Mass.  13,  73  N.  E. 
S50,  vendee  in  conditional  sale  who  by  contract  is  liable  for  loss  by 
fire  has  insurable  interest  to  amount  of  whole  property. 

Syl.  5   (XI,  101).     Carriers — Insurance  by  shipper. 

Approved  in  Pennsylvania  R.  Co.  v.  Burr,  130  Fed.  848,  65  C.  C.  A. 
33'!,  following  rule;  The  Livingstone,  130  Fed.  749,  65  C.  C.  A.  610, 
where  ship  sunk  and  abandoned  to  insurer  as  total  loss  is  insured,  by 
valued  policy  and  stipulated  sum  paid  to  owner,  who  afterward  re- 
covers actual  value,  insurer  can  only  recover  amount  it  has  paid  out ; 
Oceanic  Steam  Nav.  Co.  v.  Aitken,  196  U.  S.  599,  49  L.  615,  25  Sup. 
Ct.  317,  and  Sprigg  v.  Rutland  R.  R.  Co.,  77  Vt.  355,  60  Atl.  146, 
both  arguendo. 

Distinguished  in  Erie  etc.  Transp.  Co.  v.  Erie  R.  Co.,  142  Fed.  15, 
final  decree  in  collision  suit,  in  which  all  parties  are  before  court,  de- 
termining fault  and  damages  and  apportioning  same,  deprives  ad- 
miralty of  jurisdiction  over  suit  by  one  vessel  against  other  for  con- 
trilnition  to  cargo  damage  refused  in  first  suit. 

Syl.  6   (XI,  102).     Insurer  paying  loss  subrogated. 

Approved  in  Judd  v.  New  York  etc.  S.  S.  Co.,  130  Fed.  992,  declara- 
tious  of  insurer  which  has  paid  loss  are  inadmissible  against  right  of 
action  of  insured  against  third  person. 

(XI,  100.)  Miscellaneous.  Cited  in  Parvin  v.  Mutual  Reserve  Life 
Ins.  Co.,  125  Iowa,  99,  100  N.  W.  40,  as  to  right  to  reinsure. 

117  U.  S.  348-355,  29  L.  909,  MACKIN  v.  UNITED  STATES. 

Syl.  1    (XI,   104).     Indictment — What  is  infamous  crime. 

Approved  in  Garitee  v.  Bond,  102  Md.  383,  111  Am.  St.  Rep.  3SS, 
62  Atl.  632,  one  convicted  of  overcharging  for  prosecution  of  pension 
claim  under  Comp.  St.  1901,  p.  3231,  is  not  convicted  of  infamous 
crime  within  statute  disqualifying  one  convicted  of  infamous  crime 
from  acting  as  executor;  State  v.  Foster,  187  Mo.  606,  86  S.  W.  249, 
offense  within  Rev.  St.  1899,  §  2U41,  punishing  bribery  of  witness  is 
misdemeanor  though  punishable  by  im]irisonmeut  in  penitentiary;  Ter- 
ritory V.  Stroud,  6  Okl.  109,  50  Pac.  266,  upholding  statute  i)roviding 
for  prosecution  of  misdemeanors  by  information  without  preliminary 
examination;  Ex  parte  Lacey,  6  Okl.  6,  37  Pac.  1096,  where  one  is, 
on  May  10,  1894,  arrested  on  complaint  before  federal  commissioner 
for  infamous   crime   committed   May    13,   1891,  filing  of   complaint  docs 


117  U.  S.  373-410  Notes  on  U.  S.  Keports.  1322 

not  stay  limitations  under  Kev.  St.,  §  1044;  State  v.  Nichols,  27  E. 
I.  74,  83,  60  Atl.  765,  768,  conviction  of  cruelty  to  horse  under  stat- 
ute providing  for  imprisonment  not  to  exceed  eleven  months  or  fine, 
or  both,  is  not  infamous  crime  within  constitutional  provision  relating 
to  indictment. 

Distinguished  in  United  States  v.  Thomas,  145  Fed.  78,  one  may  be 
indicted  for  conspiracy  under  Rev.  St.,  §  5440,  though  overt  act  may 
constitute  separate  offense;  United  States  v.  Ames  Mer.  Co.,  2  Alaska, 
76,  corporation  is  indictable  for  engaging  in  liquor  business  in  viola- 
tion of  Rev.  St.,  §  3244. 

117  U.  S.  373-378,  29  L.  950,  YALE  LOCK  MFG.  CO.  v.  SARGENT. 
Syl.  1  (XI,  106).     Patent  infringement — Equivalents, 
Approved   in  Universal  Brush  Co.   v.   Sonn,    146   Fed.   531,   Morrison 

patent  No.  717,014,  claim  1,  for  method  of  making  brushes,  infringed 

by  method  of  Sonn  patent  No.  791,510. 

117  U.  S.  379-387,  29  L.  924,  KERR  v.  SOUTH  PARK  COMMRS. 

Syl.  3    (XI,  107).     Eminent  domain — Evidence  of  value. 

Approved  in  Guyandotte  Valley  Ry.  Co.  v.  Buskirk,  57  W.  Va.  426, 
110  Am.  St.  Rep.  792,  50  S.  E.  524,  determining  compensation  where 
whole  lot  taken  by  railroad  on  condemnation. 

117  U.  S.  389-401,  29  L.  915,  FULKERSON  v.  HOLMES. 

Syl.  2    (XI,   107).     Evidence  of  pedigree — Independent  proof. 

Approved  in  Davis  v.  Moyles,  76  Vt.  39,  56  Atl.  178,  recitals  in 
petition  to  legislature  for  granting  of  lands  that  lands  had  been  con- 
fiscated by  state  from  petitioner's  father,  who  was  original  grantee, 
inadmissible  in  action  of  trespass    to  show  relationship. 

Syl.  3  (XI,  107).     Declarations  of  pedigree  in  ancient  deeds. 

Approved  in  Topper  v.  Perry,  197  Mo.  543,  95  S.  W.  206,  on  is- 
sue as  to  common-law  marriage,  declarations  of  alleged  husband  not 
in  presence  of  wife  are  admissible  to  disprove  marriage;  Imboden  v. 
St.  Louis  Trust  Co.,  Ill  Mo.  App.  237,  86  S.  W.  267,  determining 
sufficiency  of  evidence  of  common-law  marriage;  Wilson  v.  Braden,  56 
W.  Va.  375,  107  Am.  St.  Rep.  929,  49  S.  E.  410,  recitals  of  heirship 
and  widowhood  in  deeds  upward  of  fifty  years  old,  under  which  pos- 
session continuously  held,  are  admissible  against  strangers  to  title  claim- 
ing adversely. 

117  U.  S.  406-410,  29  L.  928,  SIOUX  CITY  R.  R.  v.  CHICAGO  RY. 
CO. 

Syl.   1    (XI,   108).     Title  to  railroad  grant — Relation  back. 

Approved  in  Humbird  v.  Avery,  195  U.  S.  508,  49  L.  299.  25  Sup. 
Ct.  123,  refusing  to  determine  in  advance  of  final  action  of  Land  De- 
partment rights   of  railroad's   grantees   of  lands   claimed   to   be   within 


1323  Notes  oa  U.  S.  Eeports.  117  U.  S.  415-133 

indemnity   limits    of   Northern   Pacific   grant    of    1864,    and   purchasers 
from  United  States  who  claim  protection  of  act  of  July  1,  1898. 

117  U.  S.  415-419,  29  L.  919,  MARSHALL  v.  HUBBAED. 

Syl.  1  (XI,  109).      Actionable  false  representations. 

Approved  in  Pittsburgh  Life  &  T.  Co.  v.  Northern  etc.  Ins.  Co.,  148 
Fed.  675,  incorrect  statements  furnished  by  insurance  oflBcials  in 
negotiations  for  sale  of  business  not  ground  for  action  of  deceit,  where 
they  were  prepared  for  company's  own  use  prior  to  negotiations;  Kim- 
ber  V.  Young,  137  Fed.  747,  70  C.  C.  A.  178,  applying  rule  in  action 
for  deceit  in  sale  of  bonds  where  defendant  said  he  knew  they  were 
good  and  would  be  paid;  Stratton's  Independence  v.  Dines,  135  Fed. 
459,  68  C.  C.  A.  161,  where  defendant  sold  mine  to  plaintiff  corpora- 
tion in  exchange  for  its  stock,  and  then  contracted  with  another  to 
sell  stock  on  commission,  profit  made  on  sale  of  stock  is  no  ground  for 
action  of  deceit. 

Syl.  2   (XI,  109).     Direction  of  verdict. 

Approved  in  Woodward  v.  Chicago  etc.  Ey.  Co.,  145  Fed.  578,  up- 
holding direction  of  verdict  for  defendant  in  action  against  railroad 
for  damage  caused  by  locomotive  sparks. 

117  U.  S.  430-433,  29  L.  962,  STONE  v.  SOUTH  CAROLINA. 

Syl.  1  (XI,  110).  Removal — Surrender  of  jurisdiction  by  state 
«ourt. 

Approved  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  654,  68  C.  C.  A. 
288,  and  Illinois  etc.  Ey.  Co.  v.  Jones,  118  Ky.  164,  80  S.  W.  4S5,  both 
following  rule;  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  196 
U.  S.  245,  49  L.  465,  25  Sup.  Ct.  251,  proceeding  for  condemning  laud 
under  Ky.  St.,  §§  835-839,  is  removable  where  diverse  citizenship  ex- 
ists; State  V.  Southern  Ey.  Co.,  135  N.  C.  81,  47  S.  E.  232,  denying  re- 
moval of  suit  by  corporation  commission  to  compel  railroad  to  de- 
liver coal  on  private  sitliug  where  allegation  as  to  jurisdictional  amount 
insufficient. 

Syl.  2    (XI,   112).     Issues  of   fact  on  removal   petition. 

Approved  in  Boatmen's  Bk.  v.  Fritzlen,  135  Fed.  653,  68  C.  C.  A. 
288,  following  rule;  Shane  v.  Butte  Elec.  Ey.  Co.,  150  Fed.  805,  815, 
since  state  court  must  accept  as  true  facts  alleged  in  removal  peti- 
tion, cause  remanded  where  joinder ,  of  nonresident  and  resident  de- 
fendants not  fraudulent;  Helena  Power  etc.  Co.  v.  Spratt,  146  Fed. 
313  where  record  in  state  suit  to  condemn  land  shows  equitable  title 
in  defendant,  who  is  citizcu  of  state,  and  legal  title  in  anotlier  de- 
fendant, who  is  citizen  of  another  state,  there  is  separable  controversy 
removable  by  nonresident. 

Syl.  3   (XI,  112).     Eemovnl — Suit  between  state  and  citizen. 

Approved  in  Eaphael  v.  Trask,  194  U.  S.  277,  48  L.  978,  24  S„p. 
Ct.    647     denying   federal   jurisdiction    to    enjoin    sale    of   stock   by    firm 


117  U.  S.  434-504  Notes  on  U.  S.  Kcports.  1324 

acting  for  stockholders  unless  sum  cleiiosited  out  of  proceeds  to  sat- 
isfy judgment  recoverable  on  foreclosure  by  complainant,  where  soma 
of  partners  are  citizens  of  same  state  as  complainant;  Chicago  etc. 
Ey.  Co.  V.  Commonwealth,  115  Ky.  285,  72  S.  W.  1121,  applying  rule 
to  suit  by  auditor's  agent  on  behalf  of  state  against  corporation  to 
compel  assessment  of  omitted  property. 

117  U.  S.  434-481,  29  L.  963,  UNION  TRUST  CO.  v.  ILLINOIS  MID- 
LAND CO. 

Syl.  2   (XI,  113).     Eeceivers — Court  ordering  repairs. 

Approved  in  In  re  Erie  Lumber  Co.,  150  Fed.  828,  where  order 
appointing  receivers  to  continue  bankrupt's  business  authorized  in- 
currence of  obligations  not  exceeding  $3,000,  and  later  receiver's  certi- 
ficates to  such  amount  authorized,  persons  selling  goods  on  credit  in 
excess  of  said  amount  have  no  priority. 

Syl.  11   (XI,  115).     Eailroad  receivership — Priority  of  wages. 

Approved  in  Cunningham  v.  Zinc  etc.  Min.  Co.,  103  Mo.  App.  400, 
76  S.  W.  488,  under  Rev.  St.  1899,  §  3167,  wages  for  labor  performed 
for  corporation  within  six  months  of  receivership  are  preferred  over 
all  claims  except  mortgage  Hens;  dissenting  opinion  in  Gregg  v.  Metro- 
politan Trust  Co.,  197  U.  S.  195,  49  L.  722,  25  Sup.  Ct.  415,  majority 
holding  claim  for  ties  necessary  to  preservation  of  railroad  furnished 
within  six  months  of  receivership  is  not  preferred  over  mortgage  re- 
corded before  tie  contract. 

Distinguished  in  Gregg  v.  Metropolitan  Trust  Co.,  197  U.  S.  187, 
49  L.  719,  25  Sup.  Ct.  415,  claim  for  ties  necessary  to  preservation  of 
railroad  furnished  within  six  months  of  receivership  is  not  preferred 
over  mortgage  recorded  before  tie  contract. 

Syl.  14   (XI,  116).     Estoppel  of  bondholders  to  question  sale. 

Distinguished  in  Anglo-American  Land  etc.  Co.  v.  Lombard,  132  Fed. 
743  68  C.  C.  A.  89,  discussing  nonestoppel  against  creditor  of  cor- 
poration of  ultra  vires  contract  of  latter. 

Syl.    15    (XI,   116).     Cancellation   of   bonds — Exchange    for   others. 

Distinguished  in  McEwen  v.  Harriman  Land  Co.,  138  Fed.  808, 
arguendo. 

(XI,  112.)  Miscellaneous.  Cited  in  Southern  Pae.  R.  Co.  v.  United 
States,  133  Fed.  669,  66  C.  C.  A.'  581,  answer  in  equity  waives  objec- 
tion to  adequacy  of  remedy  at  law. 

117  U.  S.  490-504,  29  L.  984,  DINGLEY  v.  OLER. 

Syl.   4    (XI,  117).     Breach   of  contract — Ecfusal   of   performance. 

Approved  in  McBath  v.  Jones  Cotton  Co.,  149  Fed.  386,  where 
plaintiff  contracted  to  deliver  cotton  of  specified  grade  before  Octo- 
ber 15th,  and  on  October  4th  defendant's  agent  refused  to  inspect  cot- 


1325  Notes  on  U.  S.  Reports.  117  U.  S.  508-53G 

ton  because  it  was  below  grade,  defendant's  rescission  on  October 
7th  entitled  plaintiff  to  damages;  Wells  v.  Hartford  Manilla  Co.,  76 
Conn.  34,  37,  55  Atl.  601,  604,  holding  no  anticipatory  breach  by  pur- 
chaser under  contract  to  furnish  certain  quantity  of  pulp  before  cer- 
tain date  as  ordered;  Frohlich  v.  Independent  Glass  Co.,  144  Mich. 
281,  107  N.  W.  890,  where,  after  contract  for  sale  of  glass  and  be- 
fore time  for  delivery  seller's  refusal  to  deliver  till  old  account  paid, 
was  not  absolute  refusal  to  perform;  Swiger  v.  Hayman,  56  W.  Va. 
126,  107  Am.  St.  Eep.  901,  48  S.  E.  840,  mere  declaration  by  one  of 
parties  to  executory  contract  of  intention  not  to  perform  it,  which  is 
retracted  almost  immediately  and  before  action  by  other  on  renuncia- 
tion, is  not  breach  of  contract;  Woodman  v.  Blue  Grass  Land  Co.,  125 
Wis.  495,  104  N.  W.  921,  where  vendor  on  being  notified  of  vendee's 
repudiation  notified  vendee  he  would  carry  out  his  part,  and  in  suit 
for  earnest-money  answered  that  he  was  ready  to  perform  and  had 
tendered  performance,  he  must  show  full  performance. 

117  U.  S.  508-514,  29  L.  982,  MAHOMET  v.  QUACKENBUSH. 

Syl.   1    (XI,   118).     Statutes — Subject — Germane  to  title. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  452,  50  L.  823,  26  Sup. 
Ct.   427,  upholding  Chicago   street  railway  statutes  of   1859,   18G1,  and 

1865. 

117  U.  S.  514-516,  29  L.  990,  BRUCE  v.  MANCHESTER  ETC.  R.  E. 
CO. 

Syl.   1    (XI,  118).     Appeal— Matter  in  dispute. 

Approved  in  Morris  v.  Bean,  146  Fed.  429,  upholding  federal  juris- 
diction over  suit  concerning  water  rights  where  right  to  use  water  ex- 
ceeds in  value  $2,000. 

117  U.  S.  51G-518,  29  L.  994,  EX  PARTE  FONDA. 

Syl.  1   (XI,  119).     Federal  habeas  corpus — State  prisoner. 

Approved  in  Re  Lincoln,  202  U.  S.  181,  50  L.  986,  26  Sup.  Ct.  602, 
denying  habeas  corpus  where  one  convicted  in  district  court  of  bring- 
ing liquor  into  Indian  country;  Ex  parte  Caldwell,  138  Fed.  489,  grant- 
ing habeas  corpus  to  release  one  committed  for  contempt  in  disoljcy- 
ing  summons  of  illegal  committee  of  legislature;  In  re  Dowd,  1.33  Fq(\. 
749,  753,  denying  habeas  corpus  to  release  one  committed  for  disobey- 
ing injunction  in  suit  by  state  to  prevent  election  frauds. 

117  U.  S.  519-536,  29  L.  934,  NEW  YORK  ETC.  INS.  CO.  v. 
FLETCHER. 

Syl.  2    (XI,   119).     Insurance — False  answers   written  by  agent. 

See  107  Am.  St.  Rep.  114,  note. 

Distinguished  in  Collins  v.  Metropolitan  Tiife  Ins.  Co.,  32  Mont.  338, 
339,  108  Am.  St.  Rep.  578,  80  I'ac.  610,  611,  warranty  by   insured  that 


117  U.  S.  536-582  Notes  on  U.  S,  Eeports.  1326 

he  was  not  connected  with  manufacture  or  sale  of  liquor,  not  broken 
by  proof  that  he  occasionally  waited  on  customers  of  saloou-kecper 
for  his  accommodation  merely  and  without  compensation. 

Syl.  3  (XI,  120").  Insurance — Limitation  of  agent's  authority. 
Approved  in  Deming  Inv.  Co.  v.  Shawnee  Ins.  Co.,  16  Okl.  9,  83 
Pac.  920,  and  Dimick  v.  Metropolitan  Life  Ins.  Co.,  69  N.  J.  L.  399, 
55  Atl.  297,  62  L.  E.  A.  774,  both  reaffirming  rule;  Collins  v.  Metro- 
politan Life  Ins.  Co.,  32  Mont.  343,  108  Am.  St.  Rep.  578,  80  Pac. 
612,  where  premiums  payable  quarterly  and  policy  prohibited  waiver 
of  forfeiture  or  receipt  of  premiums  except  by  written  authority,  in- 
surer not  bound  by  agent's  agreement  to  receive  payments  several  days 
after  due;  Rinker  v.  Aetna  Life  Ins.  Co.,  214  Pa.  St.  612,  64  Atl.  84, 
refusing  evidence  of  statements  to  agent  as  to  surgical  operation 
where  agent  wrote  application  which  denied  operation;  Mudley  v.  Ger- 
man etc.  Ins.  Co.,  55  W.  Va.  350,  351,  47  S.  E.  105,  determining  ef- 
fect of  limitation  of  authority  of  agent  in  policy  as  notice  where  such 
clause  not  read  by  insured. 

Syl.  4   (XI,  121).     Retention  of  policy  approves  application. 

Distinguished  in  American  etc.  Ins.  Co.  v.  Bertram,  163  Ind.  57, 
70  N.  E.  260,  64  L.  R.  A.  935,  upholding  right  to  recover  assess- 
ments paid  by  assignee  of  policy  taken  out  by  one  not  having  insur- 
able interest,  and  bought  on  false  representations  of  assured 's  agent 
as  to  its  validity;  Parsons,  Rich  &  Co.  v.  Lane,  97  Minn.  120,  106  N. 
W.  495,  insurer  is  not  obliged  to  offer  to  return  premiums  involun- 
tarily paid  before  notice  of  fact  that  policy  not  in  force  before  avail- 
ing itself  of  its  defense  in  action  on  policy. 

117  U.  S.  536-554,  29  L.  954,  YALE  LOCK  MFG.  CO.  v.  SARGENT. 

Syl.  1   (XI,   121).     Patentable  novelty. 

Approved  in  Eawson  etc.  Mfg.  Co.  v.  Hunt  Service  Co.,  147  Fed. 
241,  construing  and  upholding  Johnson  patent  No.  542,733,  for  heat 
regulator. 

117  U.  S.  5G7-582,  29  L.  940,  HOBBS  v.  McLEAN. 

Syl.    2    (XI,    124).     Assignment   of    government    claim — Partnership. 

Approved  in  North  Pac.  Lumber  Co.  v.  Spore,  44  Or.  472,  75  Pac. 
894,  determining  sufficiency  of  evidence  of  intention  to  form  partner- 
ship  for   government   contract. 

Syl.  4  (XI,  124).     Assignment  of  government  claims. 

Approved  in  Nutt  v.  Knut,  200  U.  S.  20,  50  L.  353,  26  Sup.  Ct. 
216,  contract  for  prosecution  of  claim  against  United  States  making 
compensation  for  services  lien  on  claim,  is  void. 

Syl.  5    (XI,  124).     Contract  open  to  two  constructions. 
Approved  in  Delaware  etc.  R.  Co.  v.  Kuttcr,   147  Fed.   62,  upholding 
contract    between    railroad    and    plaiutifl:    to    develop    business    of    milk 


1327  Notes  on  U.  S.  Eeports.  117  U.  S.  582-591 

transportation  along  road  on  percentage  of  freights;  Jones  v.  Patrick, 
140  Fed.  405,  agreement  to  co-operate  in  finding  purchaser  at  ad- 
vanced price  for  mine  on  which  one  party  had  option,  and  to  divide 
profits,  is  not  contract  for  sale  of  interest  in  lands  within  statute  of 
frauds;  dissenting  opinion  in  Green  v.  Grant,  134  Mich.  472,  96  N. 
\V.  587,  majority  holding  agreement  of  debtor  to  pay  five  per  cent 
interest  and  taxes  not  usurious  if  creditor  did  not  know  taxes  would 
exceed  two  per  cent. 

Syl.  6  (XI,  125).  Government  claim — Promise  to  pay  out  of  pro- 
ceeds. 

Approved  in  Padilla  v.  Padilla,  11  N.  M.  550,  553,  70  Pae.  565, 
566,  where  brother  recovered  judgment  in  own  name  on  Indian  depreda- 
tion claim  for  property  owned  jointly  with  sister,  and  before  judg- 
ment agreed  to  pay  sister  her  share  of  proceeds,  sister  could  recover 
her  share  of  proceeds. 

Syl.  8    (XI,   125).     Party  as  witness   against  estate. 

Approved  in  Smith  v.  Au  Gres  Twp.,  150  Fed.  260,  263,  under  Rev. 
St.,  §  858,  witness  may,  after  death  of  bankrupt,  testify  as  to  ad- 
missions made  by  bankrupt  concerning  his  estate  while  he  was  owner 
thereof. 

Syl.    11    (XI,    125).     Expense   of   litigation    over    trust    fund. 

Approved  in  McCourt  v.  Singers-Bigger,  145  Fed.  114,  stockholders 
who  by  suit  in  behalf  of  corporation  recover  sum  wrongfully  diverted 
ty  officers  are  entitled  to  attorney's  fees  out  of  such  sum,  but  stock- 
holders resisting  suit  are  not;  Lamar  v.  Hall,  129  Fed.  83,  63  C.  C. 
A.  521,  disallowing  fees  of  attorney  for  minority  stockholders  in  suit, 
whereby  suit  by  lien  creditors  alleged  to  be  fraudulent  and  receiver 
appointed,  who  sold  property,  and  on  attorney's  motion  sale  set  aside 
and  higher  price  obtained,  fraud  not  being  proven. 

117  U.  S.  582-591,  29  L.  991,  BURNES  v.  SCOTT. 

Syl.  1   (XI,  126).     Evidence  to  contradict  note. 

Approved  in  Payne  v.  Mutual  Life  Ins.  Co.,  141  Fed.  345,  deter- 
mining bona  fides  of  contract  whereby  premium  note  given  insurance 
agent  merely  to  increase  apparent  amount  of  his  business;  French  v. 
French,  133  Fed.  492,  66  C.  C.  A.  365,  arguendo. 

Syl.  2    (XI,  126).     Evidence  of  equitable  defense  to  note. 

Approved  in  Levi  v.  Mathews,  145  Fed.  154,  in  federal  law  action 
to  recover  money  on  contract,  court  cannot  entertain  answer  alleging 
fraud  in  procurement  of  contract. 

Syl.   3    (XI,  126).     Champerty  as  defense  to  contract. 
Approved   in   Robertson    v.    Cayard,    111    Tenn.    365,    77    S.    W.    1058, 
on  repeal  of  Act   1S21,   c.   66,   relating  to   chaiupertous   contracts,  exist- 


117  U.  S.  591-600  Notes  on  U.  S.  Reports.  1328 

ence  of  champertous  contract  did  not  bar  suit  to  which  it  related,  but 
merely  affected  validity  of  agreement. 

117  U.  S.  591-600,  29  L.  997,  NEW  YORK  ETC.  INS.  CO.  v.  ARM- 
STRONG. 

Syl.  1   (XI,  127).     Assignment  of  policy  payable  to  representatives. 

Approved  in  Brooks  v.  United  States,  146  Fed.  231,  in  prosecution 
for  mailing  letters  pursuant  to  fraudulent  scheme,  letters  other  than 
those  in  indictment  are  admissible  as  bearing  on  intent  and  exist- 
ence of  scheme;  Gordon  v.  Ware  Nat.  Bank,  132  Fed.  447,  67  L.  R. 
A.  550,  65  C.  C.  A.  580,  upholding  assignment  to  one  not  having  in- 
surable interest,  of  insurance  policy  sold  under  contract  of  pledge  by 
insured  and  beneficiary;  Matlock  v.  Bledsoe,  77  Ark.  64,  90  S.  W. 
849,  administrator  cannot  attack  intestate's  assignment  of  life  policy 
as  in  fraud  of  creditors;  Rylander  v.  Allen,  125  Ga.  215,  217,  53  S. 
E.  1036,  1037,  upholding  assignment  of  life  policy  procured  by  in- 
sured to  one  not  having  insurable  interest;  Coffin  v.  Ontonagon  Cir- 
cuit Judge,  140  Mich.  425,  103  N.  W.  837,  grantee  of  defendant  in 
quieting  title  suit  is  "representative"  within  Comp.  Laws  1897,  § 
496,  relating  to  substituted  service;  Mechanics'  Nat.  Bank  v.  Comins, 
72  N.  H.  20,  101  Am.  St.  Rep.  650,  55  Atl.  195,  life  policy  valid  in 
its  inception  is  assignable  to  one  having  no  insurable  interest  in  life 
insured  if  assignment  is  bona  fide  and  not  mere  device  to  cover  gambling 
transaction;  Box  v.  Lanier,  112  Tenn.  401,  79  S.  W.  1043,  64  L.  R.  A. 
458,  where  life  policy  is  payable  to  wife  if  she  survive  assured,  otherwise 
to  his  representatives,  latter  not  entitled  to  proceeds  where  insured  killed 
wife;  Canterbury  v.  Northwestern  Mut.  Life  Ins.  Co.,  124  Wis.  188,  193, 
102  N.  W.  1102,  1104,  where  husband's  policy  on  his  life  was  payable 
to  wife  or  her  administrators  and  assigns,  assignment  by  husband  and 
wife  with  insurer's  consent  valid;  dissenting  opinion  in  Box  v.  Lanier, 
112  Tenn.  422,  427,  429,  430,  79  S.  W.  1049,  1050,  1051,  64  L.  R.  A.  458, 
majority  holding  where  policy  payable  to  wife  if  she  survives  assured, 
otherwise  to  his  representative,  latter  not  entitled  to  proceeds  where 
insured  killed  wife;  dissenting  opinion  in  Canterbury  v.  Northwestern 
Mut.  Life  Ins.  Co.,  124  Wis.  200,  102  N.  W.  1107,  majority  holding 
where  policy  payable  to  insured 's  wife  or  administrators  or  assigns,  is 
assigned  by  insured  and  wife,  assignment  is  valid. 

Syl.  2   (XI,  127).     Evidence  that  assignee  killed  insured. 

Approved  in  Board  Commrs.,  Clinton  Co.  v.  Davis,  162  Ind.  07,  69 
N.  E.  683,  64  L.  R.  A.  942,  under  statute  providing  for  reward  of  one 
furnishing  evidence  of  election  bribery,  neither  vote  buyer  nor  vote 
seller  entitled  to  reward;  Courtemanche  v.  Supreme  Court  I.  O.  F., 
136  Mich.  36,  98  N.  W.  752,  64  L.  R.  A.  668,  where  death  caused  by 
voluntary  taking  of  poison  to  frighten  wife  into  giving  insured  money 
but   not   with   intent   to   cause   death,    recovery    may   be   had    on   policy 


1329  Notes  ou  U.  S.  Eeports.  117  U.  S.  617-633 

excepting  assurance  against  self-destDiction;  Box  v.  Lanier,  112  Tenn. 
411,  79  S.  W.  1046,  64  L.  E.  A.  458,  where  life  policy  payable  to 
wife  if  she  survives  assured,  otherwise  to  his  representatives,  latter 
not  entitled  to  proceeds  where  insured  killed  wife;  McAllister  v.  Fair, 
72  Kan.  537,  84  Pac.  113,  3  L.  R.  A.  (N.  S.)  726,  husband  may  in- 
herit from  wife  though  he  killed  her  to  acquire  her  property. 

Syl.  3    (XI,  128).     Procurement  of  other   insurance  by  assignee. 

Approved  in  Exchange  Bank  v.  Moss,  149  Fed.  344,  admitting  evi- 
dence of  acts  of  cashier  of  defendant  bank  in  respect  to  similar  trans- 
actions, in  action  to  recover  money  obtained  by  conspiracy  to  defraud 
by  means  of  fake  footrace;  Olson  v.  United  States,  133  Fed.  854,  67 
C.  C.  A.  21,  under  indictment  for  conspiracy  to  defraud  government 
of  lands  by  illegal  entry  by  person  named  for  defendant's  benefit, 
evidence  that  defendants  induced  others  to  enter  other  lands  under 
similar  circumstances  is  admissible;  Yakima  Valley  Bank  v.  McAl- 
lister, 37  Wash.  573,  107  Am.  St.  Kep.  823,  79  Pac.  1122,  where  in 
action  against  indorser  defendant  alleges  indorsement  i^rocured  by 
fraud,   eviiJeuce  of  similar  frauds   on  others  is  admissible. 

117  U.  S.  617-621,  29  L.  1004,  LONG  v.  BULLARD. 

Syl.  3    (XI,   129).     Debtor's  bankruptcy — Secured  creditor. 

Approved  in  Paxton  v.  Scott,  66  Neb.  387,  92  N.  W.  612,  following 
rule. 

117   U.   S.   621-633,   29   L.   946,  DISTRICT   OF  COLUMBIA  v.   McEL- 
LIGOTT. 

Syl.   4    (XI,    130).     Care   required   of   servant — Notice   to   overseer. 

x\pproved  in  "Walker  v.  Scott,  67  Kan.  818,  64  Pac.  616,  and  Neeley 
V.  Southwestern  etc.  Oil  Co.,  13  Okl.  368,  75  Pac.  541,  64  L.  R.  A.  145, 
both  reaffirming  rule;  Crookston  Lumber  Co.  v.  Boutin,  149  Fed.  683, 
684,  holding  decedent  guilty  of  contributory  negligence  where  he  gave 
notice  to  master  of  defect  in  log  carriage  and  superintendent  promised 
to  repair;  Bell  Telephone  Co.  v.  Detharding,  148  Fed.  374,  telephone 
company  not  liable  for  injuries  to  "trouble  finder"  sent  to  investigate 
trouble  and  injured  by  shock  caused  by  crossing  of  electric  wires;  Cin- 
cinnati etc.  Ry.  Co.  v.  Robertson,  139  Fed.  524,  determining  what  is 
reasonable  time  to  repair  machinery  after  complaint  of  employee  and 
promise  of  foreman  to  repair;  Begenish  v.  Gates,  2  Alaska,  515,  where 
mine  employee  managing  bucket  used  in  hoisting  gravel  notified  fore- 
man of  defects  in  cable  but  continued  to  work,  he  is  uegligciit  in  nut 
stopping  engine  to  fix  rope  but  attempting  to  do  so  wliile  running; 
Daily  v.  Fiberloid  Co.,  186  Mass.  320,  71  N.  E.  555,  fact  that  servant 
told  superintendent  that  plank  he  had  to  walk  on  was  warped,  and 
latter  said  he  would  see  to  it,  did  not  excuse  former  in  absence  of 
showing  he  continued  work  in  reliance  ou  statement  of  latter, 

84 


117  U.  S.  657-683  Notes  on  U.  S.  Eeports.  1330 

117  U.  S.  657-665,  29  L.  1026,  DAVIESS  COUNTY  v.  DICKINSON. 

Syl.  2    (XI,  132).     Municipal  bonds — Estoppel  to  show  overissue. 

Approved  in  Corbet  v.  Eocksbury,  94  Minn.  402,  103  N.  W.  14,  re- 
affirming principle. 

Syl.  3    (XI,   132).     Municipal  bonds — Overissue  bond. 
Approved  in  Schmitz  v.  Zeli,  91  Minn.  297,  97  N.  W.  1052,  applying 
rule  to  railroad  aid  bonds. 

117  U.  S.  665-679,  29  L.  1013,  PHILLIPS  t.  NEGLEY. 

Syl.  1   (XI,  133).     Correction  of  judgment  after  term. 

Approved  in  Ex  parte  Peeke,  144  Fed.  1020,  judgment  sentencing  for 
five  years  on  indictment  under  Eev.  St.,  §  440,  containing  five  counts,  is 
void  as  to  excess  of  sentence  over  two  years,  but.  prisoner  remanded  for 
amendment  of  judgment;  United  States  v.  Four  Lorgnette  Holders,  132 
Fed.  565,  judgment  of  forfeiture  of  imported  goods  for  defrauding  cus- 
toms laws  cannot  be  vacated  on  motion  after  term  to  permit  importer  to 
defend  on  ground  of  irregularities  in  procedure;  Matter  of  Zeckendorf, 
7  Ariz.  330,  64  Pac.  493,  judgment  cannot  be  vacated  on  motion  after 
term  at  which  entered. 

Syl.  3  (XI,  133).     Power  over  judgment  at  special  term. 

Approved  in  King  v.  Davis,  137  Fed.  227,  and  King  v.  Davis,  137  Fed. 
218,  both  holding  judgment  in  ejectment  cannot  be  vacated  after  term,  on 
motion  for  fraud  in  procurement. 

Syl.  4  (XI,  134).     Equitable  relief  against  judgment. 

Approved  in  O'Connor  v.  O'Connor,  142  Fed.  450,  451,  federal  court 
cannot,  on  motion  in  action  at  law,  vacate  judgment  of  previous  term ; 
Hockaday  v.  Jones,  8  Okl.  163,  56  Pac.  1056,  refusing  to  enjoin  execu- 
tion on  judgment  rendered  without  service  of  process,  where  inadequacy 
of  law  remedy  not  shown;  Froebrich  v.  Lane,  45  Or.  20,  106  Am.  St.  Eep. 
634,  76  Pac.  352,  upholding  equity  jurisdiction  to  set  aside  county  court's 
decree  settling  administrator's  final  account  procured  by  fraud;  Mc- 
Mahan  v.  Whelan,  44  Or.  406,  75  Pac.  716,  neither  judgment  of  justice 
court  in  plaintiff's  favor  in  forcible  entry  nor  its  affirmance  on  appeal 
estops  defendant  from  suing  for  specific  performance  of  verbal  lease  and 
for  injunction  against  judgment. 

117  U.  S.  679-683,  29  L.  1024,  JACKSON  v.  LAWEENCE. 

Syl.  1  (XI,  134).     Absolute  deed  as  mortgage. 

Approved  in  Weiseham  v.  Hocker,  7  Okl.  254,  54  Pac.  465,  where  deed 
absolute  given  to  secure  debt  and  bond  executed  by  grantee  for  reconvey- 
ance on  payment  of  debt  secured,  both  instruments  being  executed  at 
fiame  time,  transaction  is  mortgage. 


1331  Notes  on  U.  S.  Ucporta.  117  U.  S.  GS3  696 

117  U.  P.  6cS3-G89,  29  L.  1019,  ZEIGLER  v.  HOPKINS. 

Syl.  1  (XI,  134).     Attaching  petition  for  street  improvemcn^«<. 

Distinguished  in  Denver  v.  Londoner,  33  Colo.  121,  80  Pac.  122,  de- 
termining conclusiveness  of  findings  of  council  as  to  sufficiency  of  peti- 
tion for  street  improvements. 

117  U.  S.  689-696,  29  L.  1017,  CANTRELL  v.  WALLICK. 

Syl.  1  (XI,  135).     Patent  for  invention  and  improvement. 

Approved  in  Columbia  Wire  Co.  v.  Kokoma  etc.  Wire  Co.,  143  Fed. 
123,  Bates  patent  No.  365,723,  for  wire-barbing  machine,  infringed  by 
machine  of  Fredrich  patent  No.  711,303.  • 

Distinguished  in  Hoo  v.  Michle  etc.  Co.,  149  Fed.  214,  Read  patent 
No.  688,690,  for  improvements  in  bed  motions  for  cylinder  press,  limited 
l)y  prior  art. 

.   Syl.  2  (XI,  135).     Patents — Where  devices  same. 

Approved  in  Los  Angeles  Art  Organ  Co.  v.  Aeolian  Co.,  143  Fed.  887, 
Treniaine  &  Pain  patent  No.  552,796,  improvements  in  nnisical  instru- 
ments using  perforated  sheets,  infringed  by  Fleming  patent  No.  659,442 ; 
(Jharmbury  v.  Walden,  141  Fed.  377,  upholding  Charmbnry  patent  No. 
717,348,  for  vamp  stay  for  shoes;  Couch  Bros.  v.  Allen  Mfg.  Co.,  140 
Fed.  857,  upholding  Couch  patent  No.  699,151,  for  casing  for  horse  col- 
lars; Bryce  Bros.  Co.  v.  Seneca  Glass  Co.,  140  Fed.  171,  holding  Sehradcr 
jiatent  No.  592,920,  for  engraving  machine  for  etching  glassware,  valid 
and  infringed  by  machine  of  Schiffbauer  patent  No.  645,333 ;  Mica  In- 
sulator Co.  v.  Union  Mica  Co.,  137  Fed.  938,  upholding  Dyer  patent  No. 
483,  646,  for  process  for  making  artificial  mica. 

Syl.  3  (XI,  135).     Burden  of  prior  use  on  infringer. 

Approved  in  Scott  v.  Laas,  150  Fed.  765,  affirming  Laas  v.  Scott,  145 
Fed.  196,  decision  of  court  of  appeals  of  District  of  Columbia  affirming 
patent  office  in  proceeding  involving  priority  of  invention,  authorizes  pre 
liininary  injunction  against  infringement  by  unsuccessful  contestant 
Keasbey  etc.  Co.  v.  Philip  Carey  Mfg.  Co.,  139  Fed.  577,  upholding  Han 
more  patent  No.  545,843,  for  nonconducting  covering  for  steam  pipe : 
Cleveland  Foundry  Co,  v.  Kauffman,  135  Fed.  361,  68  C.  C.  A.  658,  up 
holding  Jeavons  patent  No.  702,560,  for  oil-burner;  Albright  v.  Lang 
feld,  131  Fed.  477,  upholding  Albright  patent  No.  439,086,  for  coin 
purse. 


CXVIII  UNITED  STATES. 


118  U.  S.  3-10,  30  L.  49,  EMERSON  v.  SENTER. 

Syl.  2    (XI,   13S).     Surviving  partner  controls  firm  property. 

Approved  in  People's  National  Bank  v.  Wilcox,  136  Mich.  577,  581, 
lOfl  N.  W.  27,  29,  where  surviving  partner  mortgaged  partnership 
assets  to  meet  firm  debts,  mortgagee  had  priority  over  his  individual 
creditors. 

Syl.   5    (XI,   139).     Assignment   for   creditors — Omission   of   assets. 

Approved  in  Dugan  v.  Beckett,  129  Fed.  58,  63  C.  C.  A.  498,  mort- 
gage of  bankrupt's  stock  not  invalidated  by  fraudulent  conduct  of 
mortgagor   alone. 

118  U.  S.  19-22,  30  L.  75,  JOHNSTON  v.  DISTRICT  OF  COLUMBIA. 

Syl.   1    (XI,   140).     Municipality's  liability   for   defective   sower. 

Approved  in  Bowden  v.  Kansas  City,  89  Kan.  592,  593,  77  Pac. 
575,  06  L.  R.  A.  181,  city  liable  for  imsafe  condition  of  fire  station 
whereby  fireman  injured;  Manning  v.  Springfield,  184  Mass.  246,  bS 
N.  E.  202,  where  recovery  not  allowed,  defect  being  in  system  of 
sewer;  Harrington  v.  Woodbridge,  70  N.  J.  L.  29,  56  Atl.  141,  deny- 
ing relief  for  damage  caused  by  want  of  sufficient  fall,  and  capacity 
in  sewer  causing  water  to  back  up  into  plaintiff's  cellar;  Hart  v. 
Neillsville,  125  Wis.  551,  104  N.  W.  700,  1  L.  R.  A.  (N.  S.)  952, 
city  liable  for  damage  caused  by  negligent  construction  of  sewer. 

118    U."  S.    22-25,    30    L.    53,    U.    S.    e'iFLE    &    CARTRIDGE    CO.    v. 
WHITNEY  ARMS  CO. 

Syl.  2   (XI,  141).     Abandonment  of  invention — Time  and  manner. 

Approved  in  Victor  Talking  Mach.  Co.  v.  American  Graph.  Co.,  140 
Fed.  866,  fact  that  invention  had  been  described  but  not  claimed  in  a 
prior  ai>plication  does  not  show  abandonment  so  as  to  invalidate  subse- 
quent patent. 

118  U.  S.  54-58,  30  L.  60,  CAMBRIA  IRON  CO.  v.  ASHBURN. 

Syl.   2    (XI,   142).     Revised   Statutes   conclusive  if  clear. 

Approved  in  Benson  v.  Henkel,  198  U.  S.  13,  49  L.  923,  25  Sup. 
Ct.  569,  District  of  Columbia  a  district  within  meaning  of  Rev.  St., 
§  1014  (U.  S.  Comp.  Stat.  1901,  p.  716),  though  not  within  meaning 
of  judiciary  act  of  1789,  from  which  the  section  was  taken. 

[1332] 


1333  Notes  on  U.  S.  Reports.  118  U.  S.  58-96 

Dlstingnislied  in  Clagett  v.  Dulutli  Tp.,  143  Fed.  826,  General  Stat- 
utes of  1878  of  Minnesota,  never  having  been  enacted  as  a  revision, 
not  conclusive. 

Syl.  3   (XI,  142).     Eemoval  for  local  prejudice. 

Distinguished  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  664,  68  C.  C. 
A.  288,  under  act  of  1887,  removal  could  be  had  by  nonresident  defend- 
ant, tliough  some  of  codefendants  are  residents. 

118  U.  S.  58-61,  30  L.  72,  CASIIMAN  v.  AMADOR  ETC.  CANAL  CO. 

Syl.  1   (XI,  143).     Collusion  to  give  federal  jurisdiction. 

Approved  in  Turnbull  v.  Ross,  141  Fed.  652,  where  court  directed 
verdict   for   defendant,   there  being  strong   evidence   of   collusion, 

118  U.  S.  73-80,  30  L.  78,  CADMAN  v.  PETER. 

Syl.   1    (XI,   143).     Clear  evidence  to  prove   deed  a  mortgage. 

Approved  in  New  York  Life  Ins.  Co.  v.  Preston,  142  Mich.  239,  105 
N.  W.  1132,  holding  evidence  insufficient  to  show  absolute  assignment 
of  insurance  policy  to  be  collateral  security. 

118  U.  S.  81-86,  30  L.  58,  UNITED  STATES  v.  LANDRAM. 

(XI,  144.)  Miscellaneous.  Cited  in  Ames  etc.  Co.  v.  Big  Indian 
etc.  Co.,  146  Fed.  175,  remedy  under  state  statute  allowing  one  action 
for  protection  of  water  right  against  all  persons  diverting  water  from 
the  stream  or  source  enforceable  in  federal  courts. 

118  U.  S.  86-90,  30  L.  110,  UNITED  STATES  v.  WILSON. 

Syl.  1    (XI,   144).     Possession  necessary  to  quiet  title. 

Approved  in  Ashburn  v.  Graves,  149  Fed.  971,  denying  equitable 
jurisdiction  of  bill  by  one  out  of  possession  to  remove  cloud  on  title ; 
Ropes  v.  Jenerson,  45  Fla.  559,  110  Am.  St.  Rep.  81,  34  So.  956, 
purchaser  of  land  at  execution  sale  not  in  possession  cannot  maintain 
bill  in  equity  against  one  in  possession  to  set  aside  prior  conveyance 
as  fraudulent  on  creditors;  "Wallace  v.  Elm  Grove  Coal  Co.,  58  W.  Va. 
455,  52  S.  E.  487,  upholding  demurrer  to  bill  to  remove  cloud  on  title 
where  plaintifit'  not  in  possession. 

118  U.  S.  90-96,  30  L.  115,  SPRAIGUE  v.  THOMPSON. 

Syl.  2   (XI,  145).     Statute  inseparable  from  void  part. 

Approved  in  Cella  Com.  Co.  v.  Bohlinger,  147  Fed.  423,  424,  statuto 
providing  for  service  of  summous  on  foreign  corporations  void  as  to 
those  doing  business  in  state,  being  invalid  as  to  others;  Robert  v. 
Police  Court,  148  Cal.  135,  82  Pac.  839,  municipal  charter  giving  police 
courts  jurisdiction  of  all  misdemeanors  concurrent  with  superior  court 
entirely  void,  as  under  constitution  such  jurisdiction  could  not  exist 
concurrently;  State  v.  Cudahy  Packing  Co.,  33  Mont.  188,  82  Pac.  S.'Ul, 
Montana   statute   prohibiting   combinations   to    fix   prices   and    regulate 


lis  U.  S.  97-151  Notes  on  U.  S.  Eeports.  1334 

proihiction  not  severable  from  invalid  section  exempting  persons  engngcd 
in  horticulture  or  agriculture  from  its  provisions. 

Distinguished  in  Olsen  v.  Smith,   195  U.   S.  342,  49  L.  229,  230,  25   ■ 
Sup.  Ct.  52,  upholding  pilotage  laws  of  Texas,  though  one  clause  thereof 
iiivalid  for  discrimination. 

118  U.  S.  97-109,  30  L.  104,  CLAY  v.  FREEMAN. 

Syl.  1    (XI,  146).     Surviving  partner  holds  till  debts  paid. 

Approved  in  Linn  v.  Downing,  216  111.  72,  74  N.  E.  732,  where 
judgment  obtained  by  firm,  revival  thereof  after  death  of  one  partner 
can  be  had  only  in  name  of  survivor  and  not  in  name  of  survivor  and 
deceased's   administrator. 

118  U.  S.  113-119,  30  L.   108,  EX  PARTE  LOTHROP. 

Syl.   1    (XI.    147).     Arizona  county   court  an   inferior   court. 

Approved  in  Higgins  v.  Tax  Assessors  of  Pawtucket,  27  R.  I.  408, 
G3  Atl.  37,  constitutional  provision  giving  supreme  court  jurisdiction 
to  issue  prerogative  writs  does  not  make  statute  conferring  such  power 
on  superior  courts  unconstitutional. 

118  U.  S.  120-126,  30  L.  81,  UNITED  STATES  v.  NASHVILLE  ETa 
RY. 

Syl.  1    (XI,   147).     United  States  not  bound  by  limitations. 

See  109  Am.  St.  Rep.  151,  152,  164,  171,  182,  note. 

Syl.  4  (XI,  148).     Limitations — Government  exemption^Trust  funds. 

Approved  in  Eastern  State  Hospital  v.  Graves,  105  Va.  152,  52  S.  E. 
838,  action  by  hospital  supported  by  state  for  charges  in  caring  for 
insane  person  cannot  be  barred  by  statute  of  limitations.  See  101  Am. 
St.  Rep.  179,  note. 

118  U.  S.  127-136,  30  L.  112,  CONLEY  v.  NAILOR. 

Syl.   4    (XT,   148).     Undue  influence — Destruction  of  free  agency. 

Approved  in  Wilkie  v.  Sassen,  123  Iowa,  424,  99  N.  W.  125,  can- 
celing contract  to  convey  realty  for  grossly  inadequate  consideration 
where  grantor  of  feeble  mentality;  Stewart  v.  Lyons,  54  W.  Va.  678, 
47  S.  E.  447    refusing  to  avoid  will  on  ground  of  undue  influence. 

118  U.  S.  148-151,  30  L.  190,  HOPPER  v.  CORRINGTON. 

Syl.  2   (XI,  149).     Unauthorized  bonds  void  in  bona  fide  hands. 

Approved  in  Green  Co.  v.  Shortell,  116  Ky.  126,  75  S.  W.  254,  where 
bonds  in  hands  of  bona  fide  purchasers  contained  no  recitals,  county 
not  estopped  to  show  conditions  of  issue  not  printed  in  bonds. 

Syl.  3    (XI,   149).     General  averment  of  authority  insufficient. 
Approved  in  Pittsburgh  etc.  Ry.  Co.  v.  Lighthciser,   163   Ind.  252,  71 
N.   E.   219,   sustaining   demurrer   to   complaint   for   personal   injury   in 


1335  Notes  on   U.  S.  Reports.  118  TJ.  S.  161-209 

being  run  down  by  car,  facts  showing  defendant's  duty  to  provide 
signal  light  and  guard  not  being  alleged.  See  97  Am.  St.  Eep.  833, 
note. 

118  U.  S.  161-180,  30  L.  196,  GRAHAM  v.  BOSTON  ETC.  R.  E.  CO. 

Syl.   2    (XI,   150).     Adoption   of   foreign   corporation. 

Approved  in  Russell  v.  St.  Louis  etc.  Ry.  Co.,  71  Ark.  455,  457,  75 
S.  W.  727,  728,  foreign  corporation  complying  with  Acts  1889,  p.  43, 
may  exercise  right  of  eminent  domain. 

Syl.  9    (XI,  151).     Setting  aside  state  court  <leeree. 
Approved  in   Strand   v.   GriiFith,   144  Fed.   831,   dismissing  bill   to   set 
aside  decree  of  foreclosure  obtained  in  state  courts  on  ground  of  fraud. 

118  U.  S.  180-193,  30  L.  158,  GARDNER  v.  HERZ, 

Syl.  2   (XI,  152).     Patent  of  old  process  void. 

Approved  in  Lafferty  Mfg.  Co.  v.  Acme  Ey.  etc.  Co.,  143  Fed.  321, 
affirming  138  Fed.  730,  holding  patent  for  railroad  torpedo  void,  there 
being  only  substitution  of  material;  Voightmann  v,  Weis  etc.  Co., 
133  Fed.  303,  holding  patent  for  improvement  in  fire-proof  windows 
void  for  want  of  invention. 

118  U.  S.   194-196,  30  L.  243,  ARROWSMITH  v.  HARMONING. 

Syl.  2  (XI,  153).  Fourteenth  amendment — Erroneous  state  de- 
cision. 

Approved  in  Glucose  Ref.  Co.  v.  City  of  Chicago,  138  Fed.  211, 
in  suit  to  enjoin  enforcement  of  ordinance,  federal  jurisdiction  not 
given   by   allegation   that   city   exceeded   charter   powers. 

118  U.  S.  196-209,  30  L.  98,  IRON  ETC.  MIN.  CO.  v.  ELGIN  MIN.  CO. 

Syl.    1    (XI,    153).     Following   vein   beyond   side    line. 

Approved  in  Ajax  Gold  Min.  Co.  v.  Hilkcy,  31  Colo.  139,  72  Pae. 
450,  reaffirming  rule;  Last  Chance  Min.  Co.  v.  Bunker  Hill  etc.  Co., 
131  Fed.  589,  66  C.  C.  A.  299,  locator  had  right  to  location  vein  ex- 
tending beyond  side  lines;  Jefferson  Min.  Co.  v.  Anchoria  etc.  Mill  Co., 
32  Colo.  192,  75  Pac.  1076,  where  conflict  as  to  dip  rights  within 
surface  boundaries  of  two  locations,  senior  location  prevailed. 

Syl.   2    (XI,   154).     Colorado   provisions   for  locating  mines. 

Approved  in  Mares  v.  Dillon,  30  Mont.  132,  75  Pac.  965,  holding 
titate  statute  requiring  acts  to  be  done  in  making  location  in  addition 
to  those  required  by  federal  law  valid. 

Syl.  7    (XI,  155).     Act  of  1872  requires  parallel  end   lines. 

Distinguished  in  Price  v.  Mcintosh,  1  Alaska,  291,  holding  valid 
claim  irregular  in  shape;  Central  Eureka  Mining  Co.  v.  East  Central 
etc.  Co.,  146  Cal.  151,  153,  79  Pac.  835,  836,  as  to  location  made  before 
act  of  1872,  end  lines  not  required  to  bo  parallel. 


118  U.  S.  235-271  Notes  on  U.  S.  Kcports.  1336 

118  U.  S.  235-241,  30  L.  173,  UNITED  STATES  v.  CENTRAL  PAC. 
R.  E. 

Syl.   1    (XI,   156).     Construction   of  statutes. 

Approved  in  Kitchen  v.  Southern  Ry.,  68  S.  C.  564,  48  S.  E.  8, 
construing  act  of  1898,  providing  that  action  for  wrongful  death  shall 
be  brought  for  benefit  of  heirs  at  law  of  distributees. 

Syl.  2    (XI,   157).     Construction  showing  unconstitutionality   avoided. 

Approved  in  Delaware,  etc.  R.  Co.  v.  Kutter,  147  Fed.  62,  construing 
railroad  traffic  contract  not  to  be  invalid;  Green  v.  Grant,  134  Mich. 
472,  96  N.  W.  587,  mortgagor's  agreement  to  pay  five  per  cent  interest 
and  all  taxes  on  mortgage  not  within  provisions  of  usuiy  statute  for- 
bidding more  than  seven  per  cent  interest,  though  taxes  should  exceed 
two  per  cent. 

lis  U.  S.  250-255,  30  L.  133,  LIBBY  v.  CLARK. 

Syl.   1    (XI,   157).     Alienation   under   Indian   treaty. 

Approved  in  Guyatt  v.  Kautz,  41  Wash.  122,  83  Pac.  11,  patent  to 
Indian  subject  to  treaty  stipulation  imposing  conditions  confers  base 
or   qualified   fee. 

118  U.  S.  256-263,  30  L.  176,  SALT  LAKE  CITY  v.  HOLLISTER. 

Syl.   5    (XI,    158).     Corporations   liable   for   torts. 

Approved  in  Stewart  v.  Wright,  147  Fed.  328,  holding  bank  liable 
where  its  officers  had  aided  in  conspiracy  to  defraud ;  Johnston  etc. 
Co.  V.  National  Bank  etc.,  4  Okl.  32,  44  Pac.  197,  holding  bank  liable 
for  fraud  of  managing  officer  committed  in  its  business. 

Syl.   6    (XI,   159).     Ultra  vires   contracts — Restitution   allowed. 

Approved  in  Luther  v.  Wheeler,  73  S.  C.  95,  52  S.  E.  878,  allowing 
recovery  where  town  officers  without  authority  gave  notes  for  money 
which  was  used  in  public  buildings. 

Distinguished  in  In  re  Waterloo  Organ  Co.,  134  Fed.  344,  67  C.  C. 
A.  255,  refusing  to  allow  bonds  illegally  issued  by  corporation  to  be 
proved  against  it  in  bankruptcy ;  United  States  S.  &  L.  Co.  v.  Convent 
of  St.  Rose,  133  Fed.  360,  holding  corporation  not  estopped  to  set 
up  its  want  of  power  to  subscribe  for  stock  in  other  corporations  in 
suit    to    cancel    such    subscriptions. 

118  U.  S.  264-271,  30  L.  232,  PLYMOUTH  ETC.  .MIN.  CO.  v.  AMADOR 
CANAL  CO. 

Syl.  1   (XI,  159).     Single  docketing  for  appeal  and  error. 

Approved  in  Lockman  v.  Lang,  132  Fed.  34,  holding  single  assign- 
ment of  errors  sufficient  where  both  appeal  and  writ  of  error  taken, 

Syl.   2    (XI,   159).     Joint   tort — Controversies  not  separable. 
Approved  in  Alabama  etc.  Ry.  Co.  v.   Thompson,   200   U.   S.   215,  50 
L.  446,  26  Sup.  Ct.  161,  in  action  for  wrongful  death  against  railroad 


1337 


Xotes  on  U.  S.  Reports.  118  U.  S.  271-321 


company  and  employees,  controversy  with  company  not  separable; 
Southern  Ey.  Co.  v.  Thomason,  146  Fed.  975,  denying  petition  for  re- 
moval on  ground  of  "prejudice  and  local  influence"  in  action  for 
joint  tort. 

Syl.   3    (XI,   160).     Eemoval — Collusive  joinder  must  be  proved. 

Approved  in  Offner  v.  Chicago  etc.  R.  Co.,  148  Fed.  203,  and  Thomas 
V.  Great  Northern  Ry.  Co.,  147  Fed.  86,  both  denying  removal,  collusive 
joinder  not  being  proved;  Crawford  v.  Illinois  C.  R.  Co.,  130  Fed.  396, 
where   case   removed,   fraudulent   joinder   being   proved. 

Distinguished  in  Dishon  v.  Cincinnati  etc.  Ry.  Co.,  133  Fed.  476,  66 
C  C.  A.  345,  holding  case  should  be  remanded  where  verified  petition 
showing   codefendant    to   be   sham   party   not   denied. 

118  U.  S.  271-279,  30  L.  170,  MULLAX  v.  UNITED  STATES. 

Syl.  3    (XI,   160).     School  patents  to  mineral  lands  canceled. 

Approved  in  Southern  Pac.  R.  R.  Co.  v.  United  States,  200  U.  S. 
351,  50  L.  511,  26  Sup.  Ct.  296,  upholding  equity  jurisdiction  of  suit 
by  United  States  to  cancel  patents  and  quiet  title  to  lands. 

IIS  U.  S.  279-289,  30  L.  167,  CARSON  v.  HYATT. 

Syl.   2    (XI,   16-1 ).     Removal — State   court   views   record   only. 

Approved  in  Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,  19(3 
U.  S.  245,  49  L.  465,  25  Sup.  Ct.  251,  condemnation  proceeding  under 
state  statute  removable  for  diversity  of  citizenship;  Shane  v.  Butte 
Elec.  Ry.  Co.,  150  Fed.  805,  806,  state  court  must  remove  case  upon 
petition  showing  fraudulent  joinder  filed  therein;  Helena  etc.  Co.  v. 
Spratt,  146  Fed.  313,  remanding  case  where  whole  record  showed  want 
of  diverse  citizenship;  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  653,  68 
C.  C.  A.  28S,  upholding  jurisdiction  of  federal  court  where  record 
presented    for   removal   showed   diversity   of   citizenship. 

118   IT.   S.   290-321,   30   L.   83,   PENNSYLVANIA   CO.   v.   ST.   LOUIS 
ETC.  R.  R. 

Syl.  5    (XI,  162).     Filing  certificate  not  acceptance  of  charter. 

Approved  in  Russell  v.  St.  Louis  etc.  Ry.  Co.,  71  Ark.  454,  455,  75 
S.  W.  727,  foreign  corporation  complying  with  Acts  1889,  p.  43,  may 
exercise   right   of   eminent    domain. 

Distinguished  in  Walsey  v.  Chicago  etc.  Ry.  Co.,  147  Fed.  613,  cor- 
poration formed  by  consolidation  of  Iowa  ami  Illinois  corporations 
was  corporation  of  both  states. 

Syl.   6    (XI,   163).     Equity  will   enforce   railroad   lease. 

Approved  in  Grand  Trunk 'etc.  Ry.  Co.  v.  Chicago  etc.  Ry.  Co.,  141 
Fed.  795,  agreement  of  railroad  lessee  for  long  term  to  use  tracks  and 
terminal  facilities  of  lessor  and  pay  rental  on  wheelage  basis  enforce- 
able in  equity  on  ground  of  avoiding  multiplicity  of  suits. 


118  U.  S.  321-374  Notes  on  U.  S.  Eeports.  1338 

Syl.  8   (XI,  163).     Railroad  has  no  power  to  lease. 

Approved  in  Eenfrow  v.  Grimes,  6  Okl.  613,  52  Pac.  391,  lease  for 
five  years  by  board  for  the  leasing  of  school  lands  in  Oklahoma  void 
because  beyond  legal  powers  of  board,  who  were  restricted  to  three  year 
leases. 

Syl.  9   (XI,  164).     Lease  ultra  vires  of  lessee  void. 

Approved  in  Arkansas  v.  Choctaw  etc.  R.  Co.,  134  Fed.  108,  holding 
rule  so  definitely  settled  as  not  to  be  federal  question  giving  federal 
courts  jurisdiction. 

Syl.  11  (XI,  165).  Authority  for  transportation — Contract  does  not 
include  lease. 

Approved  in  Smalley  v.  Atlanta  etc.  Ry.  Co.,  73  S.  C.  574,  53  S.  E. 
1001,  holding  railroad  company  liable  for  negligence  of  lessee. 

Syl.  14   (XI,   165).     Relief  where  ultra  vires  contracts  executed. 

Approved  in  Union  Bank  v.  Oxford  etc.  R.  Co.,  143  Fed.  200,  allowing 
recovery  of  price  paid  for  void  municipal  bonds  where  seller  had  rep- 
resented them  to  be  valid ;  In  re  Waterloo  Organ  Co.,  134  Fed.  344, 
67  C.  C.  A.  255,  holding  bonds  issued  in  consideration  of  indorse- 
ment of  note  against  the  corporation's  president  violates  statute  for- 
bidding issue  except  for  money  or  property,  and  not-  provable  against 
corporate  assets. 

Syl.  16   (XI,  166).     Performance  does  not  estop  rescission. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  737,  743, 
6S  C.  C.  A.  89,  where  one  corporation  transferred  all  its  assets  to 
another,  stockholders  of  first,  by  exchanging  their  stock  for  stock  in 
latter,  not  relieved  from  stockholders'  liability,  second  corporation  hav- 
ing no  power  to  acquire  stock  of  first;  Stealey  v.  Kansas  City,  179 
Mo.  408,  78  S.  W.  601,  city  not  liable  for  injury  from  defective 
sidewalk   it   had   constructed    outside    of   city   limits. 

Distinguished  in  Weed  v.  Gainesville  R.  R.  Co.,  119  Ga.  596,  46 
S.  E.  894  bondholders  in  suit  to  foreclose  railroad  mortgage  cannot 
attack  as  ultra  vires  contract  whereby  stock  issued  to  another  railroad 
company  which  completed  construction  of  road. 

118  U.  S.  321-346,  30  L.  211,  LORING  v.  PALMER. 

Syl.  4   (XI,  167).     Delay  not  bar  in  equity. 

Approved  in  Von  Arnim  v.  American  Tube  Works,  188  Mass.  519,  74 
N.  E.  681,  suit  by  minority  stockholder  against  corporate  officers  for 
misappropriation  of  funds  not  barred  by  delay. 

118  U.  S.  356-374,  30  L.  220,  YICK  WO  v.  HOPKINS. 

Syl.  2    (XI,   168).     State  construction  not  binding. 

Approved  in  Hoist  v.  Savannah  etc.  Co.,  131  Fed.  944,  holding  void 
resolution   of   municipal   council   granting   railroad   company   right   to 


1339  Notes  on  U.  S.  Keports.  118  U.  S.  356-374 

lay  track  in  a  street  without  prior  notice  or  publication;  Jamison  v. 
Wimbish,  130  Fed.  362,  sentence  by  police  judge  of  seven  months' 
severe  labor  on  chain-gang,  under  municipal  ordinances  for  minor  of- 
fense void  under  fourteenth  amendment. 

Syl.  3  (XI,  1(58).     Laundry  ordinance  within  police  power. 
Approved  in  .State  v.  Cantwell,  179  Mo.  270,  78  S.  W.  576,  upholding 
statute  limiting  hours  of  employment  in  mines  to  eight  hours  a  day. 

Distinguished  in  In  re  Smith,  143  Cal.  373,  77  Pac.  182,  ordinance 
prohibiting  maintenance  of  gas  plant  within  certain  district  void; 
State  V.  Brown,  37  Wash.  101,  107  Am.  St.  Eep.  798,  79  Pac.  637,  68 
L.  R.  A.  889,  holding  void  statute  requiring  examination  and  license 
from  dental  board  for  "owning,  running  and  managing  a  dental  office." 

Syl.  4  (XI,  1G9).     Fourteenth  amendment  applies  to  all  races. 

Approved  in  Block  v.  Schwartz,  27  Utah,  400,  76  Pac.  26,  holding 
void  act  of  1901,  making  void  sale  of  entire  stock  of  merchandise  in  bulk, 
unless  certain  conditions  complied  with;  dissenting  opinion  in  United 
States  V.  Sing  Tuck,  194  U.  S.  179,  48  L.  925,  24  Sup.  Ct.  621,  majority 
refusing  to  grant  habeas  corpus  to  Chinaman,  alleging  citizenship,  who 
is   refused   admission   to    United   States.. 

Syl.    6    (XI,    170).     Ordinance    giving   arbitrary    power   invalid. 

Approved  in  Wright  v.  Hart,  182  N.  Y.  358,  75  N.  E.  415,  2  L.  R. 
A.  (N.  S.)  338,  McKinster  v.  Sager,  163  Ind.  679,  680,  106  Am.  St. 
Rep.  268,  72  N.  E.  857,  68  L.  R.  A.  273,  and  Sellers  y.  Hayes,  163  Ind. 
434,  435,  72  N.  E.  123,  124,  all  holding  statute  making  sale  of  stock 
of  meichandise  otherwise  than  in  course  of  trade  void  as  against 
creditors  as  violating  fourteenth  amendment ;  Boyd  v.  Board  of 
Council,  117  Ky.  208,  111  Am.  St.  Rep.  244,  77  S.  W.  672,  holding 
ordinance  requiring  consent  of  municipal  common  council  for  erec- 
tion of  building  invalid;  Mandeville  v.  Band,  111  La.  809,  35  So. 
916,  holding  penal  liquor  ordinance  prohibiting  further  granting  of 
privilege  within  certain  distance  of  churches  or  schools  violates  four- 
teenth amendment;  State  v.  Ramseyer,  73  N.  H.  36,  58  Atl.  960, 
holding  void  statute  prohibiting  use  of  trading  stamps;  Schnaicr  v. 
Navarre  Hotel  etc.  Co.,  182  N.  Y.  89,  108  Am.  St.  Rep.  790,  74  N.  E. 
562,  70  L.  R.  A.  722,  holding  statute  for  licensing  of  plumbers  which 
requires  employers  or  all  members  of  plumbing  firm  to  be  licensed,  in- 
valid; Hubbard  v.  Hubbard,  77  Vt.  80,  1U7  Am.  St.  Rep.  753,  58  Atl. 
971,  67  L.  R.  A.  969,  holding  statute  authorizing  court  of  chancery 
on  petition  of  wife  to  empower  her  to  convey  land  by  her  separate 
deed  invalid;  State  v.  Scampini,  77  Vt.  114,  59  Atl.  208,  holding  void 
act  regulating  sale  of  liquors  excepting  from  its  provisions  man- 
ufacturers of  cider  or  native  wines  not  to  be  drunk  on  premises.  See 
notes,  108  Am.  St.  Rep.  786,  788;  104  Am.  St.  Rep.  642. 

Distinguished  in  New  York  v.  Van  de  Carr,  199  U.  S.  559,  562,  50 
L.  309,  311,  26  Sup.  Ct.  144,  holding  ordinance  requiring  milk  dealers 


118  U.  S.  356-374  Notes  on  U,  S.  Keports,  1340 

to  obtain  permit  from  board  of  health  did  not  violate  fourteenth 
amendment;  Grainger  v.  Douglas  etc.  Club,  148  Fed.  520,  521,  527,  530, 
531,  536,  overruling  Douglas  etc.  Club  v.  Grainger,  146  Fed.  417,  423, 
and  holding  statute  creating  racing  commission  with  power  to  license 
and  regulate  horseracing  valid;  Fitts  v.  Atlanta,  121  Ga.  573,  49  S.  E. 
796,  67  L.  E.  A.  803,  upholding  ordinance  prohibiting  p\iblic  meetings  in 
streets  without  consent  of  municipal  authorities;  State  v.  Durcin,  70 
Kan.  37,  38,  39,  80  Pac.  995,  996,  holding  valid  statute  giving  probate 
judge  discretionary  power  over  subject  of  granting  and  refusing 
liquor  licenses;  Ex  parte  Boyce,  27  Nev.  339,  75  Pac.  6,  65  L.  E.  A.  47, 
upholding  statute  providing  eight-hour  day  for  all  workmen  in  mines, 
smelters  and  mills  for  reduction  of  ore;  State  v.  Briggs,  45  Or.  369, 
375,  77  Pac.  750-752,  upholding  statute  authorizing  board  of  barber 
examiners  to  prescribe  qualifications  for  barbers  and  grant  licenses 
thereunder;  Burke  v.  Collins,  18  S.  D.  194,  99  N.  W.  1113,  upholding 
statute  giving  board  of  county  commissioners  power  to  reject  liquor 
license  bond  of  any  person  known  to  them  to  be  unfit  to  conduct 
liquor  business;  Harrigan  v.  Gilchrist,  121  Wis.  220,  99  N.  W.  931. 
upholding  §  3052,  Eev.  St.  1898,  of  Wisconsin,  requiring  undertakings 
to  be  filed  on  appeal. 

Syl.  7   (XI,  172).     Unequal  enforcement   of  law  invalid. 

Approved  in  Lochner  v.  New  York,  198  U.  S.  64,  66,  49  L.  944,  945, 
25  Sup.  Ct.  539,  holding  void  statute  limiting  hours  of  employment 
in  bakeries  to  sixty  hours  a  week,  and  ten  hours  a  day;  Dobbins  v. 
Los  Angeles,  195  .U.  S.  240,  241,  49  L.  177,  25  Sup.  Ct.  18,  holding  in- 
valid ordinance  restricting  limits  within  which  gasworks  may  be 
erected;  Hume  v.  Laurel  Hill  Cem.,  142  Fed.  564,  565,  holding  mun- 
icipal ordinance  prohibiting  burial  of  dead  in  city  and  county  of 
San  Francisco  void;  Kentucky  v.  Powers,  139  Fed.  456,  461,  allowing 
removal  of  case  to  federal  courts  on  ground  of  discrimination  against 
jurors  of  same  political  party  as  defendant  in  state  court;  Brown  v. 
Urquhart,  139  Fed.  848,  granting  habeas  corpus  to  defendant  who, 
upon  being  acquitted  in  state  court  on  ground  of  insanity,  had  been 
committed  to  prison  by  court  as  a  dangerous  person,  under  statute, 
without  further  trial  on  that  question;  State  v.  Cudahy  Packing  Co., 
33  Mont.  186,  82  Pac.  835,  holding  statute  prohibiting  combinations 
for  fixing  prices  or  regulating  production  except  as  to  persons  en- 
gaged in  horticulture  or  agriculture  void  under  fourteenth  amend- 
ment. 

Distinguished  in  Owensboro  Waterworks  Co.  v.  Owensboro,  200  U. 
S.  45,  50  L.  364,  26  Sup.  Ct.  249,  upholding  act  of  municipality  in 
diverting  taxes  collected  for  specific  object;  Ah  Sin  v.  Wittman,  198 
U.  S.  506,  507,  508,  49  L.  1145,  1146,  25  Sup.  Ct.  756,  holding  convic- 
tion of  Chinaman  under  ordinance  against  gambling  not  illegal  because 
the  ordinance  enforced  solely  against  Chinese,  where  it  is  not  shown 
that  the  evil  did  not  exist  solely  among  Chinese;  Georgia  E.  E. 
etc.  Co.  V.  Wright,  125  Ga.  603,  54  S.  E.  58,  holding  custom  of  tax- 


1341  Notes  on  U.  S.  Reports.  118  U.  S.  375-385 

payers  to  return  their  property  at  less  than  its  value  will  not  amount 
to  denial  of  equal  protection  of  law  as  to  person  required  to  pay  tax 
on  full  vclue;  Kersey  v.  Terre  Haute,  161  Ind.  476,  68  N.  E.'lOSO, 
upholding  ordinance  imposing  tax  on  vehicles  excepting  street-cars^ 
automobiles  and  vehicles  of  nonresidents. 

118  U.  S.  375-385,  30  L.  228,  UNITED  STATES  v.  KAGAMA. 

Syl.  6   (XI,  173).     Indian  tribes  not  nations. 

Approved  in  Gay  v.  Thomas,  5  Okl.  12,  46  Pae.  582,  upholding  tax 
imposed  by  Oklahoma  Territory  upon  cattle  belonging  to  white  persons, 
and  kept  grazing  on  Indian  reservation  under  leases  from  Indians. 

Syl.  8  (XI,  174).     Federal  act  of  1885  valid. 

Approved  in  United  States  v.  Cardish,  145  Fed.  246,  affirming  143 
Fed.  641,  642,  and  holding  §  2143,  Eev.  St.,  in  so  far  as  it  distinguishes 
between  white  persons  and  Indians  in  committing  crimes  on  Indian 
reservation  in  state  repealed  by  act  of  1885;  In  re  Now-ge-zhuck,  69 
Kan.  415,  76  Pac.  878,  holding  act  February  8,  1887,  for  allotment  of 
land  of  reservation  to  Indians,  confers  jurisdiction  on  state  courts 
to  punish  allottees  for  crimes  within  limits  of  reservation;  State  v. 
Howard,  33  Wash.  256,  258,  74  Pac.  384,  385,  holding  act  of  March 
3,  1885,  c.  341,  does  not  deprive  state  court  of  jurisdiction  over  crimes 
committed  on  reservation  by  Indians  not  in  tribal  relation. 

Syl.  9  (XI,  174).     Indians  are  wards  of  nation. 

Approved  in  In  re  Lincoln,  129  Fed.  248,  holding  state  court  without 
jurisdiction  to  punish  Indian  for  having  deer  meat  in  his  possession  on 
Indian  reservation  in  California,  contrary  to  state  statute;  United 
States  V.  Berrigan,  2  Alaska,  450,  sustaining  suit  in  name  of  United 
States  for  benefit  of  Indians  to  prevent  persons  from  trespassing  on 
land  occupied  by  them;  Herd  v.  United  States,  13  Okl.  516,  75  Pac.  292, 
iind  Goodson  v.  United  States,  7  Okl.  130,  54  Pac.  427,  both  holding 
act  of  March  3,  1885,  did  not  deprive  district  court  of  territory  of 
Oklahoma  sitting  as  United  States  court  of  jurisdiction  over  crimes 
of  persons  other  than  Indians,  within  reservation;  Labadie  v.  United 
States,  6  Okl.  415,  51  Pac.  671,  holding  act  of  Congress  of  June  4, 
1888,  prohibiting  cutting  of  timber  on  Indian  reservation,  effective 
against  Indians  occupying  reservation  in  tribal  relations;  Hollister 
V.  United  States,  145  Fed.  777,  upholding  act  conferring  jurisdiction 
on  federal  courts  for  district  of  South  Dakota  to  try  cases  of  larceny 
committed  on  Indian  reservations  in  that  state;  United  States  v. 
Thurston,  143  Fed.  289,  enjoining  collection  of  state  taxes  on  proceeds 
of  sales  of  Indian  lands  under  act  May  27,  1902,  which  had  been 
deposited  in  bank  to  credit  of  Indians  in  accordance  therewith; 
McBride  v.  Farrington,  131  Fed.  801,  upholding  leases  of  mineral  lands 
on  Indian  reservation  under  authority  of  tribal  laws,  there  being  no 
contravening    acts    of    Congress. 


118  U.  S.  385-434  Notes  on  U.  S.  Reports.  1342 

118  U.  S.  385-380,  30  L.  165,  FRANCIS  v.  FLINK 

Syl.   1    (XI,   176).     Conspiracy  not   enjoined. 

Approved  in  Montgomery,  Ward  &  Co.  v.  South  Dakota  etc.  Assn., 
150  Fed.  418,  refusing  to  enjoin  association  of  retail  dealers  from 
carrying  out  agreement  not  to  purchase  from  jobbers  who  sold  to 
catalogue  or  mail  order  houses;  Empire  Transportation  Co.  v.  Johnson, 
76  Conn.  83,  55  Atl.  589,  refusing  to  enjoin  defendant  from  replevying 
coal  barges  of  plaintiff. 

118   U.   S.   394-417,  30   L.   118,   SANTA   CLARA   CO.   v.   SOUTHERN 
PACIFIC  R.  R. 

Syl.  1  (XI,  176).  Corporations  persons  within  fourteenth  amend- 
ment. 

Approved  in  Douglas  etc.  Club  v.  Grainger,  146  Fed.  417,  upholding 
state  statute  creating  commission  for  regulation  and  licensing  of  rac- 
ing corporations;  Huber  v.  Martin,  127  Wis.  434,  105  N.  W.  1038, 
holding  reorganization  of  mutual  insurance  company  under  state  stat- 
ute violated  fourteenth  amendment;  dissenting  opinion  in  Hale  v. 
Henkel,  201  U.  S.  84,  50  L.  669,  26  Sup.  Ct.  370,  majority  holding  fourth 
amendment  of  United  States  constitution  will  not  justify  officer  of 
corporation  in  refusing  to  produce  its  books  in  answer  to  subpoena  duces 
tecum  at  grand  jury  investigation. 

Syl.  2  (XI,  177).     Federal  courts — Validity  of  state  law. 

Approved  in  dissenting  opinion  in  Kingsley  v.  Merrill,  122  Wis.  205, 
99  N.  W.  1050,  67  L.  R.  A.  200,  majority  holding  statute  making 
debts  due  from  solvent  debtors  taxable  to  creditor  does  not  violate 
fourteenth  amendment. 

Syl.  4  (XI,  178).     Assessment  partly  unauthorized  totally  void. 

Approved  in  Fargo  v.  Hart,  193  U.  S.  503,  48  L.  767,  24  Sup.  Ct. 
498,  holding  assessment  against  express  company  which  took  into 
account  personal  property  of  the  company,  outside  state,  in  fixing  as- 
sessment  on   mileage   basis,  wholly  void. 

118  U.  S.  425-454,  30  L.  178,  NORTON  v.  SHELBY  COUNTY. 

Syl.  3  (XI,  179).     No  de  facto  officer  without  office. 

Approved  in  Crowley  v.  Southern  Ry.  Co.,  139  Fed.  853,  where  state 
law  creating  county  court  held  unconstitutional,  suit  filed  therein  and 
removed  to  federal  court  dismissed;  People  v.  Horan,  34  Colo.  332,  86 
Pac.  261,  where  election  commission  had  organized  and  acted  under 
unconstitutional  law,  its  certificate  of  the  election  of  person  to  office 
of  coroner  not  evidence  of  that  fact  in  election  contest;  Clark  v.  American 
etc.  Coal  Co.,  165  Ind.  216,  73  N.  E.  1084,  affirming  35  Ind.  App.  71,  75 
N.  E.  729,  and  holding  corporation  created  by  special  act  for  term 
which  had  expired,  and  which  had  attempted  to  continue  its  existence 
under  an  unconstitutional  act  not  a  de  facto  corporation;  Matter  of 
O'Berry,  179  N.  Y.  287,  72  N.  E.  109,  where  tax  paid  under  void  law, 


1343 


Notes  on   U.  S.  Eeports.  118  U.  S.  423-454 


person  to  whom  it  is  refunded  has  right  to  interest;  City  of  Guthrie 
V.  Territory,  1  Old.  193,  31  Pac.  192,  11  L.  E.  A.  418,  provisional 
iniinicii)al  organizations  in  Oklahoma,  before  act  of  Congress  of  May 
2,  1890,  providing  territorial  government,  had  no  legal  existence  and 
their  contracts  void;  Payne  v.  Staunton,  55  W.  Va.  207,  46  S.  E.  929, 
mandamus  will  not  lie  to  compel  clerk  of  county  court  to  allow  in- 
spection of  books  and  papers  in  his  custody  under  unconstitutional 
law;  dissenting  opinion  in  Prewitt  v.  Security  etc.  Ins.  Co.,  119  Ky. 
347,  84  S.  W.  531,  majority  holding  state  statute  providing  that  if 
foreign  insurance  company  shall  remove  a  suit  from  state  to  federal 
courts  without  consent  of  other  parties,  its  right  to  do  business  in 
state  shall  be  revoked,  does  not  violate  federal  constitution;  dis- 
senting oiDinion  in  People  v.  Ebelt,  ISO  N.  Y.  478,  73  N.  E.  237,  majority 
holding  a  jury  drawn  and  returned  under  unconstitutional  statute  a 
de  facto  jury.  • 

Distinguished  in  South  Omaha  v.  O'Rourke,  70  Neb.  482,  97  N.  W. 
609,  a  precinct  for  taxing  jmrposes  actually  formed  and  organized,  de 
facto,  though  meeting  of  county  commissioners  at  which  it  was 
formed  not  legally  held;  Muse  v.  Lexington,  110  Tenn.  667,  76  S.  W. 
484,  upholding  bonds  issued  by  town  under  authority  of  legislature, 
though  the  town  had  not  been  legally  incorporated. 

Syl.  5   (XI,  180).     Unconstitutional  law  absolute  nullity. 

Approved  in  Campbell  v.  Bryant,  104  Va.  516,  52  S.  E.  640,  enjoining 
collection  of  tax  by  oflicers  of  town,  the  act  under  which  it  was  in- 
corporated   being    invalid. 

Syl.  6  (XI,  181).     Official  acts  unaffected  by  illegal  appointment. 

Approved  in  Ex  parte  State,  142  Ala.  89,  110  Am.  St.  Eep.  21,  38 
So.  835,  person  commissioned  by  governor  as  and  exercising  duties  of 
circuit  judge  under  unconstitutional  act,  but  at  time  and  place  where 
such  court  could  legally  be  held,  was  de  facto  judge;  Walker  v.  State, 
142  Ala.  10,  39  So.  242,  person  acting  as  judge  of  state  circuit  court, 
though  appointed  under  unconstitutional  act,  a  de  facto  judge;  Powers 
V.  State,  83  Miss.  703,  36  So.  8,  special  judge  appointed  for  trial  of 
case  de  facto  officer  though  he  had  not  taken  oath  of  office;  Greene 
V.  Eienzi,  87  Miss.  466,  40  So.  18,  acts  of  de  facto  mayor  and  board 
of  aldermen  in  issuing  municipal  bonds  valid. 

Syl.  7,  (XI,  182).     De  facto  officer  defined. 

Approved  in  Monahan  v.  Lynch,  2  Alaska,  133,  upholding  appninlinont 
of  poundniaster  by  town  council,  though  members  of  it  not  legally 
elected;  Haskell  v.  Dutton,  65  Nob.  275,  91  N.  W.  395,  deputy  county 
clerk,  whose  appointment  not  in  writing  and  who  had  not  complied  witii 
law  relative  to  official  bond  and  oath  a  de  facto  officer;  Morford  v.  Ter- 
ritory, 10  Okl.  745,  63  Pac.  960,  54  L.  R.  A.  513,  defendant  guilty  of 
perjury  for  false  testimony  given  in  prior  suit  before  judge  wiio  did  not 
possess  the  legal  qualifications  for  office;  Purdin  v.  Washington  etc  Assn., 
41  Wash.  397,  83  Pac.  724,  in  suit  to  recover  land  sold  for  taxes  levied 


lis  U.  S.  455-506  Notes  on  U.  S.  Reports.  1344 

by  irrigation  district,  validity  of  proceedings  taken  to  organize  the  dis- 
trict cannot  be  attacked. 

Sjl.  8  (XI,  182).    Ratification  of  invalid  municipal  bonds. 

Approved  in  Farmers'  etc.  Co.  v.  Sioux  Falls,  131  Fed.  912,  after 
adoption  of  constitutional  amendment  requiring  majority  vote  of  electors 
present  and  voting  to  authorize  municipal  indebtedness,  bonds  could  not 
be  issued  on  vote  taken  before  the  amendment  under  law  providing 
majority  of  electors  should  be  determined  by  vote  cast  for  mayor  at 
last  preceding  election;  Green  Co.  v.  Shortell,  116  Ky.  134,  75  S.  W. 
257,  fact  that  county  paid  interest  on  bonds  does  not  estop  it  from  show- 
ing their  i^^'alidity. 

lis  U.  S.  455-467,  30  L.  237,  MORGAN  ETC.  CO.  v.  LOUISIANA. 

Syl.  3   (XI,  183).     Quarantine  laws  not  tonnage  taxes. 

Approved  in  Chicago  etc.  Ry.  Co.  v.  Illinois,  200  U.  S.  585,  50  L.  606, 
26  Sup.  Ct.  341,  constitutional  rights  of  railroad  company  not  invaded 
by  requiring  it  to  remove  and  rebuild  bridge  and  culvert  made  necessary 
by  the  widening  and  deepening  of  channel  by  drainage  commission 
acting  under  state  law;  Louisville  v.  Wehmhoff,  116  Ky.  830,  76  S.  W. 
881,  statute  against  gambling  which  prohibited  telegraj^h  compjany  from 
furnishing  poolrooms  with  communications  concerning  horseraces  proper 
exercise  of  police  power;  Commonwealth  v.  Strauss,  191  Mass.  555,  78 
N.  E.  139,  upholding  statute  prohibiting  seller  of  goods  from  imposing 
condition  that  buyer  shall  not  sell  or  deal  in  goods  of  other  persons; 
St.  Louis  V.  Grafeman  Dairy  Co.,  190  Mo.  504,  89  S.  W.  620,  ordinance 
requiring  vendors  of  milk  to  register  and  pay  registration  fee  of  one 
dollar  does  not  impose  tax,  but  merely  an  inspection  fee. 

118  U.  S.  468-506,  30  L.  134,  THE  CITY  OF  NORWICH. 

Syl.  2   (XI,  185).     Limited  liability — Appraisement  by  district  court. 

Approved  in  The  Twilight,  138  Fed.  1006,  where  dispute  as  to  value, 
amount  of  stipulation  for  release  of  libeled  vessel  will  be  fixed  at  high- 
est amount  subject  to  right  of  claimant  to  prove  value  to  which  libelant's 
recovery  limited. 

Syl.  5  (XI,  186).    Limited  liability  not  increased  by  salvage. 

Approved  in  The  Pine  Forest,  129  Fed.  705,  64  C.  C.  A.  228,  where 
owners  of  tug  at  fault  also  owned  vessels  which  brought  injured  barge 
to  port,  having  performed  the  service  before  beginning  limited  liability 
proceedings,  no  compensation  for  salvage  ser^ice  could  be  claimed. 

Syl.  7   (XI,  186).     Limited  liability — Insurance  not  included. 

Approved  in  In  re  Knickerbocker  S.  B.  Co.,  136  Fed.  959,  in  pro- 
ceeding to  limit  liability,  interrogatories  annexed  to  answer  directed 
to  discovery  of  assets  of  petitioner  inadmissible. 

Distinguished  in  The  Conveyor,  147  Fed.  591,  liens  for  seamen's  wages 
enforceable  against  insurance  money. 


1345  Notes  -on  U.  S.  Eeports.  118  U.  S.  507-557 

Syl.  9   (XI,  186).     Limited  liability — Surrender  to  underwriters. 

Approved  in  The  Mauch  Chunk,  139  Fed.  753,  where  in  collision  both 
vessels  at  fault,  claim  of  owner  on  behalf  of  insurer  subordinate  to 
ckiims  of  third  jiersons. 

118  U.  S.  507-520,  30  L.  153,  THE  SCOTLAND. 

Syl.  4   (XI,  187).     Limited  liability — Interest  discretionary. 

Approved  in  La  Conner  etc.  Co.  v.  Widmer,  136  Fed.  178,  69  C.  C.  A. 
193,  allowing  interest  on  damages  caused  by  delay  in  transportation  of 
horses;  Bethell  v.  Mellor,  135  Fed.  445,  refusing  to  allow  interest  on 
claim  for  damage  to  cargo. 

Distinguished  in  Burrows  v.  Lawnsdale,  133  Fed.  251,  66  C.  C.  A.  650, 
interest  should  not  be  allowed  on  damages  awarded  in  admiralty  for 
personal  injury. 

lis  U.  S.  520-541,  30  L.  156,  THE  GREAT  WESTERN. 

Syl.  3  (XI,  188).    Methods  of  claiming  limited  liability. 

ApprovetV  in  The  Lotta,  150  Fed.  222,  limited  liability  act  does  not 
prevent  action  against  vessel  for  wrongful  death  in  state  court,  the 
limitation  being  admissible  as  defense  there. 

118  U.  S.  545-557,  30  L.  257,  VICKSBURG  ETC  R.  R.  v.  PUTNAM. 
Syl.  2  (XI,  188).     E\idenec — Superintendent 's  reports  admissible. 

A[>proved  in  Cleveland  etc.  Ry.  Co.  v.  Potts,  33  Ind.  App.  577,  71  N. 
E.  690,  not  error,  in  action  against  carrier  for  failure  to  deliver  goods, 
to  require  defendant  to  produce  papers  showing  its  handling  of  shipment. 

Syl.  3   (XI,  188).     Judge's  comment  on  facts  to  jury. 

Apj)rovcd  in  Pittsburgh  Ry.  Co.  v.  Bloomer,  146  Fed.  721,  expressing 
opinion  upon  the  e\idence  by  trial  judge  in  charging  jury  not  error; 
Parulo  v.  Philadelphia  etc.  Ry.  Co.,  145  Fed.  677,  in  action  for  personal 
injury  not  error  to  refuse  instruction  which  had  been  given  in  substance. 

Syl.  4  (XI,  189).     Personal  injury — "What  damages  include. 

Approved  in  American  China  Dev.  Co.  v.  Boyd,  148  Fed.  271,  allowing 
prospective  damages  ia  action  for  breach  of  contract  in  discharging 
plaintiff  before  his  term  of  employment  ended;  Southern  Cotton  Oil  Co. 
V.  Skipper,  125  Ga.  372,  54  S.  E.  113,  plaintiff  permanently  injured 
entitled  to  prospective  earnings;  dissenting  opinion  in  Davenport  v. 
Southern  Ry.  Co.,  135  Fed.  967,  68  C.  C.  A.  444,  majority  remanding 
to  state  court  action  for  personal  injury  against  railroad  c()my)any  and 
employees  on  ground  of  joint  tort,  though  measure  of  damages  not  same 
against  employer  as  employees. 

Distinguished  in  Eichorn  v.  New  Orleans  etc.  Co.,  114  La.  720,  38  So. 
529,  in  action  under  statute  for  wrongful  death,  prospective  earnings 
not  allowed. 
S5 


118  U.  S.  557-608  Notes   on   U.   S.   Ecpurts.  1316 

Syl.  5  (XI,  189).     Evidence — Life  and  annuity  tables. 

Approved  in  Eeynolds  v.  Narragansett  Elec.  L.  Co.,  26  E.  I.  461, 
59  Atl.  394,  reaffirming  rule;  Scott  v.  Astoria  E.  E.  Co.,  43  Or.  42, 
99  Am.  St.  Eep.  710,  72  Pac.  599,  62  L.  E.  A.  543,  in  action  for  personal 
injury  caused  by  railroad  landslide,  scientific  witness  could  testify  as 
expert  regarding  proper  slope  for  cuts  and  name  scientific  writers  who 
supported  his  opinion;   Hyland  v.  Southern  Bell  Tel.  Co.,  70  S.  C.  325, 

49  S.  E.  881,  admitting  mortality  table  in  action  for  injuries  to  living 
person  where  there  is  evidence  that  injuries  are  permanent. 

118  U.  S.  557-596,  30  L.  244,  WABASH  ETC.  EY.  CO.  v.  ILLINOIS. 

Syl.  6   (XI,  191).     State  law  burdening  interstate  commerce  void. 

Approved  in  People  v.  Miller,  178  N.  Y.  198,  204,  70  N.  E.  473,  475, 
franchise  tax  on  carrier  engaged  entirely  in  interstate  commerce  void. 

Syl.  7   (XI,  191).     Interstate  commerce  defined. 

Approved  in  Northern  Securities  Co.  v.  United  States,  193  U.  S.  378, 
48  L.  717,  24  Sup.  Ct.  436,  upholding  anti-trust  act  of  July  2,  1890, 
though  held  to  include  combination  of  stockholders  of  two  competing 
railroads  to  form  holding  corporation  to  control  each  road;  Davis  v. 
<  "leveland  etc.  Ey.  Co.,  146  Fed.  410,  cars  of  railroad  company  while 
l>eing  carried  over  roads  of  other  companies  in  other  states  for  continuous 
carriage  of  freight  not  subject  to  attachment  under  state,  law;  Globe 
Elevator  Co.  v.  Andrew,  144  Fed.  879,  holding  void  statute  of  Wisconsin 
providing  for  inspection  and  grading  of  grain  stored  or  shipped  at 
certain  point. 

Distinguished  in  Howard  v.  Illinois  C.  E.  Co.,  148  Fed.  999,  1000, 
holding  act  of  Congress  of  June  11,  1906,  making  common  carrier  liable 
to  employee  for  injuries  caused  by  negligence  of  its  agents  or  employees, 
invalid  as  not  within  commerce  clause. 

Syl.  8   (XI,  192).     State  rcgiflation  on  interstate  commerce. 

Approved  in  Hart  v.  State,  100  Md.  608,  612,  60  Atl.  461,  462,  hold- 
ing state  statute  requiring  carriers  to  provide  separate  coaches  for  white 
and  colored  passengers  invalid. 

118  U.  S.  596-608,  30  L.  269,  LITTLE  v.  GILES. 
Syl.  1  (XI,  194).    Joint  tort  action  not  removable. 
Approved  in  Alabama  etc.  Ey.  Co.  v.  Thompson,  200  U.  S.  215,  216, 

50  L.  446,  447,  26  Sup.  Ct.  161,  and  Knuth  v.  Butte  Elec.  Ey.  Co.,  148 
Fed.  75,  both  holding  in  joint  action  for  personal  injury  against  railway 
company  and  employee  no  separable  controversy  for  purpose  of  removal ; 
City  of  Cleveland  v.  Cleveland  etc.  Ey.  Co.,  147  Fed.  176,  where  plaintiff 
in  ejectment  joined  lessee  in  possession,  and  lessor  as  defendants,  neither 
controversy  is  separable;  Elkins  v.  Howell,  140  Fed.  159,  in  suit  for 
specific  performance  of  contract  for  sale  of  land  against  vendor  and 
his  subsequent  grantees,  controversy  with  latter  sejiarable;  Lathiop  etc. 
Co.  V.  Pittsburg  etc.  E.  Co.,  135  Fed.  620,  suit  against  construction  com- 


1347  Notes  on  U.  S.  Eeports.  IIS  U.  S.  60S-663 

pany   and    railroad    on    contract    made    -with    former,    complaint   alleging 
it  acted  as  agent  for  latter  does  not  contain  separable  controversy. 

Distinguished  in  Manufacturers'  Com.  Co.  v.  Brown  Alaska  Co.,  148 
Fed.  310,  where  in  suit  on  note  maker  and  several  indorsers  joined  under 
state  statute,  controversy  with  each  separable;  Lucas  v.  Milliken,  139 
Fed.  825,  in  suit  for  specific  performance  of  contract  for  sale  of  stock 
in  corporation,  fact  that  the  corporation,  a  citizen  of  same  state  as 
complainant,  was  joined  as  defendant  does  not  prevent  removal;  Cella 
V.  Brown,  136  Fed.  443,  in  suit  for  specific  performance  of  agreement 
for  transfer  of  corporate  stocks  and  bonds,  defendant  bank,  which 
merely  acted  as  agent  of  parties  in  transaction,  not  necessary  party; 
Boatmen's  Bank  v.  Fritzlen,  135  Fed.  661,  662,  68  C.  C.  A.  288,  suit 
to  avoid  prior  mortgage  for  fraud  and  to  foreclose  second  mortgage 
involved  separable  controversies,  and  first  mortgagee  entitled  to  removal. 

Syl.  2   (XI,  194).     No  jurisdiction  where  collusive  joinder. 

Approved  in  Steigleder  v.  McQuesten,  198  U.  S.  142,  49  L.  987,  25  Sup. 
Ct.  616,  where  suit  dismissed  on  motion,  evidence  showing  diversity  of 
citizenship  not  to  exist;  Kreider  v.  Cole,  149  Fed.  656,  dismissing  bill 
filed  for  appointment  of  receiver  of  corporation  where  bonds  and  stock 
had  been  assigned  to  citizen  of  another  state  to  give  federal  jurisdiction. 

118  U.  S.  608-010,  30  L.  259,  NEW  YORK  EL.  R.  R.  CO.  v.  FIFTH 
NAT.  BANK. 

Syl.  1   (XI,  195).     Amount  final  judgment  determines  jurisdiction. 

Approved  in  Oliver  v.  Love,  104  Mo.  App.  84,  78  S.  W.  338.  in  action 
on  note,  defendant,  having  filed  counterclaim  and  had  verdict  thereon, 
■was  entitled  to  interest  from  verdict  to  rendition  of  final  judgment. 

118  U.  S.  610-626,  30  L.  274,  EX  PARTE  PHENIX  INS.  CO. 

Syl.  1  (XI,  195).     Limited  liability — Damage  caused  ashore. 

Approved  in  The  San  Rafael,  134  Fed.  752,  allowing  limited  liability 
where  libelant  was  injured  while  on  ferryboat  owned  and  operated  bj 
railroad  company  in  connection  with  its  Une. 

Syl.  2   (XI,  196).     Prohibition  where  no  jurisdiction. 

Seo  111  Am.  St.  Rep.  934,  944,  note. 

Syl.  3  (XI,  196).     Damage  ashore — No  admiralty  jurisdiction. 

Distinguished  in  United  States  v.  Evans,  195  U.  S.  364,  368,  49  L.  236, 
238  25  Sup.  Ct.  46,  holding  admiralty  court  had  jurisdiction  of  action 
against  vessel  for  destruction  of  beacon  standing  in  fifteen  or  twenty 
feet  of  water  built  on  piles. 

118  U.  S.  655-0G3,  30  L.  266,  WHITNEY  v.  BUTLER. 

Syl.  2  (XI,  198).     Stockholder's  liability  ends  with  transfer. 

Approved  in  Hunt  v.  Sceger,  91  Minn.  267,  98  N.  W.  92,  bank  stock- 
holder not  liable  where  he  had  assigned  stock  and  requested  bank  ollicer 
to  make   transfer  on  books,  which  latter  neglected  to  do. 


118  U.  S.  663-GS2  Notes  on  U.  S.  Reports.  134S 

Distinguished  in  McDonald  v.  Dewey,  202  U.  S.  520,  50  L.  113?.,  2G 
Sup.  Ct.  731,  affirming  134  Fed.  533.  534,  67  C.  C.  A.  408,  holding  stock- 
holder liable  where  he  had  not  done  everything  necessary  to  effect 
transfer. 

118  U.  S.  663-682,  30  L.  285,  HARK  NESS  v.  RUSSELL. 

Syl.  1  (XI,  199).     Conditional  sale— Eight  of  retaking. 

Approved  in  Freed  Furniture  etc.  Co.  v.  Sorensen,  28  Utah,  428,  430, 
431,  432,  433,  107  Am.  St.  Rep.  737,  738,  740,  79  Pac.  5G6,  567,  568, 
and  Studebaker  Bros.  Co.  v.  Man,  13  Wyo.  367,  110  Am.  St.  Rep.  1001, 
80  Pac.  153,  both  holding  agreement  of  sale  whereby  title  to  remain 
in  vendor  until  payment,  with  right  to  retake  and  sell  on  default,  with 
obligation  for  price  absolute,  is  conditional  sale  and  not  mortgage. 

Syl.  3   (XI,  199).     Purchaser  of  conditional  vendee  gets  title. 

Approved  in  In  re  Rasmussen  's  Estate,  136  Fed.  705,  goods  delivered 
to  purchaser  for  purpose  of  sale  in  usual  course  of  his  business  pass  to 
trustee  in  bankruptcy;  State  v.  Fidelity  etc.  Co.,  35  Tex.  Civ.  220,  80 
S.  W.  547,  municipal  bonds  and  securities  acquired  situs  for  purposes  of 
taxation  in  state  other  than  that  of  owner's  domicile. 

Syl.  4   (XI,  199).     Conditional  sale  valid  against  creditors. 

Approved  in  Southern  Pine  Co.  v.  Savannah  Trust  Co.,  141  Fed.  807, 
where  goods  sold  to  be  paid  for  on  delivery  were  delivered  to  president 
of  buying  company  merely  to  be  checked  up  before  payment,  and  were 
v.scd  and  not  paid  for,  no  title  passed;  Tilford  v.  Atlantic  Match  Co., 
134  Fed.  927,  boiler  delivered  to  match  company  on  conditional  sale 
not  subject  to  lien  of  prior  mortgage  by  company  of  all  its  property 
then  owned  and  thereafter  to  be  acquired;  Kester  v.  Schuldt,  11  Idaho, 
669,  85  Pac.  976,  allowing  conditional  vendor  to  recover  property  levied 
on  as  property  of  vendee;  Mark  Means  Transf.  Co.  v.  Mackinzie,  9  Idaho, 
172,  73  Pac.  137,  and  Barton  v.  Groseclose,  11  Idaho,  230,  81  Pac.  624, 
both  holding  conditional  vendor  could  not  attach  property  of  vendee  for 
purchase  price;  Bunday  v.  Columbus  Machine  Co.,  143  Mich.  13,  106  N. 
W.  398,  in  action  for  breach  of  warranty,  that  title  had  not  passed, 
goods  having  been  delivered  under  conditional  sale ;  Central  Loan  etc.  Co. 
V.  Campbell  etc.  Co.,  5  Okl.  412,  49  Pac.  53,  attachment  of  property  in 
hands  of  vendor  under  conditional  sale  as  property  of  vendee  invalid. 


CXIX  UNITED  STATES. 


119  U.  S.  1-44,  30  L.  306,  CHOCTAW  NATION  v.  UNITED  STATES. 

Syl.  3  (XI,  202).     Indian  treaties  liberally  construed. 

Approved  in  United  States  v.  Winaus,  198  U.  S.  381,  49  L.  1092. 
25  Sup.  Ct.  662,  fishing  rights  secured  to  Yakima  Indians  by  treaty  of 
1859  survive  private  acquisition  of  shore  lands  by  state  or  federal  grants; 
In  re  Heff,  197  U.  S.  498,  499,  49  L.  852,  853,  25  Sup.  Ct.  506,  29  Stat. 
506,  c.  109,  penalizing  sale  of  liquor  to  Indian  vi'ithin  state  to  whom 
allotment  made  does  not  apply  to  sale  to  Indian  to  whom  allotment 
made  under  24  Stat.  388,  c.  119,  giving  allottees  privileges  of  citizenship; 
Winters  v.  United  States,  143  Fed.  746,  treaty  of  May  1,  1888,  with 
Indians  of  Ft.  Belknap  reservation,  reserved  for  use  of  Indians  portion 
of   Milk   river   waters    for   irrigation   purposes. 

119  U.  S.  47-52,  30  L.  303,  WHITE  v.  DUNBAR. 

Syl.    1    (XT,   203).     Fatent   reissue. 

Approved  in  Milloy  Elec.  Co.  v.  Thompson  etc.  Elec.  Co.,  148  Fed. 
840,  847,  Van  Dej'oeli  reissue  No.  11,872,  for  traveling  contract  for 
electric  railways  is  void  for  delay  in  application;  Cleveland  Foundry 
Co.  v.  Detroit  etc.  Stove  Co.,  131  Fed.  749,  holding  void  Jeavous  patent 
No.  475,401,  for  oil-burner. 

Syl.   2    (XT,   203).     Patents — Claim   as   disclaimer   of   omissions. 

Approvetl  in  Victor  Talking  Mach.  Co.  v.  American  Graphophone  Co., 
145  Fed.  191,  Berliner  patent  No.  548,623,  for  duplicate  sound  records, 
limited  and  not  infringed;  Koerner  v.  Deuther,  143  Fed.  545,  upholding 
Koerner  patent  No.  392,735,  for  printers'  drying  rack;  Cincinnati  Ry. 
Supply  Co.  V.  American  Hoist  etc.  Co.,  143  Fed.  325,  limiting  Crosby 
patent  No.  388,840,  for  wire  rope  clamp;  Jewell  Filter  Co.  v.  Jackson, 
140  Fed.  344,  construing  Jewell  patent  No.  509,120,  claim  6,  for  im- 
provements in  filters;  Marlin  Firearms  Co.  v.  Dinnan,  139  Fed.  659, 
Hepburn  patent  No.  584,177,  for  magazine  gun,  valid  and  infringed; 
Cleveland  Foundry  Co.  v.  Detroit  Vapor  Stove  Co.,  131  Fed.  744, 
holding  void  Jeavoys  patent  No.  475,401,  for  oil-burner;  Lanyon  Zinc 
Co.  V.  Brown,  129  Fed.  915,  64  C.  C.  A.  344,  limiting  Brown  patent  No. 
471,264  for  ore-roasting  furnace,  and  holding  it  not  infringed  by 
furnace  of  Caffeau  patent  No.  691,112. 

119  U.  S.  55-73,  30  L.  330,  BUETZ  v.  NORTHERN  PAC.  RY. 

Syl.  3    (XI,  205).     Approval  of  Indian   treaty. 

Distinguished  in  United  States  v.  Choctaw  etc.  R.  R.  Co.,  3  Okl.  498, 
502,  41  Pac.  760,  761,  approval  of  Secretary  of  Interior  not  necessary 

[1349] 


119  U.  S.  96-109  Notes  on  U.  S.  Eeports.  1330 

to  right  of  railroad  to  construct  and  locate  line  under  act  of  Congress, 
February  18,  1888. 

Syl.  6   (XI,  205).     Eailroad  grant — Definite  location. 

Approved  in  Kneeland  v.  Korter,  40  Wash.  367,  82  Pac.  611.  1  L. 
E.  A.  (N.  S.)  745,  where  tide  lands  within  place  limits  of  Northern 
Pacific  grant  surveyed  and  defined,  and  railroad  performed  conditions 
prior  to  admission  of  state,  railroad  entitled  to  land  though  patent  not 
issued  till  after  constitution  adopted. 

Syl.  10   (XI,  206).     Eailroad  grant — Preliminary  designation. 

Approved  in  Northern  Lumber  Co.  v.  O'Brien,  139  Fed.  622,  con- 
struing Northern  Pacific  grant  of   1864. 

119  U.  S.  96-99,  30  L.  362,  PALMEE  v.  HUSSEY. 

Syl.  2    (XI,  208).     Bankruptcy— Fiduciary  debts. 

Approved  in  Barrett  v.  Prince,  143  Fed.  304,  releasing  on  habeas 
corpus  bankrupt  held  on  capias  in  action  to  recover  value  of  property 
embezzled  while  acting  as  stockbroker;  In  re  Harper,  133  Fed.  974, 
officers  of  private  corporations  are  included  within  Bankr.  Act  1898,  § 
17,  cl.  4,  excepting  release  of  debts  created  by  embezzlement;  Eeeves 
V.  McCracken,  69  N.  J.  Eq.  206,  60  Atl.  333,  debt  arising  out  of  implied 
understanding  on  conveyance  of  realty  not  excepted  from  bankruptcy 
discharge. 

(XI,  208.)  Miscellaneous.  Cited  in  Cavanaugh  v.  Finley,  94  Minn. 
509,  110  Am.  St.  Eep.  386,  103  N.  W.  713,  bankrupt  against  whom 
judgment  rendered  after  his  adjudication  and  before  discharge,  is  en- 
titled to  perpetual  stay  of  execution. 

119  U.  S.  99-109,  30  L.  299,  VICKSBUEG  ETC.  EY.  v.  O'BEIEN. 

Syl.  2   (XI,  209).     Memoranda  as  evidence. 

Approved  in  Inmau  v.  Dudley  etc.  Lumber  Co.,  146  Fed.  456,  letter 
from  ageut  to  principal  reporting  interview  between  agent  and  third 
party  is  inadmissible. 

Syl.  3   (XI,  209).     Unsworn  statements  prepared  prior  to  trial. 

Approved  in  Fallon  v.  Eapid  City,  17  S.  D.  578,  97  N.  W.  1011, 
where  law  does  not  require  presentation  of  claim  for  damages  against 
city,  sworn  statement  of  injury  presented  to  council  is  inadmissible. 

Syl.  4   (XI,  209).     Eeversal — No  substantial  injury. 

Approved  in  Inman  v.  Dudley  etc.  Lumber  Co.,  146  Fed.  452,  in 
action  for  breach  of  contract  to  sell  all  lumber  on  hand,  and  entire 
cut  for  certain  year,  by  failure  to  deliver  lumber,  exclusion  of  evidence 
to  show  quantity  actually  cut  in  that  year  reversible  error;  Armour  v. 
Eussell,  144  Fed.  616,  reversing  for  erroneous  charge  as  to  duty  ot 
master  to  furnish  safe  appliances ;  National  Biscuit  Co.  v.  Nolan,  138 
Fed.   9,   70  C.  C.  A.   436,   reversing   where  plaintiff  in  action   for  per- 


1331  Notes  on   U.  S.  Eeports.  119  U.  S.  110-129 

Bonal  injuries  was  permitted  to  testify  tliat  she  depended  on  herself 
for  support;  Union  Pac.  E.  Co.  v.  Field,  137  Fed.  18,  69  C.  C.  A.  536, 
reversing  for  objectionable  argument  of  counsel. 

Syl.    6    (XI,   209).     Agent's   declarations — Res   gestae. 

Approved  in  Walker  Mfg.  Co.  v.  Knox,  136  Fed.  343,  69  C.  C.  A. 
160,  in  action  for  services  on  sale  of  materials,  admission  of  conversa- 
tion between  plaintiff  and  defendant's  vice-president  during  time  ma- 
terials sold,  but  after  latter  left  employ  was  prejudicial  error ;  Ailing- 
ton  etc.  Mfg.  Co.  V.  Detroit  Reduction  Co.,  133  Midi.  436,  95  N.  W. 
565,  in  action  by  seller  for  price  of  machine  sold  to  corporation,  admis- 
sions of  director  as  to  matters  not  res  gestae  not  binding  on  corporation, 
though  he  supervised  installation;  Balding  v.  Andrews,  12  N.  D.  273, 
96  N.  W.  307,  statement  of  elevator  agent  while  elevator  burning  in 
answer  to  query  as  to  cause  of  fire  is  inadmissible;  Gosa  v.  Southern 
Ry.,  67  S.  C.  362,  45  S.  E.  816,  in  action  for  personal  injuries  declara- 
tions of  bystander  after  accident  not  res  gestae;  Stevens  v.  Friedman, 
58  W.  Va.  84,  51  S.  E.  135,  in  action  for  damages  for  assault  and 
battery,  record  of  acquittal  of  such  charge  not  admissible. 

Syl.  7  (XI,  210).     Res  gestae— Engineer 's  statement  as  to  speed. 

Approved  in  The  Saranae,  132  Fed.  942^  in  action  for  injuries  to 
stevedore  by  falling  down  hatchway,  statement  by  mate  ten  minutes 
after  accident  that  hatch  covers  never  did  fit  is  inadmissible;  Havens 
v.  Rhode  Island  Suburban  Ry.  Co.,  26  R.  I.  53,  58  Atl.  249,  in  action 
against  railway  for  injuries  to  conductor,  declarations  by  manager  made 
next  day  to  foreman  of  car-barns  is  inadmissible;  Waggoner  v.  Snody, 
3G  Tex.  Civ.  519.  82  S.  W.  358,  in  action  for  loss  of  horses  driven 
off'  by  defendant's  employees,  evidence  of  statement  of  employee  while 
driving  horses  that  if  again  found  on  land  they  would  be  scattered 
so  they  would  never  be  found  is  admissible;  Cook  v.  Stimson  Mill  Co., 
36  Wash.  39,  78  Pac.  40,  in  action  for  injuries  to  child  while  riding 
on  engine,   statement   of  superintendent  made   next   day  not  admissible. 

119  U.  S.  110-129,  30  L.  342,  PHILADELPHIA  FIRE  AS3X.  v.  NEW 
YORK. 

Svl.  2    (XI,  211).     Corporations  as  citizens. 

Approved  in  Kirven  v.  Virginia  etc.  Chemical  Co.,  145  Fed.  292,  de- 
termining effect  of  noncompliance  by  foreign  corporation  with  state 
laws  on  right  to   enforce  contracts. 

Syl.  3   (XI,  211).     State  restraint  of  foreign  corporations. 

Approved  in  State  v.  Kansas  etc.  Gas  Co.,  71  Kan.  791,  81  Pac. 
509  following  rule  in  quo  warranto  to  oust  foreign  corporation  from 
state;  Attorney  General  v.  Booth,  143  Mich.  102,  106  N.  W.  872, 
upholding  Laws  1899,  p.  409,  to  prevent  trusts  and  monopolies  and 
providing  for  revocation  of  certificates  of  foreign  corporations  violating 
same;  Pollock  v.  German  Fire  Ins.  Co.,  132  Mich.  227,  93  N.   W.  437, 


119  U.  S.  149-176  Notes  on  U.  S.  Reports.  1352 

upholding  statute  relating  to  foreign  insurance  companies  and  defining 
-vvord  "agent";  State  v.  Fleming,  70  Neb.  524,  97  K  W.  1063,  con- 
struing Laws  1903,  c.  73,  taxing  foreign '  corporations;  Pisher  v. 
Traders'  etc.  Ins.  Co.,  136  N.  C.  223,  48  S.  E.  669,  upholding  Pub. 
Laws,  p.  66,  authorizing  service  on  foreign  corporations  by  delivery  of 
process  to  secretary  of  corporation  commission;  .dissenting  opinion  in 
Security  etc.  Ins.  Co.  v.  Prewitt,  202  U.  S.  261,  50  L.  1020,  26  Sup. 
Ct.  619,  majority  upholding  state  law  providing  that  foreign  insurance 
company  removing  suit  to  federal  court  shall  have  license  revoked. 

119  U.  S.  149-152,  30  L.  376,  MINNEAPOLIS  ETC.  EY.  v.  COLUMBUS 
EOLLING  MILLS. 

Syl.  2    (XI,  213).     Acceptance  on  different  terms. 

Approved  in  McNicol  v.  New  York  Life  Ins.  Co.,  149  Fed.  143, 
applying  rule  to  application  for  life  insurance;  Baird  v.  Pratt,  148 
Fed.  826,  where  drummer  sends  order  for  goods  subject  to  firm's  accept- 
ance and  latter  ships  goods  with  invoice,  making  terms  of  payment 
different  from  order,  purchaser  may  refuse  goods;  Cella  v.  Brown,  144 
Fed.  762,  no  implied  trust  arises  on  mere  promise  to  execute  agreement 
on  condition  that  promisee  execute  collateral  agreement  wliich  he  re- 
fuses to  do;  Kelley,  Maus  &  Co.  v.  Sibley,  137  Fed.  588,  69  C.  C.  A. 
674,  construing  contract  for  sale  and  delivery  of  bolts;  Johnston  v. 
Fairmont  Mills,  129  Fed.  78,  63  C.  C.  A.  516,  applying  rule  to  offer 
by  broker  to  sell  cotton  for  future  delivery;  Metropolitan  Coal  Co.  v. 
Boutell  etc.  Co.,  185  Mass.  395,  70  N.  E.  422,  offer  to  charter  vessel 
beginning  before  November  1st  and  continuing  till  May  1st  is  varied 
by  acceptance  fixing  period  from  November  1st  to  May  1st;  Kileen  v. 
Kennedy,  90  Minn.  415,  97  N.  W.  127,  applying  rule  to  contract  to 
sell  standing  timber;  Brophy  v.  Idaho  Produce  etc.  Co.,  31  Mont.  286, 
78  Pac.  495,  order  for  choice  potatoes  not  acceptance  of  proposal  to 
sell  nice  white  potatoes;  Henry  v.  Black,  213  Pa.  627,  63  Atl.  253, 
refusing  specific  performance  where  holder  of  option  to  purchase  land 
made  offer  to  purchase  on  terms  different  from  option,  though  part  of 
consideration  paid  and  later  offer  to  purchase  under  terms  of  option 
made;  Tilton  v.  Sterling  Coal  etc.  Co.,  28  Utah,  179,  77  Pac.  760, 
107  Am.  St.  Eep.  689,  construing  correspondence  with  reference  to 
acceptance  of  option  in  water  lease  to  purchase  on  expiration  of  lease. 
See  110  Am.  St.  Eep.  759,  note. 

Distinguished  in  Gillette  v.  Peabody,  19  Colo.  367,  75  Pac.  21,  state- 
ment in  proposal  to  publish  reports  that  if  work  awarded  to  bidder, 
work  would  be  done  in  state  by  union  labor,  is  not  variance  from  state's 
offer  containing  no  such  stipulation. 

119  U.  S.  156-176,  30  L.  396,  HANEICK  v.  PATEICK. 
Syl.  10   (XI,  215).     Death  of  principal  revokes  agency. 
Se€i  110  Am.  St.  Eep.  861,  note. 


13i33  Notes  on   U.  S.  Report?.  119  U.  S.  18.J-190 

Syl.    12    (XI,   215).     Warranty— Estoppel— After-acquired    title. 

Approved  in  Henderson  v.  Beatty,  124  Iowa,  167,  99  N.  "W.  718, 
where  defendant  agreed  to  convey  right,  title  and  interest,  subsequent 
clause  agreeing  to  deliver  warranty  deed  on  payment  of  price  does  not 
require  conveyance  in  fee.     See  105  Am.  St.  Eep.  862,  note. 

119  U.  S.  185-190,  30  L.  372,  FREEMAN  v.  ALDERSON. 

Syl.  2   (XI,  216).     Action  quasi  in  rem — Parties. 

Approved  in  Whitney  v.  Wenman,  140  Fed.  960,  order  of  bankruptcy 
court  passing  receiver's  accounts  in  which  he  has  credited  himself  with 
property  surrendered  to  claimants  does  not  bar  suit- by  trustee  to  recover 
same;  Sehuler  v.  Ford,  10  Idaho,  747,  109  Am.  St.  Rep.  233,  80  Pac. 
221,  one  in  possession  of  land  under  contract  to  purchase  is  not  in 
privity  with  seller  so  as  to  be  bound  by  judgment  atfecting  property 
in  action  brought  after  contract;  Silver  Camp  Mining  Co.  v.  Diekert,  31 
Mont.  498,  78  Pac.  970,  service  of  summons  by  publication  on  nonresi- 
dent does  not  warrant  judgment  in  personam;  Andrews  v.  Guayaquil 
etc.  Ry.  Co.,  69  N.  J.  Eq.  212,  215,  60  Atl.  568,  569,  applying  rule  in 
upholding  jurisdiction  over  proceedings  to  compel  transfer  of  shares  in 
New  Jersey  corporation  owned  by  nonresident ;  Hill  v.  Henry,  66  N. 
J.  Eq.  156,  157,  160,  57  Atl.  556,  557,  558,  P.  L.,  p.  514,  providing 
for  publication  against  unascertained  heirs,  does  not  apply  to  action 
to  determine  adverse  claims  to  realty;  Silvey  v.  Tift,  123  Ga.  808, 
51  S.  E.  750,  1  L.  R.  A.   (N.  S.)   386,  arguendo. 

Syl.  3  (XI,  216).  Property  of  nonresidents — Debts — Resident  cred- 
itors. 

Approved  in  Kerns  v.  McAulay,  8  Idaho,  565,  69  Pac.  540,  follow- 
ing rule;  Salemonsou  v.  Thompson,  13  N.  D.  194,  101  N.  W.  323,  judg- 
ment against  nonresident  where  jurisdiction  rests  only  on  service  by 
publication  and  attachment  of  defendant's  property  is  conclusive  as  to 
debtor's  interest  in  attached  property;  Greenway  v.  De  Young,  34  Tex. 
Civ.  585,  79  S.  W.  605,  in  foreclosure  where  citation  had  by  publica- 
tion and  default,  judgment  rendered  personal  deficiency  judgment  is 
void. 

Syl.  5    (XI,  217).     Process  by  publication — Nonresidents. 

Approved  in  Hildreth  v.  Thibodeau,  186  Mass.  84,  104  Am.  St.  Roji. 
560  71  N.  E.  Ill,  where  nonresidents  were  served  personally  in  other 
state,  and  they  appeared  specially  to  attack  jurisdiction,  court  could 
not  proceed  in  personam;  Smith  v.  CoUoty,  69  N.  J.  L.  371,  55  Atl. 
807,  in  action  under  mechanic's  lien  law,  P.  L.  1898,  pp.  547,  548, 
judgment  in  personam  against  nonresident  builder  may  be  rendered 
v.-here  he  appears  generally. 

Syl.   6    (XI,   217).     Costs  against  nonresident — Attachment. 

Approved  in  Baker  v.  Jewell,  114  La.  736,  38  So.  5:55,  court  of 
domicile    of    marriage    cannot,    in    divorce   against    nonresident    husband 


110  U.  S.  199-214  Notes  on  U.  S.  Keports.  1354 

constructively  served,  render  decree  for  alimony  and  costs;  Hill  v. 
Henry,  66  N.  J.  Eq.  154,  57  Atl.  555,  P.  L.,  p.  514,  relating  to  service 
by  publication  against  unascertained  heirs,  does  not  apply  to  action  to 
determine  adverse  claims  to  realty. 

119  U.  S.  199-214,  30  L.  358,  THE  HARRISBURG. 

Syl.  1   (XI,  218).     Action  for  wrongful  death — Admiralty. 

Approved  in  The  Lotta,  150  Fed.  220,  fact  that  extent  of  liability 
of  vessel  for  death  due  ^to  negligence  was  determined  in  ex  parte 
proceeding  in  federal  court  is  no  ground  for  enjoining  state  suit  to 
recover  amount  of  such  limited  liability;  The  City  of  Belfast,  135  Fed. 
209,  under  Pa.  Act  1851,  §§  18,  19,  where  stevedore  filed  libel  against 
ship  for  personal  injuries,  libel  could  be  continued  in  name  of  personal 
representatives. 

Distinguished  in  In  re  Clyde  S.  S.  Co.,  134  Fed.  99,  100,  upholding 
admiralty  jurisdiction  of  suit  for  wrongful  death  from  vessel  at  fault  in 
collision  on  high  seas,  where  right  of  action  for  wrongful  death  given 
by  statutes  of  state  where  both  vessels  belong. 

Syl.  2   (XI,  218).     Admiralty — Wrongful  death — State  statutes. 

Approved  in  Quinctte  v.  Bisso,  136  Fed.  838,  69  C.  C.  A.  825,  action 
for  wrongful  death  based  on  Civ.  Code  La.,  art.  2315,  is  governed  by 
local  law  with  respect  to  contributory  negligence;  Negaubauer  v.  Great 
Northern  Ey.  Co.,  92  Minn.  185,  99  N.  W.  621,  action  for  wrongful 
death  occurring  in  Montana  must  be  brought  within  time  limited  by 
Montana  statute. 

Syl.  3    (XI,  219).     Limitations  in  new  statute. 

Approved  in  Davis  v.  Mills,  194  U.  S.  454,  48  L.  1070,  24  Sup.  Ct. 
692,  limitations  prescribed  by  Mont.  Code  Civ.  Proc,  §  554,  for  en- 
forcement of  liability  for  corporate  debts  against  directors,  not  void 
as  to  actions  outside  state  on  liability  created  prior  to  act;  Peters  v. 
Hanger,  134  Fed.  589,  67  C.  C.  A.  386,  where  defendant  in  infringement 
suit  seeks  recovery  under  amendment  of  1897  to  Rev.  St.,  §  4921,  be- 
cause infringements  committed  six  years  prior  to  suit,  he  has  burden 
of  proof,  which  may  be  done  under  general  issue;  Poflf  v.  New  England 
Tel.  &  Tel.  Co.,  72  N.  H.  165,  55  Atl.  892,  action  for  injuries  resulting 
in  death  not  brought  within  time  limited  by  Pub.  St.  1891,  c.  191,  § 
10  is  barred;  Kennedy  v.  Delaware  Cotton  Co.,  4  Penne  (Del.)  481, 
58  Atl.  826,  father  cannot  recover  for  death  of  minor  child;  Ross  v. 
Kansas  City  etc.  Ry.  Co.,  34  Tex.  Civ.  587,  79  S.  W.  627,  applying  rule 
where  railroad  incorporated  in  state  other  than  that  creating  statutory 
remedy  and  its  road  extends  through  such  state;  Savings  Bank  v.  Pow- 
hatan Clay  Mfg.  Co.,  102  Va.  278,  46  S.  E.  295,  bill  to  enforce  mechan- 
ic's lien  must  allege  that  it  is  brought  within  six  months  after  whole 
claim  payable. 

Distinguished  in  dissenting  opinion  in  Hawley  v.  Griffin,  121  Iowa, 
681     92   N.   W.   117,   majority   holding   proceedings   by   heirs   of   owner 


1355  Notes  on  U.  S.  Reports.  119  U.  S.  220-244 

of   land,    who    was   insane,    to   redeem    for   taxes   and   to   vacate   decree 
quieting  title,  must  be  commenced  within  one  year  of  owner's  death. 

119  U.  S.  22G-234,  30  L.  369,  HAPGOOD  v.  HEWITT. 

Syl.  1    (XI,  220).     Patents— Inventor  employed  to  improve. 

Ai)proved  in  Pressed  Steel  Car  Co.  v.  Hansen,  137  Fed.  407,  415,  2 
L.  R.  A.  (X.  S.)  1172,  reaffirming  rule;  Bowers  v.  Lake  Superior  Con- 
tracting etc.  Co.,  149  Fed.  986,  where  license  authorizing  use  of  inven- 
tions on  payment  of  royalties  not  assignable,  but  later  licensee  re- 
quested authorization  of  assignment,  which  was  granted  on  certain  con- 
ditions, which  were  not  fulfilled,  assignee  is  liable  for  royalties;  Hil- 
dreth  v.  Duff,  143  Fed.  141,  contract  of  employment  by  wliich  servant 
agrees  to  devote  services  to  perfecting  candy  machine  and  to  give  em- 
j)loyer  benefit  of  inventions,  is  not  assignment;  Shepherd  v.  Deitsch, 
138  Fed.  84,  personal  license  by  patent  to  make  and  vend  article  and 
reserving  right  to  license  another  is  not  assignment,  and  licensee  not 
necessary  party  plaintiff  to  infringement  suit;  Hygienic  etc.  Under- 
wear Co.  V.  Way,  133  Fed.  250,  applying  rule  where  employee  invented 
muiBer  which  employer  used  and  continued  so  to  use  after  employee 
left  employment  and  commenced  sale  of  article  under  nearly  same  name ; 
Barber  v.  Xational  Carbon  Co.,  129  Fed.  372,  64  C.  C.  A.  40,  hold- 
ing plea  to  infringement  bill  set  out  defense  of  license;  Rowell  v. 
Eowell,  122  Wis.  20,  99  X.  W.  479,  where  patent  issued  to  individual 
while  in  employ  of  firm,  firm  's  perpetual  implied  license  to  manufacture 
not  transferable  at  sale  of  firm 's  assets  in  settlement  of  estate  of  de- 
ceased partner. 

119  U.  S.  237-240,  30  L.  380,  COXTIXEXTAL  IXS.  CO.  v.  RIIOADS. 

Syl.  1   (XI,  221).     Jurisdiction  must  affirmatively  appear. 

Approved  in  Cochran  v.  Pittsburg  etc.  R.  Co.,  150  Fed.  683,  failure 
to  allege  citizenship  of  plaintiff  at  time  of  filing  suit  as  well  as  at 
time  of  filing  amended  bill  is  fatal. 

119  U.  S.  240-244,  30  L.  382,  EAST  TEXNESSEE  ETC.  RY.  CO.  v. 
GRAYSOX. 

Syl.  1  (XI,  222),  Corporations — Stockholders — Separable  contro- 
versy. 

Ap)proved  in  Groel  v.  United  Elec.  Co.,  132  Fed.  258,  262,  265,  suit 
by  stockholder  against  his  corporation  and  corporation  of  another  state 
for  recovery  of  secret  profits  received  by  latter  in  promotion  of  first 
corporation  not  removable. 

Syl.   2    (XI,   222).     Removal — Separable   controversy^Pleadings. 

Approved  in  Alabama  etc.  Ry.  Co.  v.  Thompson,  200  U.  S.  216,  50 
L.  447,  26  Sup.  Ct.  161,  suit  for  personal  injuries  against  foreign 
corporation  and  its  servants  ia  removable  by  corporation  irrespective  of 
citizenship  of  servants. 


119  U.  S.  280-326  Notes  on  U.  S.  Eeports.  1356 

119  U.  C.  280-285,  30  L.  393,  HAMILTON  v.  VICKSBUEG  ETC.  RY. 
CO. 

Syl.  1   (XI,  224).     Eailroad  bridge  over  navigable  river. 

Approved  in  Kansas  City  etc.  R.  R.  Co.  v.  Wiygul,  82  Miss.  225.  231, 

33  So.  965,  967,  61  L.  R.  A.  578,  railroad  authorized  by  state  to  bridge 

navigable  river  may  make  necessary  repairs. 

Syl.  2  (XI,  224),     Bridges  must  be  safe. 

Approved  in  Rogers  Sand  Co,  v.  Pittsburg  etc.  Ry.  Co.,  139  Fed.  8, 
9,  10,  11,  following  rule. 

Syl.  3   (XI,  224).     Admission  of  state — Navigable  waters. 

Approved  in  Mauigault  v.  Springs,  199  U.  S.  479,  50  L.  278,  26  Sup. 
Ct.  127,  state  constitutional  provision  that  all  navigable  waters  shall 
remain  public  highways  does  not  prevent  legislature  from  authorizing 
dam  to  drain  lowlands. 

Syl.  4   (XI,  224).     Damages — Bridges — Obstruction   of   navigation. 

Distinguished  in  Pharr  v.  Morgan's  etc.  S.  S.  Co.,  115  La.  143,  38 
So.  945,  where  railroad  drawbridge  broken  by  negligence  of  railroad 
and  navigable  channel  closed  by  piling  put  in  to  repair  it,  original 
breaking  is  primary  cause  of  injury  caused  by  obstruction  of  channel. 

119  U.  S.  312-322,  30  L.  416,  WOOD  v.  FORT  WAYNE. 

Syl.  2  (XI,  225).     Compensation^ — Change  in  plans. 

Approved  in  Kilby  Mfg.  Co.  v.  Hinchman  etc.  Fire  Proofing  Co.,  132 
Fed.  961,  66  C.  C.  A.  67,  determining  question  of  estoppel  from  en- 
forcing provisions  of  building  contract  with  reference  to  extras. 

Distinguished  in  Allen  v.  Melrose,  184  Mass.  5,  67  N.  E.  1062,  where 
sewer  contract  fixes  price  for  excavations  to  greater  depth  than  re- 
quired by  profiles,  alteration  by  lowering  grade  one  foot  at  outlet  is 
not  such  radical  change  as  to  entitle  contractor  to  extra  compensation. 

119  U.  S.  322-326,  30  L.  392,  CLARK  v.  WOOSTER. 

Syl.  1   (XI,  226).     Infringement  suit — Patent  nearly  expired. 

Approved  in  Huntington  etc.  Pulverizing  Co.  v.  Virginia  etc.  Chemi- 
cal Co.,  130  Fed.  560,  following  rule;  Miller  v.  Schwarner,  130  Fed. 
563,  denying  equity  jurisdiction  over  infringement  suit  where  process 
not  issued  till  six  days,  prior  to  expiration  of  patent  and  returnable 
thereafter  and  no  preliminary  injunction  asked. 

Syl.  2   (XI,  226).     Expiration  of  patent  pending  suit. 

Approved  in  State  v.  Sunapee  Dam  Co.,  72  N.  H.  123,  55  Atl.  904, 
where  appellate  court,  in  suit  to  restrain  dam  owner  from  operating 
it  so  as  to  injure  other  shore  owners,  held  allegations  of  nuisance  made 
in  good  faith,  denial  of  injunction  does  not  oust  equity  court  of  power 
to  ascertain  damages. 


1357  Notes  on  U.  S.  Rcoorts.  119  U.  S.  327-355 

Syl.  3   (XI,  226).     Equity— Dismissal  of  bill. 

Distinguished  in  Johnson  v.  Foos  Mfg.  Co.,  141  Fed.  75,  fact  that 
defendant  in  infringement  suit  has  made  and  sold  but  one  machine  and 
that  pending  suit  purchaser  licensed  by  complainant  not  ground  for 
denying    injunction. 

119  U.  S.  327-334,  30  L.  408,  McCREERY  v.  HASKELL. 

Syl.  2   (XI,  227).     Rights  between  settler  and  state. 

Approved  in  Waldron  v.  United  States,  143  Fed.  418,  applying  rule 
In  determining  rights  of  Indian  allottee  under  25  Stat.  892,  c.  405,  ced- 
ing Great  Sioux  reservation. 

Syl.  4   (XI,  227).     Land  grants — Relation  back  to  selection. 

Approved  in  Nicholson  v.  Congdon,  95  Minn.  194,  103  N.  W.  1036, 
subsequent  payment  of  purchase  price  and  issuance  of  patent  perfects 
title  as  of  date  of  application. 

119  U.  S.  335-338,  30  L.  406,  POMACE  HOLDER  CO.  v.  FERGUSON. 

Syl.  1    (XI,  227).     Patents— Mechanical  skill. 

Approved  in  Kenney  Mfg.  Co.  v.  J.  L.  Mott  Iron  Wks.,  137  Fed. 
434,  construing  Kenney  patent  No.  566,770,  for  improvement  in  water- 
closets. 

n9  U.  S.  343-347,  30  L.  420,  COIT  v.  GOLD  AMALGAMATING  CO. 

Syl.  3   (XI,  229).     Corporations — Property  for  stock — Calls. 

Cited  in  Easton  Nat.  Bank  v.  American  Brick  etc.  Co.,  69  N.  J.  Eq. 
329.  60  Atl.  55,  following  rule;  McBride  v.  Farrington,  131  Fed.  803, 
804  where  corporation's  creditor  rendered  services  without  relying 
on  fact  that  stock  was  fully  paid,  he  could  not  enforce  stockholder's 
liability  on  ground  that  stock  subscription  paid  in  property  at  exces- 
sive valuation;  Speer  v.  Bordeleau,  20  Colo.  App.  417,  79  Pac.  334, 
applying  rule  to  mining  corporation;  Weed  v.  Gainesville  R.  R.  Co., 
119  Ga.  596,  46  S.  E.  894,  to  point  that  embarrassed  corporation  may 
sell  stock  at  less  than  par;  Macbeth  v.  Banfield,  45  Or.  568,  106  Am. 
St.  Rep.  670,  78  Pac.  698,  applying  principle  where  directors  of  cor- 
poration received  property  in  exchange  for  stock. 

119  U.  S.  347-355,  30  L.  451,  BUZARD  v.  HOUSTON. 

Syl.  1  (XI,  230).     Equity — Adequacy  of  law  remedy. 

Approved  in  United  States  v.  Bitter  Root  Development  Co.,  200  U. 
S.  472,  50  L.  560,  26  Sup.  Ct.  318,  denying  equity  jurisdiction  over 
bill  for  value  of  timber  wrongfully  cut  and  carried  away  from  public 
•lomain;  Ames  Realty  Co.  v.  Big  Indian  Min.  Co.,  146  Fed.  176,  Mont. 
Code  Civ.  §  1891,  providing  that  in  actions  relating  to  water  rights, 
rights  of  all  parties  diverting  water  from  same  stream  may  bo  set- 
tled on  their  being  made  parties,  is  enforceable  in  federal  court;  Gen- 
eral Elec.  Co.  V.  Westinghouse  Elec.  &  Mfg.  Co.,  144  Fed.  466,  where 


119  U.  S.  355-401  Notes  on  U.  S.  Keports.  1358 

contract  to  make  and  sell  articles  provided  for  penalty  of  fiftj'  per 
cent  of  selling  price  to  users  in  case  of  breach,  injunction  against  vio- 
lation of  contract  denied;  American  Lighting  Co.  v.  Public  Service 
Corp.,  134  Fed.  131,  one  is  not  punishable  for  contempt  for  disregard- 
ing injunction  in  case  where  law  remedy  adequate  and  jurisdiction  to 
issue  injunction  seasonably  questioned  and  denied;  United  States  v. 
Bitter  Eoot  Development  Co.,  133  Fed.  278,  66  C.  C.  A.  652,  deny- 
ing jurisdiction  over  bill  by  government  against  numerous  defendants 
for  joint  trespass  on  public  lands  and  unlawful  cutting  of  timber  and 
for  accounting  of  profits;  Eacey  v.  Eacey,  12  Okl.  653,  73  Pac.  306. 
refusing  to  set  aside  decree  of  divorce;  Trimble  v.  Minnesota  etc.  Mfg. 
Co.,  10  Okl.  581,  64  Pac.  9,  applying  rule  in  suit  to  cancel  notes  given 
for  price  of  machinery  sold  for  breach  of  warranty. 

Syl.  2    (XI,  231).     Equity — Fraud — Adequacy  of  law  remedy. 

Approved  in  Levi  v.  Mathews,  145  Fed.  154,  in  action  at  law  for 
money  due  on  contract,  court  has  no  jurisdiction  over  answer  alleg- 
ing fraud  in  procuring  contract. 

Distinguished  in  Southern  Pac.  E.  Co.  v.  United  States,  133  Fed. 
657,  66  C.  C.  A.  581,  upholding  jurisdiction  of  suit  by  United  States 
against  railroad  and  others  to  determine  rights  in  lands  erroneously 
patented,  confirm  titles  of  bona  fide  purchasers,  cancel  patents  to  un- 
disposed lands  and  for  accounting  from  road  for  lands  sold. 

119  U.  S.  355-357,  30  L.  439,  KEAMEE  v.  COHN. 

Syl.  1   (XI,  232).     Bankruptey^Fraudulent  conveyance. 

Cited  in  Hatcher  v.  Hendrie  etc.  Supply  Co.,  133  Fed.  272,  68  C.  C. 
A.  19,  arguendo. 

119  U.  S.  361-373,  30  L.  455,  WYLIE  v.  NOETHAMPTON  BANK. 

Syl.  2   (XI,  233).     Banks — Stolen  bonds — Want  of  care. 

Approved  in  Morris  v.  Third  Nat.  Bank,  142  Fed.  31,  32,  national 
bank  which  becomes  owner  of  notes  secured  by  mortgage  may  agree 
with  other  mortgagees  to  enforce  security  for  all  where  it  is  for  its 
own  best  interests. 

119  U.  S.  388-401,  30  L.  447,  JOHNSON  v.  CHICAGO  ETC.  ELE- 
VATOE  CO. 

Syl.  1   (XI,  234).     Admiralty — Injury  to  warehouse. 

Distinguished  in  United  States  v.  Evans,  195  U.  S.  364,  368,  49  L. 
236  238  25  Sup.  Ct.  46,  upholding  admiralty  jurisdiction  over  libel 
in  rem  against  vessel  for  negligent  collision  with  beacon  built  on  piles 
in  water. 

Syl.  4  (XI,  235).     Admiralty — State  maritime  lien. 

Approved  in  Delaney  etc.  Iron  Co.  v.  The  Winnebago,  142  Mich.  88, 
105   N.   W.    529,   and    The   Winnebago,    141    Fed.    94S,   both    upholding 


1359  Notes  on  U.  S.  Eeports.  119  U.  S.  407-468 

]\Iicliigan   water  craft  'act  giving  lien   to   persons   furnishi.ig  labor  and 
materials  in  construction  of  vessels. 

119  U.  S.  407-43G,  30  L.  425,  UNITED  STATES  v.  RAUSCHER. 
Syl.  1    (XT,  236).     Extradition — Obligation  to  surrender. 
See  112  Am.  St.  Rep.  107,  note. 

Syl.   2    (XI,   236).     Extradition— State  and   foreign  nation. 
See   112   Am.  St.  Rep.   137,  note. 

Syl.  3    (XI,  236).     Judicial  notice — Treaties  are  contracts. 
Approved  in  Ehrlich  v.  Weber,   114  Tenn.   723,  88   S.  W.   191,  deter- 
mining right  of  native-born  children  of  alien   to   inherit. 

Syl.  4    (XI,  236).     Extradition— Trial  for  other  crime. 

Approved  in  Ex  parte  Browne,  148  Fed.  69,  70,  71,  one  extradited 
from  Canada  under  treaty  of  18S9  for  trial  on  pending  indictment  can- 
not be  seized  by  federal  officers  and  imprisoned  in  execution  of  prior 
judgment  on  different  charge. 

Distinguished  in  United  States  v.  Greene,  146  Fed.  768,  769,  up- 
holding suflficiency  of  indictment  for  conspiracy  to  defraud  United 
States  within  British  Extradition  Treaty  of  1890,  art.  1,  els.  4,  10; 
Knox  V.  State,  164  Ind.  230,  108  Am.  St.  Rep.  291,  73  X.  E.  257, 
fugitive  extradited  on  charge  for  specific  offense  may  be  tried  on  dif- 
ferent charge  without  opportunity  to  return  to  asylum  state. 

Syl.   5    (XI,    237).     Extradition — Habeas   corpus — Other   crime. 

Approved  in  Ex  parte  Collins,  149  Fed.  576,  denying  habeas  corpus 
where  petitioner  extradited  for  perjury  was  again  indicted  for  per- 
jury committed  on  trial  of  first  indictment. 

119  U.  S.  436-445,  30  L.  421,  KER  v.  ILLINOIS. 

Syl.  1   (XI,  238).     Due  process — Irregularity  of  arrest. 

Approved  in  State  v.  Melvern,  32  Wash.  12,  72  Pac.  491,  court  has 
jurisdiction  though  no  warrant  of  arrest  issued  where  he  was  iu  custody 
and  pleaded  not  guilty. 

Syl.  2  (XI,  238).     Time  to  question  extradition. 
See  98  Am.  St.  Rep.  687,  note. 

119  U.  S.  464-468,  30  L.  436,  BALTIMORE  ETC.  E.  R.  CO.  v.  BATES. 

Syl.  1  (XI,  240).     Removal— Repeal  of  Rev.  St.^  §  639. 

Approved  in  O 'Conor  v.  Texas,  202  U.  S.  507,  50  L.  1126,  26  Sup.  Ct. 
726,  alien  nonresident  can  no  longer  claim  privilege  of  removal  under 
Rev.  St.,  §  639,  subsec.  1;  Cochran  v.  Montgomery  Co.,  199  U.  S.  272, 
50  L.  188,  26  Sup.  Ct.  58,  circuit  court's  jurisdiction  depcnch'd  en- 
tirely on  diverse  citizenship  within  circuit  court  of  Appeals  Act,  § 
6,  where  cause  removed  for  local  prejudice. 


119  U.  S.  469-502  Notes  on  U.  S.  Eeports.  1360 

Syl.  2   (XI,  240).     Removal— Time  to  petition. 

Approved  in  Kentucky  v.  Powers,  139  Fed.  485,  upholding  removal 
of  criminal  prosecution  where  defendant  discriminated  against  in  se- 
lection of  jurors;  Carpenter  v.  New  York  etc.  R.  R.  Co.,  184  Mass. 
101,  68  N.  E.  29,  trial  before  auditor  does  not  deprive  plaintiff  of 
right  to  nonsuit  after  hearing  but  before  filing  of  auditor's  report. 

119  U.  S.  469-472,  30  L.  4.35,  PEPER  v.  FORDYCE. 

Syl.   1    (XI,  240).     Record  must  show  federal  jurisdiction. 

Approved  in  Illinois  etc.  Ry.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W. 
486,  reaffirming  rule. 

119  U.  S.  485-491,  30  L.  474,  WOLVERTON  v.  NICHOLS. 

Syl.  1   (XI,  242).     Mines — Agreement  to  lease — Local  law. 

Approved  in  Lily  Min.  Co.  v.  Kellogg,  27  Utah,  114,  115,  74  Pac. 
519,  following  rule;  Nonie-Sinook  Co.  v.  Simpson,  1  Alaska,  583,  ad- 
verse suit  by  applicant  for  mining  patent  is  maintainable  in  Alaska 
district  court;  Allen  v.  Myers,  1  Alaska,  119,  action  at  law  for  re- 
covery of  possession  when  plaintiff  out  of  possession  or  equity  suit 
to  quiet  title  when  plaintiff  in  possession,  is  appropriate  remedy  to 
determine  right  of  possession  of  mining  claim  as  between  claimants 
under  Rev.  St.,  §  2326;  Hopkins  v.  Butte  Copper  Co.,  29  Mont.  393, 
74  Pac.  1082,  failure  of  complaint  to  determine  adverse  claim  to  min- 
ing location  to  allege  suit  brought  within  time  required  by  Rev.  St., 
§  2326,  can  be  raised  only  by  demurrer;  Deeney  v.  Mineral  Creek 
Mill  Co.,  11  N.  M.  287,  67  Pac.  724,  declaration  in  ejectment  is  suf- 
ficient under  Comp.  Laws  1897,  §§  2290,  2291,  to  prevent  all  ques- 
tions involved  between  applicant  for  mining  patent  and  adverse  claim- 
ant. 

119  U.  S.  491-494,  30  L.  476,  GILBERT  v.  MOLINE  PLOW  CO. 

Syl.  3    (XI,  243).     Erroneous  admission  of  immaterial  evidence. 

Approved  in  Security  Trust  Co.  v.  Robb,  142  Fed.  84,  following 
rule. 

119  U.  S.  495-498,  30  L.  491,  BIGNALL  v.  GOULD. 

Syl.  1   (XI,  243).     Liquidated  damages — Indemnity  bond. 

Distinguished  in  Dieckerhoff  v.  United  States,  136  Fed.  549,  69 
C.  C.  A.  255,  no  recovery  can  be  had  without  proof  of  actual  dam- 
ages for  breach  of  bond  given  for  return  of  unexamined  imports,  un- 
der Rev.  St.,  §  2899? 

119  U.  S.  499-502,  30  L.  486,  THACKRAH  v.  HAAS. 

Syl.    1    (XI,   243).      Cancellation — Conveyance   when   drunk. 

Distinguished  in  McGinley  v.  Cleary,  2  Alaska,  276,  refusing  to  set 
aside  deed  made  by  keeper  of  game  in  payment  of  gambling  debt 
created  while  drunk. 


1361  Notes  ou  U.  S.  Reports.     '       119  U.  S.  502-530 

Syl.  2    (XI,  243).     Conveyance  while  drunk— Repayment. 

Approved  in  Price  v.  Connors,  146  Fed.  504,  tender  of  consideration 
for  release  is  condition  precedent  to  suit  for  personal  injuries  where 
pleadings  show  jury  may  find  damages  in  less  than  amount  paid; 
Sharp  V.  Behr,  136  Fed.  805,  where  plaintiff  conveyed  land  at  actual 
cost  of  $3,500,  on  defendants'  agreement  to  pay  certain  royalties  if 
possession  obtained  by  defendant  and  if  not  to  recovery  on  payment 
of  cost  price,  tender  not  necessary  in  advance  of  settlement  of  ac- 
counts where  possession  not  acquired;  Russell  v.  Russell,  129  Fed.  440, 
tender  of  payment  made  to  widow  by  husband's  executors  is  not  con- 
dition precedent  to  suit  to  set  aside  antenuptial  agreement  where  in  any 
event  she  would  be  entitled  to  larger  amount  from  estate.  See  107  Am. 
St.  Rop.  543,  544,  note. 

119  TJ.  S.  502-513,  30  L.  482,  BROOKS  v.  CLARK. 

Syl.  3    (XI,  244).     Removal  of  separable  controversy. 

Apj)r()ved  in  Indian  etc.  Coal  Co.  v.  Ashville  etc.  Coal  Co.,  135  Fed. 
840,  wliere  action  containing  counterclaim  tried  in  state  court  and 
judgment  for  plaintiff  on  main  case  affirmed  but  reversed  as  to  couu- 
terelaim,  it  was  not  removable  for  retrial  of  counterclaim. 

119  U.  S.  522-525,  30  L.  500,  WHITFORD  v.  CLARK  COUNTY". 

Syl.   1    (XI,  244).     Deposition  of  witness  not  absent. 

Approved  in  Lanza  v.  Le  Grand  Quarry  Co.,  124  Iowa,  662,  100  N. 
W.  489,  shorthand  report  of  testimony  taken  at  former  trial  cannot 
be   ready   whore  witnesses  are  present   when   transcript   offered. 

Syl.   3    (XI,   245).     Federal   courts — Law   governing   evidence. 

Approved  in  Smith  v.  Au  Ores  Twp.,  150  Fed.  263,  under  Rov.  St., 
§  858,  witness  could  testify  after  bankrupt's  death  to  admissions  made 
by  bankrupt  concerning  his  estate  whik^  he  was  yet  owner  thereof; 
Swift  V.  Jones,  145  Fed.  492,  circuit  judge  cannot  order  trial  of  ac- 
tion at  law  before  special  master  authorized  to  hear  and  pass  on  is- 
sues of  fact  and  report  findings  to  court. 

119  IJ.  S.  526-530,  30  L.  469,  ASIIBY  v.  HALL. 

Svl.  1    (XI,  245).     Entry  in  trust — Right  of  way. 

Approved  in  Conradt  v.  Milh'r,  2  Alaska,  4;!(i,  a  haling  nuisance  con- 
sisting of  wharf  in  front  of  jdaintiff's  property  on  bank  uf  river 
which  closes  his  free  access;  Heine  v.  Roth,  2  Alaska,  426,  granting 
mandatory  injunction  to  compel  removal  of  buihiings  from  Jainl  be- 
tween high  and  low  water  marks;  Martin  v.  lloff,  7  Ariz.  253,  (i  1  I'a,-. 
44S,  nmndamus  does  not  lie  to  compel  mayor  a,s  trustee  to  onvcy  nn-, 
occujiied  lots  in  town  entered  under  Coni]!  Laws,  c.  80,  §  3,  to  one 
who  had  settled  thereon  for  ten  years;  Cily  of  (Inthrie  v.  Heainer,  .'i 
Okl.  669,  41  I'ac.  653,  approval  of  tovvnsite  plat  by  Secretary  of  in- 
8l> 


119  U.  S.  530-561  Notes  on  U.  S.  Reports.  1362 

terior  was   dedication   of  lands   designated  on  plats   as   streets  and   oc- 
cupant was  devested  of  interest. 

Syl.  2   (XI,  245).     Entry  by  town — Occupant's  riglit  of  way. 

Approved  in  Macintosh  v.  Nome,  1  Alaska,  494,  496,  holding  void 
resolution  of  town  council  of  Nome  to  vacate  public  way  dedicated  by 
townsite  settlers;  City  of  Guthrie  v.  Beamer,  3  Okl.  674,  41  Pac.  654, 
approval  of  townsite  plat  by  Secretary  of  Interior  was  dedication  of 
lands  designated  on  plats  as  streets  and  occupant  was  devested  of  in- 
terest. 

119  U.  S.  530-542,  30  L.  492,  SUTTER  v.  ROBINSON. 

Syl.  1   (XI,  245).     Patents— Disclaimer. 

Approved  in  Cimiotti  Unhairing  Co.  v.  American  Fur.  Refining  Co., 
198  U.  S.  410,  49  L.  1105,  25  Sup.  Ct.  697,  Sutton  patent  No.  383,258, 
for  fur-plucking  machine,  not  infringed ;  Rembert  etc.  Compress  Co.  v. 
American  Cotton  Co.,  129  Fed.  369,  64  C.  C.  A.  25,  limiting  Rembert 
patent  No.  441,022,  for  method  of  baling  cotton;  Columbus  Chain  Co. 
v.   Standard   Chain   Co.,   148   Fed.   625,   arguendo. 

119  U.  S.  543-550,  30  L.  487,  HUSE  v.  GLOVER. 

Syl.  3    (XI,  247).     Commerce — Improvement  of  navigation  by  state. 

Approved  in  Manigault  v.  Springs,  199  U.  S.  478,  50  L.  278,  26 
Sup.  Ct.  127,  upholding  state  act  authorizing  dam  across  navigable 
stream  to  drain  lowlands;  Kansas  City  etc.  R.  R.  Co.  v.  "Wiygul,  82 
Miss.  231,  33  So.  967,  61  L.  R.  A.  578,  upholding  state  authorization 
10  build  bridge  over  navigable  interstate  stream. 

119  U.  S.  551-561,  30  L.  515,  GOETZ  v.  BANK  OF  KANSAS  CITY. 

Syl.  2   (XI,  247).     Indorsement  of  bank. 

Approved  in  Bank  of  Indian  Territory  v.  First  Nat.  Bank,  109 
Mo.  App.  672,  83  S.  W.  538,  where  drawee  of  draft  pays  it,  he  can- 
not avoid  transaction  by  showing  he  was  mistaken  in  supposing  he 
had  money  in  his  hands  to  pay  it.     See  105  Am.  St.  Rep.  373,  note. 

Syl.  3    (XI,  248).     Discounting  drafts — Forgery  of  invoice. 

Approved  in  Morrison  v.  Fanners'  etc.  Bank,  9  Okl.  700,  702,  60 
Pac.  274,  determining  whether  or  not  bank  purchasing  draft  from 
drawer  before  maturity  and  giving  him  credit  on  deposit  account  for 
face  of  draft  was  purchaser  for  value.    See  105  Am.  St.  Rep.  359,  note. 

Syl.  4  (XI,  248).     Drafts— Bad  faith  of  taker. 

Approved  in  In  re  Troy  &  Cohoes  Shirt  Co.,  136  Fed.  433,  holding 
form  of  indorsements  of  notes  payable  to  corporatiou  and  discounted 
by  its  treasurer  not  such  as  to  charge  bank  with  knowledge  that  they 
rrere  accommodation  notes. 


1363  Notes  on  U.  S.  Reports.  119  U.  S.  561-587 

Syl.  6  (XI,  248).     Declarations  of  agent — Passed  transactions. 

Approved  in  Walker  Mfg.  Co.  v.  Knox,  136  Fed.  343,  69  C.  C.  A. 
160,  in  action  for  services  in  promoting  contract  for  sale  of  materials, 
evidence  of  conversation  between  plaintiff  and  defendants  vice-presi- 
dent as  to  value  of  services  is  inadmissible,  where  it  occurred  after 
latter  left  defendant's  employ;  Garske  v.  Ridgeville,  123  "Wis.  508, 
102  N.  W.  24,  in  action  against  town  for  injuries  due  to  defective 
highway,  admissions  of  town  chairman  as  to  notice  of  inquiry  are  in- 
admissible when  not  res  gestae. 

119  U.  S.  561-566,  30  L.  513,  NORTHERN  PAC.  RY.  v.  PAINE. 

Syl.  1   (XI,  248).     Equitable  defense  at  law— State  law. 

Approved  in  Anglo-American  Land  etc.  Co.  v.  Lombard,  132  Fed. 
731,  68  C.  C.  A.  89,  in  federal  law  action  to  enforce  Kansas  cor- 
poration stockholder's  liability  debt  from  corporation  to  stockholder 
cannot  be  offset. 

Syl.  5   (XI,  249).     Equitable  claim  to  support  law  action. 

Approved  in  Chapman  v.  Yellow  Poplar  Lumber  Co.,  143  Fed.  211, 
upholding  supplemental  bill  to  enforce  compromise  agreement  made 
in  equity  suit. 

Syl.  9  (XI,  249).     License  terminated  by  sale  of  land. 
Approved   in   Price   &  B.   Co.   v.   Madison,   17   S.   D.   253,   95   N.   W. 
935,  license  to  enter  and  cut  timber  is  revoked  by  conveyance  of  fee. 

119  U.  S.  5S4-5S6,  30  L.  513,  EX  PARTE  MIRZAN. 

Syl.   2    (XI,   249).     Habeas   corpus   by   supreme   court. 

Approved  in  Re  Lincoln,  202  U.  S.  182,  50  L.  9S6,  26  Sup.  Ct.  602, 
denying  habeas  corpus  to  one  convicted  in  district  court  of  bringing 
liquor  into  Indian  country,  where  term  of  imprisonment  has  nearly  ex- 
])ired;  Riggins  v.  United  States,  199  U.  S.  550,  50  L.  304,  26  Sup. 
Ct.  147,  sufficiency  of  indictment  found  in  district  court  and  removed 
to  circuit  court  not  testable  in  latter  by  habeas  corpus  where  ac- 
cused in  custody  under  capias. 

119  U.  S.  586,  587,  30  L.  538,  HANCOCK  v.  HOLBROOK. 

Syl.  1   (XI,  249).     Removal  for  local  prejudice. 

Distinguished  in  Boatmen's  Bank  v.  Fritzlen,  135  Fed.  664,  68  C. 
C.  A.  288,  defendant  who  is  citizen  of  state  other  than  that  in  which 
suit  is  brought  may  remove  for  local  prejudice  though  plaintiff  and 
some  of  defendants  are  citizens  of  state  where  action  brought. 

(XI,  249.)  Miscellaneous.  Cited  in  Rivcrdnle  Cotton  Mills  v.  Ala- 
bama etc.  Mfg.  Co.,  198  U.  S.  197,  49  L.  1016,  25  Sup.  Ct.  629,  de- 
cree of  federal  court  whose  jurisdiction  invoked  for  diversity  of  citizen- 
ship which  is  admitted  is  not  assailable  in  state  court  for  lack  of 
diversity. 


119  U.  S.  587-624  Notes  on  U.  S.  Eeports.  1364 

119  U.  S.  587-603,  30  L.  532,  BOEER  v.  CHAPMAN. 

Syl.  4    (XI,  250).     Estates  of  decedents — Nonresident  creditor. 

Approved  in  Bartleson  v.  Feidler,  149  Fed.  300,  order  of  Alaska 
probate  court  distributing  property  to  heirs  of  decedent  is  not  con- 
clusive adjudication  that  partnership  did  not  exist  between  decedent 
and  another  to  whom  projierty  belonged  as  against  creditor  of  part- 
ner following  property  in  hands  of  heirs. 

Syl.  5  "(XI,  250).     Federal  equity  independent  of  states. 

Approved  in  Schurmeier  v.  Connecticut  etc.  Ins.  Co.,  137  Fed.  47, 
69  C.  C.  A.  22,  determining  jurisdiction  over  action  on  claim  against 
estate  of  decedent;  dissenting  opinion  in  Moore  v.  Fidelity  Trust  Co., 
138  Fed.  1009,  majority  denying  federal  jurisdiction  over  bill  by  dis- 
tributee under  will  to  compel  accounting  from  surviving  partner  of 
decedent  where  probate  pending  in  state  court. 

119  U.  S.  608-613,  30  L.  504,  lEON  MT.  ETC.  RY.  v.  JOHNSON. 

Syl.   1    (XI,   251).     Forcible   entry — Contractor   forcibly   dispossessed. 

Approved  in  Oklahoma  City  v.  Hill,  4  Okl.  532,  46  Pac.  572,  where 
possessor  is  arrested  for  violation  of  liquor  law  and  ofReers  enter  into 
possession  and  keep  him  therefrom,  evidence  of  right  to  arrest  and 
that  defendant  had  deed  to  premises  and  plaintifE  no  right  to  pos- 
session is  inadmissible  in  forcible  entry. 

219  U.  S.  613-615,  30  L.  506,  EX  PARTE  RALSTON. 

(XI,  252.)  IMiscellaneous.  Cited  in  Long  v.  Farmers  State  Bank, 
]47  Fed.  361,  writs  of  error  out  of  circuit  court  of  appeals  must 
issue  in  name  of  President,  attested  by  chief  justice  and  clerk  of  cir- 
cuit court.    . 

119  U.  S.  615-624,  30  L.  519,  CHICAGO  ETC.  EY.  v.  WIGGINS  FEREY 
CO. 

Syl.  2   (XI,  252).     Judicial  notice  of  foreign  laws. 

Approved  in  Leathe  v.  Thomas,  218  111.  253,  75  N.  E.  812,  setoff 
is  defense  to  action  on  foreign  judgment  rendered  in  state  where  set- 
offs are  not  allowed  in  actions  on  judgments;  Erwin  v.  Southern  Ry., 
71  S.  C.  230,  50  S.  E.  779,  in  order  to  make  record  of  court  of  lim- 
ited jurisdiction  in  garnishee  proceedings  in  foreign  state  binding 
here,  it  must  be  shown  that  garnishee  submitted  to  jurisdiction. 

Syl.  3   (XI,  253).     Sujireme  court — Judicial  uotice  state  laws. 

See  113  Am.  St.  Rep.  873,  note. 

Syl.  4    (XI,   253).     Supreme   court — Federal   question. 

Approved  in  Allen  v.  Alleghany  Co.,  196  U.  S.  463,  49  L.  555,  25 
Sup.  Ct.  311,  whether  or  not  contract  entered  into  in  contravention  of 
statutes  regulating  foreign  corporations  was  void  and  unenforceable 
in  courts  of  another  state,  presents  no  federal  question. 


1365  Notes  on  U.  S.  Eeports.  119  U.  S.  625-695 

119  U.  S.  62."  630,  30  L.  501,  COPE  v.  VALLETTE  DRYDOCK  CO. 

Syl.  1   (XI,  253).     Salvage  defined. 

Approved  in  Fredericks  v.  James  Eees  &  Sons  Co.,  135  Fed.  733,  68 
C  C.  A.  368,  Pennsylvania  Act  1858,  giving  lien  for  repairs  or  sup- 
plies to  river  vessels  docs  not  apply  to  dredge  boat  used  only  to  sup- 
port dredging  apparatus. 

119  U.  S.  637-643,  30  L.  511,  BARRELL  v.  TILTON. 

Syl.  4  (XI,  254).     Amendment  of  decree  during  term. 

Apf)roved  in  Sullivan  v.  Woods,  5  Ariz.  201,  50  Pac.  115,  where 
district  court  on  appeal  rendered  judgment  for  defendant  and  denied 
new  trial,  and  plaintiff  appealed,  district  court  could,  during  term, 
vacate  judgment. 

119  U.  S.  652-663,  30  L.  544,  IVES  v.  SARGENT. 

Syl.  1   (XI,  254).     Patents — Delay  in  seeking  reissue. 

Approved  in  Milloy  Elec.  Co.  v.  Thompson  etc.  Elec.  Co.,  148  Fed. 
846,  holding  void  Van  Depoele  reissue  No.  11,872,  for  traveling  con- 
tact for  electric  railways;  Tetrault  v.  Fournier,  187  Mass.  62,  72  N. 
E.  352,  arguendo. 

119  U.  S.  664-679,  30  L.  539,  HARTSHORN  v.  SAGINAW  BARREL 
CO. 

Syl.   2    (XI,   255).     Patent   reissue — Change   in   specifications. 

('ited  in  Thomson-Houston  Elec.  Co.  v.  Black  River  Traction  Co., 
1B5  Fed.  765,  68  C.  C.  A.  461,  arguendo. 

119  U.  S.  680-695,  30  L.  523,  ENFIELD  v.  JORDAN, 

Syl.  2   (XI,  255).     Village  and  town  distinguished. 

Approved  in  Brown  v.  Grangeville,  8  Idaho,  785,  788,  71  Pac.  152, 
Tillage  organized  under  general  laws  is  included  in  word  "town"  as 
used  in  Act  of  Feb.  2,  1899,  §  1,  relating  to  issuance  of  coupon  bonds. 


CXX  UNITED  STATES. 


120  IT.  S.  1-19,  30  L.  565,  WILDENHEIS'  CASE. 

Syl.  1   (XI,  257).     Local  jurisdiction  of  high  sea  crimeg. 

Approved  in  Dallemagne  v.  Moisan,  197  U.  S.  174,  49  L.  711,  25 
Riip.  Ct.  422,  declaring  arrest  of  state  officer  upon  foreign  consul's 
request  of  insubordinate  seaman  not  invalid  because  of  constitutional 
guarantee  against  deprivation  of  personal  liberty  without  due  process 
of  law. 

Syl.  2   (XI,  257).     Federal  restrictions  on  habeas  corpus. 

Approved  in  Ex  parte  Collins,  149  Fed.  575,  refusing  to  try  on 
habeas  corpus  pending  appeal  in  state  court  the  right  of  extradited  pris- 
oner to  return  to  place  of  extradition  before  being  tried  for  different 
offense;  West  Virginia  v.  Laing,  133  Fed.  891,  66  C.  C.  A.  617,  re- 
leasing on  habeas  corpus  members  of  posse  comitatus  charged  with 
murder,  where  person  killed  was  under  federal  indictment  and  resisted 
arrest;  In  re  Dowd,  133  Fed.  752,  denying  habeas  corpus  where  prisoner 
under  sentence  for  contempt  of  Colorado  supreme  court  and  judgment 
thereof  reviewable  by  writ  of  error;  In  re  Amnion,  132  Fed.  714,  re- 
fusing to  release  prisoner  convicted  under  statute  passed  subsequent  to 
commitment  of  offense. 

120  U.  S.  20-40,  30  L.  573,  ALLEN  v.  ST.  LOUIS  BANK. 

Syl.   1    (XI,   258).     Sufficiency   of   facts — Exception   unnecessary. 

Approved  in  Webb  v.  National  Bank  of  Ecpnblic,  146  Fed.  719,  deny- 
ing necessity  of  exception  where  facts  found  are  insufficient  to  sup- 
port judgment. 

Syl.  2   (XI,  258).     Custom  unknown  and  unreasonable  inadmissible. 

Distinguished  in  Pennsylvania  etc.  E.  E.  Co.  v.  Naive,  112  Tenn. 
257,  79  S.  W.  128,  64  L.  E.  A.  443,  holding  carrier  relieved  from  giv- 
ing notice  of  arrival  of  goods  on  July  4th. 

Syl.  3    (XI,   258).     Pledged   goods   cannot  be  sold. 

Approved  in  Thomas  v.  Provident  etc.  Co.,  138  Fed.  369,  holding 
power  to  sell  in  will  does  not  include  power  to  borrow  money  and  se- 
cure same  by  mortgage. 

120  U.  S.  46-51,  30  L.  557,  UNITED  STATES  v.  SYMONDS. 

Syl.  1  (XI,  259).     Pay  of  naval  officer  performing  shore  duty. 

Approved  in  United  States  v.  Engard,  196  U.  S.  515,  49  L.  576,  25 
Sup.  Ct.  322,  presuming  shore  duty  temporary  and  ancillary  to  sea 
duty,  right  to  sea  pay  unaffected. 

[1366], 


13G7  Notes  on  U.  S.  Eeports.  120  U.  S.  52-72 

Syl.   2    (XI,   209).     Departmental  rules   have   force   of  laws. 

Approved  in  Parryman  v.  Cunningham,  16  Okl.  103,  82  Pac.  825, 
holding  Land  Department's  findings  of  fact  concerning  title  to  public 
lands  binding  upon  courts;  Peters  v.  United  States,  2  Okl.  122,  33 
Pac.  1033,  as  to  perjury  committed  before  Land  Department  under 
rules  requiring  the  testimony  of  all  witnesses  to  contest  reduced  to 
writing. 

120  U.  S.  52-59,  30  L.  559,  UNITED  STATES  v.  PHILBRICK. 

Syl.  3   (XI,  260).     Contemporary  executive  statutory  construction. 

Approved  in  McMichael  v.  Murphy,  197  U.  S.  313,  49  L.  770,  25 
Sup.  Ct.  460,  following  settled  construction  of  Land  Department  and 
liolding  uncanceled*  homestead  entry  by  disqualified  person  prevents 
initiation  of  homestead's  rights  of  another;  Avery  v.  Pima  Co.,  7 
Ariz.  32,  60  Pac.  703,  following  construction  of  Department  of  Justice 
upou  statute  rehitive  to  care  of  United  States  criminals;  Henry  v. 
State,  S7  Miss.  59,  39  So.  872,  denying  governor  right  to  sue  in  name 
of  state;  Pitts  v.  Logan  County,  3  Okl.  740,  41  Pac.  591,  declaring 
void  legislative  act  regulating  fees  of  clerks  of  district  courts;  dissent- 
ing opinion  in  Bates  etc.  Co.  v.  Payne,  194  U.  S.  Ill,  48  L.  896,  24 
Sup.  Ct.  595,  majority  refusing  to  review  Postmaster  General's  dis- 
cretion refusing  to  transmit  periodical  known  as  "Masters  in  Music" 
as  second-class  mail;  dissenting  opinion  in  Houghton  v.  Payne,  194 
U.  8.  103,  48  L.  892,  24  Sup.  Ct.  590,  majority  holding  contemporaneous 
construction  an  aid  only  when  language  of  statute  ambiguous;  dis- 
senting opinion  in  McDaid  v.  Territory,  1  Okl.  112,  30  Pac.  444, 
majority  denying  right  of  appeal  from  decision  of  townsite  trustees, 
although  allowed  by  secretary. 

120  U.   S.   64-68,   30  L.   563,   TAMMANY   WATER   WORKS   v.   NEW 
ORLEANS   WATER   WORKS. 

Syl.    1    (XT,    261).     Exclusive    franchise — Contract    impairment. 

Approved  in  Mercantile  etc.  Co.  v.  Columbus  Water  Works  Co.,  130 
Fed.  184,  restraining  city  from  constructing  competing  water  system ; 
Columbia  Ave.  Sav.  Fund  etc.  Co.  v.  Dawson,  130  Fed.  173,  enjoining 
city  from  issuing  bonds  for  construction  of  competing  system  of 
waterworks. 

Distinguished  in  Water  etc.  Co.  v.  City  of  Hutchinson,  144  Fe<l.  264, 
(leuying  second-class  city's  power  to  grant  exclusive  rights  to  use 
streets  for  supplying  gas;  Tillamook  Water  Co.  v.  Tillamook  City, 
139  Fed.  406,  holding  charter  privileges  not  violated  by  construction 
of   comj^eting   municipal   water   plant. 

120  U.   S.  68-72,  30  L.  578,   HAYES  v.   MISSOURL 
Syl.   1    (XI,   262).     Legislature   may   classify   cities. 
Approved  in  Field  v.  Barber  Asphalt  Paving  Co.,   194  U.   S.   622.   4S 

L.  1153,  24  Sup.  Ct.  284,  sustaining  statute  although  nonresident  uloua 


120  U.  S.  73-78  Notes  on  U.  S.  Eeports.  1368 

not  given  right  to  protest  against  public  improvement;  Globe  Elevator 
Co.  V.  Andrew,  144  Fed.  879,  holding  statute  providing  for  inspection 
and  grading  of  grain  at  Superior  only,  not  unconstitutional  as  denying 
equal  protection  of  law;  In  re  Finley,  1  Cal.  App.  210,  81  Pac.  1046, 
sustaining  act  providing  for  death  penalty  in  cases  of  assault  with 
deadly  weapons  by  life  convicts;  State  v.  Tower,  185  Mo.  95,  84  S.  W. 
13,  68  L.  R.  A.  402,  sustaining  act  making  emission  of  dense  smoke 
in  cities  of  more  than  one  hundred  thousand  population  a  nuisance ; 
State  v.  Preferred  Tontine  Mercantile  Co.,  184  Mo.  186,  82  S.  W.  1081, 
sustaining  act  regulating  businesses  such  as  the  Preferred  Tontine  Mer- 
cantile Company;  People  v.  Reardon,  184  N.  Y.  445,  112  Am.  St.  Rep. 
636,  77  N.  E.  974,  denying  act  taxing  transfers  of  stock  in  domestic 
and  foreign  corporation  objectionable  because  one, variety  of  property 
only  taxed;  State  v.  Fraternal  Knights,  35  Wash.  345,  77  Pac.  503, 
holding  act  requiring  only  subsequently  formed  fraternal  associations 
to  adopt  certain  rates  not  unconstitutional;  Foster  v.  Eowe,  128  Wis. 
336,  107  N.  W.  639,  sustaining  act  providing  for  commissioners  to 
equalize  valuations   between  different   municipalities   in   counties. 

Distinguished  in  State  v.  Scampini,  77  Vt.  115,  59  Atl.  209,  holding 
act  permitting  sales  of  cider  and  native  wines  by  farmers  and  manu- 
facturers only  a  denial  of  the  equal  protection  of  the  law. 

Syl.  2    (XI,  263).     Peremptory  challenge  is  to  reject  juror. 

Approved  in  Howard  v.  Kentucky,  200  U.  S.  173,  50  L.  425,  26  Sup. 
Ct.  189,  holding  accused  not  denied  protection  of  fourteenth  amend- 
ment— state  court,  by  stipulation,  examiuing  juror  without  accused's 
presence  and  discharging  him ;  Sawyer  v.  United  States,  202  U.  S. 
158,  50  L.  976,  20  Sup.  Ct.  575,  holding  federal  government  in  North 
Carolina  may  conditionally  challenge,  although  peremptory  challenges 
unexhausted;  State  v.  Jones,  32  Mont.  450,  80  Pac.  1098,  holding  no 
exception  lies  to  court's  ruling  sustaining  challenge  for  implied  bias; 
Territory  v.  Padilla,  12  N.  M.  7,  71  Pac.  1085,  irregular  order  as  to 
exercise  of  peremptory  challenges  harmless  where  defendant  did  not 
use  all  peremptories;  Stevens  v.  Union  R.  R.  Co.,  26  R.  I.  106,  58 
Atl.  498,  66  L.  R.  A.  465,  denying  allowance  of  peremptory  challenges 
in  excess  of  statutory  number  ground  for  reversal  where  prejudice  not 
shown. 

120  U.  S.  73-78,  30  L.  586,  FOESYTH  v.  DOOLITTLE. 

Syl.  3    (XI,  264).     Value  land   foreclosed,  evidencing  attorney's  fee. 

Approved  in  Denison  v.  Shawmut  Min.  Co.,  135  Fed.  865,  holding 
jury  may  ignore  testimony  of  experts;  Andrews  v.  Frierson,  144  Ala. 
477,  39  So.  514,  holding  register  not  bound  by  unimpeached  expert 
testimony  as  to  value  of  auctioneer's  services;  Pollard  v.  American 
etc.  Mortgage  Co.,  139  Ala.  205,  35  So.  773,  sustaining  register's  find- 
ings as  to  value  of  mortgagee's  attorney  services — one  witness  biased 
toward  high   estimate;    the  other   considering   services   for   which   mort- 


1369  Notes  on  U.  S.  Keports.  120  U.  S.  78-130 

gagor  not  liable;  Parrish  y.  State,  139  Ala.  43,  36  So.  1021,  approving 
instructions  autliorizing  jury  to  disregard  expert  opinion  not  based 
on  facts  in  evidence. 

120  U.  S.  78-82,  30  L.  580,  HUNTINGTON  v.  SAUNDERS. 

Syl.   1    (XI,  2G4).     Bill  demurrable,  not  seeking  discovery. 

Approved  in  McFarland  v.  State  Sav.  Bank,  132  Fed.  401,  holding 
bill  waiving  answer  under  oath,  defendant  excused  from  answering 
interrogatories    therein. 

120  U.   S.   89-97,  30  L.   601,  UNITED   STATES  v.   PARKER. 

Syl.   1    (XI,   265).     Dismissal   showing  settlement  a   bar. 

Appro'ved  in  Coram  v.  Ingersoll,  148  Fed.  173,  holding  judgment 
of  dismissal  entered  upon  sustaining  statutory  objection  to  admissi- 
bility of  evidence  res  judicata. 

Syl.   3    (XI,   265).     Explaining   nonsuit  and  retraxit. 
Approved  in  Uind'^ay  v.  Allen,  112  Tenn.  650,  82  S.  W.   173,  holding 
voluntary   dismissal   on   part   of   complainant   not   bar   to   future   action. 

120  U.  S.  97-102,  30  L.  588,  HUNTINGTON  v.  NORTHEN. 

Syl.  3    (XI,  265).     Statutes  void  in  part. 

Approved  in  Smith  v.  Peterson,  123  Iowa,  674,  99  N.  W.  553.  Code, 
§  1946,  is  void  for  omitting  notice  of  proceedings  to  establish  drains  to 
land  owners  and  makes  void  drainage  scheme  of  §§  1939-1951. 

120  U.  S.  105-109,  30  L.  590,  GIBBS  v.  GRAND  ALL. 

Syl.   1    (XI.  266).     Causes  removed,  federal  question  involved. 

Approved  in  Myrtle  v.  Nevada  etc.  Ry.  Co.,  137  Fed.  196,  holding 
action  to  recover  for  personal  injuries  not  removable,  because  of  alle- 
gation  that    defendant    engaged   in   interstate   commerce. 

120  U.  S.  115-124,  30  L.  609,  UNITED   STATES  v.  OTIS. 

Syl.  1   (XI,  266).     Contracts  relating  to  mail  service. 

Distinguished  in  Slavens  v.  United  States,  196  U.  S.  238,  49  L.  461, 
25  Sup.  Ct.  229,  denying  mail-carrying  contractor  extra  compensation 
for  services  performed  upon  unauthorized  demand  of  local  postmaster. 

120  U.  S.  126-130,  30  L.  594,  UNITED  STATES  v.  SAUNDERS. 

Syl.  1   (XI,  267).     Clerk  entitled  to  extra  compensation. 

Approved  in  State  v.  Grant,  12  Wyo.  11,  73  Pae.  473,  holding  Secretary 
of  State  entitled  to  the  extra  salary  of  governor  while  filling  vacancy. 

Distinguished  in  Bartlett  v.  United  States,  197  U.  S.  234,  49  L.  736, 
25  Sup.  Ct.  433,  denying  disbursing  clerk  of  treasury  department  com- 
pensation for  disbursing  f)Ostoffice  funds  in  district  customs'  collector 
supervises;  Avery  v.  Pima  Co.,  7  Ariz.  34,  60  Pac.  704,  denying  sheriff 


120  U.  S.  130-183  Notes  on  U.  S.  Eeports.  1370 

extra  compensation  for  care  of  United  States  prisoners;  Finlej  v.  Terri- 
tory, 12  Okl.  644,  73  Pac.  280,  holding  probate  judges  not  entitled  to 
emoluments  received  ■while  acting  in  townsite  matters. 

120  U.  S.  130-140,  30  L.  569,  KIRBY  v.  LAKE  SHORE  ETC.  R.  R. 

Syl.  1   (XI,  207).     Federal  equity  unlimited  by  states. 

Approved  in  Stevens  v.  Grand  Central  Min.  Co.,  133  Fed.  32,  67  C.  C. 
A.  284,  allowing  complainant  relief  regardless  of  state's  statute  of 
limitation;  James  v.  Gray,  131  Fed.  408.  65  C.  C.  A.  385,  allowing  wife 
to  prove  debt  against  bankrupt's  estate  regardless  of  its  enforceability 
under  state  law. 

Syl.  2  (XI,  267).    Discovery  of  fraud  starts  statute. 

Approved  in  Mullen  v.  Walton,  142  Ala.  173,  39  So.  99,  allowing 
complainant  to  file  bill  for  settlement  of  trust  created  more  than  twenty 
years  prior  to  filing  of  bill  and  when  complainant  but  eleven  years  of 
age. 

Syl.  3  (XI,  268).     Equity  jurisdiction  over  complicated  accounts. 

Approved  in  Fidelity  etc.  Co.  v.  Fidelity  Trust  Co.,  143  Fed.  159, 
allowing  bill  where  transactions  between  parties  complicated  and  in- 
tricate; McMullen  Lum.  Co.  v.  Strother,  136  Fed.  303,  69  C.  C.  A.  433, 
entertaining  jurisdiction  although  accounts  not  mutual;  Fechteler  v. 
Palm  Bros.,  133  Fed.  465,  66  C.  C.  A.  336,  allowing  bill  where  statement 
of  account  by  a  master  more  complete  and  adequate. 

Syl.  5   (XI,  268).     Laches  bars  extension  of  limitations. 

Approved  in  dissenting  opinion  in  Cook  v.  (!eas,  147  Cal.  623,  82  Pac. 
374,  majority  holding  plaintiff  not  guilty  of  laches  in  absence  of  hard- 
ship, by  mere  lapse  of  time  less  than  statutory  time. 

(XI,  268.)  Miscellaneous.  Cited  in  Fountain  v.  Lewiston  Nat.  Bank, 
11  Idaho,  465,  83  Pac.  508,  refusing  to  disturb  trial  court's  finding 
against  trust  where  transaction  appears  upon  face  equitable. 

120  U.  S.  141-160,  30  L.  614,  CRESCENT  LIVE  STOCK  CO.  v. 
BUTCHERS'  UNION  ETC.  CO. 

Syl.  4  (XI,  269).     Reversed  judgment  evidences  probable  cause. 

Approved  in  Burt  v.  Smith,  181  N.  Y.  6,  73  N.  E.  496,  holding  order 
granting  injunction  pendente  lite  although  subsequently  reversed  and 
complaint  dismissed  prima  facie  evidence  of  probable  cause  in  action 
for  malicious  prosecution;  King  v.  Estabrooks,  77  Vt.  374,  60  Atl.  85, 
holding  judgment  sufficiently  impeached  by  allegation  of  bad  faith  to 
destroy  its  effect  as  probable  cause. 

120  U.  S.  169-183,  30  L.  627,  UNITED  STATES  v.  HILL. 

Syl.  1  (XI,  271).    Federal  clerks  must  account  for  fees. 

Approved  in  Pitts  v.  Logan  County,  3  Okl.  737,  738,  739,  740,  41  Pac. 
590,  591,  holding  clerks  of  district  courts  must  account  for  all  fee*, 
both  territorial  and  United  States,  to  Secretary  of  Treasury. 


1371  Notes  on  U.  S.  Keports,  120  U.  S.  183-197 

Syl.  2   (XT,  271).     Clerk  entitled  to  extra  compensation. 
Distinguished  in  Finley  v.  Territory,  12  Okl.  640,  73  Pac.  279,  denying 
probate  judges  extra  compensation  while  acting  in  townsite  matters. 

Syl.  3   (XI,  271).     Executive  construction  of  statutes   weighty. 

Approved  in  United  States  v.  Swift,  139  Fed.  230,  following  principal 
case  and  allowing  expenditures  incurred  by  marshal  for  extra  bailiffs; 
dissenting  opinion  in  Bates  etc.  Co.  v.  Payne,  194  U.  S.  Ill,  48  L.  896, 
24  Sup.  Ct.  595,  majority  refusing  to  interfere  with  postmaster  general's 
refusal  to  admit  monthly  musical  publication  as  second-class  mail. 

Distinguished  in  Avery  v.  Pima  Co.,  7  Ariz.  32,  60  Pac.  703,  denying 
sheriff  extra  compensation   for  care  of  United  States  prisoners. 

120  U.  S.  183-197,  30  L.  644,  PHOENIX  LIFE  INS.  CO.  v.  EADDEN. 

Syl.  1  (XI,  272).    Application  answers  construed  as  warranties. 

Approved  in  Aetna  Life  Ins.  Co.  v.  Rehlaender,  68  Neb.  292,  94  N. 
W.  132,  holding  representation  as  to  health  on  application  to  revive 
policy  must  be  proven  false  before  recovery  defeated ;  Guthrie  Nat.  Bank 
V.  Fidelity  etc.  Co.,  14  Okl.  641,  79  Pac.  103,  refusing  to  construe 
statements  to  indemnity  company  to  execute  bond  for  employee  as  war- 
ranties unless  different  construction  impossible;  Logan  v.  Assurance 
Society,  57  W.  Va.  389,  50  S.  E.  531,  holding  application  made  part  of 
policy,  applicant's  answers  to  questions  therein  representations. 

Distinguished  in  Supreme  Conclave  v.  Wood,  120  Ga.  336,  47  S.  E.  941, 
holding  any  material  variation  in  statements  covenanted  to  be  true, 
wherein  risk  changed,  avoids  the  policy. 

Syl.  2   (XI,  272).     Misrepresentations  avoid  policy. 

Approved  in  Atlas  Reduction  Co.  v.  New  Zealand  Ins.  Cn.,  138  Fed.  -199, 
holding  policy  terminated  by  executing  chattel  mortgage  without  insurer's 
consent ;  Hanrahan  v.  Metropolitan  Life  Ins.  Co.,  72  N.  J.  L.  508,  63  Atl. 
282,  holding  policy  avoided  where  answer,  though  incomplete,  false; 
Deming  Inv.  Co.  v.  Shawnee  Ins.  Co.,  16  Okl.  17,  83  Pac.  923,  holding 
application  made  part  of  insurance  contract,  statements  therein  are  war- 
ranties, and  breach  thereof  avoids  policy. 

Distinguished  in  Rupert  v.  Supreme  Court  U.  O.  F.,  94  Minn.  295, 
102  N.  W.  716,  holding  answers  not  shown  to  be  affirmatively  false  will 
not  prevent  recovery  on  policy. 

Syl.  4   (XI,  273.)      Exceptions  embodying  entire  charge  condemned. 

Approved  in  Newport  etc.  Ry.  etc.  Co.  v.  Yount,  136  Fed.  590,  69 
C.  C.  A.  363,  refusing  to  review  instructions  where  exceptions  fail  to 
contain  evidence  pertinent  to  issue,  although  evidence  elsewiicre  in 
record.  . 

Syl.  5    (XI,  273).     Accepting  premium  waives  broken  conditions. 
Approved  in  German-Ameiican  Ins.  Co.  v.  Yeagley,   163  Ind.  ijr)6j  71 
N.   E.   899,  holding   provision,   jxjlicy   void    if   proj)erty   encumbered   and 


120  U.  S.  198-249  Notes  on  U.  S.  Eeports.  1372 

waiver  thereof  not  indorsed  on  policy,  waived  by  issuing  policy  and  re- 
taining premium;  Gish  v.  Insurance  Co.  of  North  America,  16  Okl.  72, 
87  Pac.  873,  holding  question  of  waiver  one  of  fact  for  jury. 

120  U.  S.  198-206,  30  L.   649,  BOFFINGEE  v.   TURGIS. 

Syl.  1  (XI,  274).     Surety  discharged  by  abandonment  of  appeal. 
See  notes  in  100  Am.  St.  Rep.  418,  447. 

120  U.  S.  206-214,  30  L.  642,  MEYERS  v.  BLOCK. 

(XI,  274.)  Miscellaneous.  Cited  in  Swift  v.  Jones,  135  Fed.  439, 
holding  guarantor  discharged  where  employer  failed  to  obtain  bond 
for  employee  as  provided  for  in  contract  guaranteed. 

120  U.  S.  223,  224,  30  L.   623,  EVERHAET  v.  HUNTSVILLE   COL- 
LEGE. 

Syl.  1   (XI,  275).     Averring  residence,  not  averring  citizenship. 

Approved  in  Board  of  Trustees  of  Mohican  Tp.  v.  Johnson,  133  Fed. 
624,  66  C.  C.  A.  592,  dismissing  petition  alleging  that  plaintiff  "is  a 
nonresident  of  Ohio,  being  a  resident  of  Illinois. ' ' 

Distinguished  in  Steigleder  v.  MeQuesten,  198  U.  S.  143,  49  L.  9S8, 
25  Sup.  Ct.  616,  examining,  on  appeal,  evidence  bearing  on  citizenship, 
although  motion  to  dismiss  merely  averred  parties  residents  of  same 
state. 

120  U.  S.  225-227,  30  L.  623,  KING  BRIDGE  CO.  v.  OTOE  CO. 

Syl.  1  (XI,  275).     Circuit  court's  lack  of  jurisdiction  presumed. 

Approved  in  Thomas  v.  Board  of  Trustees,  195  U.  S.  211,  49  L.  164, 
25  Sup.  Ct.  24,  denying  allegation,  board  of  trustees  a  citizen  of,  dom- 
iciled in,  and  created  under  designated  laws  of  Ohio,  sufficient  to  impute 
to  member  thereof  citizenship  of  creating  state;  Minnesota  v.  Northern 
Securities  Co.,  194  U.  S.  63,  48  L.  877,  24  Sup.  Ct.  598,  examining  record 
and  declaring  circuit  court  without  jurisdiction,  although  both  sides 
treated  case  as  removal;  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  117, 
66  C.  C.  A.  179,  denying  jurisdiction  of  suit  by  assignee  unless  record 
affirmatively  shows  suit  maintainable  by  assignor. 

Syl.  3   (XI,  276).     Assignee  sues  where  assignor  could. 

Approved  in  Gorman  Wright  Co.  v.  Wright,  134  Fed.  365,  67  C.  C.  A. 
346,  dismissing  bill,  holder  of  assignee  filing  bill,  citizen  of  same  state 
as  assignor. 

120  U.  S.  241-249,  30  L.  624,  QUINCY  v.  STEEL. 

Syl.  1  (XI,  277).     Nonresident  stockholder's  bill  denied. 

Approved  in  Doctor  v.  Harring.ton,  196  U.  S.  5S8,  49  L.  610,  25  Sup. 
Ct.  355,  entertaining  biU  alleging  corporation  under  control  antagonistic 
and  detrimental  to  complaining  stockholders;  Kemmerer  v.  Haggerty, 
139  Fed.  696,  dismissing  bill  brought  by  nonresident  stockholders  after 


1373  Notes  on  U.  S.  Eeports.  120  U.  S.  256-318 

formal  refusal  of  corporation  to  bring  suit  in  federal  court;  Groel  v. 
United  Elec.  Co.,  132  Fed.  259,  261,  262,  remanding,  corporation  under 
control  of  antagonistic  officers  aligned  with  defendants  for  purpose  of 
determining   citizenship. 

120  U.  S.   256-260,  30  L.   639,   INDIANAPOLIS  EOLLING  MILL  v. 
ST.  LOUIS  ETC.  R.  R. 

Syl.  2   (XI,  277).     Ratitication  by  failing  to  repudiate. 

Distinguished  in  Lister  etc.  Works  v.  Selby,  68  N.  J.  Eq.  274,  59  Atl. 
249,  denying  president's  act  accepting  new  lease  and  releasing  option 
on  old,  binding  in  absence  of  notice  to  directors. 

120  U.  S.  274-287,  30  L.  658,  IN  RE  SNOW. 

Syl.  5  (XI,  279).     Continuous  offense  not  twice  punishable. 

Approved  in  Wilson  v.  Commonwealth,  119  Ky.  775,  82  S.  W.  429, 
holding  person  practicing  dentistry  without  license  subject  to  one  con- 
viction  for  entire   period   preceding  institution   of   prosecution. 

Distinguished  in  United  States  v.  Bradford,  148  Fed.  418,  holding 
prosec-ution  for  conspiracy  not  barred  as  to  any  overt  act  committed 
within  statutory  period,  although  barred  as  to  acts  commencing  con- 
s[)iracy. 

120  U.  S.  287-303,  30  L.  595,  MEMPHIS  ETC.  R.  R.  v.  DOW. 

Syl.   1    (XI,  280).     Subrogation  an  equitable  doctrine. 

Approved  in  The  Livingstone,  130  Fed.  749,  65  C.  C.  A.  610,  holding 
insurer  under  valued  policy  entitled  to  recover  from  insured  recovering 
from  resjionsible  vessel,  only  amount  paid  with  interest.  See  99  Am. 
St.  Rep.  478,  note. 

Syl.  2    (XI,  280).     Reorganization  bonds  valid  under  constitution. 

Approved  in  Weed  v.  Gainesville  R.  R.  Co.,  119  Ga.  596,  46  S.  E.  894, 
denying  defense  of  usury  as  against  bona  fide  purchaser  of  corporate 
bonds  without  notice.     See  111  Am.  St.  Rep.  327,  note. 

Syl.  3   (XI,  281).     Paying  mortgage  subrogated  to  prior  lien. 
See  99  Am.  St.  Rep.  512,  note. 

120  U.  S.  303-318,  30  L.  684,  FARLEY  v.  KITTSON. 

Syl.   1    (XI,  281).     Equity  plea  should  disclose    l.;ar. 

Approved  in  Thresher  v.  General  Elec.  Co.,  143  Fed.  340,  striking  out, 
in  suit  for  infringement,  plea  setting  up  defense  of  prior  iuvcution; 
Mutual  Life  Ins.  Co.  v.  Blair,  130  Fed.  973,  denying,  in  action  to  cancel 
policy,  i^lea  setting  up  insured's  death  subsequent  to  commencement  there- 
of, and  the  pendency  of  action  upon  policy;  Barber  v.  National  Carbon 
Co.,  129  Fed.  377,  64  C.  C.  A.  40,  holding  plea,  in  action  for  infringe- 
ment, construed  as  plea  for  license  only,  sufhcient. 


120  U.  S.  318-336  Notes  on  U.  S.  Eeports.  1374 

Syl.  2    (XI,  281).     Effect  of  replication  upon  plea. 

Approved  in  Ocala  etc.  Works  v.  Lester,  49  Fla.  369,  38  So.  62,  throw- 
ing, where  replication  filed,  burden  of  proof  upon  defendant  to  prove 
matters  contained  in  plea. 

Syl.  3  (XI,  282).     Bill  dismissed,  facts  pleaded  true. 

Distinguished  in  Schnauffer  v.  Aste,  148  Fed.  867,  overruling  plea  not 
fully  meeting  all  the  equities  of  the  bill;  Glucose  etc.  Co.  v.  Douglass  & 
Co.,  145  Fed.  951,  striking  out  plea  setting  up  a  single  defense  of  non- 
infringement. 

Syl.  4  (XI,  282).     Facts  admitted  by  arguing  plea. 

Approved  in  Raphael  v.  Trask,  194  U.  S.  276,  48  L.  978,  24  Sup.  Ct. 
647,  holding  allegations  in  plea  admitted  case  brought  on  for  considera- 
tion on  complaint  and  plea;  Siegman  v.  Electric  Veh.  Co.,  140  Fed.  121, 
holding  in  absence  of  replication  all  facts  well  pleaded  taken  for  true; 
General  Electric  Co.  v.  Bullock  El.  Mfg.  Co.,  138  Fed.  414,  holding 
complainant  setting  cause  admits  the  facts,  but  not  the  conclusions 
pleaded. 

120  U.  S.  318,  319,  30  L.  663,  PENSACOLA  ICE  CO.  v.  PERRY. 

Syl.  1  (XI,  283).     Verdict  must  conform  to  statute. 

Approved  in  Hoover  v.  King,  43  Or.  285,  99  Am.  St.  Rep.,  72  Pac. 
882,  65  L.  R.  A.  790,  denying  action  to  recover  possession  of  property 
barred  by  former  action,  no  showing  therein  made,  title  tried  and  deter- 
mined. 

120  U.  S.  327-336,  30  L.  664,  UNITED  STATES  v.  NORTHWAY. 

Syl.  3  (XI,  283).     Alleging  misapplication  of  funds,  sufficient. 

Approved  in  Lear  v.  United  States,  147  Fed.  357,  holding  willful  mis- 
application made  out,  if  officer  has  such  "control,  direction  ami  power 
of  management  as  to  direct  application";  United  States  v.  Martindale, 
146  Fed.  286,  holding  merely  drawing  draft  on  deposit  in  another  bank 
on  entering  credits  to  depositor  on  books  does  not  constitute  willful 
misapplication;  United  States  v.  Eastman,  132  Fed.  553,  possession 
of  funds  sufficiently  alleged  by  averment  that  he  was  president,  had 
access  to  bank's  funds  and  performed  duties  in  their  control,  manage- 
ment. 

Syl.  5  (XI,  284).     Indictment  charging  misapplication  of  funds. 

Approved  in  United  States  v.  Martindale,  146  Fed.  292,  holding  in- 
dictment must  show  how  misapplication  was  made  and  that  it  was 
imlawful;  United  States  v.  Green,  136  Fed.  643,  holding  indictment  for 
bribery,  alleging  the  tendering  of  certain  "obligation  for  payment  of 
money"  insufficient  where  contents  of  check  not  set  forth;  United  States 
V.  Eastman,  132  Fed.  552,  sustaining  indictment  charging  defemhmt 
with  willfully,  unlawfully,  fraudulently  and  without  bank's  consent 
converted  funds  to  own  use  and  to  use  of  others  than  bank;  United 


1375  Notes  on  U.  S.  Reports.  120  U.  S.  354-412 

States  V.  Howard,  132  Feci.  355,  holding  indictment  for  subornation  of 
perjury  must  contain  word  "•willful"  or  its  equivalent. 

120  U.  S.  354-363,  30  L.  653,  MERWETHER  v.  MUHLENBURG  CO. 
COURT. 

Syl.   2    (XI,   285).     Justices  of  peace  le\-ying  taxes. 

Approved  in  Gutlirie  v.  Sparks,  131  Fed.  446,  450,  65  C.  C.  A.  427, 
holding  duty  of  levying  taxes  to  pay  principal  and  interest  of  railway 
bonds,  being  ministerial,  rested  upon  county  judge. 

120  U.  S.  377-390,  30  L.  718,  SPIEDEL  v.  HEXRICI. 

Syl.  1   (XI,  286).     Trust  not  barred  by  lapse  of  time. 

Approved  in  Sternfels  v.  Watson,  139  Fed.  509,  holding  co-owners  not 
barred  from  instituting  proceeding  against  adverse  claimants  through 
unauthorized   conveyances   by   co-owner. 

Syl.  2  (XI,  2S6).     Express  trust  repudiated,  limitations  run. 

Approved  in  Patterson  v.  Hewitt,  195  U.  S.  321,  49  L.  219,  25  Sup. 
Ct.  35,  holding  trustee's  refusal  to  execute  deed  in  comjiliance  with 
agreement  known  to  complainants,  opens  door  to  defense  of  laches; 
Thorne  v.  Foley,  137  Mich.  651,  100  X.  W.  905,  holding  delay  of  forty-five 
years  barred  complainants  from  recovering  against  trustee  continuously 
disavowing  trust;  Patterson  v.  Hewitt,  11  X.  M.  23,  42,  66  Pac.  558,  564, 
55  L.  R.  A.  658,  refusing  after  period  of  eight  years  to  enforce  nonresi- 
dent 's  claim  for  valuable  ores  discovered  and  mined  after  claimant  had 
left  state;  Felkner  v.  Dooly,  28  Utah,  239,  78  Pac.  3G6,  holding  beneficiary 
barred  four  years  after  receiving  notice  that  trustee  claimed  owner- 
ship of  trust  funds. 

Syl.  4   (XI,  287).     Equity  aids  the  vigilant. 

Approved  in  Socrates  Quicksilver  Mines  v.  Carr  Real.  Co.,  130  Fed.  294, 
64  C.  C.  A.  539,  holding  bill  seeking  relief  against  fraud  filed  thirty 
years  after  beginning,  and  twenty-four  years  after  consummation  of 
fraud,  demurrable  on  grounds  of  laches;  Sawyer  v.  Cook,  188  Mass.  IGS, 
74  X".  E.  357,  denying  relief  as  against  persons,  holding  legal  title,  de- 
mand for  accounting  under  agreement  delayed  for  twenty-nine  years ;  Mc- 
Aden  v.  Palmer,  140  X^,  C.  261,  52  S.  E.  1034,  holding  defendant  under 
earlier  entry,  registered  twelve  years  after  grant  registered  by  plaintiff, 
barred  from  having  plaintiff  declared  trustee;  Holsberry  v.  Harris,  56 
W.  Ya.  332,  49  S.  E.  409,  denying  relief,  where  son,  placed  in  possession 
by  father,  made  improvements  upon  father's  alleged  promise  to  make 
him  owner,  delayed  for  twenty  years  to  enforce  rights. 

120  U.  S.  390-412,  30  L.  721,  ROLSTOX  v.  MISSOURI  FUXD  COMMRS. 

Svl.    2    (XI,    289).     Suit   against    officer    not   against    state. 

Approved  in  Graham  v.  Folsoin,  200  U.  S.  255,  50  L.  4C9,  26  Sup.  Ct. 
245,  holding  mandamus  to  compel  couiily  amlitors  and  treasurers  to  pay 
judgment  on  township  bonds  not  suit  against  stat(i. 


120  U.  S.  412-479  Notes  on  U.  S.  Reports.  1376 

Distinguished  in  Saunders  v.  Saxton,  182  N.  Y.  481,  482,  108  Am.  St. 
Rep.  826,  75  N.  E.  530,  holding  state  necessary  party  to  action  by  land 
owner  against  land  commissioner  and  state  controller  to  have  tax  deeds 
declared  void. 

120  U.  S.  412-430,  30  L.  712,  GRIER  v.  WILT. 

Syl.  1  (XI,  289).     Prior  patents  showing  state  of  art. 

Approved  in  Brookfield  v.  Elmer  Glass  Works,  144  Fed.  419,  holding 
evidence  of  number  of  patent  antedating  patent  in  suit,  admissible  to 
show  state  of  act  and  to  construe  claims  of  patent  in  suit. 

120  U.  S.  430-442,  30  L.  708,  HOPT  v.  UTAH. 

Syl.  7  (XI,  290).  Evidence  wrongfully  admitted  cured  by  with- 
drawal, 

A'pproved  in  Krause  v.  United  States,  147  Fed.  452,  prosecuting  at- 
torney's misconduct  securing  admission  of  incompetent  evidence  cured 
by  court's  instruction  to  disregard;  Johnson  v.  People,  33  Colo.  241,  80 
Pac.  138,  holding  possible  error  in  admission  of  evidence  subsequently 
shown  to  be  hearsay  cured  by  instructions  to  disregard. 

(XT.  291.)  Miscellaneous.  Cited  in  dissenting  opinion  in  Kepner  v. 
United  States,  195  U.  S.  135,  49  L.  126,  24  Sup.  Ct.  797,  majority  dis- 
charging prisoner  where  judgment  of  acquittal  for  embezzlement  reversed 
by  Philippine  supreme  court,  and  accused  found  guilty. 

120  U.  S.  450-464,  30  L.  743,  ROSENBAUM  v.  BAUER. 

Syl.  2  (XI,  291).  Federal  mandamus  aids  existing  jurisdiction. 
•Approved  in  Large  v.  Consolidated  Nat.  Bank,  137  Fed.  168,  denying 
mandamus  to  compel  national  banking  association  to  allow  stockholder  to 
inspect  list  of  stockholders ;  Mystic  Milling  Co.  v.  Chicago  etc.  Ry.  Co.,  132 
Fed.  292,  denying  jurisdiction,  although  Iowa  statute  permits  recovery 
of  damages  in  action  of  mandamus;  Wiemer  v.  Louisville  Water  Co.,  130 
Fed.  250,  256,  sustaining  court's  equitable  power  to  restrain  water 
company  from  refusing  to  supply  water  to  all  upon  same  terms,  where 
refusal  clearly  an  unlawful  discrimination;  Western  Union  Tel.  Co.  v. 
State,  165  Ind.  496,  76  N.  E.  102,  denying  court  erred  refusing  to  re- 
move application  for  mandamus  to  compel  telegraph  company  to  sell 
and  deliver  to   relators  continuous  market   quotations. 

120  U.  S.  464-479,  30  L.  748,  IIERRON  v.  DATER. 

Syl.  4    (XI,  292).     Recitals  in  prior  land  patents. 

Approved  in  Davis  v.  Moyles,  76  Vt.  33,  35,  56  Atl.  176,  177,  recitals 
in  petition  to  legislature  for  grant  of  lands  that  land  confiscated  from 
petitioner's  father,  and  private  act  granting  lauds  and  containing  same 
recital,  not   evidence  of  contiseatiou  in  tres^^ass. 


1377  Notes  on  U.  S.  Reports.  120  U.  S.  489-5C2 

120   U.   S.   489-502,   30   L.   694,   ROBP.IXS   v.   SHELBY  CO.  TAXING 
DIST. 

Syl.  2   (XI,  295).     Congress  silent  commerce  unrestricted. 

Approved  in  People  v.  Reardon,  184  N.  Y.  452,  112  Am.  St.  Rep.  641, 

77  N.  E.  977,  sustaining  act  imposing  tax  on  transfers  of  stock  in 
domestic  and  foreign  corporations,  not  a  regulation  of  commerce; 
Greek-American  Sponge  Co.  v.  Richardson  etc.  Co.,  124  Wis.  475,  102  X. 
W.  890,  allowing  foreign  corporation  to  recover  against  domestic  cor- 
poration without  complying  with  statutory  provisions;  dissenting  opinion 
in  Northern  Securities  Co.  v.  United  States,  193  U.  S.  371.  48  L.  714.  24 
Sup.  Ct.  436,  majority  holding  combination  to  acquire  controlling  interest 
in  competing  interstate  railway  companies  violates  anti-trust  act  of  1890. 

Distinguished  in  People  v.  Chicago  etc.  Ry.  Co.,  223  111.  594,  79  N.  E. 
148,  upholding  state  statute  requiring  all  railroads  operated  within  statu 
to   report    to    state    railroad   commission. 

Syl.  3  (XI.  295).     State  laws  afl'ecting  commerce. 

Approved  in  ^letropolitan  Life  Ins.  Co.  v.  Board  of  Assessors,  115  La. 
706,  39  So.  849,  holding  act  announcing  state's  policy  regarding  taxation 
of  notes  and  credits  as  applicable  to  foreign  corporations,  a  Icgitmate 
exercise  of  h-gi-^lative  power:  Commonwealth  v.  Strauss,  191  Mass.  554, 

78  X.  E.  139.  sustaining  act  prohibiting  the  sale  of  goods  on  condition 
purcliaser  shall  not  patronize  any  other  firm. 

Syl.  4    I  XL  29G).     State  cannot  tax  interstate  commerce. 

Distinpui^lied  in  American  Steel  etc.  Co.  v.  Speed,  110  Tenn.  54G.  100 
Am.  St.  Rep.  814.  75  S.  W.  1042.  sustaining  lax,  goods  -liipi)eil  into 
state  in  large  quantities  and  held  there  awaiting  sales  within  state. 

Syl.  5    (Xr.  297).     Interstate  commerce  includes  sales  negotiation. 

Approved  in  Kirven  v.  Virginia  etc.  Co.,  145  Fed.  293,  holding  foreign 
coriioration  shi]iping  goods  in  state  on  order  secured  by  local  agent  not 
barred  from  recovering  therefor  by  noncompliance  with  state  statute; 
Globe  Elevator  Co.  v.  Andrew,  144  Fed.  882.  declaring  state  statute  jn-o- 
viding  for  inspection,  grading  and  weighing  of  grain  as  applicable  to 
interstate   shipments   unconstitutional. 

Syl.  6    (XL  298).     State  cannot  tax  iKUiresident  drummers. 

Approved  in  Myers  v.  Lnited  States,  140  Fed.  651.  Canadian  license 
fee  for  cutting  wood  manufactured  into  ])ulp  in  effect  an  iniiwisilioii  of 
an  e\i)ort  duty  on  pulp  wood  exported  to  rnit(>d  .states;  Lx  jiarte  Deeds, 
75  Ark.  545.  87  S.  W.  1031,  declaring  act  making  it  a  misdemeanor  for 
any  person  except  resident  merchants  to  jieddle  witliout  a  license,  uncon- 
stitutional, on  grounds  of  discrimination;  In  re  l\inyon.  9  Idaho,  646,  75 
Pac,  269,  declaring  act  imposing  tax  on  solicitors  unconstitutional  so  far 
as  affecting  authorized  solicitors  of  nonresident  merchants.  J'eojjie  v. 
Reardon.  184  X.  V.  456,  112  Am.  St.  IJep.  615.  77  X.  E.  978,  sustaining 
act  impositig  tax  on  transfers  of  stock  in  domestic  and  foreign  corpora- 
87 

-^ 


120  U.  S.  50G-517  Xotes  on  U.  S.  Eeports.  1378 

tions;  Wrought  Iron  Eange  Co.  v.  Campen,  135  N.  C.  512,  519,  526, 
47  S.  E.  660,  663,  665,  declaring  act  imposing  license  on  every  person 
peddling  stoves  void  as  to  sales  by  ^mple,  goods  shipped  into  state  and 
delivered  in  original  packages;  Baxter  v.  Thomas,  4  Okl.  610,  612,  46 
Pac.  481,  declaring  city  ordinance  imposing  occupation  tax  upon  all 
persons  selling  or  offering  for  sale  goods  unconstitutional  as  to  solicitor 
of  nonresident  firm;  Bacon  v.  Locke,  42  Wash.  217,  83  Pac.  722,  declar- 
ing act  unconstitutional  providing  that  every  person  who,  after  shipment 
to  state,  sells  by  sample  certain  articles  shall  pay  license  fee.  See  112 
Am.  St.  Eep.  650,  note. 

Distinguished  in  Hart  v.  State,  87  Miss.  179,  39  So.  525,  sustaining 
conviction,  under  prohibition  act  of  Louisiana,  liquor  merchant  taking 
orders  in  Mississippi,  collecting  purchase  price  and  subsequently  de- 
livering goods  by  express;  Oilure  Mfg.  Co.  v.  Pidduck-Eoss  Co.,  38 
Wash.  142,  143,  80  Pac.  277,  278,  sustaining  act  requiring  every  person 
selling  goods  by  trading  stamps  to  pay  license  fee. 

Syl.  7   (XI,  300).     Interstate  commerce — Mingling  goods. 

Approved  in  Wrought  Iron  Eange  Co.  v.  Campen,  135  N.  C.  527,  531, 
47  S.  E.  665,  667,  holding  goods  brought  into  state  and  incorporated  with 
general  property  thereof  fit  subject  of  state  taxation. 

(XI,  301.)  Miscellaneous.  Cited  in  Central  E.  E.  Co.  v.  Elizabeth,  70 
N.  J.  L.  581,  57  Atl.  406,  on  question  of  prosecutor's  right  to  Litigate 
the  validity  of  an  ordinance. 

120  U.  S.  506-510,  30  L.  707,  SCHULEE  v.  ISEAEL. 

Syl.  2  (XI,  301).     Garnishee's  defenses  same  as  against  debtor. 

Approved  in  Field  v.  Sammis,  12  N.  M.  47,  73  Pac.  620,  following  rule; 
Frees  v.  Shields  Const.  Co.,  145  Fed.  1020,  staying  federal  court  proceed- 
ings to  offset  deposit  against  note  until  receiver 's  action  on  note  in  state 
court  is  settled;  Harrison  v.  Eemington  Paper  Co.,  140  Fed.  394,  holding 
in  action  upon  stockholders'  statutory  liability  corporation's  notes, 
though  merged  in  judgment,  still  competent  evidence  of  debt  repre- 
sented; Stern  etc.  Co.  V.  Wing,  135  Mich.  332,  97  N.  W.  792,  declaring 
order  granting  claimant  leave  to  intervene  immaterial  where  garnishee 
defendant  pleaded  same  defense  urged  by  claimint,  and  cause  deter- 
mined upon  undisputed  facts;  Frank  v.  Mercantile  Nat.  Bank,  182  N. 
Y.  268,  108  Am.  St.  Eep.  805,  74  N.  E.  842,  holding  debtor  may  set  off 
claims  acquired  after  bankrupt's  insolvency,  but  before  assumption  of 
liability  upon  which  sued.     See  111  Am.  St.  Eep.  422,  note. 

120  U.  S.  511-517,  30  L.  704,  LACLEDE  BANK  v.  SCHULEE. 

Syl.   2    (XI,  302).     Assignment,  notice  of,  gives  priority. 

Approved  in  Johnston  v.  Huff,  133  Fed.  706,  66  C.  C.  A.  534,  secret 
assignment  not  presented  till  one  day  before  bankruptcy  is  preference. 

Distinguished  in  Third  Nat.  Bank  v.  Atlantic  City,  130  Fed.  753,  65  C. 
C.  A.  177,  holding  public  contractor's  warrant  accepted  by  comptroller  and 


l'^"9  Notes  on  U.  S.  Eeports.  120  U.  S.  517-555 

delivered  to  bank   for  advancements  operated  as  transfer  of  legal  title 
without  further  notice. 

120  U.  S.  517-526,  30  L.  701,  CARTER  CO.  v.  SINTON. 

Syl.  1   (XI,  303).     Subject  of  act  in  title. 

Approved  in  Blair  v.  Chicago,  201  U.  S.  452,  50  L.  823,  26  Sup.  Ct. 
427,  holding  Illinois  requirement  satisfied  if  incongruous  legislation  ex- 
cluded, and  matters  included  by  fair  intendment  have  proper  or  necessary 
connection  with  title. 

Syl.  3   (XI,  303).     New  counties  paying  debts  of  old. 

Approved  in  Desha  Co.  v.  Chicot  Co.,  73  Ark.  395,  396,  84  S.  W.  628, 
629,  sustaining  act  apportioning  indebtedness  between  old  county  and 
part  detached  and  authorizing  collection  of  just  proportion  of  expenses 
compromising    claim. 

120  U.  S.  527-534,  30  L.  740,  ACCIDENT  INS.  CO.  v.  CRANDAL. 

Syl.  1    (XI,  303).     Defendant  introducing  evidence  waives  error. 

Approved  in  United  States  etc.  Co.  v.  Board  of  Commrs.,  145  Fed. 
150,  holding  demurrer  to  plaintiff's  case  waived  by  subsequent  intro- 
duction of  evidence  to  merits;  Burton  v.  United  States,  142  Fed. 
60,  holding  right  to  insist  that  verdict  should  rest  solely  upon  prose- 
-jution's  evidence  waived  by  production  of  evidence;  Carle  v.  Oklahoma 
Woolen  Mills,  16  Okl.  522,  86  Pac.  68,  holding  party  proceeding  with 
cause  waives  exception  to  court's  ruling. 

Syl.  2   (XI,  304).     Self-destruction  excludes  suicide  M'hile  insane. 

Approved  in  Jaruagin  v.  Travelers'  Pro.  Assn.,  132  Fed.  895,  66 
C.  C.  A.  622,  68  L.  R.  A.  499,  holding  death  while  in  custody,  through 
negligence  of  officers,  within  policy  exceptions,  of  death  by  ' '  inten- 
tional injuries  inflicted  by  another." 

Distinguished  in  Whitfield  v.  Aetna  Life  Ins.  Co.,  144  Fed.  359, 
permitting  insurer  to  limit  policy  to  one-tenth  its  value  in  case  of 
death  by  suicide. 

120  U.  S.  534-555,  30  L.  759,  FLETCHER  v.  FULLER. 

Syl.   1    (XI,  305).     Grant  presumed   from   possession   and   use. 

Approved  in  Penny  v.  Central  Coal  &  Coke  Co.,  138  Fed.  772,  pre- 
suming in  absence  of  deed  from  thirty  years'  uninterrupted  possession 
of  laud  that  entry  was  under  purchase. 

Syl.  2    (XI,  306).     Payment  of  taxes  evidences  ownersliip. 

Approved  in  McCaughn  v.  Young,  85  Miss.  293,  37  So.  842,  holding 
person  under  deed,  paying  taxes  and  using  lands  fo  same  extent  as 
other  lands  owned  by  him,  cutting  timber  therefrom  and  recording  mort- 
gages thereon,  possessed  same  adversely. 


120  U.  S.  556-586  Notes  on  U.  S.  Eeports.  1380 

120  U.  S.  556-569,  30  L.  754,  PEOPLE  'S  SAVINGS  BANK  v.  BATES. 

Syl.  2   (XI,  307).     Cliattel  mortgage  proof  against  general  creditor. 

Approved  in  Chandler  v.  Coleord,  1  Okl.  276,  32  Pac.  335,  holding 
that  creditor  must  obtain  judgment  and  levy  valid  execution  before 
attacking  chattel  mortgage  of  debtor;  dissenting  opinion  in  Blackman 
V.  Baxter,  125  Iowa,  130,  100  N.  W.  79,  70  L.  E.  A.  250,  majority 
holding  an  administrator  may  claim  unrecorded  chattel  mortgage  of 
decedent  void  as  against  existing  creditors. 

Syl.  4   (XI,  307).     Pre-existing  debt  poor  mortgage  consideration. 

Approved  in  Dngan  v.  Beckett,  129  Fed.  58,  63  C.  C.  A.  498,  holding 
mortgage  authorizing  mortgagor  to  remain  in  possession  and  providing 
for  an  accounting  each  day  to  mortgagee  not  fraudulent  on  face; 
Board  of  Trustees  v.  Fry,  192  Mo.  563,  91  S.  W.  475,  denying  purchaser 
of  deed  of  trust,  executed  after  erroneous  decree  denying  foreclosure, 
to  secure  existing  debt,  protection  against  mortgage  upon  reversal  of 
decree;  Empire  State  etc.  Co.  v.  Trustees  of  W.  F.  Fisher  &  Co.,  67  N.  J. 
Eq.  605,  60  Atl.  941,  declaring  mortgage  to  secure  antecedent  debt 
not  given  for  value  within  bankruptcy  act  or  state  corporation  act. 

Distinguished  in  In  re  Marin  etc.  Co.,  144  Fed.  651,  denying  under 
New  York  decisions,  mortgage  covering  after-acquired  property  valid 
as  to  houseboat  built  chiefly  with  labor  and  materials  furnished  after 
mortgage  given. 

Syl.  5   (XI,  307).     Bill  and  notes  before  maturity  negotiable. 

Approved  in  Herrick  v.  Edwards,  106  Mo.  App.  637,  81  S.  W.  467, 
holding  negotiability  of  note  destroyed  by  memorandum  upon  back, 
' '  Note  not  transferable  or  to  be  used  as  collateral  without  written 
consent  of  principal  and  indorsers. ' ' 

120  U.  S.  569-575,  30  L.  732,  CHICAGO  ETC.  E.  E.  v.  GUFFEY. 

Syl.  2    (XI,  308).     Taxation  exemption  must  be  clear. 

Approved  in  Lake  Drummond  Canal  Co.  v.  Commonwealth,  103  Va. 
345,  49  S.  E.  508,  holding  foreclosBre  sale  of  corporate  property  and 
francise  did  not  pass  to  purchaser  corporation's  immunity  from  taxa- 
1  ion. 

120  U.  S.  575-586,  30  L.  789,  SCHLEY  v.  PULLMAN  CAE  CO. 
Syl.   1    (XI,  309).     Husband  joining  in   wife's   deed. 
See  notes,  97  Am.  St.  Eep.  585,  586,  587. 

Syl.  2  (XI,  309).  "Personally  came  and  known,"  implies  acquaint- 
ance. 

Approved  in  Garton  v.  Hudson-Kimberly  Pub.  Co.,  8  Okl.  638,  58 
Pac.    948,    omission    of    "their"    in    acknowledgment    provision,    "and 

each  for  themselves  acknowledge  execution  thereof  to  be  free  and 

voluntary  act,"  does  not  render  acknowledgment  void.  See  108  Am. 
St.  Eep.  570,  note. 


1381  Notes  ou  U.  S.  Reports.  120  U.  S.  586-630 

120  U.  S.  586-595,  30  L.   734,  GILMER  v.  STONE. 

Syl.   1    (XI,  309).     Extrinsic  evidence  to  explain  ambiguities. 

Approved  in  Cook  v.  Universalist  Gen.  Convention,  138  Alich.  160, 
101  N.  W.  218,  admitting  evidence  where  bequest  to  "Universalist 
Japan  Mission  Fund"  to  show  testatrix  a  Universalist  in  faith;  Dar- 
nell V.  LaflFerty,  113  Mo.  App.  303,  88  S.  W.  791,  admitting  parol  evi- 
dence to  show  what  heifers  and  cows  were  referred  to  by  statement 
"ten  head  of   cows  and   heifers." 

120  U.  S.  600-605,  30  L.  798,  EAST  ST.  LOUIS  v.  AMY. 

Syl.  1   (XI,  310).     Illinois  permits  municipal  bond  taxation. 

Approved  in  People  v.  Peoria  etc.  Ry.  Co.,  216  111.  227,  74  N.  E. 
736,  holding  school  directors'  duty  when  bonds  issued  and  indebtedness 
incurred  to  provide  annual  tax  to  pay  interest  and  principal;  Pettibone 
V.  West  Chic.  Park  Commrs.,  215  111.  317,  324,  326,  74  N.  E.  392,  394, 
holding  constitutional  provision  self-executing  act  not  repugnant  be- 
cause amount  raised  thereby  insufficient  to  pay  interest  and  principal  of 
bonds;  Evans  v.  McFarland,  186  Mo.  727,  85  S.  W.  880,  holding  indebt- 
edness voted,  constitutional  provision  providing  for  tax  to  pay  same, 
self -enforcing. 

Syl.  2   (XI,  310).     Mandamus  compelling  city  to  levy  tax. 

Approved  in  McKie  v.  Rose,  140  Fed.  148,  denying  wrongful  expend- 
iture of  proceeds  of  bond  sale  to  pay  judgment  a  defense  to  petition 
for   mandamus   to  compel  tax  levy   to  pay   judgment. 

Syl.  3    (XI,  310).     Mandamus  compelling  single  tax  levy. 
Approved  in   State  v.   Walker,   193   Mo.   712,  92   S.   W.  74,  awarding 
mandamus    to    compel    school    board    to    execute    refunding    bonds    to 
liquidate  former  bonds,  where  no  tax  provided  for  their  liquidation. 

120  U.  S.  605-630,  30  L.  801,  GONZALES  v.  ROSS, 

Syl.  2   (XI,  311).     Regularity  of  official's  acts  presumed. 

Approved   in    Griffin    v.    American    Gold    Min.    Co.,    136    Fed.    73,    68 

C.   C.   A.   637,   presuming   in   support   of   levy   that   marshal   performed 

the  proper  acts  in  levying  attachment. 

Syl.    3    (XI,   311).     Mexican   laws   relating   to   public   grants. 

Approved  in  Surghenor  v.  Ranger,  133  Fed.  461,  holding  final  pur- 
chaser having  grant  surveyed  and  possession  issue  to  him  by  couimis- 
sioner  took  both  legal  and   equitable   title. 

(XI,  311.)  Miscellaneous.  Cited  in  Barnes  v.  Newton,  5  Okl.  448, 
49  Pac.  1077,  holding  favorable  decision  of  Land  Department  not 
entitling  one  out  of  possession  to  maintain  injunction  suit  to  recovei 
possession  of  land. 


120  U.  S.  G30-707  Notes  on  U.  S.  Ecports.  1382 

120  U.  S.  630-648,  30  L.  810,  DUSHANE  v.  BENEDICT. 

Syl.  3   (XI,  311).     Sale  for  particular  purpose — Warranty. 

Approved  in  Bunch  v.  Weil,  72  Ark.  347,  80  S.  W.  583,  65  L.  E.  A. 
80,  reaffirming  rule;  Davis  etc.  Co.  v.  Mallory,  137  Fed.  335,  69  L.  R.  A. 
973,  69  C.  C.  A.  662,  denying  implied  warranty  from  contract  to  supply 
described  and  definite  article,  although  vendor  knew  article  purchased 
for  particular  purpose;  Kctchum  v.  Stetson  etc.  Mill  Co.,  33  Wash.  97, 
73  Pac.  1128,  holding  purchaser  inspecting  logs  before  running  through 
mill  cannot  recover  damages  to  mill  on  account  of  iron  imbedded  in 
logs. 

Syl.  7    (XI,  312).     Purchaser  may  set  off  warranty  claim. 

Approved  in  Anglo-American  etc.  Co.  v.  Lombard,  132  Fed.  732,  68 
C.  C.  A.  89,  denying  stockholder's  right  in  federal  court  to  offset  in- 
debtedness from  corporation  to  him  in  action  to  enforce  statutory  lia- 
bility. 

(XI,  312.)  Miscellaneous.  Cited  in  Kimber  v.  Young,  137  Fed. 
747,  70  C.  C.  A.  178,  holding  cause  of  action  for  breach  of  warranty 
may  be  joined  with  that  for  deceit  growing  out  of  same  transaction. 

120  U.  S.  649-678,  30  L.  830,  PORTER  v.  PITTSBURG  ETC.  STEEL 
CO. 

Syl.  3    (XI,  313).     Majority  owner  not  dominating  directors. 

Approved  in  Virginia  etc.  Co.  v.  Fisher,  104  Va.  132,  51  S.  E.  202, 
holding  stockholder  must  demand  directors  to  institute  proceedings 
unless  refusal  to  do  so  reasonably  certain. 

120  U.  S.  678-707,  30  L.  766,  BALDWIN  v.  FRANKS. 

Syl.   1    (XI,  314).     Separable  constitutional  parts  of  statute  uphold. 

Approved  in  United  States  v.  Ju  Toy,  198  U.  S.  263,  49  L.  1044, 
25  Sup.  Ct.  644,  holding  exception  of  a  class  constitutionally  exempt 
cannot  be  read  into  general  words  of  act  to  save  what  remains;  Brooks 
V.  Southern  Pac.  Co.,  148  Fed.  993,  995,  declaring  federal  employer's 
liability  act  void,  act  applicable  to  all  commerce  and  not  confined  to 
that  subject  to  federal  control;  United  States  v.  Scott,  148  Fed.  435, 
436,  declaring  statute  making  it  a  criminal  offense  for  interstate  car- 
riers to  discriminate  against  employees  joining  labor  unions  void  if 
statute  unlimited;  Cella  Com.  Co.  v.  Bohlinger,  147  Fed.  423,  holding 
act  permitting  service  upon  state  auditor  void,  being  applicable  to 
foreign  corporations  doing  business  without  state;  In  re  The  Copper 
King,  143  Fed.  650,  refusing  to  limit  California  Insolvency  Act  making 
costs  incurred  in  attachment  proceedings  a  preferred  claim  to  case"  in 
which  taxable  costs  provable  under  bankruptcy  act. 

(XI,  315.)  Miscellaneous.  Cited  in  Smiley  v.  Kansas,  196  U.  S. 
455,   49   L.   550,   25   Sup.   Ct.   289,   holding   federal   supreme   court   pre- 


13S3  Notes  on  U.  S.  Keports.  120  U.  S.  707-759 

eluded  from  determining  on  writ  of  error  -whether  statute  construed 
by  state's  highest   court  violates   federal  constitution. 

120  U.  S.  707-737,  30  L.  776,  VITERBA  v.  FRIEDLANDER. 

Syl.  7   (XI,  316).     Louisiana  Code  construed  by  text. 

Approved  in  Morton  Trust  Co.  v.  American  Salt  Co.,  149  Fed.  542, 
holding  code  makes  "unmovablcs  by  destination"  all  movables  per- 
manently attached  by  owner  to  realty  and  all  placed  thereon  for  ser- 
vice and  exploitation. 

(XI,  318.)  Miscellaneous.  Cited  in  Chesapeake  etc.  Ry.  Co.  v.  Deep- 
water  Ry.  Co.,  57  W.  Va.  674,  50  S.  E.  904,  to  point  that  in  construc- 
tion of  a  statute  all  acts  in  pjari  materia  repealed  or  unrepealed  are  to 
be  considered. 

120  U.  S.   737-747,  30  L.  818,  EX  PARTE  PARKER. 

Syl.  1    (XI,  316).     Supreme  court  mandamusing  lower  court. 

Approved  in  Ex  parte  Merritt,  142  Ala.  117,  38  So.  183,  refusing 
to  mandamus  judge  of  lower  court  to  vacate  decree  dismissing  bill  for 
want  of  equity. 

120  U.  S.  747-759,  30  L.  825,  FOURTH  NAT.  BANK  v.  FRANCKLYN. 

Syl.  2   (XI,  317).     Statutory  remedy  creating  right  exclusive. 

Approved  in  Abbott  v.  Goodall,  100  Me.  235,  60  Atl.  1032,  denying 
equitable  suit  maintainable  against  Maine  stockholders  alone,  statute 
contemplating  pro  rata  contribution  by  all  stockholders;  Legg  v.  Dewing, 
27  R.  I.  126,  60  Atl.  1066,  holding  under  general  laws  action  to  en- 
force stockholder's  liability  maintainable  only  by  judgment  creditor 
of  corporation;  Ross  v.  Kansas  City  etc.  Ry.  Co.,  34  Tex,  Civ.  587,  79 
S.  W.  627,  holding  where  statutory  liability  is  sought  to  be  enforced 
suit  must  be  brought  within  statutory  time  determined  by  law  of  place 
where  action  arose. 

Distinguished  in  Walker  v.  Globe  etc.  Co.,  140  Fed.  310,  holding 
copyright  proprietor's  right  to  maintain  general  action  for  damage 
not  limited  by  statutes  provided  for  forfeiture  of  infringing  copies  and 
injunction  suits  to  restrain  future  infringements;   Harrigan  v.  Gilchrist, 

121  Wis.  268,  99  N.  W.  948,  holding  statute  only  regulates  and  aids 
court  to  administer  property  of  insolvent  corporation  for  benefit  of 
creditors. 

Syl.  4  (XI,  318).     State  laws  govern  stockholder's  liability. 

Approved  in  Middlctown  Nat.  Bank  v.  Toledo  etc.  Ry.  Co.,  197  U.  S. 
405,  49  L.  810,  25  Sup.  Ct.  462,  denying  stockholder's  liability  in  Ohio 
corporation  enforceable  outside  of  jurisdiction  of  state;  Miller  v. 
Smith,  26  R.  I.  153,  58  Atl.  636,  66  L.  R.  A.  473,  denying  equitablS 
suit  by  creditors  to  enforce  stockholder's  double  liability  where  all 
creditors  and  stockholders  are  not  parties. 


120  U.  S.  759-784  Notes  on  U.  S.  Eeports.  1384 

Syl.  7  (XI,  318).  Remedies  enforcing  stockholder's  liability  change- 
able. 

Approved  in  Miners'  etc.  Bank  v.  Snyder,  100  Md.  65,  108  Am.  St. 
Rep.  390,  68  L.  R.  A.  312,  59  Atl.  708,  holding  contractual  rights  not 
impaired  by  taking  creditor's  pre-existing  remedy  against  individual 
stockholder,  and  substituting  equitable  bill  against  all  stockholders. 

Distinguished  in  Harrison  v.  Remington  Paper  Co.,  140  Fed.  390, 
declaring  act  substituting  for  individual  action  by  creditors  against 
stockholders  receiver's  suit  in  equity,  pro-rating  stockholder's  contribu- 
tions among  all  creditor's  void. 

120  U.  S.  759-765,  30  L.  786,  BOLLES  v.  BRIMFIELD. 

Syl.  1    (XI,  319).     Federal  follows  state  court's  construction. 

Approved  in  Kibbe  v.  Stevenson  etc.  Co.,  136  Fed.  149,  69  C.  C.  A. 
145,  following  state  court  decision  and  holding  fellow-servant  law  ap- 
plicable to  strictly  mining  corporation  running  short  line  of  railroad 
to  mine  ore. 

Distinguished  in  Board  of  Commrs.  v.  Tollman,  145  Fed.  763,  holding 
federal  court's  construction  of  state  constitutional  provision  alleged 
violated,  unaffected  by  state  supreme  court's  decisions  delivered  after 
issuance  of  railroad  aid  bonds. 

Syl.   2    (XI,   319).     Ratification  of  municipality's   unauthorized   acts. 
Approved  in  Potter  v.  Lainhart,  44   Fla.   668,   33   So.   258,   applying 
rule  to  county  bonds. 

120  U.  S.  782-784,  30  L.  824,  EX  PARTE  HARDING. 

Syl.   1    (XI,   321).     Alien   as   grand  juror. 

Approved  in  In  re  Moran,  144  Fed.  605,  refusing  to  discharge  pris- 
oner, although  grand  jury  selected  in  way  unauthorized  by  statute; 
Cuyler  v.  Atlantic  etc.  R.  Co.,  131  Fed.  99,  discharging  publisher  im- 
prisoned for  contempt  where  court's  judgment  void  for  excess  of  juris- 
diction. 


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